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State ex rel. R.B.

Court of Appeals of Louisiana, Third Circuit

October 2, 2019

STATE IN THE INTEREST OF R.B., J.B. & N.W.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2018-JU-15 HONORABLE THOMAS DUPLANTIER, DISTRICT JUDGE

          Kasey L. Pharis Kasey Pharis, L.L.C. Counsel for Appellant: B.B. (mother)

          Keith Stutes District Attorney Aimee F. Hebert Assistant District Attorney Counsel forAppellee: State of Louisiana, Department of Children & Family Services

          Melanie Addy Acadiana Legal Services Counsel for R.B., J.B., & N.W. (children)

          Nicole Guidry Counsel for G.B. (father)

          Robert Lounsberry Counsel for C.W. (father)

          Court composed of John D. Saunders, Phyllis M. Keaty, and Jonathan W. Perry, Judges.

          PHYLLIS M. KEATY JUDGE

         The mother, B.B., [1] appeals the trial court's judgment ordering the continued custody of her three minor children with the State of Louisiana, Department of Children and Family Services (DCFS), and eventual adoption. For the following reasons, the trial court's judgment is affirmed.

         FACTS & PROCEDURAL HISTORY

         The mother, B.B., and the father, G.B., together produced two male children, R.B., who was born on April 18, 2013, and J.B., who was born on September 22, 2014. B.B. and a different father, C.W., together produced one female child, N.W., who was born on September 17, 2017. The mother was in a relationship with both fathers. All three adults live together in a home with other adults and children. On January 30, 2018, the DCFS received a report of sexual abuse. The report alleged that G.B. fondled his two children along with another child that lived in the house. Upon investigation, the children revealed that their father put his hand in their pants and fondled them multiple times. They also disclosed that G.B. fondled a sixteen-year-old male who visited the home. According to the report, R.B. exhibited a large bruise on his left cheek and contusions on his body. R.B. advised that he had been whipped really hard by his mother's boyfriend. J.B. revealed that he had been choked by his mother's boyfriend. The report noted that the home had a strong, foul odor and clothes, toys, and papers were scattered throughout. According to the report, the home had electricity but lacked running water.

         Pursuant to an oral instanter order on January 31, 2018, the children were removed from their home and placed in the temporary custody of the DCFS. On February 1, 2018, a written instanter order with supporting affidavit containing the information regarding the investigation of the reported claims was filed and signed by the trial court. On February 7, 2018, a continued custody hearing occurred, after which the trial court signed a formal judgment maintaining custody with the DCFS, which was stipulated to by the parents. On that same date, the State filed a Petition to Declare Child in Need of Care, alleging that the children were victims of abuse. According to the petition, the children were neglected, lacked adequate supervision, and were victims of criminal sexual activity. The allegations were denied by the parents at the answer hearing on February 21, 2018. Thereafter, the trial court ordered continued custody with the DCFS.

         The adjudication hearing occurred on April 25, 2018, wherein the parents stipulated without admission to the allegations contained in the petition. The children were adjudicated as children in need of care, and the trial court ordered continued custody with the DCFS. The written judgment advised the parents of the case review and permanency review procedure along with their obligation to cooperate with the DCFS and to comply with all of the case plan's requirements. According to the judgment, failure to comply with the case plan could result in termination of parental rights. N.W. was subsequently placed with paternal relatives in Calcasieu Parish, and R.B. and J.B. were placed in separate certified foster homes.

         Multiple permanency and case review hearings occurred wherein the trial court was presented with a case plan and progress reports. Initially, the DCFS formulated a court-approved case plan outlining a strategy for reunification between the parents and the children. However, at the case review hearing on January 3, 2019, the trial court found that it was in the children's best interest to change the primary goal to adoption rather than reunification because of the parents' inability to complete the case plan. According to the trial court, the parents' inability arose from the mother's physical limitations along with the "incarceration and mental health of father." The mother, B.B., appealed the trial court's judgment finding that she was not in substantial compliance with the case plan. On appeal, B.B. contends that:

1. The trial court committed manifest error in finding that B.B. was not in substantial compliance.
2. The trial court committed manifest error in its determination of reasonable efforts pursuant to La. Ch.C. article 702.
3. The trial court committed manifest error in changing the primary goal to adoption where the trial court, the State, and the Department of Children and Family Services ("DCFS") failed to account for delays due solely to DCFS, its service providers, or adjacent agencies.
4. The trial court committed legal error in changing the primary goal to adoption where the State and DCFS failed to develop a new case plan reflecting a change in goal and failed to provide a new case plan to the ...

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