STATE OF LOUISIANA IN THE INTEREST OF B. F., B. F., B. F. STATE OF LOUISIANA IN THE INTEREST OF B. L.
APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT PARISH OF
JEFFERSON, STATE OF LOUISIANA NO. 2011-CC-119, DIVISION
"B" HONORABLE ANDREA PRICE JANZEN, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA,
DEPARTMENT OF CHILDREN AND FAMILY SERVICES Elizabeth G.
COUNSEL FOR PARENT/APPELLEE, R. L., III, FATHER Lisa P.
COUNSEL FOR DEFENDANT/APPELLANT, R. L., JR. AND L. L.,
GRANDPARENTS Kristine K. Sims.
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Robert A. Chaisson.
G. GRAVOIS JUDGE.
child in need of care proceeding, appellants, L.L. and R.L.,
Jr.,  the paternal biological grandparents of
the subject child, the infant B.F.,  appeal the judgment of the
Jefferson Parish Juvenile Court at the placement hearing held
on November 27, 2018. In their limited intervention into this
proceeding, appellants sought custody of B.F. The placement
hearing judgment under review maintained custody of B.F. in
her foster parents, subject to conditional visitation
privileges in favor of appellants. The judgment also resulted
in a stay of appellants' intervention as to all matters
other than their visitation privileges.
they filed their appeal, on February 5, 2019, appellants
filed in the Juvenile Court "expedited" motions to
lift the stay of their intervention, for fixed and
unsupervised visitation, and for immediate implementation of
a transition plan. On February 20, 2019, the Juvenile Court
judge granted a hearing on the issue of visitation, but
summarily denied appellants' motions to lift the stay of
their intervention and for immediate implementation of a
transition plan. In response, on March 26, 2019, appellants
filed a writ application with this Court, Docket No.
19-C-144, seeking supervisory review of the Juvenile Court
judge's denial of their motions to lift the stay of their
intervention and for immediate implementation of a transition
plan. Because of common parties and interrelated facts and
issues, the writ application has been consolidated with this
appeal for decision.
following reasons, we affirm the November 27, 2018 judgment
of the Juvenile Court,  and deny the writ application.
AND PROCEDURAL HISTORY
(the subject child) was born drug exposed to R.F. on November
22, 2017, whereupon she was immediately taken into custody of
the State through the Department of Child and Family Services
("DCFS") by instanter order. The State thereafter
immediately initiated this child in need of care proceeding.
R.F. and R.L., III, appellants' son, were married in
February of 2017 and were still married at the time of
B.F.'s birth, although they apparently have since
divorced. The record reflects that like R.F., R.L., III has a
lengthy substance abuse history. The couple lived at
appellants' home in a garage apartment at points prior to
the birth of B.F. and when B.F. was born, but after
B.F.'s birth, R.F. returned for only a short period of
time and then appellants required her to leave their home due
to ongoing conflicts with her husband, R.L., III. R.F. moved
elsewhere and the couple separated. According to testimony in
the record, appellants were approached by DCFS soon after
B.F. was born to see if they were interested in custody of
B.F., but they declined at that time, in part because R.L.,
III expressed doubt, after B.F.'s birth, that she was his
child, as well as for other reasons.Because no other relatives
were either identified as suitable placements or expressed
interest in placement, B.F. was placed with foster parents on
December 11, 2017, after she was discharged from the neonatal
intensive care unit, where she has since
February 6, 2018, at an answer hearing on the petition for
the child in need of care proceeding, R.F. and R.L., III both
stipulated that B.F. was in need of care without admitting
the allegations of the petition. At an Adoption and Safe
Families Act ("ASFA") dispositional hearing on March
13, 2018, R.F. and R.L., III were each given case plans with
stated goals of reunification. The case plans required, among
other things, that R.F. and R.L., III each remain drug-free,
complete substance abuse treatment, and maintain clean and
test results filed into the Juvenile Court record on March 5,
2018 established that B.F. was indeed R.L., III's
biological daughter. These DNA test results were delivered to
R.L., III at appellants' home, where he resided at the
time, shortly before this date, around February 26, 2018.
Following confirmation of paternity, appellants provided
their son with some assistance in meeting his case plan
goals, including transporting R.L., III to supervised
visitation with B.F. at the DCFS office.
May of 2018, appellants told the DCFS caseworker that they
were interested in custody of B.F. On June 22, 2018,
appellants filed in the Juvenile Court proceeding a pleading
entitled "Paternal Grandparents' Motion to
Intervene, Motion for Immediate Family Placement, and Request
for Notice of Proceedings Pursuant to La. Ch.C. Art.
623A." On June 25, 2018, the Juvenile Court judge
summarily denied appellants' motions pursuant to La.
Ch.C. art. 697. Appellants sought this Court's
supervisory review of that ruling. On July 25, 2018, upon
review of the writ application, this Court found that the
Juvenile Court judge erred in summarily denying
appellants' motion to intervene without conducting a full
hearing to consider the best interest of the child as per La.
Ch.C. art. 697. Upon remand and a hearing on August 7,
2018, the Juvenile Court judge granted appellants a limited
intervention. The minute entry reflecting this ruling
indicates that the Juvenile Court judge maintained custody of
B.F. with DCFS and placement with the foster parents, ordered
increased visitation between B.F. and appellants, and ordered
that DCFS set up an assessment at Tulane Parent Education
Program ("T-PEP") for appellants to address their
parenting abilities and to determine what if any attachment
B.F. had with appellants, and if T-PEP deemed appellants an
appropriate placement, then T-PEP and DCFS were ordered to
develop a transition plan for B.F.
the grant of the limited intervention, appellants
participated in at least seven supervised visits with B.F. at
the DCFS office, which were observed by DCFS and T-PEP
clinicians. R.L., III also attended several of these
supervised visits, as well as B.F.'s foster mother at the
specific request of T-PEP and the DCFS caseworker. Sometimes
R.F. attended the visitations, as well as her grandmother and
R.F.'s two older children who are placed with different
families. R.L., III's elder daughter, a half-sister of
B.F., attended at least two of the supervised
scheduled ASFA review hearing was held on September 11, 2018
regarding all of R.F.'s children. Therein, the Juvenile
Court judge noted that DCFS was untimely in providing the
required progress reports from T-PEP to all of the parties.
As to B.F. only, the hearing was continued until October 16,
2018. The Juvenile Court judge admonished DCFS to provide all
parties with pertinent updated reports from T-PEP ten days in
advance of the October hearing. The judge also clarified that
appellants' intervention was limited, that they were only
entitled to information as it related to appellants and their
relationship with B.F, and that any information in reports
regarding the mother, the foster parents, and the
mother's other children was to be redacted from the
reports, based upon privacy rights, and not
parties to this appeal appeared for an ASFA review hearing
and a permanency hearing on October 16, 2018. Also set for
hearing that day were two rules filed by appellants: a
motion/rule to show cause to hire an independent expert, and
a rule to show cause against DCFS for contempt. The Juvenile
Court judge granted appellants' motion to hire
independent expert Amy Dickson, Ph.D., whom, she ruled, would
be allowed to review the tape-recorded visitations between
appellants and B.F. and would also be allowed to observe
future visitations. Appellants were also given access to
redacted reports concerning appellants and B.F. from T-PEP
through DCFS, and also the home development report of their
rule for contempt concerned appellants' allegation that
instead of the increased visitation with B.F. that the court
had previously ordered, they in fact had reduced visitation.
After hearing testimony from Ms. Gabrielle Jackson, the DCFS
caseworker, that the visitation had increased since
appellants had filed their rule for contempt, and argument
from the parties, the court declined to hold DCFS in
contempt, but asked T-PEP to consider if B.F. could handle
increased visitation without undue stress. The
permanency hearing was continued until November 27, 2018. The
parties were advised that this would be a "firm"
review hearing and the ASFA permanency hearing were held on
November 27, 2018. On November 21, 2018, the Wednesday prior
to the November 27, 2018 hearing, appellants fax-filed a
motion to continue the hearing, alleging that Mr. Jesse
George, the child's appointed attorney, was not qualified
as per the pertinent Supreme Court Rule to represent B.F. The
judge noted that the Juvenile Court did not accept fax
filings and would not hear the motion to continue on the
morning of the hearing.
their limited intervention, appellants did not participate in
the permanency hearing, as that hearing concerned only
whether B.F.'s parents, R.F. and R.L., III, had met their
case plan goals. At the permanency hearing, it was determined
that because the parents had not made meaningful progress in
their case plans, the case plan goals were changed to
adoption instead of reunification.Appellants returned to the
courtroom to participate in the placement hearing that
followed the permanency hearing. After hearing testimony from
the DCFS's expert, Devi Miron Murphy, Ph.D., who is
affiliated with T-PEP, and DCFS personnel, as well as
appellants' expert Dr. Dickson, and hearing closing
arguments, the Juvenile Court judge found that it was in
B.F.'s best interest to maintain her current placement
with her foster parents. In so finding, the judge noted that
she was well aware that relative placement was statutorily
preferred over foster care. The judge stated that she gave
little weight or credibility to Dr. Dickson's testimony
because her involvement in the case was too limited for her
to express an opinion as to what was in B.F.'s best
interest. The judge noted that no witness, expert or lay,
testified that it was in B.F.'s best interest for her to
be removed from her current placement with the foster parents
and placed with appellants. She did find, however, that it
would not be harmful for B.F. to maintain a relationship with
appellants (her paternal grandparents), provided they could
respect B.F.'s placement with the foster parents. The
judge ordered that T-PEP look into continued visitation
between the parties. Finally, the judge stayed
appellants' intervention except as it pertained to
timely filed an appeal of the placement ruling, raising five
assignments of error, to-wit:
(1) The Juvenile Court committed legal error by failing to
comply with state and federal law in favor of preservation of
families and relative placement.
(2) The Juvenile Court committed legal error on June 5, 2018
and November 27, 2018 when it was ordered that placement of
the child could not be changed "under any
circumstances" without court approval.
(3) The Juvenile Court erred by misapplying time limitations.
(4) The Juvenile Court erred by failing to hear
appellants' motion and incorporated memorandum to
continue the permanency hearing and for failing to grant a
continuance when DCFS again failed to timely disseminate
reports and proceeding with a permanency hearing while
(5) The Juvenile Court erred in proceeding on November 27,
2018 with both the permanency and placement hearings without
conducting a hearing on appellants' motion for expedited
hearing to vacate order of continued custody of B.F. and
declare such judgments an absolute nullity and by afterwards
denying the motion as moot.
to the lodging of the appeal in this Court, on February 5,
2019 appellants filed in the Juvenile Court the
aforementioned "expedited" motions to lift the stay
of their intervention, for fixed and unsupervised visitation,
and for immediate implementation of a transition plan. The
Juvenile Court judge summarily denied the motions relative to
the intervention and transition plan on February 20, 2019,
but set the motion for visitation for a hearing.
Appellants/relators timely filed a writ application with this
Court, seeking review of the February 20, 2019 judgment.
Regarding the writ application, appellants/relators argue
that the Juvenile Court judge erred in denying their motions
to lift the stay on their intervention and for immediate
implementation of a transition plan without first affording
them a hearing. They also argue that the Juvenile Court judge
erred in denying their motions.
Louisiana Children's Code was written with the intent
that courts should resolve parental status and permanency of
children issues in an expeditious manner. Specifically, La.
Ch.C. art. 601 provides, in pertinent part, that "[t]he
proceedings shall be conducted expeditiously to
avoid delays in achieving permanency for children. This Title
is intended to provide the greatest possible protection
as promptly as possible for such children. The
health, safety, and best interest of the child shall be the
paramount concern in all proceedings under this Title.
… This Title shall be administered and interpreted to
avoid unnecessary interference with family privacy and trauma
to the child, and yet, at the same time, authorize the
protective and preventive intervention needed for the health,
safety, and well-being of children." (Emphasis added.)
See also State in Interest of C.C., 18-440 (La.App.
5 Cir. 10/12/18), 256 So.3d 565, 572, n.13, writ
denied, 18-1766 (La. 12/3/18), 257 So.3d 192. Consistent
with this statutory scheme of expediency, in State ex
rel. C.P., 00-2703 (La. 1/17/01), 777 So.2d 470, 471,
the Supreme Court stated that "[c]ourts shall avoid
delays in resolving the status of the parent and in achieving
permanency for the child," citing La. Ch.C. art. 1032,
and that "[a]ll phases of termination of parental rights
proceedings are thus to be given priority," citing
State in the Interest of S.M., 98-0922 (La.
10/20/98), 719 So.2d 445 (La. 1998).
appellate court's review of a juvenile court's
determination of a permanent plan is governed by the manifest
error standard. State In Interest of T.B., 16-215
(La.App. 5 Cir. 9/22/16), 202 So.3d 555, 560-61, citing
State v. N.C., 50, 446 (La.App. 2 Cir. 11/18/15),
184 So.3d 760, 770. Under this standard, the appellate court
must not substitute its own opinion when it is the juvenile
court that is in the unique position to see and hear the
witnesses as they testify. Where there is conflicting
testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon
review, even when the appellate court may feel that its own
evaluations and inferences are as reasonable as those of the
juvenile court. If the juvenile court's findings are
reasonable in light of the record reviewed in its entirety,
the appellate court may not reverse, even though convinced
that, had it been sitting as the trier of fact, it would have
weighed the evidence differently. Id.
ASSIGNMENT OF ERROR
Juvenile Court committed legal error by failing to comply
with state and federal law in favor of preservation of
families and relative placement.
ASSIGNMENT OF ERROR
Juvenile Court erred by misapplying time limitations.
assignments of error are interrelated and are therefore
their first assignment of error, appellants argue that
Louisiana law (in particular the Children's Code) and
federal law (ASFA, 42 U.S.C. § 601, et seq.)
place a priority on preserving families and favor that
children be placed with relatives rather than in foster care.
Appellants also argue extensively, within this section of
their brief (rather than under the heading of their third
assignment of error) that appellants were denied custody of
B.F. because they were held to certain "time
limits" in which to express their desire for custody of
B.F. that do not exist within the statutory framework of the
appellants argue that the trial court ignored and/or
misapplied various provisions of the law to that effect,
including La. Ch.C. art. 622, which specifically favors
relative placement of children who have been found in need of
A. Prior to the continued custody hearing required in Article
624, a suitable relative or other suitable individual may
seek and obtain an ex parte court order to take provisional
custody of the child pending the continued custody hearing.
The provisions of Code of Civil Procedure Article 3945 are
inapplicable to an ex parte order rendered pursuant to this
B. Unless the best interest of the child requires a different
placement, a child who appears to be a child in need of care
and whose immediate removal is necessary for his protection
from further abuse or neglect shall be placed, pending a
continued custody hearing, in accordance with this priority:
(1) In the home of a suitable relative who is of the age of
majority and with whom the child has been living in a
wholesome and stable environment if the relative is willing
and able to continue to offer such environment for the child
pending an adjudication hearing and if he agrees to the
(2) In the home of a suitable relative who is of the age of
majority if the relative is willing and able to offer a
wholesome and stable environment for the child pending an
adjudication hearing and if he agrees to the safety plan.
(3) In the home of a suitable individual who is of the age of
majority if he is willing and able to offer a wholesome and
stable environment for the child pending an adjudication
hearing and if he agrees to the safety plan.
(4) In foster care under the supervision of the department
until further orders of the court.
(5) In a shelter care facility if the child, who is not in
the custody of the department, has been the victim of human
trafficking as provided for in R.S. 14:46.2 or trafficking of