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State ex rel. K.M.

Court of Appeals of Louisiana, Third Circuit

April 13, 2017

STATE IN THE INTEREST OF K.M., ET AL.

         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 28222 HONORABLE W. MITCHELL REDD, DISTRICT JUDGE

          D. Shunette Thomas-Jordan COUNSEL FOR DEFENDANT/APPELLANT: K.S. (mother)

          Amy E. McGray COUNSEL FOR PLAINTIFFS/APPELLEES: K.M. (child) CM., Jr. (child) Wa.St. (child) A.S. (child) Kr.S. (child) W.S. (child)

          J. Wade Smith COUNSEL FOR DEFENDANT/APPELLEE: W.St. (father)

          Mike K. Stratton COUNSEL FOR DEFENDANT/APPELLEE: CM., Sr. (father)

          Bethany Blackson COUNSEL FOR PLAINTIFF/APPELLEE:

          Court composed of D. Kent Savoie, Van H. Kyzar, and David E. Chatelain, [*] Judges.

          VAN H. KYZAR JUDGE

         The defendant, K.S., [1] appeals from a judgment adjudicating her and two of her children as being a family in need of services and granting permanent custody of two other children to their father, despite finding that none of the children were children in need of care. On considering the record before us, we reverse the judgment of the trial court.

         DISCUSSION OF THE RECORD

         K.S. is the mother of six minor children: CM., Jr. and K.M., who were born as a result of her former marriage to CM., Sr., and Wa.St., A.S., Kr.S., and W.S., who were born as a result of her relationship with W.St. The two youngest children, Kr.S., born July 16, 2014, and W.S., born September 13, 2015, were both delivered prematurely and suffer from significant health issues. On October 23, 2015, a complaint of neglect was filed with the State of Louisiana, through the Department of Children and Family Services (the State), resulting in an oral instanter order being issued by the trial court, placing the six children in the State's custody.

         On October 26, 2015, the State filed a petition seeking to have all six children declared to be in need of care, pursuant to Title VI of the Louisiana Children's Code. The allegations centered primarily on K.S.'s medical neglect of her two youngest children. At a continued custody hearing that same day, K.S. denied all of the State's allegations, but agreed to the State's continued custody of the children. At the close of the hearing, the trial court placed Wa.St, A.S., Kr.S., and W.S. in the temporary custody of the state, while K.M. and CM., Jr. were placed in the temporary custody of their father, CM., Sr., all pending the adjudication hearing. Judgment continuing the children in the State's custody was rendered on April 7, 2016.

         The two-day adjudication hearing concluded on August 5, 2016. At the close of the State's case, K.S. moved for an involuntary dismissal of its claims, which the trial court took under advisement. On August 15, 2016, the trial court issued written reasons for judgment in which it granted in part and denied in part K.S.'s motion for involuntary dismissal. The trial court held that the State failed to prove that Wa.St. and A.S. were children in need of care or in need of services and dismissed the State's claims as to those children. The trial court also held that the State failed to prove that Kr.S. and W.S. were children in need of care, but held that the State's evidence might be sufficient to adjudicate them as a family in need of services. Thus, the trial court denied K.S.'s motion as to these children and continued the matter for trial on the issue of family in need of services. Finally, the trial court ordered that CM., Sr.'s temporary custody of K.M. and CM., Jr. become permanent, subject to reasonable visitation by K.S. and ordered that the State be released from its supervision of those children.

         Thereafter, at the August 17, 2015 hearing on the family services issue, the trial court reiterated that it was granting in part and denying in part K.S.'s motion for involuntary dismissal. It dismissed the State's petition as it related to Wa.St. and A.S. and ordered the children returned to K.S.'s custody. The trial court further dismissed the State's petition as it related to K.M. and CM., Jr., but granted permanent custody of the children to their father, CM., Sr. At the conclusion of these rulings, the trial court asked how the parties wished to proceed on the family services issue in regards to Kr.S. and W.S. All of the parties rested at that time. The trial court then ruled that Kr.S. and W.S. were in need of family services and ordered that a family services plan be prepared for the children. An adjudication judgment was rendered by the trial court on August 25, 2016. An amended adjudication judgment was rendered on August 26, 2016. This appeal followed. K.S. is the only party who has appealed from the trial court's judgment.

         OPINION

         On appeal, K.S. asserts two assignments of error committed by the trial court. They are as follows:

1. The trial court erred in denying, in part, [K.S.'s] motion for involuntary dismissal pursuant to La. C.C. Art. 1672, because the State failed to meet its burden of proof in proving neglect such as to warrant an adjudication of any of the children being children in need of care. The State also failed to prove by a preponderance of the evidence that the family was a family in need of services as required by La. Ch. C. Art. 666 and La. Ch. C. Art. 730 respectively. Absent a finding of neglect or that the family is a family in need of services, the trial court was without jurisdiction to render a judgment of custody, and thus erred in granting permanent custody of [K.M.] and [CM., Jr.] to their father [CM., Sr.]
2. The trial court erred in adjudicating the children [Kr.S.] and [W.S.] as a family in need of services, in that there is no evidence in the record to support such a ruling.

         OPINION

         The procedural device of involuntary dismissal, as it pertains to bench trials, is found in La.Code ...


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