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State ex rel. K.K.

Court of Appeals of Louisiana, Second Circuit

August 9, 2017

STATE OF LOUISIANA IN THE INTEREST OF K.K.

         Appealed from the Caddo Parish Juvenile Court Juvenile Division - First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 150, 385 Honorable Paul Young, Judge

          KELLIE ARTHUR CARRELL In Proper Person

          GILLEY & GILLEY By: Patricia D. Gilley Counsel for Mother- Appellant

          DEPARTMENT OF CHILDREN AND FAMILY SERVICES By: Kimberly S. Smith Counsel for State- Appellee

          CHILD ADVOCACY PROGRAM By: Nancy G. Cooper Counsel for Child- Appellee

          WILLIAM A. HAYNES Counsel for Father- Appellee

          Before BROWN, DREW, and PITMAN, JJ.

          BROWN, C.J.

         In this child in need of care proceeding, the mother has appealed from a juvenile court judgment that (1) denied the mother's motion to modify a previously entered disposition and a permanency hearing judgment, both of which placed her child in the legal custody of the child's adult brother; and (2) granted the child's motion for guardianship. For the reasons set forth below, we affirm the judgment of the juvenile court.

         FACTS AND PROCEDURAL HISTORY

         K.K., who was 11 years old, was removed from her mother K.A.'s custody on August 8, 2014, based on allegations that K.K. was a child in need of care pursuant to La. Ch. C. art. 606(A) due to neglect, lack of supervision and inadequate shelter. Because of instances of domestic violence between the mother and her ex-husband, he had secured a restraining order against her. After a recent altercation, the mother was arrested and detained overnight for violation of the restraining order. Because the mother and her daughter had been kicked out of the home they had previously shared with the mother's ex-husband, the child was forced to find a place to stay with neighbors while her mother was in custody. Also included in the child in need of care allegations were concerns about the effects that the mother's neglect of her mental health issues had on the child.

         The child was placed in the custody of the Louisiana Department of Children and Family Services ("DCFS"). A continued custody hearing was held on August 12, 2014. The juvenile court vacated the custody of the DCFS and granted custody of K.K. to her adult brother, Chad Cherry, a resident of Colorado, pursuant to La. Ch. C. art. 627(B).[1]

         On October 24, 2014, after an evidentiary hearing, the mother stipulated that the child was a child in need of care. The juvenile court accepted the stipulation and adjudicated the child as a child in need of care under Title VI of the Louisiana Children's Code.

         A disposition hearing was held on November 21, 2014. The juvenile court found that the child continued to be in need of care and entered a judgment of disposition which, inter alia, maintained custody of the child with her brother and listed reunification as the case plan goal. The court minutes also show that the judge entered an order allowing the mother to communicate with the child via text messaging and by telephoning the mother once every other week.

         In a motion for modification of visitation filed by counsel for the child on March 12, 2015, it was alleged that the phone calls and texts from the mother were adversarial in nature and stressful to the child. Attached to the motion was a copy of a letter in support from the child's counselor in Colorado. After a contradictory hearing held on March 31, 2015, the visitation order was revised to allow contact between the child and the mother only if or when initiated by the child.

         A permanency hearing was held on August 6, 2015. The DCFS report to the court indicated that the mother had secured housing and employment. The mother advised the court that she had begun counseling with a new therapist, Shari Moncla, and her counsel requested additional time during which her client could demonstrate compliance with her case plan. The juvenile court agreed to give the mother additional time before closing the case and declined to approve reunification as a case plan goal at that time. Thus, the "Permanency/Case Review Judgment" rendered on August 19, 2015, did not contain a ruling setting forth the court's findings regarding the permanent plan that it considered to be in the best interest of the child. The court set the matter for a case review hearing on October 29, 2015.

         Evidence was adduced at the review hearing on October 29, 2015. The mother's attorney filed a motion for a continuance and an objection to the latest case plan filed by the DCFS; this plan had as its goal guardianship with the child's older brother rather than reunification with the mother. The motion for continuance was granted, and the matter was reset for a review hearing on December 11, 2015.

         At the review hearing, counsel for the mother filed a motion to modify disposition pursuant to La. Ch. C. art. 714. In her motion, the mother reiterated her objection to the latest case plan proposed by DCFS, and asserted that her counselor was available to testify as to her significant progress in treatment. Attorneys for the other parties sought a continuance as they were served with the motion and supporting memorandum in court. The matter was reset, and the parties were informed ...


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