The opinion
DEPARTMENT OF CHILDREN AND FAMILY NO. 20-CA-309
SERVICES IN THE MATTER OF J. M.
FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 20-AP-01, DIVISION "C"
HONORABLE BARRON C. BURMASTER, JUDGE PRESIDING
March 31, 2021
ROBERT A. CHAISSON
JUDGE
Panel composed of Judges Robert A. Chaisson,
Stephen J. Windhorst, and John J. Molaison, Jr.
AFFIRMED
RAC
SJW
JJM
COUNSEL FOR PARENT/APPELLEE,
J. M.
Sherry A. Watters
Marta A. Schnabel
COUNSEL FOR DEFENDANT/APPELLANT,
STATE OF LOUISIANA, DEPARTMENT OF CHILDREN AND FAMILY
SERVICES
Gabrielle A. Wilson
CHAISSON, J.
The State of Louisiana through the Department of Children and Family
Services (DCFS) appeals the judgment of the Jefferson Parish Juvenile Court that
reversed a decision of the Division of Administrative Law (DAL). The DAL
decision affirmed DCFS’ valid findings of sexual enticement and sexual
intercourse allegedly committed by J.M.1 For the reasons that follow, we agree
with the juvenile court’s assessment. Accordingly, we affirm the juvenile court
judgment that reversed the valid findings against J.M. of sexual enticement and
sexual intercourse, and we order that DCFS’ records and the State Central Registry
be corrected in accordance with the juvenile court’s directive in its June 23, 2020
written judgment.
FACTS AND PROCEDURAL HISTORY
Pursuant to a child in need of care proceeding, J.B. was removed from the
custody of his mother, P.B., put into the custody of DCFS, and placed in the
certified foster home of J.M. and R.M. J.B. resided with these foster parents from
September of 2016 until February of 2018, at which time he was placed with a
paternal aunt in Texas. Subsequent to the change in placement, J.M. and his
family had court-ordered visitation with J.B.
On March 18, 2019, the Texas Department of Family and Protective
Services received a report of sexual abuse allegedly committed by J.M. against J.B.
during a visit that occurred on the weekend of March 15-17, 2019, at a Texas hotel.
The allegations regarding the suspected incident in Texas were reported to
Louisiana DCFS, and following its investigation, DCFS reached a conclusion of
“valid finding” for the allegations of sexual enticement and sexual intercourse. On
1
To protect the identity of the minor child involved, the parties will be referred to using initials.
U.R.C.A. 5-1, 5-2; L.R.F. v. A.A., 13-797 (La. App. 5 Cir. 2/26/14), 133 So.3d 716, 717 n.2, writ denied,
14-655 (La. 4/17/14), 138 So.3d 633, cert. denied, 574 U.S. 871, 135 S.Ct. 224, 190 L.Ed.2d 134 (2014).
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April 30, 2019, DCFS sent J.M. a notice of the valid findings along with a
notification that he had the right to appeal these findings through the DAL.
On October 28, 2019, despite J.M.’s request for a stay pending the outcome
of the criminal proceedings in Texas, the DAL conducted a hearing on the matter.
Thereafter, on December 3, 2019, the DAL judge issued a written decision that
affirmed DCFS’ valid findings of sexual enticement and sexual intercourse, noting
that the findings are supported by a preponderance of the evidence. J.M. filed a
petition for rehearing, which was denied. He then filed a petition for review of the
administrative decision in the Jefferson Parish Juvenile Court pursuant to La. R.S.
49:964 and Louisiana Administrative Code Title 67, Part V, § 1111.
At the June 16, 2020 hearing, the parties submitted the matter on briefs, and
after considering the administrative tribunal record, the briefs of the attorneys, and
the applicable law, the juvenile court reversed the decision of the administrative
tribunal and overturned DCFS’ valid findings against J.M. of sexual enticement
and sexual intercourse. In its June 23, 2020 written judgment, the court stated, in
pertinent part, as follows:
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the
administrative tribunal erred in improperly admitting evidence into the
record that included double and triple hearsay, in particular a CAC
video that was not in compliance with the standards set by the
Children’s Code and then erred in basing its decision on said
evidence; that the administrative denial of a continuance or stay was
improper where no harm nor prejudice was articulated by DCFS; and
that, pursuant to La. R.S. 49:964(G)(5), the rights of the appellant
have been substantially prejudiced by these errors of law evidencing
that the findings, conclusions, and decisions of the administrative
tribunal were arbitrary or capricious and characterized by abuse of
discretion, with the result that said findings, conclusions and decisions
of the administrative tribunal be and that they are therefore
REVERSED.
DCFS now appeals this judgment, setting forth two assignments of error.
DCFS first contends that the juvenile court erred in excluding the CAC forensic
interview and supporting testimony of DCFS workers as hearsay, asserting that
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hearsay evidence was admissible pursuant to La. R.S. 49:956(2). Second, DCFS
contends that the juvenile court erred in its determination that the administrative
tribunal’s refusal to stay the administrative proceeding pending the outcome of the
criminal proceeding in Texas was “arbitrary and capricious” within the meaning of
La. R.S. 49:964(G).
DISCUSSION
The Louisiana Administrative Procedure Act provides for judicial review of
an administrative decision in La. R.S. 49:964, which reads, in part, as follows:
G. The court may affirm the decision of the agency or remand the case
for further proceedings. The court may reverse or modify the decision
if substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of
evidence as determined by the reviewing court. In the
application of this rule, the court shall make its own
determination and conclusions of fact by a preponderance
of evidence based upon its own evaluation of the record
reviewed in its entirety upon judicial review. In the
application of the rule, where the agency has the
opportunity to judge the credibility of witnesses by first-
hand observation of demeanor on the witness stand and
the reviewing court does not, due regard shall be given to
the agency's determination of credibility issues.
Any one of the six bases listed in the statute is sufficient to modify or
reverse an agency determination. Mid-City Automotive, LLC v. Louisiana
Department of Public Safety, 19-1219 (La. App. 1 Cir. 5/11/20), 304 So.3d 457,
461. When reviewing an administrative final decision, the district court functions
as an appellate court. Once a final judgment is rendered by the district court, an
aggrieved party may seek review by appeal to the appropriate appellate court. La.
R.S. 49:965. Id. On review of the district court’s judgment, no deference is owed
20-CA-309 3
by the court of appeal to the factual findings or legal conclusions of the district
court reviewing the agency decision. Kelley Blue Book Co., Inc. v. Louisiana
Motor Vehicle Commission, 16-281 (La. App. 5 Cir. 12/7/16), 204 So.3d 1139,
1145, writ denied, 17-32 (La. 2/10/17), 216 So.3d 49. Thus, an appellate court
sitting in review of an administrative agency reviews the findings and decision of
the administrative agency and not the decision of the district court. Our Lady of
Lake Roman Catholic Church, Mandeville v. City of Mandeville, Planning and
Zoning Commission, 13-837 (La. App. 1 Cir. 2/3/14), 147 So.3d 186, 189.
Consequently, this court will conduct its own independent review of the record in
accordance with the standards provided in La. R.S. 49:964(G). Elio Motors, Inc. v.
Louisiana Motor Vehicle Commission, 18-545 (La. App. 5 Cir. 3/27/19), 268 So.3d
1132, 1148, writ denied, 19-656 (La. 6/17/19), 274 So.3d 572.
Having conducted our own independent review of the record in this case,
including the transcript from the administrative review hearing, as well as the
applicable law and jurisprudence, we affirm the judgment of the juvenile court that
reversed the administrative law judge’s and DCFS’ valid findings against J.M. of
sexual enticement and sexual intercourse. In particular, we agree with the juvenile
court’s assessment that the substantial rights of J.M. have been prejudiced by the
administrative tribunal’s admission into evidence of J.B.’s forensic interview that
was not in compliance with the standards set by the Children’s Code and by its
denial of a continuance or stay pending the outcome of the criminal proceedings in
Texas.
With regard to J.B.’s forensic interview, DCFS maintains that the
administrative tribunal properly admitted and considered it in making its decision
to affirm DCFS’ valid findings and that the juvenile court subsequently erred in
excluding the CAC forensic interview and supporting testimony of DCFS workers
20-CA-309 4
as hearsay, noting that hearsay evidence is admissible pursuant to La. R.S.
49:956(2).
At the beginning of the October 28, 2019 hearing before the administrative
tribunal, counsel for J.M objected to the introduction of J.B.’s March 29, 2019,
forensic interview in Texas because none of the requirements for its admission
under the Children’s Code had been satisfied. J.M.’s attorney specifically noted
that J.B.’s competency had not been proven, that the interviewer must testify, that
the child must be available to be cross-examined, and that the credentials of the
interviewer must be received by the court. In response, DCFS argued that the
standards set forth in the Children’s Code are for criminal court proceedings and
not applicable to these administrative proceedings, where there are relaxed
evidentiary standards.
After listening to arguments of counsel, the administrative law judge
allowed the introduction of J.B.’s forensic interview based on her determination
that the requirements for admissibility of a forensic video under La. Ch.C. arts. 322
through 327 are only applicable to criminal proceedings and not to the instant
matter, which is civil in nature. On review, the juvenile court found that “the
administrative tribunal erred in improperly admitting evidence into the record that
included double and triple hearsay, in particular a CAC video that was not in
compliance with the standards set by the Children’s Code and then erred in basing
its decision on said evidence.”
On appeal, DCFS contends that the juvenile court erred by excluding this
evidence based on the evidentiary standard set forth in La. Ch.C. arts. 326 and 327,
rather than La. R.S. 49:956(2), which DCFS contends is applicable to the instant
matter and properly used by the administrative law judge in her admission of the
20-CA-309 5
CAC forensic interview.2 In its appellate brief, DCFS points out that the CAC
forensic interview in question was part of the DCFS record and was incorporated
by reference, that it was discussed by credible witnesses and met the criteria noted
by the trial court in the ruling, and that the jurisprudence supports the DAL’s
position with regard to the interpretation and inclusion of this evidence.
We first note that we agree with the juvenile court’s assessment that the
requirements of the Children’s Code relating to the admissibility of the forensic
interview are applicable to these proceedings. Specifically, we agree with the
following reasoning offered by the juvenile court in its reasons for judgment:
La. Ch.C. Art. 324(A) authorizes a court exercising juvenile
jurisdiction to require that a statement of a protected person be
recorded on videotape in conformity with Article 326. Article 324(C)
provides that such a videotape shall be available for introduction into
evidence “in any juvenile proceeding under this Code in which it is
relevant.” The right of an individual who is subject to a determination
of abuse or neglect of a child to appeal that determination is
established by La. Ch.C. Art. 616.1.1, and therefore the administrative
appeal proceeding is a “judicial proceeding under this Code” within
the meaning of Article 324(C). Accordingly, a videotape produced
under Article 324 must conform with Article 326 in order to “be
available for introduction into evidence,” and with Article 327 to be
admissible.
2
La. R.S. 49:956 sets forth the rules of evidence in adjudication proceedings and reads, in part, as
follows:
2) All evidence, including records and documents in the possession of the agency of which it
desires to avail itself, shall be offered and made a part of the record, and all such documentary
evidence may be received in the form of copies or excerpts, or by incorporation by reference. In
case of incorporation by reference, the materials so incorporated shall be available for
examination by the parties before being received in evidence.
20-CA-309 6
In the present case, the requirements of La. Ch.C. arts. 3263 and 3274 were
not complied with, and therefore, the forensic interview of J.B. should not have
been admitted and considered by the DAL in its decision. The juvenile court
specifically listed the deficiencies as follows:
The interview was conducted in Texas, and none of the DCFS
witnesses who testified as to the videotape’s contents were present
when the interview was conducted, rendering their testimony double
hearsay. DCFS failed to establish the credentials of the Texas
interviewer, the competence of J.B. (who was three years, four months
old at the time) to testify, or the identities of everyone who was
present at the interview. The interviewer was not present to testify at
the hearing as required by Article 327(A)(2). There was nothing
preventing DCFS from complying with Articles 326 and 327, and had
the Department done so the tape recorded interview would have been
admissible pursuant to Article 325. In these circumstances, the DAL
erred in admitting the tape-recorded interview and in relying upon it.
3
La. Ch.C. art. 326 states as follows:
A. A videotape of the statements of a protected person who is alleged to be the victim of or
witness to a crime may be offered in evidence for or against such crime. To render such a videotape
competent evidence, all of the following must be satisfactorily proved:
(1) Such electronic recording was voluntarily made by the protected person.
(2) No relative of the protected person was present in the room in which the recording was made.
(3) No attorney for either party was present when the statement was made.
(4) Such recording was not made of answers to questions calculated to lead the protected person
to make any particular statement.
(5) Such recording is both visual and oral and is recorded on film or videotape or by other
electronic means.
(6) Such recording is accurate, has not been altered, and reflects what the protected person said.
(7) The taking of the protected person’s statement was supervised by a physician, a social worker,
a law enforcement officer, a licensed psychologist, medical psychologist, licensed professional
counselor, or an authorized representative of the department.
(8) Every voice on the recording is identified.
B. The department shall develop and promulgate regulations regarding training requirements and
certification for department personnel who are authorized to supervise the taking of the protected person’s
statement.
4
La. Ch.C. art. 327 provides:
A. A prehearing videotape which meets all the requirements of Article 326 may be admissible
into evidence if all of the following occur:
(1) The parties to the proceeding are afforded an opportunity to view the recording before it is
offered into evidence.
(2) The person conducting or supervising the interview of the protected person in the recording is
present at the proceeding and available to testify or be cross-examined by either party.
(3) The protected person is available to testify.
B. The admission into evidence of the videotape as authorized herein shall not preclude the state
from calling the protected person as a witness or taking the protected person’s testimony outside the
courtroom as otherwise authorized by law.
C. Nothing in this Chapter shall be construed to prohibit the right of confrontation of a defendant
in a criminal proceeding before the court.
20-CA-309 7
We recognize, as DCFS suggests, that administrative proceedings have
relaxed evidentiary standards, and that hearsay may be admitted in administrative
hearings. However, that evidence must nonetheless be competent. Hearsay
evidence qualifies as competent evidence if it has a degree of reliability and
trustworthiness and is of the type that reasonable persons would rely upon. This
determination must be made on a case-by-case basis under the particular facts and
circumstances. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La. 3/4/98), 708
So.2d 375, 382. Furthermore, the admission of such hearsay evidence in an
administrative hearing must not infringe upon any constitutional principles.
Chaumont v. City of New Orleans, 20-17 (La. App. 4 Cir. 6/3/20), 302 So.3d 39,
48.
In the present case, J.B.’s forensic interview clearly cannot be considered
competent evidence absent compliance with the requirements set forth in the
Children’s Code for its admission into evidence. Furthermore, allowing this
interview to be admitted in this proceeding, which involves serious allegations
against J.M., without requiring some safeguards supporting its reliability, would
certainly infringe upon J.M.’s constitutional rights.
We next turn our attention to DCFS’ argument that the juvenile court erred
in finding that the administrative tribunal’s refusal to stay the administrative
proceedings pending the outcome of the criminal proceeding in Texas was
“arbitrary and capricious” within the meaning of La. R.S. 49:964(G).
At the October 28, 2019 hearing before the DAL, the attorney for J.M. re-
urged her ongoing motion for a stay of the proceedings pending resolution of the
criminal proceedings in Texas, noting her client’s Fifth Amendment rights.
Counsel particularly asserted that until the criminal proceedings are resolved, J.M.
cannot fully participate in the proceedings or defend himself and present evidence
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that later could be used against him if there was an actual criminal proceeding filed
in the grand jury. Further, J.M.’s attorney stressed that her client’s right to
confrontation would be affected as all of the witnesses are located in Texas,
involved in the open Texas proceeding, and are not available to the administrative
tribunal until the Texas case is resolved. Counsel further mentioned that if the
grand jury in Texas refused to indict J.M., that information would be relevant to
the administrative tribunal, who is considering the same evidence. We find the
reasons articulated by J.M.’s attorney in her request for a stay to be compelling and
thus find that the administrative tribunal abused its discretion in denying that
request.
CONCLUSION
Pursuant to our independent review, we find the substantial rights of J.M.
have been prejudiced by the administrative tribunal’s admission into evidence of
J.B.’s forensic interview that was not in compliance with the standards set by the
Children’s Code and by its denial of a continuance or stay pending the outcome of
the criminal proceedings in Texas. Accordingly, we affirm the juvenile court
judgment that reversed the valid findings against J.M. of sexual enticement and
sexual intercourse, and we order that DCFS’ records and the State Central Registry
be corrected in accordance with the juvenile court’s directive in its June 23, 2020
written judgment.
AFFIRMED
20-CA-309 9
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MARCH 31, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-CA-309
E-NOTIFIED
JUVENILE COURT (CLERK)
HON. BARRON C. BURMASTER (DISTRICT JUDGE)
SHERRY A. WATTERS (APPELLEE) GABRIELLE A. WILSON (APPELLANT)
MAILED
MARTA A. SCHNABEL (APPELLEE) AMBER LITCHFIELD (APPELLEE)
ATTORNEY AT LAW DIVISION OF ADMINISTRATVIE LAW
935 GRAVIER STREET 1020 FLORIDA STREET
SUITE 900 BATON ROUGE, LA 70802
NEW ORLEANS, LA 70112