FROM JUVENILE COURT ORLEANS PARISH NO. 2017-00095-01-NA-A,
SECTION "A" Honorable Ernestine S. Gray, Judge
Cannizzaro DISTRICT ATTORNEY Scott G. Vincent ASSISTANT
DISTRICT ATTORNEY J. Taylor Gray ASSISTANT DISTRICT ATTORNEY
PARISH OF ORLEANS COUNSEL FOR APPELLANT/STATE OF LOUISIANA.
composed of Judge Daniel L. Dysart, Judge Rosemary Ledet,
Judge Regina Bartholomew Woods.
L. DYSART JUDGE.
State seeks review of the juvenile court's ruling that
the State did not meet its burden of proving Z.D. to be a
child in need of care as to his father, J.B.For the following
reasons, we reverse.
Louisiana Department of Children and Family Services (DCFS)
received a referral on March 15, 2017, that Z.D., two years
of age, had been abused, neglected, and/or was a dependent
child in need of care. The juvenile court issued an instanter
order and Z.D. was placed in the State's custody. An
investigation revealed that the child's mother was
neglectful and abusive to Z.D., and that the child's
father, J.B., was incarcerated in Texas.
continued custody hearing was held April 5, 2017, at which
time the attorney for the father stipulated that DCFS had
probable cause as to the father to place the child in the
State's custody. On May 2, 2017, that State filed a child
in need of care petition, and an answer hearing was held. The
father's attorney entered a general denial to the
allegations of the petition, except to admit that J.B. was
Z.D.'s father. The juvenile court ordered that Z.D.
remain in the State's custody, and set an adjudication
hearing for June 6, 2017. On that date, Z.D. was adjudicated
a child in need of care as to his mother only, and the
adjudication as to J.B. was continued to June 27, 2017.
27, 2017, Tacarra Charles, an investigator for DCFS,
testified that she had determined that J.B. was incarcerated
in Texas, with a release date in 2027. She testified that she
had not been allowed to speak directly with J.B., but rather
had communicated with him through a prison employee. Based on
those conversations, Ms. Charles determined that J.B. was
unable to provide food, clothing and/or shelter for Z.D. Ms.
Charles also testified that Y.B., J.B.'s mother and the
child's paternal grandmother, contacted her to say she
would care for Z.D. Unfortunately, she later withdrew her
offer as she questioned whether the child was indeed her
grandchild. Ms. Charles also testified that she identified
other relatives of J.B., and attempted to contact them via
telephone and certified or regular mail. All telephone
numbers were disconnected and all mail was returned marked
"return to sender." Ms. Charles admitted that she
did not have any contact with J.B. after his mother refused
to care for Z.D.
cross-examination, Ms. Charles testified that J.B. had given
her a plan, the aforementioned placement with his mother. She
also testified that he gave her other names. It is unclear if
Ms. Charles looked for those persons, or if these are the
same people she attempted to locate via telephone and mail.
juvenile court ruled that the State had not met its burden in
proving that Z.D. was a child in need of care as to his
father. This appeal followed.
State's sole assignment of error is that as J.B. failed
to raise a contemporaneous objection to the hearsay testimony
at the adjudication hearing, J.B. waived his right to object
a juvenile court may adjudicate a child in need of care as
defined by the Louisiana Children's Code, the State must
allege and prove by a preponderance of the evidence one or
more of the statutorily expressed allegations in La. Ch.C.
art. 606 A. State ex rel. J.A., 99-2905, p. 11 (La.
1/12/00), 752 So.2d 806, 812. Further, the ...