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State ex rel. B.F.

Court of Appeals of Louisiana, Fifth Circuit

August 9, 2019

STATE OF LOUISIANA IN THE INTEREST OF B. F., B. F., B. F. STATE OF LOUISIANA IN THE INTEREST OF B. L.

          ON 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. Lincoln.

          COUNSEL FOR PARENT/APPELLEE, R. L., III, FATHER Lisa P. Harell.

          COUNSEL FOR DEFENDANT/APPELLANT, R. L., JR. AND L. L., GRANDPARENTS Kristine K. Sims.

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson.

          JUDE G. GRAVOIS JUDGE.

         In this child in need of care proceeding, appellants, L.L. and R.L., Jr., [1] the paternal biological grandparents of the subject child, the infant B.F., [2] 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.

         After 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.

         For the following reasons, we affirm the November 27, 2018 judgment of the Juvenile Court, [3] and deny the writ application.

         FACTS AND PROCEDURAL HISTORY

         B.F. (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.[4] 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.[5]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 resided.[6]

         On 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")[7] 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 safe housing.

         DNA 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.

         In late 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.[8] 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.[9] 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.

         Following 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 visits.[10]

         A 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 shared.[11]

         The 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 own home.

         The 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.[12] The permanency hearing was continued until November 27, 2018. The parties were advised that this would be a "firm" date.

         An ASFA 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.

         As per 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.[13]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 continued visitation.

         Appellants 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 excluding appellants.
(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.

         Prior 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.

         LAW AND ANALYSIS

         The 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, [14] 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).

         An 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.

         FIRST ASSIGNMENT OF ERROR

         The Juvenile Court committed legal error by failing to comply with state and federal law in favor of preservation of families and relative placement.

         THIRD ASSIGNMENT OF ERROR

         The Juvenile Court erred by misapplying time limitations.

         These assignments of error are interrelated and are therefore addressed together.

         In 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 Children's Code.

         First, 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 care, to-wit:

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 Paragraph.
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 safety plan.
(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 children ...

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