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State ex rel. L.F.B

Court of Appeals of Louisiana, Third Circuit

October 18, 2017

STATE OF LOUISIANA IN THE INTEREST OF L.F.B.

         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 27496 HONORABLE LILYNN A. CUTRER, DISTRICT JUDGE

          Tara B. Hawkins Attorney at Law COUNSEL FOR APPELLANTS: G.B and Ri.B. (Maternal Grandparents)

          Thomas W. Saunders, Jr. COUNSEL FOR APPELLEE: State of Louisiana, Department of Children & Family Services

          Amy E. McGray Mental Health Advocacy Service/Child Advocacy Program 1 Lakeshore Drive, COUNSEL FOR OTHER APPELLEE: L.F.B. (child).

          Court composed of John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.

          JOHN E. CONERY JUDGE.

         In this "child in need of care" (CINC) case, the maternal grandparents G.B. and R.B. (the grandparents) sought to intervene in a case planning hearing concerning placement of their granddaughter[1]. The trial court set their intervention for contradictory hearing. At the hearing, the grandparents had the burden of showing 1) that they were interested persons; and 2) that their intervention would "facilitate the permanent placement of the child and [would] insure that the best interests of the child are protected." La.Ch.Code art. 697(A). At the hearing, the State, through the Department of Children and Family Services (DCFS), stipulated that the grandparents were interested parties. But after the close of evidence, the trial court found the grandparents had not met their burden of proving their intervention would facilitate their granddaughter's permanent placement and be in her best interests, and denied their petition to intervene. The grandparents now appeal the trial court's January 30, 2017 judgment denying their petition to intervene.

         For the following reasons, we reverse and remand the matter to the trial court with instructions that G.B. and R.B. are allowed to intervene and are to be served with notice of a new hearing to be conducted in accordance with the views expressed herein.

         FACTS AND PROCEDURAL HISTORY

         A single issue is presented for our review. The grandparents ask us to decide "[w]hether, pursuant to La.Ch.Code art. 697, the grandparents were interested parties who established good cause for their intervention in the DCFS case review proceedings for permanent placement of their grandchild." This case concerns L.F.B., who was five in April 2015 when DCFS assumed legal custody of L.F.B. from her mother. At that time, the location of L.F.B.'s mother was unknown, the identity and location of her father was unknown, and she was living with her maternal grandparents, G.B. and R.B., who are the appellants herein[2]. DCFS maintained L.F.B.'s physical placement with the grandparents. On April 13, 2015, the trial court ordered continued custody of L.F.B. by the State of Louisiana, through DCFS. L.F.B. remained physically placed with the grandparents by DCFS and with approval of the court from the time the State assumed custody until March 17, 2016.

         At the continued custody hearing on April 13, 2015, the court found good cause to continue custody of L.F.B. with DCFS. The grandparents were present at the hearing. At that time, the permanent placement plan for L.F.B. was reunification with her parent(s).

         At the May 7, 2015 adjudication hearing, L.F.B. was adjudicated a child in need of care. The grandparents were present at the hearing. Custody of L.F.B. was maintained with DCFS. Placement of L.F.B. remained with the grandparents. The May 1, 2015 case plan, which the court adopted as part of its order, stated: "[L.F.B.] is placed in the non-certified home of her maternal grandparents, G.B. and R.B. In Calcasieu Parish. It is the least restrictive, most family like, safe, and most appropriate setting. It is in close proximity to her mother."

         This case was reviewed again on August 24, 2015, and the court found that reunification with her parents was no longer in L.F.B.'s best interest. It ordered DCFS to "re-staff the case and file Petition for Termination of Parental Rights." The grandparents were present at the August 24, 2015 hearing. The court maintained custody with DCFS and placement with the grandparents. In an August 11, 2015 court report, the current placement of L.F.B. was described as being "in the home of her maternal grandparents, [G. and R.B]. She resided in the home prior to entering State's custody. She has adjusted well in the home."

         The next case review hearing took place on March 10, 2016. The grandparents were present at that hearing. In rendering its case review judgment on March 10, 2016, the court considered a February 22, 2016 case report and a case plan filed on March 10, 2016. The case report indicated the current placement of L.F.B. was "in the home of her maternal grandparents, [G. and R.B.]. She resided in the home prior to entering State's custody. She has adjusted well in the home." It further indicated that the DCFS worker had left her business card for G. and R.B. to give to one of L.F.B.'s potential fathers "when he comes to visit [L.F.B.] again."[3] It also indicated that the grandparents had completed the required classes and were in the final steps of the certification process for adoption of L.F.B.

         The March 10, 2016 case plan described the placement of L.F.B. as "in the non-certified home of her maternal grandparents, [G. and R.B.] in Calcasieu Parish. It is the least restrictive, most family like, safe, and most appropriate setting. It is in close proximity to her mother." It also indicated that G. and R.B. were "committed to adopt" and their home study had been completed. When asked about how the case plan maintained permanent connections, it stated that L.F.B. was "placed with her grandparents", was visiting monthly with her younger half-brother, and that she "has friends in the neighborhood that come and play with her on a regular basis." It further stated that all foster caretakers were mailed written notification of the date, time, place of court hearings, and their right to attend and be heard 14 days before the court hearings. The court found that the case plan was consistent with the best interest of L.F.B., made it part of the court's orders, and ordered compliance therewith.

         Seven days after the March 10, 2016 case review hearing, DCFS arrived at the grandparents' home and announced they were removing L.F.B. from their care. Again, at the grandparents' eventual hearing in January 2017, the caseworker testified that when she arrived at the grandparents' home for a scheduled routine visit on March 16, 2016, she found that R.Y., the potential father, was there ready to pick up the child for an unauthorized visit. The caseworker became concerned that the grandparents were not cooperating, and since R.Y. had no permission to visit from DCFS who had legal custody of the child, concern over the child's safety prompted her to return the next day with her supervisor and remove L.F.B. from her grandparents' home without notice and a hearing. No alternatives or warnings were given. Instead, DCFS gave the grandparents two hours to pack L.F.B.'s belongings and tell her goodbye. At the end of those two hours, DCFS physically removed L.F.B. from her grandparents with no notice of a right to a hearing and no visitation. The record shows that both the child and the grandparents were extremely upset and crying.

         L.F.B. was then placed in the home of complete strangers, a non-relative foster home in Westlake, Louisiana. No expedited hearing was sought and no notice was given to the grandparents of the June 2, 2016 case review hearing. At that hearing, the trial court considered an April 5, 2016 case plan and a May 23, 2016 case report submitted by DCFS. The grandparents were not present at the June 2, 2016 hearing, and there is nothing in the minutes to show that they were served or notified of the hearing. Up until this point, the grandparents were family members in whose care the minor had been placed by several court orders, the last being the order of March 10, 2016, which was still lawfully in effect. They should have been served with notice of the June 2, 2016 hearing date, time, and location and of their rights to attend and be heard. See La.Ch.Code arts. 623 and 695. In fact, L.F.B. had actually been residing with her grandparents almost since birth.

         The record reflects that at the June 2, 2017 hearing, the trial court was advised of the change in L.F.B.'s placement for the first time. There is nothing in the record to show that the trial court was informed as to why the grandparents were not present or why the child had been removed from their care. In its judgment, the trial court maintained custody with DCFS and placement with a non-relative foster family in Westlake. It also issued an order prohibiting L.F.B. from being placed out of state without permission from the court. Again, nothing was mentioned about notice to the grandparents or arranging for grandparent visitation. Apparently, the child's attorney also did not make known to the court the abrupt actions of DCFS in removing her from the grandparents' home and did not present any evidence reflecting the feelings of the child or the effect her abrupt removal from the grandparents' home may have had on the child. There had been no visitation or even contact with the grandparents since March 17, 2016.

         L.F.B. lived with the Westlake non-relative foster family from March 17, 2016 until approximately September 2, 2016, when her attorney filed a motion seeking expedited review of her placement in accordance with La.Ch.Code art. 692(B). In support thereof, counsel for L.F.B. stated "the current foster parents of the minor child are no longer able to maintain their certification as foster parents in the State of Louisiana, due to pending criminal issues." DCFS "informed [counsel for L.F.B.] that she would be removed from this placement, but did not give a timeframe for the removal." Counsel for L.F.B. also suggested that placement in Texas with a couple who may be her aunt and uncle (depending on who is her father) would be in L.F.B.'s best interest. Again, no mention was made by the child's attorney of placement or visitation with L.F.B.'s grandparents, with whom she had lived most of her life, and no evidence as to the child's feelings or emotional state is in the record.

         The expedited motion to change placement filed by the child's attorney was set for hearing on September 15, 2016. There is nothing in the record to show that the grandparents were served or notified in any way of this "expedited hearing." In fact, the record is void of any judgment or order addressing the issues presented in the motion for expedited review. However, the minutes reflect that after a hearing, the trial court allowed L.F.B. to be placed in the out of state home of a couple in Texas, alleged to be the sister and brother-in-law of R.Y.[4], one of the men who may have been L.F.B.'s father.

         On or about September 29, 2016, after learning L.F.B. was now living in Texas, the grandparents were able to hire counsel and filed a petition for custody, seeking an ex-parte order granting them temporary care, custody, and control of L.F.B. and requesting a hearing on why they should not be awarded the permanent care, custody, and control of L.F.B. In its September 26, 2016 order, the trial court scratched through the temporary custody order and penned in language commanding the "State of Louisiana, Department of Children and Family Services to appear and show cause on the 8[th] day of December, 2016[, ] at 10:00 o'clock a.m., why Petitioners should not be permitted to intervene to facilitate the permanent care, custody, and control of the minor child." The December 8, 2016 hearing was continued to January 17, 2017, in open court on an oral motion by DCFS for reasons not in the record. By this time, L.F.B. had been removed from her grandparents' home for ten (10) months with no visitation except for a twenty (20) minute "hello" at the office of DCFS approximately two and one-half (2.5) months before the January 17, 2017 hearing.

         At trial on January 17, 2017, three people testified: a DCFS worker, and the grandparents, G.B., and R.B. The DCFS worker's trial testimony indicated that there were five or six issues and events culminating in its decision to suddenly and abruptly remove L.F.B. from G. and R.B.'s home on March 17, 2016, without notice or an expedited hearing request. These were: additional documentation was needed by DCFS as to R.B.'s divorce some forty (40) years prior; the lack of a prescription for methadone that was requested and not produced; R.B.'s consumption of a beer out of the can in front of the child (DCFS did not ask her not to drink around the child, only that she not drink from the can around the child. If she put it in a cup, it would be okay); G.B. and R.B.'s collective failure to notify DCFS when R.Y. (one of L.F.B.'s alleged fathers) came to their house; and failure to notify DCFS that L.F.B was playing in the front yard and RY showed up. R.Y. told L.F.B. that her grandparents had given her permission to go with him so she hopped in the car and he left. When the grandparents saw what was happening, they got in their car and chased him down the street to get L.F.B back. The entire event took about twenty (20) minutes. DCFS was also concerned that the grandparents may have allowed unsupervised visits between R.Y. and L.F.B. in the past and lied to the DCFS worker about knowledge of R.Y.'s residence location.

         At trial, G.B. and R.B. testified that they did not know why L.F.B. was removed from their home. They were not given advance notice or a warning that L.F.B. would be removed. They further testified that they had only seen L.F.B. once at the DCFS office at the end of November for approximately twenty (20) minutes since her abrupt removal from their home. The grandparents asserted that they did not know where L.F.B.'s home was, what it was like, and whether she was happy. They further testified that they loved her, were worried about her, and only wanted what was best for her. They believed that living in their home would be best for L.F.B.

         There is nothing in the record to show whether the grandparents were specifically notified by DCFS that they were supposed to report any contact between L.F.B. and R.Y. to D.C.F.S. Equally unclear in the record is whether the grandparents knew L.F.B. was not supposed to have contact with R.Y. without one of them supervising the visits.[5] R.Y.'s parental rights had not yet been terminated as of March 17, 2016, the date L.F.B. was removed from her grandparents' home.

         At the January 17, 2017 hearing, neither DCFS nor the child's attorney presented evidence about the suitability of L.F.B.'s current placement in Texas. Again, the child's attorney did not attempt to present the child's testimony or even relay her current mental state, emotional condition, and wishes to the trial court. The record does not reflect that a Court Appointed Special Advocate (CASA) worker was requested to be appointed, and no mental health evaluation was requested by either DCFS or the child's attorney.

         DCFS argued that the grandparents' petition should be denied because they had not provided any testimony that their intervention would "facilitate the permanent placement of the child and insure the best interests of the child are protected as required pursuant to Louisiana Children's Code Article 697." The trial court's interpretation of "permanent placement" was the same as DCFS's. Apparently the focus was on whether the grandparents had failed to show that the child's current placement in Texas was detrimental to the child's well-being, and not on what eventual "permanent placement" might be in her best interest. There were no judicial findings as to what was in the child's best interest, or how the grandparents' intervention might facilitate a permanent placement that was in the child's long term best interest. At the conclusion of trial, the trial court summarily denied the grandparents' petition to intervene, stating:

THE COURT: Okay, the intervention, or to intervene, requires that there be good cause and that it be to facilitate the permanent placement of the child, and to ensure the best interest of the child is protected. And, with regard to the removal and going back to all that, when the child is in State's custody the Court can't tell them where to place them. So, whether something should not have happened or the child shouldn't have been removed at the time, I mean, I can't redo all of that, anyway, and they can do that without the Court.
But I will say that I just don't see where the burden was met today. I don't see any reason that they - the permanent plan for the child is clearly adoption, and she is in the placement of adoptive parents and has been. And, the Court has not received any information of anything negative about that, only positive. I don't find that there's any information or anything that can be offered that will facilitate that occurring, or that would change what was best for the child.
I mean, I will say I think, you know, if things are done appropriately and for the protection of the child, that continuing, you know, a relationship with grandparents in some way might be beneficial to the child. I don't know about - I can't speak, exactly, because I don't have the child with me. I do think that contact with family is important if it can be done appropriately. There's concerns about some things that were said at the last one. So, I'm really - I can't say as to whether that's appropriate but I do think that could be a benefit to the child, if appropriate.
But as to intervene and to try to establish that they should be given custody, I don't really feel that that's what intervention is for. I agree with the case law that is cited by the State and that the purpose is not to present evidence or provide evidence that would show that they are the proper parties for placement of the child or they want to adopt the child. I think it's only to do with what the code said, which is to facilitate the plan that's in place. And, I don't see where they have proven anything that would facilitate that. And so, the Court is not going to allow the intervention. So, that is my ruling, and I guess if the State will prepare an order on that.

         On January 30, 2017, the trial court signed a judgment memorializing its January 17, 2017 ruling that G.B. and R.B. failed to prove that their intervention would "facilitate the permanent placement of the child and insure the best interests of the child are protected as required pursuant to Louisiana Children's Code Article 697." It is from this judgment that G.B. and R.B. appeal.

         ASSIGNMENT OF ERROR

         In assigning error, the grandparents assert "[t]he trial court committed legal error in its application of the standard to be applied to determine whether a party has made the requisite showing of standing, as interested parties, and of good cause to intervene in the agency's case review proceedings."

         STANDARD OF REVIEW

         In Evans v. Lungrin, 97-541 pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735, our supreme court articulated the ...


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