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State ex rel. A.A.

Court of Appeals of Louisiana, Second Circuit

November 14, 2018

STATE OF LOUISIANA IN THE INTEREST OF A.A., A.A., and A.W.

          Appealed from the Monroe City Court Parish of Ouachita, Louisiana Trial Court No. 2016J00127 Honorable Jefferson B. Joyce, Judge.

          S.A. Appellant In Proper Person

          STEVEN TEW District Attorney Counsel for Appellee, State of Louisiana

          RAMSEY L. OGG Assistant District Attorney ACADIANA LEGAL SERVICES CORPORATION By: Elizabeth C. Brown Counsel for Appellee, A.A., A.A., and A.W.

          FRED D. JONES Counsel for Appellee, D.W.

          Before WILLIAMS, GARRETT, and STONE, JJ.

          WILLIAMS, C.J.

         S.A., the father of A.A., A.A., and A.W., appeals a judgment of the trial court awarding custody of the minor children to the mother, D.W. For the reasons that follow, we affirm in part, reverse in part and remand with instructions.

         FACTS

         S.A. ("the father") and D.W. ("the mother") are the biological parents of three minor daughters, A.A. (born November 17, 2001), A.A. (born November 21, 2002), and A.W. (born July 18, 2007).[1] The children had been in the custody of the father for approximately seven years due, in part, to the mother's history of substance abuse.

         On October 20, 2016, the Department of Children and Family Services ("DCFS") received a report from a high school counselor in Monroe, Louisiana, alleging that the victim, who was 14 years old, had reported the following to two school counselors: she was having thoughts of suicide; she was "fed up" with her father's abusive tendencies; her father had "beaten" her that morning; and her father had been "whipping" her with two belts at a time since she was in the sixth grade. The victim showed the counselors multiple "red welts" on her legs and thighs. The DCFS report also stated that the victim reported that she planned to commit suicide by hanging herself with a "belt or rope."

         During its investigation of the allegation of abuse, DCFS interviewed several individuals, including the victim, A.A., A.W., the father, the mother, and school personnel. The victim stated as follows: the father learned about comments she had published on her social media account; he confronted her and demanded that she log into her account so that he could delete the account; she refused to do so; the father instructed her to "hold her hands out so that he could whip her"; when she refused to follow his instructions, the father began to strike her with two belts at the same time; the father customarily struck her and her sisters on their hands, arms or buttocks "because he does not want to leave marks for their schools to see"; [2] the father would tell her and her sisters that calling DCFS would be futile because "they didn't do anything to him on the two occasions they came out" in the past; and the abuse from the father caused her to consider committing suicide.[3]

         During his interview with the DCFS investigator, the father admitted that he "disciplined" the victim because she disobeyed him. He stated that he attempted to strike the victim on her hands but he was unable to do so because she was "fighting him off." The father also stated that the victim wanted him to leave bruises on her body "so she could report it."

         A.A. and A.W. corroborated the victim's account of the events of that morning. They also reported that they had been subjected to "whippings" by the father and that they were afraid of him, and stated that they did not like living with their father because he was "abusive." According to A.A., the father would often state, "I don't care if I abuse you." A.W. stated that she felt "like she is in prison at her father's house."[4]

         DCFS received an instanter order, dated October 20, 2016, removing the children from the custody of the father and placing them in the custody of DCFS; the reason for the order/removal was "physical abuse." A continued custody hearing was held on October 25, 2016. During that hearing, the state requested that the mother be tested for illegal drugs; the trial court so ordered. The father stipulated to continued custody of the children with DCFS with "liberal visitation" with A.A. and A.W.[5] At the conclusion of the hearing, the court found "reasonable grounds to believe the children are in need of care, that continuation in the home is contrary to the welfare of the children and that continued custody is necessary for the children's safety and protection."

         A review hearing was held on November 18, 2016, during which it was revealed that the mother had tested positive for cocaine. Subsequently, on November 30, 2016, the state filed a petition to adjudicate the children in need of care. Thereafter, the father and the mother stipulated that the children were in need of care without admitting the allegations set forth in the petition. The court's disposition order continued custody of the children with DCFS with a goal of reunification with a parent. By this time, A.A. and A.W. had been placed in the home of a maternal relative; the victim had been placed in a group home.

         Throughout these proceedings, the father and the mother were provided with individual case plans. The father's case plan required him to, inter alia: maintain adequate shelter, food and utilities; attend visitations with the two younger daughters; complete a DCFS-approved anger management class; demonstrate what he learned in the parenting and anger management classes during supervised visits with the children; complete individual therapy sessions and family counseling with his children and follow the recommendations of the provider; complete a batterer's intervention program and follow the recommendations of the provider; pay $75 per child in monthly parental contributions to support the children while in DCFS custody; and make himself available for monthly DCFS home visits.

         The mother's case plan required her to, inter alia: maintain adequate shelter, food and utilities; attend visitations with the children;[6] continue to pay court-ordered child support; submit to a DCFS-approved substance abuse assessment and follow the recommendations of the provider; submit to random screenings for illegal drugs; develop a "relapse plan" for the children in the event of relapse; enroll in a 12-step program and aftercare program; and make herself available for monthly DCFS home visits.[7]

         A review hearing was held on October 10, 2017. During that hearing, it was revealed that the father was no longer represented by the attorney he had retained. The father refused to be screened to ascertain whether or not he qualified for legal representation by the indigent defender board. Throughout the proceedings, the father rejected the trial court's offer to appoint an attorney. The father would often complain that he did not understand the case plan or certain aspects of the proceedings; however, he ignored the trial court's recommendation that he obtain legal counsel. Rather, the father steadfastly opted to represent himself.

         Meanwhile, according to DCFS, the mother made significant progress on her case plan: she maintained adequate housing; she attended visits with the children; she earned sufficient income to meet the needs of the children; she was able to demonstrate a willingness to place the needs of the children above her own; she completed a substance abuse program, participated in a 12-step program and maintained her sobriety.[8]

         The father completed anger management and parenting classes. However, he did not demonstrate that he had the ability to apply what he learned from the classes because he ceased visiting with the children under DCFS supervision.[9] The father also failed to complete a batterer's intervention program, a more in-depth program aimed at addressing anger and abuse issues. Further, the father stopped attending individual and family therapy sessions.[10]

         A review hearing took place on January 9, 2018. At that hearing, DCFS requested to "maintain the goal of reunification with the concurrent goal of adoption[.]" According to DCFS, although the mother had completed most of her case plan, "she still need[ed] to work on some substance abuse issues." At that hearing, the father informed the court that he was unaware that the plan was to reunite the children with the mother because he had been "led to believe that reunification was going to be with [him]." The father also responded to DCFS's assertions that he had not completed his case plan as follows: he attended only one family therapy session because the therapist "only scheduled one" appointment; he could not afford to pay for the batterer's intervention course; he was not aware that his case plan required him to make financial contributions for the support of the children; he did not want counsel appointed because his previous attorney "gave [him] a false sense of hope"; he suspended visits with A.A. "because I didn't want to put too much pressure on her"; he was not comfortable attending visits "in a small room," and he was not allowed to take A.A. and A.W. "out to eat and stuff like that"; and he could not afford to financially contribute to the children's care because he was paying legal fees stemming from the criminal charges and from the child custody matter.

         During the hearing, both DCFS and the trial court noted that the mother had completed all aspects of her case plan "except the sobriety." Additionally, during the hearing, it was noted that the mother's Medicaid insurance paid for her therapy sessions, while the father was paying through private insurance and out of pocket. The father reiterated that he was willing to complete his case plan but he was unable to afford the cost of completing the courses. He stated that he would comply with the case plan if DCFS would pay for his courses. The trial court advised the father to "get a lawyer" to assist him in understanding the proper procedures to follow. At the conclusion of the hearing, the state recommended that the goal remain reunification and that the mother's visitation be increased to include some overnight visits with the children. The father was ordered to refrain from visiting the children outside of DCFS supervision.[11] The court also ordered that the goal remain reunification. Further, the court addressed the father as follows:

[I] think you're at a disadvantage by not having [an attorney], especially that may be free to you, but, uh - well-so, Mr. [A.] it's going to be - I'm going to give - we'll have a new date of February 23, 2018. We'll get notice to him of that date, and that'll be the day that you can call your witnesses and bring your testimony forward to prove your aspects of the case plan. The goal right now will be Reunification. We'll maintain the goal of Reunification with [the mother] and have some increased visitation.
Mr. [A.], all of your rights need to go through D.C.F.S. That - that's the only way that it can go. All of your financial contributions need to be documented through D.C.F.S. You don't give them $10 on the side to each of them and say here's $10. You give $30 to D.C.F.S. and let D.C.F.S. distribute the $30 to them.
Everything needs to go through them for your - I mean, there's a reason they were removed, and the State puts a high threshold on what needs to be done to go back. We just can't be in a world where, you know, parents come back and say, Well, let me tell you about all the things that they don't know I've been doing." That - that just, sort of, isn't the way it works[.]
***
Mr. [A.], like I said, bring your witnesses on that day, sir, so we can go forward or - or - I - I'll give you one more chance if you want to rethink that lawyer. Mr. Manning's - Mr. Manning would love nothing better than to jump in right now[.][12]
***

         The father chose to continue to represent himself.

         Another review hearing was held on February 23, 2018. The DCFS foster care supervisor reported that the mother's drug screens had been negative for six months.[13] The foster care supervisor also reported that the agency had begun a trial placement with the children in the mother's home and that the placements regarding A.A. and A.W. were going well. However, the supervisor reported that the victim had "made a false report" to DCFS regarding the mother.[14] The DCFS foster care supervisor also reported that, at that time, the agency was not recommending reuniting the victim with the mother because the victim was struggling with ongoing issues of self-harm.

         During the hearing, the children's attorney reported that the children continued to express that they did not want to live with the father; however, they had expressed a desire to maintain visitation with him. The father stated, "I don't have anything against the mother. You know, I want to establish a relationship with my children as well." He also stated that he was not willing to relinquish custody of the children because he did not believe the mother was capable of caring for these three children, in addition to her three younger children, on her own. The father continued to express that supervised visitation with the children at the DCFS office was "uncomfortable."

         The trial court addressed the father's statements by explaining that being "uncomfortable" is often a part of the CINC process. The court encouraged the father to "take the best advantage of what you have." The father continued to express his views that DCFS was assisting the mother with her case plan but was not providing him with similar assistance. The trial court encouraged the father to "do everything [DCFS] asks you to do even if it's uncomfortable."

         A permanency hearing was held on April 3, 2018, during which DCFS requested to be relieved of custody of the children and recommended that they be placed in the custody of the mother. The foster care supervisor reported that the children had been residing in the mother's home for approximately one month and that they were doing well. The attorney representing the children also reported that the children were doing well and that they had expressed a desire to remain in the custody of the mother.

         The father requested full custody of the children. In the alternative, he requested, "if not full, at least half because the mother has six children, and she's not going to be able to provide for all six." He reiterated his objection to the way he believed DCFS handled the case and complained that he was not provided with the services necessary to complete his case plan. The trial court stated:

All right. Well, your - your objections are noted, Mr. [A.]. I think at this point in time I find that it is in the best interest to have the children placed with their mother, and you know, you can work on your relationship that you have with your children. It's that simple.

         The father objected to the ruling, stating that DCFS had "violated [his] rights." The trial court encouraged the father to seek legal counsel and informed him that its ruling was "about the best interest of the children." DCFS recommended supervised visitation for the father. The trial court and the attorney representing the children expressed concerns with regard to who would supervise visitation once DCFS was released from the case. The attorney for the children indicated that having the mother responsible for supervising visits was "a recipe for disaster, quite frankly." The mother's attorney requested a recess to confer with his client regarding supervised visits. When matter reconvened, the trial court stated:

We will return [the children] to [the mother]. This Court will, uh - will dispose of the jurisdiction. Of course, if something comes up later on, we would be back in place but the children will perman - permanently be placed back with their mother[.] They're basically yours now, ma'am. You get to decide who they go visit. You get to decide when they visit, where they visit, and all of those kinds of things. I would encourage you to work with the father because he does have the right to see his children and then maintain [a] relationship.
Sir, if you're not pleased with what happens, you can go file a suit down in the Ouachita Parish Court. That will be a civil matter. The D.C.F.S. aspect is done. You know, kind of we're done. This is where the children are going to go. You can bring your own matter in your name that doesn't have D.C.F.S. involved at all where you'll go before another judge and say, "I'm not seeing my kids enough."

         Thereafter, the following colloquy occurred:

[THE FATHER]: What's the grounds though? I mean they -
THE COURT: The grounds are that the case plan has been worked, that we've had a trial placement, and that everything's been done on her end, and ...

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