STATE OF LOUISIANA IN THE INTEREST OF: A.S. W/F DOB: 07/28/2007
Appeal from the City Court of Denham Springs, Ward II In and
for the Parish of Livingston State of Louisiana Docket No.
11671-1 Honorable Jerry L. Denton, Jr., Judge Presiding
G. Slocum Sherry Powell Laura Locker-Melancon Baton Rouge,
Louisiana Counsel for Plaintiff/Appellee Department of
Children & Family Services
Cascio Assistant District Attorney Livingston, Louisiana
Counsel for Plaintiff/Appellee State of Louisiana
Montestruc MHAS/ Child Advocacy Program Baton Rouge,
Louisiana Counsel for Plaintiff/Appellee On behalf of the
minor child, A. S.
DeVonna Ponthieu Watson, Louisiana Counsel for Defendant/
Appellant C. S. - Father
BEFORE: WHIPPLE, C J., McCLENDON, AND HIGGINBOTHAM, JJ.
appeal, the biological father of minor child A.S. appeals the
trial court judgment adjudicating A.S. as a Child in Need of
Care as to the father. For the reasons that follow, we
AND PROCEDURAL HISTORY
case arose from Child in Need of Care ("CINC")
proceedings. The allegations providing the basis for the CINC
proceedings involved mistreatment that was primarily directed
at minor child C.S., and occurred in the presence of his
sister, minor child A.S., causing harm to A.S. as a result of
bearing witness to the abuse of her brother. C.S. passed away
before adjudication and disposition of the CINC proceedings,
though his death was not related to the allegations
underlying the CINC proceedings. Of note, C.S. was a special
needs child diagnosed with Asperger's Syndrome and ADHD,
and was suffering from large cell lymphoma,
non-Hodgkin's, during the relevant timeframe.
to the institution of the CINC proceedings underlying the
instant appeal, A.S. and C.S. were adjudicated Children in
Need of Care as to their father on September 10, 2015 by the
City Court of Denham Springs, Ward II ("2015 CINC
proceedings"). Disposition on December 10, 2015, placed
the children in the sole custody of their mother, S.P., with
only supervised visits with their father, whose initials are
also C.S. The City Court of Denham Springs, Ward II
relinquished jurisdiction upon disposition.
disposition, the mother and the father signed a stipulated
consent judgment requesting shared "50/50" custody
of A.S. and C.S. This judgment was submitted to and signed by
the Family Court in and for the Parish of East Baton Rouge.
March 16, 2018, an oral instanter was issued, again removing
A.S. and C.S. from the custody of their father and his wife
P.S. and placing A.S. and C.S. in the temporary custody of
their mother, S.P. ("2018 CINC proceedings").
March 21, 2018, the City Court of Denham Springs, Ward II
("trial court") held a hearing in the 2018 CINC
proceedings. The father was present; however, the mother,
A.S., and C.S. were not present; C.S. was in the hospital due
to complications from cancer, and passed away later that day.
A subsequent hearing was set for May 10, 2018.
April 20, 2018, a petition was filed in the trial court
seeking adjudication of A.S. and C.S. as Children in Need of
Care. The petition contained allegations of ill treatment of
A.S. and C.S. by their father and his wife, P.S.
10, 2018, after the trial court received sworn testimony that
minor child C.S. had passed away, counsel for the father
requested an amended petition removing the name of minor
child C.S. from the CINC petition. The trial court granted
this request and set a subsequent hearing date. The amended
CINC petition was filed on May 30, 2018.
adjudication hearing which is the subject of this appeal took
place on September 26, 2018. Appearances were made by counsel
for the State, counsel for A.S. provided through Mental
Health Advocacy Service/Child Advocacy Program ("counsel
on behalf of A.S."), and defense counsel for the father.
A.S. was adjudicated a Child in Need of Care as to her
father, pursuant to Louisiana Children's Code Article
606(A) subsections 2 and 5, for neglect and crime against a
conclusion of the adjudication hearing, the father consented
to a disposition hearing. (R. 127) The trial court ordered
the following disposition: that A.S. remain in the custody of
her mother, S.P.; that the father may not have any contact
with A.S. until further orders from the trial court; that
A.S. shall continue receiving therapy; that the trial court
shall maintain jurisdiction until A.S. reaches the age of
majority; that a case plan be developed for the father; and,
that the father and his wife submit to a psychological
evaluation as part of the father's case plan. (R. 51-55.)
this adjudication and disposition, the father appeals. The
assignments of error are essentially:
1. The trial court erred in adjudicating A.S. as a Child in
Need of Care as to her father.
2. The trial court erred in allowing testimony that
constituted inadmissible hearsay over the objection of
counsel for the father.
3. The trial court erred in permitting a non-expert to
testify as to the causation of A.S.'s behavior.
4. The trial court erred in permitting testimony regarding
the 2015 CINC proceedings.
ARGUMENT & ANALYSIS
Court has jurisdiction over these proceedings subject to
Louisiana Children's Code Article 330. Louisiana
Children's Code Article 330 provides that in Child in
Need of Care proceedings, an appeal may be taken only after a
judgment of disposition, and the appeal shall include all
errors assigned concerning the adjudication and disposition.
proceedings are governed by Louisiana Children's Code
Articles 601-725.6. The purpose of the proceedings is to
protect children whose physical or mental health and welfare
is substantially at risk of harm by physical abuse, neglect,
or exploitation and who may be further threatened by the
conduct of others. The health, safety, and best interest of
the child shall be the paramount concern in all CINC
proceedings. See LSA Ch. C. art. 601.
Children's Code Article 606(A) mandates that allegations
that a child is in need of care assert one or more of certain
enumerated grounds. Pertinent to this appeal, the grounds for
finding a child to be in need of care include that the child
is a victim of neglect, and that the conduct of a parent
constitutes a crime against the child or against any other
child. LSA Ch. C. art. 606(A)(2) and (5). Louisiana
Children's Code Article 603(18) defines neglect as the
refusal or unreasonable failure of a parent or caretaker to
supply the child with necessary food, clothing, shelter,
care, treatment, or counseling for any injury, illness, or
condition of the child, as a result of which the child's
physical, mental, or emotional health and safety is
substantially threatened or impaired. Louisiana
Children's Code Article 603(12) provides that a
"crime against the child" "shall include the
commission of or the attempted commission" of crimes
against the child, including criminal neglect. Louisiana
Revised Statute § 14:93(A)(1) defines the crime of
cruelty to juveniles as the intentional or criminally
negligent mistreatment or neglect by anyone seventeen years
of age or older of any child under the age of seventeen
whereby unjustifiable pain or suffering is caused to said
September 26, 2018 adjudication hearing began with a viewing
of the recording of a Children's Advocacy Center
("CAC") interview of A.S. conducted on June 5,
2018, after all counsel confirmed for the record that they
had stipulated to the admission of the CAC recording. The
recording was paused as counsel for the father objected
"to any comment [A.S.] makes about [C.S.] in regards to
this petition. He is not part of it so I want to strike
anything that is said about [C.S.]." In response,
counsel for the State argued "[C.S.]'s name is
mentioned all throughout the petition because it's
alleged that the majority of the alleged physical abuse was
against [C.S.] and resulted in the emotional and mental abuse
[of A.S.] due to the fact that this juvenile had to watch the
abuse on the other child." The trial court found that
testimony regarding C.S. "impact[ed] the case
directly" and allowed the testimony.
was the first witness to testify. A.S. testified regarding
events she witnessed, and events C.S. recounted to her. The
testimony elicited from A.S. by the State and by counsel on
behalf of A.S. clearly distinguished between those events
A.S. had witnessed first-hand and those she had not. Counsel