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State ex rel. S.T.

Court of Appeal of Louisiana, Fourth Circuit

January 28, 2015

STATE OF LOUISIANA IN THE INTEREST OF S.T. CONSOLIDATED WITH: STATE OF LOUISIANA IN THE INTEREST OF S.T

APPEAL FROM JUVENILE COURT ORLEANS PARISH. NO. 2013-324-02-NA-D, SECTION " D" . Honorable Lawrence L. Lagarde, Jr., Judge.

Marilyn Noble Arnold, Mental Health Advocacy Service, New Orleans, LA; Richard Lynn Ducote, Pittsburgh, PA, COUNSEL FOR APPELLANT.

Robert Craig Stern, KILLEEN & STERN, PC, New Orleans, LA; Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE.

Court composed of Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Joy Cossich Lobrano.

OPINION

Joy Cossich Lobrano, Judge

Page 945

[2014-0731 La.App. 4 Cir. 1] This is an appeal of the April 10, 2014 judgment of the Orleans Parish Juvenile Court, adjudicating the minor child, S.T.,[1] as an emotionally abused child in need of care. S.T.'s mother, Y.L., and S.T.'s court-appointed counsel appeal the judgment, and argue that this Court should vacate the adjudication, render judgment adjudicating S.T. as a sexually abused child in need of care and remand this matter to the Juvenile Court for a disposition based on that adjudication. Y.L. and S.T., through her court-appointed counsel, also appeal the trial court's denials of their motions for new trial. S.T.'s father, J.T., and the State of Louisiana, through the Orleans Parish District Attorney, did not appeal, and argue that this Court should affirm the Juvenile Court's adjudication that S.T. is an emotionally abused child in need of care.

On November 19, 2013, the State of Louisiana, through the Orleans Parish District Attorney, filed a Child in Need of Care petition in Juvenile Court [2014-0731 La.App. 4 Cir. 2] requesting that S.T. be adjudicated as an abused and neglected child in need of care based on allegations that S.T.'s father " touches and holds her in a way that makes her feel very uncomfortable." The petition alleged that an investigation revealed that S.T., who was seven years of age at the time the petition was filed, stated that her father holds her buttocks and genital area in the palm of his hand with his fingers touching her vaginal area.[2]

Page 946

The State's petition alleged that the father's actions rise to the level of sexual battery as defined by La. R.S. 14:43.1. The petition further alleged that the father's actions have continued despite the fact that he has been informed that his behavior is inappropriate and makes S.T. uncomfortable. Another allegation in the petition is that the father violated S.T.'s therapy sessions by placing a recording device in the child's backpack, which device was discovered by the child's therapist.

After an adjudication hearing, the trial court found, by a preponderance of the evidence, that S.T. is an emotionally abused child in need of care. Pursuant to that finding, the trial court issued a disposition judgment, which placed S.T. in the custody of her mother, subject to supervision of the Department of Children and Family Services (" DCFS" ). The disposition judgment also sets forth a visitation schedule for S.T. and her father, subject to certain enumerated terms and conditions. The trial court also ordered that both S.T.'s mother and father participate in certain evaluations, treatments, services and programs. The court stated that the purpose of the parents' participation in the treatment plan is to [2014-0731 La.App. 4 Cir. 3] achieve reunification at the earliest possible time, by demonstrating to the trial court that the behavior leading to the adjudication that S.T. is an emotionally abused child in need of care has been eliminated or significantly reduced, such that S.T. is no longer at risk. The disposition judgment also ordered DCFS to supervise S.T. and perform certain enumerated tasks to ensure that S.T.'s best interests, welfare, health and safety are protected. The trial court also denied the motions for new trial filed by S.T.'s mother and her court-appointed counsel.

On appeal, S.T.'s mother and court-appointed counsel raise three assignments of error:

1) The trial court improperly took judicial notice of his observations of two women holding children in a public setting to arrive at his conclusion that the manner in which S.T.'s father held her was not sexual abuse;
2) The trial court abused his discretion in denying the motions for new trial filed by S.T.'s mother and court-appointed counsel; and
3) The trial court abused his discretion and erred as a matter of law in not adjudicating S.T. as a sexually abused child in need of care.

In State in the Interest of D.S., 04-0327 (La.App. 4 Cir. 7/28/04), 881 So.2d 764, a case involving Child in Need of Care proceedings, this Court set forth the standard of review for Juvenile Court adjudications as follows:

The trial judge is vested with great discretion and such a decision will not be reversed on appeal absent a showing of abuse of that discretion. State of Louisiana in the Interest of M.L., 611 So.2d 658, 660 (La.App. 4 Cir.1992). It is well settled that an appellate court cannot set aside a juvenile court's findings of fact in the absence of manifest error or unless those findings are clearly [2014-0731 La.App. 4 Cir. 4] wrong. State in the Interest of S.M.W., 2000-3277, p. 14 (La.2/21/01), 781 So.2d 1223, 1233, citing In re A.J.F., 2000-0948 (La.6/30/00), 764 So.2d 47. In its manifest error review, it is important that the appellate court not substitute its opinion when it is the juvenile court judge who is in the unique position to see and hear the witnesses as they testify. Id.

Id., p. 3, 881 So.2d at 766.

" Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as

Page 947

those of the juvenile court." In re A.J.F., 00-948, p. 25 (La. 6/30/00), 764 So.2d 47, 61 (citing Rosell v. ESCO, 549 So.2d 840 (La. 1989)); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978).

La. Ch.C. art. 606 provides in pertinent part:

A. Allegations that a child is in need of care must assert one or more of the following grounds:
(1) The child is the victim of abuse perpetrated, aided, or tolerated by the parent or caretaker, by a person who maintains an interpersonal dating or engagement relationship with the parent or caretaker, or by a person living in the same residence with the parent or caretaker as a spouse whether married or not, and his welfare is seriously endangered if he is left within the custody or control of that parent or caretaker.
(2) The child is a victim of neglect.
(3) The child is without necessary food, clothing, shelter, medical care, or supervision because of the disappearance or prolonged absence of his parent or when, for any other reason, the child is placed at substantial risk of ...

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