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State ex rel. A.S.

Court of Appeals of Louisiana, First Circuit

September 4, 2019

STATE OF LOUISIANA IN THE INTEREST OF: A.S. W/F DOB: 07/28/2007

          On 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

          Laura G. Slocum Sherry Powell Laura Locker-Melancon Baton Rouge, Louisiana Counsel for Plaintiff/Appellee Department of Children & Family Services

          Brad Cascio Assistant District Attorney Livingston, Louisiana Counsel for Plaintiff/Appellee State of Louisiana

          Alice 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.

          McCLENDON, J.

         In this 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 affirm.

         FACTUAL AND PROCEDURAL HISTORY

         This 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.

         Prior 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.

         Following 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.

         On 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").

         On 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.

         On 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.

         On May 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.

         The 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 child.

         At the 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.)

         From 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.[1]

         LAW, ARGUMENT & ANALYSIS

         This 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.

         CINC 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.

         Louisiana 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 child.

         Adjudication Hearing

         The 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.

         A.S. 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 ...


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