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 Terri F. Love, Judge Roland L. Belsome,
Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Regina
REMAND FROM THE LOUISIANA SUPREME COURT
Rosemary Ledet Judge
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.
March 15, 2017, the Department of Children and Family
Services ("DCFS") received a report that a two year
old, Z.D.,  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.
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."
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.
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.
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
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. La. Ch.C. art. 634(A)(4).
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).
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
standard of review of a juvenile court's judgment that a