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State ex rel. C. C.

Court of Appeals of Louisiana, Fifth Circuit

October 12, 2018

STATE OF LOUISIANAIN THE INTEREST OF C. C., JR., P. B., M. B., J. B.

          ON APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-CC-85, DIVISION "C" HONORABLE BARRON C. BURMASTER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, DEPARTMENT OF CHILDREN & FAMILY SERVICES Elizabeth G. Lincoln

          COUNSEL FOR DEFENDANT/APPELLANT, J. M. AND R. M. Sherry A. Watters

          Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr.

         VACATED AND REMANDED.

         SMC

         MEJ

         JJM

          SUSAN M. CHEHARDY CHIEF JUDGE

         On appeal, foster parents, J.M. and R.M., [1] seek review of the denial of their motion to intervene and modify the custody determination for their former foster child, J.B. For the following reasons, we vacate the trial court's ruling and remand for further proceedings.

         Factual and Procedural History

         In August of 2016, the Jefferson Parish District Attorney and the State of Louisiana, Department of Children and Family Services ("DCFS") received reports that four minor children - C.C., P.B., M.B., and J.B. - located in Jefferson Parish were suffering from neglect, abuse, and/or lack of supervision[2] by their mother, P.[3]At that time, C.C. was twelve years old, P.B. was nine, M.B. was four, and J.B.[4]was ten-months-old.

         On September 16, 2016, as a result of the DCFS investigation, all four children were removed from their mother's custody, put into the emergency custody of DCFS, and placed into foster care. At that time, the mother, who has never been married, reported that C.C., Sr. was the father of her three older children, C.C., P.B., and M.B., but not the baby's biological father.[5] On September 20, 2016, at the initial custody hearing, the trial judge found that the circumstances warranted maintaining the children in the continued custody of DCFS.

         On October 5, 2016, after further investigation, the Jefferson Parish District Attorney filed a Child in Need of Care ("CINC") Petition pursuant to La. Ch.C. art. 606(A), alleging that the children were in need of care because of abuse and neglect by their mother and the prolonged absence of their fathers. On October 18, 2016, the State dismissed the CINC allegation against C.C., Sr. in reference to the baby, J.B., because the mother denied that C.C., Sr. was the baby's father. That day, J.B.'s father was listed as "unknown" and the previous appointment of the curator ad hoc to represent him was recalled.

         On November 15, 2016, the trial judge held an adjudication hearing, in accordance with La. Ch.C. art. 659 et seq., to determine if the State could prove that the children were in need of care. During that hearing, both P. and C.C., Sr. stipulated without admitting the allegations of the CINC petition that the children were in need of care pursuant to La. Ch.C. art. 647. The Court accepted their stipulations, adjudicated the children in need of care, and maintained the children in DCFS custody in their respective foster care placements.

         In anticipation of the December disposition hearing, DCFS filed a report with the trial judge. In its report, DCFS listed J.B.'s father as "unknown" and specified its case plan goal for the children was "reunification with a concurrent goal of adoption."

         On December 13, 2016, the trial court held a disposition hearing. After hearing the testimony, the judge found that, because the issues that brought the children into care still exist, the children were still in need of care and should remain in DCFS custody in their current foster care placements. Further, the trial judge found that the case plan submitted by DCFS is "consistent with the health and safety of the children and is in the best interest of the children … and orders all parties to comply therewith." At the close of the disposition hearing, the trial court advised P. and C.C., Sr. that the State was statutorily required to file a petition to terminate their parental rights if the children remained in DCFS custody for a period of fifteen months out of a twenty-two month period. The judge set a status hearing for March of 2017.

         On February 21, 2017, in anticipation of the status hearing, DCFS produced a progress report for the family, in which it again recommended that all the children remain in their current placement because the risk factors that brought them into care still existed. DCFS's case plan goal for all of the children at that time was "reunification with a concurrent goal of adoption." Further, the Court Appointed Special Advocate ("CASA") for M.B. and J.B. reported that her recommendation to "protect and promote the best interest of M.B. and J.B." was for the two siblings to "remain in the custody of the State and in their current placement in the certified foster home of J. and R.M."

         The minute entry from the March status hearing[6] reflects that the trial judge determined that the children should remain in DCFS custody as "the issues that brought them into care still exist."[7] Further, the court found that the children's current foster care placements were the "safest, least restrictive, most appropriate setting for the children at this time" and were meeting all of the children's needs. The judgment issued after that hearing states that the trial judge informed the parents that, "Federal law requires the state to file a petition to terminate parental rights when a child has been in custody for 15 of the most recent 22 months."[8]Finally, the trial judge set a permanency hearing for September of 2017.

         On August 22, 2017, in anticipation of the permanency hearing, DCFS submitted a report to the trial judge again determining that the risk factors that brought the children into care still existed and recommending that the children remain in DCFS custody in their current foster care placements. In its report, DCFS specifically noted that J.B. and his sister remained in the certified foster home of Mr. and Mrs. M. where M.B. and J.B. "feel as if they are part of the family. J.B. only knows the [foster parents] as his parents." (Emphasis added.) Finally, DCFS requested that the court accept the new case plan goal of adoption into the record.

         According to a minute entry dated September 7, 2017, the trial judge learned in a pre-trial conference that P. had named D.W. as J.B.'s putative father. That day, the trial judge ordered DCFS to locate D.W., who was reportedly incarcerated, to perform genetic testing to determine if he was J.B.'s biological father. The permanency hearing for all of the children was continued until September 26, 2017.

         In anticipation of that permanency hearing, DCFS reported to the trial judge, again recommending that the children continue in DCFS custody in their current placements. Although DCFS listed D.W. as J.B.'s father, the agency's report made no further mention of any paternity determination and reiterated that the case plan goal for all of the children was adoption.

         At the September 26, 2017 permanency hearing, the trial judge found that the new case plan goal of adoption was in the "best interest of the children" and approved it. Further, the trial judge advised P. and C.C., Sr. of the option of voluntarily surrendering their rights and consenting to adoption. The trial judge ordered that the children remain in the custody of DCFS in their current foster care placements.

         On November 21, 2017, J.B.'s court-appointed attorney moved to set a status hearing after "becoming aware" that "J.B.'s biological father"[9] proposed a "custody arrangement" that would transfer physical custody of J.B. to the father's sister in Texas. The status hearing was scheduled for February 6, 2018.[10]

         In the interim, the clinicians at T-PEP were advised that DCFS might recommend that J.B. be removed from his foster family and placed with his paternal aunt, L.W., in Texas. In a letter to the trial judge dated December 31, 2017, the clinicians ...


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