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State ex rel. Z.D.

Court of Appeals of Louisiana, Fourth Circuit

October 10, 2018

STATE OF LOUISIANA IN THE INTEREST Z.D.

          APPEAL FROM JUVENILE COURT ORLEANS PARISH NO. 2017-00095-01-NA-A, SECTION "A" Honorable Ernestine S. Gray, Judge

          Leon Cannizzaro DISTRICT ATTORNEY Scott G. Vincent ASSISTANT DISTRICT ATTORNEY J. Taylor Gray ASSISTANT DISTRICT ATTORNEY PARISH OF ORLEANS COUNSEL FOR APPELLANT/STATE OF LOUISIANA

          Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Regina Bartholomew-Woods

         ON REMAND FROM THE LOUISIANA SUPREME COURT

          Rosemary Ledet Judge

         This child in need of care case is before us on remand from the Louisiana Supreme Court with instructions "to convert relator's appeal to an application for supervisory writs and consider the application on the merits." State in Interest of Z.D., 17-2118 (La. 9/14/18), __So.3d__, 2018 WL 4554468. As instructed, we convert the State's appeal to an application for supervisory writ, grant the writ, and, for the reasons that follow, deny relief.

         BACKGROUND

         On March 15, 2017, the Department of Children and Family Services ("DCFS") received a report that a two year old, Z.D., [1] was being abused and neglected by his mother. An employee of DCFS, Tacarra Charles ("Ms. Charles"), investigated the report. As a result of her investigation, DCFS applied for and received temporary custody of Z.D. on April 4, 2017. The case was then set for a continued custody hearing on April 7, 2017. On April 7, 2017, the juvenile court ordered that Z.D. be continued in the custody of DCFS; ordered DCFS "to make diligent efforts to locate any relative that may be available for placement"; and reset the matter for a status hearing on April 13, 2017. On April 13, 2017, the juvenile court ordered the matter be set for a petition status on May 2, 2017.

         On May 2, 2017, the State, through the Orleans Parish District Attorney's Office, filed a petition requesting that Z.D. be adjudicated a child in need of care as to both parents. As to Z.D.'s mother, the petition alleged abuse under La. Ch.C. art. 606(A)(1) and neglect under La. Ch.C. art. 606(A)(2). As to Z.D.'s father, the petition alleged neglect under La. Ch.C. art. 606(A)(2) and under La. Ch.C. art. 606(A)(3) that Z.D. was without necessary food, clothing, shelter, medical care, or supervision because of the prolonged absence of his father. The petition further alleged that Z.D.'s father was "incarcerated at Eastham Correction Facility in Lovelady, Texas; that he was thus "not available to provide for [Z.D.'s] medical, emotional, or housing needs"; and that he had "not made a plan for [Z.D.'s] care."[2]

         On June 6, 2017, the case proceeded to an adjudication hearing as to Z.D.'s mother; the hearing as to Z.D.'s father was jointly continued. At the conclusion of the hearing, the juvenile court adjudicated Z.D. a child in need of care as to his mother. The case was then set for June 27, 2017, for disposition as to Z.D.'s mother and for adjudication as to Z.D.'s father.

         At the June 27, 2017 adjudication hearing, the State called one witness, Ms. Charles, who testified that Z.D.'s father was incarcerated in Texas; that his expected release date was 2027; and that his plan for Z.D.'s care appeared not to be feasible. At the conclusion of the adjudication hearing, the juvenile court found that the evidence offered by the State was insufficient and declined to adjudicate Z.D. a child in need of care as to his father. The State objected. This appeal followed.

         We dismissed the State's appeal for lack of appellate jurisdiction. As noted at the outset, this matter is before us on remand from the Louisiana Supreme Court as a writ application.

         DISCUSSION

         A child in need of care proceeding must be commenced by the filing of a petition. La. Ch.C. art. 631. When the child has been taken into, and continued in, State custody, the petition must be filed within thirty days of the continued custody hearing. La. Ch.C. art. 632(A). The petition must set forth with specificity facts that show the child is a child in need of care, including the acts or omissions of either parent which caused or contributed to the child's condition.[3] La. Ch.C. art. 634(A)(4).

         The allegations in the petition must be proven by the State at an adjudication hearing. La. Ch.C. art. 659, et seq. If the child is in DCFS custody, the adjudication hearing must commence within forty-five days of the filing of the petition. La. Ch.C. art. 659(A). With DCFS's consent, the State may submit to the juvenile court for its approval an informal adjustment agreement. La. Ch.C. art. 628(B). If the juvenile court approves the agreement, the time limitations of La. Ch.C. Art. 659 are suspended for the duration of the agreement. La. Ch.C. art. 630(B). If the child is in continued custody and no informal adjustment agreement is submitted and approved, the case must proceed to an adjudication hearing within forty-five days of the filing of the petition. La. Ch.C. art. 659(A).

         If the case proceeds to an adjudication hearing, the State has the burden of proving the allegations in the petition by a preponderance of the evidence. La. Ch.C. art. 665. To carry that burden, the State must produce admissible evidence. La. Ch.C. art. 663(A) (providing that "the adjudication hearing shall be conducted according to the rules of evidence applicable to civil proceedings"); La. C.E. art. 1101(A)(1) (providing that "[j]uvenile adjudication hearings in non-delinquency proceedings [i.e., child in need of care proceedings] shall be governed by the provisions of [the Code of Evidence] applicable to civil cases").

         The standard of review of a juvenile court's judgment that a child ...


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