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State ex rel. G.H.

Court of Appeals of Louisiana, Fifth Circuit

January 30, 2019

STATE OF LOUISIANA IN THE INTEREST OF G. H.

          ON APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-CC-62, DIVISION "C" HONORABLE BARRON C. BURMASTER, JUDGE PRESIDING

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

          COUNSEL FOR DEFENDANT/APPELLEE, C.V., GRANDMOTHER Kristine K. Sims Frances M. Olivier

          COUNSEL FOR DEFENDANT/APPELLANT, F. M. M. AND E. D., FORMER FOSTER PARENTS John B. Donnes, III Lawrence L. Lagarde, Jr.

          Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg

          STEPHEN J. WINDHORST JUDGE

         The former foster parents of G.H., F.M. and E.D. ("appellants"), appeal the juvenile court's May 22, 2018 denial of their "Motion to Intervene Due to Major Change of Status and Circumstances" (the "third motion to intervene") in the matter entitled, State of Louisiana In The Interest Of G.H., Case No. 16-CC-62. The paternal grandmother, C.V. ("appellee"), filed a motion to dismiss this appeal. For the following reasons, we deny the motion to dismiss and affirm the denial of appellants' third motion to intervene.

         FACTS AND PROCEDURAL HISTORY

         G.H. was born on June 30, 2016 testing positive for methadone and opiates in his meconium and experiencing withdrawal symptoms. Appellants became G.H.'s foster parents on July 25, 2016. On July 26, 2016, G.H. was placed in the temporary custody of the Department of Children & Family Services ("DCFS"). On August 15, 2016, DCFS filed a "Child In Need of Care Petition," seeking to have G.H. adjudicated as a child in need of care. On September 20, 2016, G.H.'s parents, through their attorneys, stipulated that G.H. is in need of care without admitting the allegations of the petition. On July 25, 2017, the court approved a DCFS recommended plan of adoption for G.H.

         On October 4, 2017, the paternal biological grandmother filed a motion to intervene and requested custody of G.H. At an October 24, 2017 hearing, the court granted the grandmother's motion to intervene and authorized her to have visitation with G.H.

         On February 14, 2018, appellants filed their first motion to intervene[1] in G.H.'s case as his foster parents who intend to adopt him. On February 22, 2018, appellee filed an exception and opposition to appellants' motion to intervene. On February 27, 2018, the juvenile court granted C.V.'s Exception and gave appellants time to cure the defects in their pleadings.

         On March 6, 2018, appellants amended their first motion to intervene, and on April 10, 2018, the juvenile court denied it. Appellants did not appeal or seek supervisory review of this ruling.

         On April 23, 2018, appellants filed their second motion to intervene, [2] asserting that it was in G.H.'s best interest to allow their intervention as they have consistently provided love and care for G.H. for all his life, and that there has been no "substantial parental compliance" with or any "reasonable expectation of significant improvement" with the parents' case plan. Appellants also alleged that some of the paternal grandmother's behavior demonstrated a lack of appropriate parental discretion and discipline.

         At a May 1, 2018 hearing, the court considered multiple issues, including appellants' second motion to intervene. It also DCFS's plan sought to change G.H.'s placement to the grandmother. On May 1, 2018, the court denied appellants' second motion to intervene, and found that a change in placement was in G.H.'s best interests and changed G.H.'s placement from foster care at appellants' home to his paternal grandmother's home, with the stipulation that the foster parents have continued visitation with G.H. Therefore, as of May 1, 2018, appellants were no longer G.H.'s foster parents. Although they verbally gave notice of intent to file a writ application and/or appeal, appellants did not seek any appellate review of the May 1, 2018 ruling. While the minute entry/judgments show that appellants were present in court when the juvenile court denied their request for intervention on May 1, 2018, the first mailed notice of that judgment was dated May 15, 2018.

         A May 17, 2018 Court Appointed Special Advocates report indicates that G.H. was living with his paternal grandmother, her husband and his three brothers at this time. According to the report, the grandmother had reported that G.H. was doing well with the transition from living with his foster parents to living with her, and that he enjoyed being around his brothers. This report also states that he is playful and affectionate with his brothers.

         On May 15, 2018, G.H.'s biological mother and father filed a motion for permission of court to execute a surrender for adoption to C.V. wife of/and M.V. A hearing was set for May 22, 2018 for the DCFS to show cause why G.H.'s biological parents should not be given permission to execute a surrender directly to C.V. and M.V., the paternal grandparents.[3]

         On May 21, 2018, appellants filed their third motion to intervene[4] in G.H.'s placement proceedings. In this pleading, appellants acknowledged that because they were no longer G.H.'s foster parents, they lacked the rights accorded them under La. Ch.C. art. 695. Appellants, however, asserted that they had the right to intervene as interested persons under La. Ch.C. art. 697, which allows any interested person to intervene in the case review procedure to facilitate the permanent placement of the child and to ensure that the best interests of the child are protected. Appellants also contended that there had been a disregard for their requests for their previously court-ordered meaningful visitation.

         On May 22, 2018, the juvenile court denied appellants' third attempt to intervene, revoked DCFS's custody of G.H., and granted custody to G.H.'s paternal grandmother. This change of custody was clearly with the ongoing agreement of DCFS, which had previously on May 1, 2018 obtained the juvenile court's approval to place the child with the grandmother, and which waived a contradictory hearing with regard to the change in custody from itself (DCFS) to the grandmother. The court allowed appellants to state their reasons in support of their motion to intervene on the record. Appellants asserted that they were entitled to intervene because they were interested parties and there were problems with their court-ordered visitation. In denying appellants' intervention, the court reasoned that it was not in the child's best interest and that there was no good cause to allow the intervention because it would slow down the permanency plan in this case.

         Notice of mailing of the May 22, 2018 judgment to the parties is dated May 25, 2018. On June 4, 2018, ...


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