STATE OF LOUISIANA IN THE INTEREST OF N.B., I.B., AND P.B.
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.
MASON BORDELON Counsel for Appellee State of Louisiana DCFS
LEE SANDERS, II Assistant District Attorney Counsel for
Appellee State of Louisiana
PITMAN, STONE, and GASKINS (Ad Hoc), JJ.
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,
BACKGROUND AND PROCEDURAL HISTORY
is the mother of three minor children, N.B., age 9 years;
I.B., age 6 years; and P.B., age 3 years. 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.
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.
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.
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
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.
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
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.
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
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:
judge of any court, trial or appellate, shall be recused when
(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
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.
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.
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.
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.