In the Interest of C. P. C. and A. G. C.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NLJMBER 2012 CJ 0851 STATE OF LOUISIANA IN THE INTEREST OF P C AND A C G 7udgment Rendered AP1 2 9 2013 Appealed from the 22 Judicial District Court In and for the Parish of St Tammany Louisiana Trial Court Number 8510JJ Yr v I Honarable William J Burris Judge Jennifer Carter de Blanc Attorneys for Appellant Brien Karen M O P Barbara V Madere Marrero LA and Jennifer Guillot Womble Metairie LA Amanda A Trosclair LA Covington P A Randall A Fish Lacombe Brian Attorney for Appellee Attorney for Appellee LA C Dragon Attorney for Appellee Assistant District Attorney State of Louisiana Covington LA Sandra B Terrell Covington LA Attorney for Appellee Louisiana Department of Children and Family Services Sandra Fuselier Attorney for Appellees Mandeville P C and A C G LA BEFORE PARRQ HLTGHES AND WELCH JJ ej v A ii D C WELCH J The grandmother of two minor children who were previously adjudicated children in need of care appeals a judgment of the juvenile court that denied the s grandmother petition for custody and visitation continued the custody of the children with the State of Louisiana Department of Children and Family Services DCFS and the placement of the children in a certified foster home and changed the case plan goal to adoption Far reasons that follow we affirm the judgment of the juvenile court in part and we remand this matter for a hearing on visitation between the grandmother and the children FACTUAL AND PROCEDURAL HISTORY On January 13 2011 DCFS obtained an instanter order removing C P and A from the custody of their parents and placing them in the custody of C G DCFS based on allegations of neglect and lack of supervision Apparently the s children grandmother P reported her daughter A and her daughter P s boyfriend C the biological parents of both children to DCFS because of their history of domestic violence and substance abuse The children were continued in the custody of DCFS until a hearing on March 2 2011 At that time the children were adjudicated as children in need of care and placed with their grandmother P with a case plan goal of reunification with the parents A six case month review hearing was scheduled for July 7 2011 At the six review hearing on July 7 2011 DCFS proposed that the month case plan goal be changed to adoption with continued placement with P but that s P brother 7 who resided in Florida be considered for the placement and W 1 The Twenty Judicial District Court exercises original juvenile jurisdiction for its Second territorial jurisdiction pursuant to La Ch art 302 As a court exercising juvenile C 2 jurisdiction it has exclusive original juvenile jurisdiction in conformity with any special rules prescribed by law over any child alleged to be in need of caze and the parents of any such child La Ch art 604 C 2 The children their parents and their grandparent aze referred to by their initials to preserve their anonymity in this confidential proceeding 2 subsequent adoption of A Apparently this proposed change in the case plan C G was made by DCFS because the parents had failed to comply with the case plan and P was having commitment issues and felt overwhelmed with raising both children Before the hearing commenced a pre conference was held with the trial juvenile court and the attorneys involved in this matter Apparently the juvenile court disapproved of the proposed change in the case plan ordered DCFS to explare other placements so that C and A would not be separated and P C G would not be with the grandmother determined that the case plan goal would remain reunification and ordered A and C to cooperate with DCFS and to P submit to random drug testing Although the pre conference discussions were trial not made on the record A and C subsequently stipulated to the juvenile P s court arder P was present during the juvenile court ruling on the matter and s P A and C stipulation to that ruling however she made no objection s Approximately one week later the children were removed from P home and s placed in a certified foster home A twelve case review was scheduled for month January 5 2012 A judgment in accordance with the juvenile court ruling and s the parties stipulation was signed on August 5 2011 On November 23 2011 P filed a petition to intervene and for custody and visitation with the children In this petition P sought to intervene in the child in need of care proceeding in order to facilitate the permanent plan for the children and to ensure that their best interests were protected She also sought custody of the children and alternatively that the court reconsider placing the children in her care while in the custody of DCFS or that she be granted liberal and regular visitation with the children A hearing on these issues was scheduled for hearing on January 4 2012 and on that date P petition of intervention was granted s 3 and all other matters including the previously scheduled twelve case month review were continued to 1 2 2012 3 1aroh At the twelve case review hearing on March 2 2012 DCFS month proposed that the case plan goal be changed to adoption with continued placement of the children in the foster home where they had been since July 2011 After receiving evidence as to all the pending issues the juvenile court issued written reasons for judgment which provided as follows This matter was heard on July 7 2011 At this hearing the juvenile court at the request of A and the other parties after a P trial pre conference refused to change the goal to adoption and continued custody with DCFS The placement of the children was changed from the maternal grandmother to certified foster parents It appears that there had been some equivocation before the hearing by the grandmother as to her ability to maintain the placement of both girls with her although at the hearing she no longer had such equivocation The mother A acknowledges that it was her P position that placement should not be with her mother P but claims such was based on faulty information and understanding The court does not believe that to be the case At the hearing the maternal grandmother P was present but did not testify and was not called upon to be heard It likewise appears that she did not request an opportunity to be heard The c understands and believes that she ourt did not feel she could interrupt the proceedings by a request to be heard Quite frankly if she had presented the evidence the c ourt now has before it on July 7 2011 the c believes that the result ourt would have been different in view of the relative placement preference of the law The maternal grandmother P was not a party on July 7 2011 heard was but she had a right to notice the right to attend and to be The maternal grandmother noted appearance shows she s notified She knew of the s ourt c ruling he T grandmother by her pleadings wants the juvenile c to sit as a of ourt ourt c ppeal a on a matter she had a right to appeal but didn Therefore t the c is of the opinion that it is to look at the best interests of ourt these children on March 2 2012 instead of July 7 2011 As to the dispositional hearing and the permanency hearing the ourt c finds that the parents have not substantially complied with the plan The c changes the case goal to adoption Custody ourt case 3 On Mazch 2 2012 A filed a motion proposing that P be granted guardianship of the P children pursuant to La Ch art 681 and 720 This motion was denied at the hearing on C March 2 2012 and no issues have been raised on appeal with regazd to the denial of this motion 4 The juvenile court judge who presided over the July 7 20ll case review hearing was a different juvenile court judge from the one who presided over the Mazch 2 2012 hearing 4 shall remain with DCFS The current placement with the certified foster home has proven very successful The children have adjusted totally to the very safe and stable environment As of March 2 2012 this is the least restrictive and most appropriate placement even over the priar relative placement A judgment in accordance with the juvenile court ruling was signed on s March 22 2012 and it is from this judgment that P has appealed ASSIGNMENTS OF ERROR On appeal P asserts that the juvenile court erred by 1 not allowing her to revisit the removal of her grandchildren from her home when she was never informed by the court of its order for the removal 2 relying on previous placement decisions and ignoring the procedural errors made in the course of those previous placement decisions 3 not following federal and state guidelines that give preferential placement to a biological relative who sought custody mately appro four and a half months after the removal of the children from that placement and finding that the current placement was in the best interest of the children and 4 denying further visitarion with the grandmother without testimony or evidence that such visitation would be detrimental to the children and with testimony from two experts that the supervised visits with the grandmother went well LAW AND DISCUSSION Revisiting the Removal of the Children and the Placement Decisionfrom the July 7 2011 Hearing Assignments of Error Nos 1 and 2 Essentially P contends that the juvenile court erred in not allowing her to revisit the removal of her grandchildren because she was not given the opportunity to be heard at the July 7 2011 case review hearing even though she was the caregiver for the children and was never informed either verbally or in writing that the court had ordered the removal of the children from her care Additionally 5 she contends that because of thESe procedural errors the juvenile court should not have relied on that placement decision at the March 2 2012 hearing In a child in need of care proceeding DCFS is required to give notice of the right to appear and to be heard at a case review hearing to foster parents adoptive parents or relatives providing care for the child La Ch C art 695 and B A But only parties have the right to testify to confront and cross adverse examine witnesses and to present evidence and witnesses La Ch art 696 At the C A conclusion of the case review hearing the juvenile court may approve the case plan proposed by DCFS and order the compliance by all parties or find that that case plan is not appropriate and order the department to revise the case plan La Ch C art 700 However any person directly affected by such ruling of the A juvenile court may appeal those findings or orders La Ch C art 700 B The transcript from the July 7 2011 hearing reveals that during the pre trial conference the juvenile court found that the case plan proposed by DCFS was not appropriate and thereafter A and C stipulated that the case plan goal would P remain reunification and that the placement ofthe children would be changed P was present in the courtroom during this stipulation but remained silent Thus P was aware that the children were going to be removed from her care Although the juvenile court did not specifically address P or call upon her to be heard P did not request the opportunity to be heard even though she had the right to do so Furthermore as the children scaretaker P was a directly person affected by the juvenile court ruling Thus P was entitled to appeal that s ruling but she did not do so Therefore we find that the juvenile court properly refused to revisit the ruling made at the July 7 2011 hearing to remove the children from P care and properly evaluated the best interest of the children at the time s of the March 2 2012 hearing 6 Placement Decision at the March 2 2012 Hearing Assignment of Error No 3 In this assignment of error P contends that the juvenile court erred by failing to follow federal and state guidelines that give preferential placement of children to relatives over foster care and in finding that the current placement of the children in foster car was in the chiZdren sbest interest Throughout child in need of care proceedings the placement of the children with relatives is generally preferred See La Ch arts 622 627 681 683 and C 702 While relatives may be in a favored class to receive placement or custody of a child in need of care the law provides an exception when the court has made a specific finding that such placement or custody is not in the best interest of the child State in the interest of T 2003 La App 3 Cir 3 869 M 0929 04 24 2d So 339 346 The best interest of the child trumps all other considerations in child in need of care proceedings Id As of the time of the March 2 2012 hearing eight months had elapsed since the children had been removed from the home of P and placed in their current certified foster home By all accounts the children had adjusted well to that home were comfortable and were receiving love and affection from their foster parents who were committed to the children and desired to adopt them Charlotte Duncan the DCFS case worker for the children testified that P with whom the children had first been placed was overwhelmed the entire time that she had the children According to Ms Duncan P often complained of the financial burden of the children and that she needed a break from the children Additionally Ms Duncan testified that there were discussions between P and her brother J who resided in Florida concerning the possibility of 7 and his W W wife adopting one of the children Ms Duncan explained that the children were no longer placed with P because the then juvenile court judge was presiding 7 concerned about P s lack of commitment and the possible separation of the children and thus required that DCFS explore other placement options for the children P admitted that initially she had been overwhelmed when she cared for the children because she did not have any nights of Additionally P testified that her dau gh ter AP had been harassin g her because she would not let A P visit the children whenever she wanted to P testified that as of March 2 2012 her situation was different she knew what she needed to do mentally to care for the children and that she was emotionally stronger than before P also testified that money was no longer an issue and that she and her boyfriend had plans to marry Bobette Laurendine a Licensed Clinical Social Worker testified that she had engaged in therapy with C to address anxiety and to observe some visits P between P C C G A and P Ms Laurendine opined that although the s children visits with P were pleasant the children should remain in their foster home because the children had developed a strong bond with their foster parents and have identified their home as the foster family home s Ms Laurendine explained that the children had a heightened sense of joy when talking about or interacting with their foster parents and had developed a sense of security because of the foster family Specifically Ms Laurendine explained that because of the sense of security that had been established the children were able to successfully separate from their caregivers the foster parents because the children knew that at the end of the day they were going home with their foster family Ms Laurendine testified that removing the children from the foster home would increase their chance of developing difficulty with bonding and attachment The children sfoster parents also testified at the hearing The foster father testified that A who was eighteen months old at the time she was placed with C G 8 them was still taking a bottle at that time but he also stated that at that time she could only speak one word that her sole means of communication and mommy was to use hand gestures or to grunt The foster mother testified that when the children visited with P C needed constant reassurance that she was not P leaving the foster family and A would have nightmares and wake up C G screaming After hearing all of the testimony the juvenile court determined that custody would remain with DCFS that the placement of the children in their current certified foster home had proven very successful and that the children had totally adjusted to that safe and stable environment Thus the juvenile court determined that continued custody with DCFS and placement in the foster home was the least restrictive and most appropriate placement even over the prior relative placement and was thus in the best interest of the children After reviewing the record we find that the juvenile court judgment in this regard is supported by the record s Denial of Visitation Assignment of Error No 4 In P last assignment of error she contends that the juvenile court erred s in denying her visitation without testimony or evidence that such visitation would be detrimental to the children and when the testimony revealed that the supervised visits that she did have with the children went well According to the record once the children were removed from P home s her visitation was reduced to once a month although P had some additional visits prior to the March 2 2012 hearing for evaluation purposes Although the s children foster mother testified that after the children visited with P C P needed constant reassurance that she was not leaving the foster family and A C G would have bad dreams for two nights the uncontradicted testimony at the hearing established that the visits between the children and P went well and that the 9 children and P had a significant relationship In fact this significant relationship between the children and their grandmother was one of the reasons that DCFS initially placed the children with P Additionally Ms Duncan the DCFS case worker specifically testified that the older child liked seeing her grandmother Given the evidence in the record before us we see no reason why P s visitation should not have been continued after the March 2 2012 hearing While the juvenile court did not provide any specific reasons for not continuing visitation between P and the children we must conclude that the juvenile court apparent s conclusion that further visitation with P was not in the children best interest s was an abuse of the discretion afforded it Therefore we remand this matter to the juvenile court for a hearing to determine what visitation with P would be in the s children best interest CONCLUSION For the above and foregoing reasons the March 22 2012 judgment of the juvenile court is affirmed in part and this matter is remanded for a hearing on visitation between the children and P All costs of this appeal in the amount of 634 are assessed equally 50 between P and the State of Louisiana Department of Children and Family Services AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS 10
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