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State ex rel. N.B.

Court of Appeals of Louisiana, Second Circuit

March 16, 2018

STATE OF LOUISIANA IN THE INTEREST OF N.B., I.B., AND P.B.

         Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 21058 Honorable Sharon Ingram Marchman, Judge

          HUDSON, POTTS & BERNSTEIN By: Jan Peter Christiansen Counsel for Appellant Clarissa Hammond

          CAMERON MURRAY & ASSOCIATES By: Hugh Cameron Murray THE LOWERY LAW FIRM By: Scotty Wayne Lowery Counsel for Appellees N.B., I.B., and P.B.

          KEESHA MASON BORDELON Counsel for Appellee State of Louisiana DCFS

          JOHNNY LEE SANDERS, II Assistant District Attorney Counsel for Appellee State of Louisiana

          Before PITMAN, STONE, and GASKINS (Ad Hoc), JJ.

          STONE, J.

         N.B., I.B., and P.B. were removed from their mother's custody and subsequently adjudicated children in need of care under Louisiana law. Their mother, Clarissa Hammond ("Hammond"), agreed to a case plan presented by the Louisiana Department of Children and Family Services. Following a parental termination hearing, the trial court found the Department of Children and Family Services proved, by clear and convincing evidence, Hammond had not substantially complied with the case plan, there was not a substantial chance she would improve in the immediate future, and termination of her parental rights was in the best interest of N.B., I.B., and P.B. For the following reasons, we affirm.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Hammond is the mother of three minor children, N.B., age 9 years; I.B., age 6 years; and P.B., age 3 years.[1] On July 3, 2015, deputies with the Ouachita Sheriff's Department arrived at the home of Russell Flowers ("Flowers") in response to a 911 call concerning a drowning. Upon their arrival, deputies discovered the unresponsive body of Hammond's five-year-old daughter, B.B. After several attempts by paramedics to resuscitate B.B., she was transported by ambulance to the hospital, where she was pronounced dead. For approximately 6 months prior to B.B.'s death, Hammond and the four minor children were living with Flowers in his home. Flowers is the father of Hammond's youngest child, P.B. On the day of B.B.'s death, Hammond reported she and B.B. were behind Flowers' house when B.B. climbed into a tree and fell into the Ouachita River. She stated she retrieved B.B. from the river, carried her inside the house, and placed her in the bathtub to warm her up. After she removed B.B. from the tub, Hammond placed the child on the bed and began performing CPR.

         An autopsy report revealed that B.B.'s death was caused by multiple blunt force injuries to her head and lower extremities, which appeared to have been inflicted by a belt. There was no evidence that the minor child had drowned. B.B.'s body contained blunt force injuries that had already begun to heal, indicating the injuries had been there a while. Four days after B.B.'s death, while being formally questioned by authorities, Hammond reported that Flowers had actually beaten B.B. to death and had forced Hammond to corroborate the lie. N.B. and I.B. were also forced to lie to law enforcement concerning the cause of B.B.'s death. Ultimately, both Hammond and Flowers were arrested and charged with the second degree murder of B.B. The charges against both are currently pending.

         On July 6, 2015, Ashlee Green ("Green") of DCFS filed an affidavit in support of an instanter order which stated the State had received a report of alleged neglect/lack of adequate supervision, death by abuse and bruises concerning B.B. and the allegation of lack of supervision of N.B., I.B., and P.B. The surviving three children had bruises and otherwise showed signs of abuse and neglect. Green stated there was good cause to remove the children from the custody of the parent/caretaker pending the completion of the investigation and the filing of reports to the district attorney. The instanter order was issued, and the three children were placed in the temporary custody of DCFS.

         A Court Appointed Special Advocate ("CASA") was appointed to represent the children. At a hearing to continue custody with DCFS, Flowers stipulated that the children were in need of care without admitting the allegations against him, as did Hammond and Nicholas Brister ("Brister"), the father of N.B., I.B., and B.B. The court found that remaining in DCFS custody was in the best interest of the children, and they were subsequently adjudicated as children in need of care.

         The three children were originally placed in separate foster homes; however, according to the record, all three children are now placed together in one home. The primary goal of Hammond's case plan was reunification, with a secondary goal of adoption. The case plan included domains for parenting, housing, income, mental health, substance abuse, visitation, and domestic violence.

         Approximately a year and a half after the children were placed in foster care, DCFS issued a recommendation that the goal of the case plan change from reunification to adoption. A report was written by DCFS to the trial court on June 1, 2016, and by the CASA on June 3, 2016, in anticipation of a permanency hearing, which was held on July 14, 2016. The trial court ruled the permanent plan should be changed from reunification to adoption.[2]

         On November 15, 2016, DCFS petitioned the trial court to terminate Hammond's parental rights of the three minor children. After the termination hearing, the trial court found DCFS proved by clear and convincing evidence Hammond's parental rights of the three minor children should be terminated due to her misconduct pursuant to La. Ch. C. art. 1015(4), as well as her failure to substantially comply with her case plan and no reasonable expectation of improvement, pursuant to La. Ch. C. art. 1015(6). Furthermore, the trial court determined it was in the best interest of the three minor children that the parental rights of Hammond be terminated. The trial court terminated Hammond's parental rights and certified the children eligible for adoption. This appeal ensued.

         DISCUSSION

         Motion to Recuse

         In her first assignment of error, Hammond argues the trial court erred in denying her motion to recuse. According to Hammond, during the child in need of care ("CINC") proceedings, the trial court was privy to evidence and information that may not have been relevant or admissible in the termination of parental rights proceedings. Therefore, the trial court should have recused itself from the termination hearing or referred the motion to recuse to another court for a hearing. The trial court denied Hammond's motion to recuse, finding Hammond's allegations to be speculative and not based on any specific grounds.

         La. C.C.P. art. 151 provides the grounds upon which a judge shall be recused from a matter. Specifically, La. C.C.P. art. 151 provides in pertinent part:

         A. A judge of any court, trial or appellate, shall be recused when he ...

(4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties' attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings.

         The grounds for recusal enumerated in Article 151 are exclusive and do not include a "substantial appearance of the possibility of bias" or even a "mere appearance of impropriety" as causes for removing a judge from presiding over a given action. Slaughter v. Bd. of Sup'rs of S. Univ. & Agr. & Mech. Coll., 2010-1114 (La.App. 1 Cir. 08/02/11), 76 So. 3d 465, 471, writ denied, 2011-2112 (La. 01/13/12), 77 So.3d 970. Moreover, a judge is presumed to be impartial. The party seeking to recuse cannot merely allege lack of impartiality; he must present some factual basis. Further, the bias, prejudice, or personal interest alleged must be of a substantial nature and based on more than conclusory allegations. Covington v. McNeese State Univ., 2010-0250 (La. 04/05/10), 32 So.3d 223, 225.

         If a valid ground for recusal is set forth in the motion to recuse, the judge shall recuse himself or refer the motion to another judge for a hearing. La. C. C. P. art. 154. However, when the motion to recuse fails to enunciate valid grounds for recusal, the trial judge may deny the motion without referring the matter to another judge. Lozier v. Estate of Elmer, 10-754 (La.App. 5 Cir. 02/15/11), 64 So.3d 237, 243, writ denied, 11-529 (La. 04/25/11), 62 So.3d 93. A trial court has discretion to determine if there is a valid ground for recusal set forth in the motion. Frierson v. Frierson, 14-64 (La.App. 4 Cir. 07/02/14), 2014 WL 3045068, 2014 La. App. Unpub. LEXIS 399, writ denied, 14-1628 (La. 08/22/14), 146 So.3d 540.

         This Court finds the trial court did not abuse its discretion when it denied Hammond's motion to recuse. Hammond's motion did not set forth any specific allegations that would form the basis for a recusal. Hammond's argument only assumed the trial court, in hearing both the CINC and the termination of parental rights matters, may be unable to maintain impartiality in its ruling in the termination proceedings. The motion is mere speculation and seems to be more of a policy argument that the judge who hears the CINC matter should refrain from hearing the termination of parental rights matter. For the same reasons, we find the trial did not err in its refusal to reassign the motion to another judge for determination of its merits. Notably, after the trial court's denial, Hammond sought supervisory writs concerning whether the judge should have referred the motion to another division. This Court declined to exercise supervisory jurisdiction and denied the writ.

         Additionally, this Court is not aware of any law that prevents a judge from presiding over both the CINC and the termination of parental rights proceedings. The 4th Judicial District Court, Juvenile Section, has a designated juvenile section wherein the judge in that section shall primarily handle juvenile matters. La. Dist. Ct. Rules, App. 3.1. The Honorable Sharon Marchman is the designated juvenile judge in the 4th Judicial District and, as such, she retains jurisdiction to preside over all cases involving juveniles, including but not limited to delinquency proceedings, child in need of care, families in need of services, involuntary or voluntary termination of parental rights, adoption, and any other proceedings necessary to carry out the laws affecting juveniles, their parents, and sibling groups. Id. The 4th Judicial District Juvenile Court has not adopted any rule requiring separate judges to preside over CINC proceedings and termination of parental rights proceedings. This assignment of error is without merit.

         Termination of ...


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