State of Louisiana in the Interest of H.J.

Judgment rendered March 4, 2020.

Application for rehearing may be filed

within the delay allowed by Art. 2166,

La. C.C.P.

No. 53,299-JAC

COURT OF APPEAL

SECOND CIRCUIT

STATE OF LOUISIANA

*****

STATE OF LOUISIANA

IN THE INTEREST OF

H.J.

*****

Appealed from the

Caddo Parish Juvenile Court

Parish of Caddo, Louisiana

Trial Court No. 160,521A

Honorable David N. Matlock, Judge

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JAMES E. STEWART, SR. Counsel for Appellant,

District Attorney State of Louisiana

AUDIE L. JONES

TOMMY J. JOHNSON

Assistant District Attorneys

INDIGENT DEFENDER BOARD Counsel for Appellees,

By: Samuel D. Goodwin D.J., Mother

Andrew L. Randall, Jr. E.P., Presumed Father

CHILD ADVOCACY PROGRAM Counsel for Appellee,

By: Nancy G. Cooper H.J., Child

DANIEL T. WILSON Counsel for Appellee,

R.B., Alleged Father

*****

Before MOORE, PITMAN, and STONE, JJ.

MOORE, J.

The State of Louisiana Department of Children and Family Services

(“DCFS”) appeals a judgment from the Caddo Parish Juvenile Court that

denied its petition to find that an infant, H.J., is a child in need of care

(“CINC”) or that the family is in need of services. After review, we reverse

the judgment and remand the case to the juvenile court for further

proceedings.

PROCEDURAL HISTORY

D.J gave birth to a healthy baby, H.J., on July 1, 2019. The following

day, DCFS obtained an instanter order based on an affidavit from a social

worker familiar with D.J.’s circumstances, and DCFS took custody of the

child effective July 1, 2019.

A continued custody hearing was held on July 10, 2019. Based on

stipulated facts, the court found that H.J.’s continued custody with DCFS

was warranted pending a CINC evidentiary hearing.

On August 6, the court ordered DNA testing to determine paternity

and a home study of Natasha Hayes, a relative with whom D.J. said she was

currently living.

On September 3, the CINC hearing was held to determine if H.J. was

a CINC. After the evidence was adduced, D.J. filed a motion for involuntary

dismissal, which the trial court denied. Nevertheless, the trial court declined

to adjudicate H.J. a CINC. The court also denied the state’s request to stay

the ruling pending an appeal.

This appeal followed without a signed written judgment. Following a

rule to show cause why the appeal should not be dismissed as premature,

DCFS provided the court with a signed judgment dated September 30,

stating “the Trial Court denies to adjudicate the child, [H.J.], as a Child in

Need of Care.”

Pursuant to this court’s order, an amended judgment was signed on

October 21, 2019, with the required decretal language that the evidence did

not warrant a finding that H.J. is a CINC or that the family is in need of

services, and dismissing DCFS’s petition.

FACTS

D.J. has three older children, ages 7, 8, and 11, who are in custody of

DCFS and currently in foster care. According to the DCFS child protection

investigator who initiated these CINC proceedings, Ashlei Kimble, the state

took custody of the three older children on grounds of neglect. D.J. did not

have stable housing, she testified, and lived from place to place (e.g. weekly)

with different people, including her sister, for short periods.

Jade Montgomery, the foster care worker for D.J.’s three older

children, testified at the September 3 CINC adjudication hearing that she

became familiar with D.J. after she was assigned to D.J.’s case on March 12,

2019. The three other children were placed in care of certified foster parents

who were not relatives of D.J. From March 2019 until H.J was born on July

1, 2019, D.J. had lived at six different addresses. Many of the people with

whom D.J. resided had criminal records, according to Ms. Montgomery. For

example, D.J.’s sister, Tracy Johnson, with whom D.J. said she was

currently living, has a criminal record for prostitution. For this reason, she

added, Ms. Johnson would not qualify as a (foster) caregiver for H.J. Ms.

Montgomery said that D.J. was going between the residences of Natasha

Hayes, her cousin, and Eric Perow, one of two men who could be the

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biological father of H.J. Perow appeared at the hearing with counsel and

testified. The other putative father, Reynard Bailey, did not appear.

Ms. Montgomery believed that D.J. has an intellectual disability and

that a psychological evaluation would be appropriate. Regarding D.J.’s

difficulty with obtaining stable housing, Ms. Montgomery testified that

D.J.’s mother helped D.J. prior to DCFS involvement, but she had passed

away in 2016, and since then D.J. has been unable to take care of herself and

her children. D.J. receives Social Security benefits, but DCFS has no

documents indicating the basis for the benefits. One of the reasons Ms.

Montgomery recommended a psychological evaluation was to determine if

she could obtain additional Social Security benefits.

Ms. Montgomery said that she visited D.J.’s sister’s home in mid-July

2019, about 2 weeks after H.J. was born. She said the apartment was a two-

bedroom apartment with no crib or bed for the baby to sleep. She admitted

that DCFS could provide a “Pack ʼn Play” that may be used for sleeping, but

D.J.’s sister would not qualify as a caregiver because of her criminal record.

However, Ms. Montgomery did not believe D.J. could properly care for the

baby in light of her history with her other three children, whom she said

were not fed and sheltered properly.

Ms. Montgomery said that D.J. sometimes stays with Eric Perow, one

of the men D.J. named as possibly the father of H.J. The record shows

Perow has given a DNA test, but the results were not available at the time of

the CINC hearing. Ms. Montgomery’s pretrial report to the court indicated

Mr. Perow is the father of two other children, Eric, Jr. and D’Eric, who live

with him and his mother; D.J. is the mother of these two children. Mr.

Perow completed a child welfare abuse/neglect clearance request and was

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cleared by the agency and passed a criminal background check. He

participated in family visits held monthly. Ms. Montgomery said that Mr.

Perow has come forward and expressed his desire to take custody of the

child. She said that he must qualify as a caregiver, but that there was no

impediment to his approval and there would be no objection from DCFS.

D.J. testified that when H.J. was born, she lived with her sister, Tracy

Johnson, at 3553 DeSoto Street in Shreveport. She said that she had clothes,

a baby bed, a car seat and a stroller. She said that she intended to purchase

some additional things, such as Pampers, because she had just received her

Social Security check for approximately $750. She planned to permanently

live with her sister, and they intended to move to a larger home.

However, at the time of the CINC hearing, D.J. was living with her

cousin, Natasha Hayes, in the Northwood II Apartments on North Market off

Grimmett Drive. Natasha has two children of her own also residing there.

D.J. said she is attending parenting classes in accordance with her case plan,

but has yet to have a psychological examination. She said she likes working

with Ms. Montgomery, her case worker.

D.J. said that she received Social Security because she has a crooked

back inherited from her father, and also for mental health issues. When

asked by the court if she has graduated from high school, she responded,

“But I am slow, and I can’t read that good.” She has never had a job, but

was currently looking for work as a cook.

D.J. named the two men who could be H.J.’s father as Reynard Bailey

and Eric Perow. D.J. described Bailey as a good father, but not a good guy.1

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The record shows he has a criminal record.

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He does not work and receives Social Security. She said Mr. Perow is “a

good guy. * * * He ain’t no daddy, he’s a father. He’s a great man.”

The court questioned D.J., and asked a hypothetical question: If she

had a problem, whom would she would turn to for help? She responded that

she would turn to Eric Perow, not her sister, Tracy, or her cousin, Natasha.

She also testified that she would like the baby to live with Eric Perow if he is

the father.

Eric Perow testified that he is 30 years old. He recently had hernia

surgery and now works only part-time for his uncle until he heals from the

surgery. He has his own apartment. His mother and his two sons, ages 4

and 2, live in the apartment with him. As previously stated, Ms.

Montgomery’s report indicated that H.J.’s mother is also the mother of these

two boys. Eric’s mother, Erica Perow, helps him with the two children. He

has no felony convictions and has never been investigated for child abuse.

Both DCFS and H.J.’s child advocate attorney argued that a

preponderance of the evidence showed that D.J. was not capable of taking

care of H.J. because of her cognitive delays and that she could not support

herself or provide stable housing.

Although the record indicates a Court Appointed Special Advocate

(“CASA”) was appointed, there is no CASA report in the record.

The court asked Mr. Perow if he would be willing to take care of the

child pending a paternity determination; Mr. Perow said that he would.

However, DCFS and counsel for H.J. objected to such a ruling, arguing that

the court must first find that H.J. was a CINC. After such finding, it argued,

DCFS could place the child in Mr. Perow’s custody.

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The court then rendered judgment, stating that it “does not find that

the evidence warrants an adjudication in this case.” It denied DCFS’s

request to issue a stay order.

DCFS filed this appeal alleging two assignments of error, namely:

(1) The trial court manifestly erred by failing to adjudicate

H.J. a child in need of care; and,

(2) The trial court manifestly erred by failing to invoke the

principle of accepting the uncontradicted testimony of a

witness as true.

DISCUSSION

Appellate review of CINC rulings are subject to the manifest error

standard of review. In re A.J.F., 2000-0948 (La. 6/30/00), 764 So. 2d 47;

State ex rel. L.M., (La. App. 2 Cir. 1/26/2011), 57 So. 3d 518. Under

manifest error review, an appellate court should not substitute its own

opinion in place of the juvenile court who is in the unique position to see and

hear the witnesses as they testify. Id. Where there is conflicting testimony,

reasonable evaluations of credibility and reasonable inferences of fact should

not be disturbed upon review, even when the appellate court may feel that its

own evaluations and inferences are as reasonable as those of the juvenile

court. Id. If the juvenile court’s findings are reasonable in light of the

record, the appellate court may not reverse, even though convinced had it

been sitting as the trier of fact, it would have weighed the evidence

differently. Id.

The state bears the burden of proving by a preponderance of the

evidence that the child is a child in need of care. La. Ch. C. art. 665; State in

the Interest of L.B., 2008-1539 (La. 7/17/08), 986 So. 2d 62; State ex rel.

L.M., supra. It is not the duty of DCFS to prove its case beyond a

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reasonable doubt, by clear and convincing evidence, or to disprove every

hypothesis of innocence. Id.

In its two assignments of error, DCFS alleges that the trial court

committed manifest error when it failed to adjudicate H.J. a child in need of

care and manifestly erred when it failed to accept as true the uncontradicted

testimony of Ms. Montgomery. It also asserts that the trial court’s denial of

D.J.’s motion for involuntary dismissal after DCFS presented its testimony

was a finding that a preponderance of the evidence supported declaring H.J.

a child in need of care.

The purpose of a CINC proceeding 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.” La. Ch. C. art. 601. Furthermore, “the health,

safety and best interest of the child shall be the paramount concern in all

proceedings under [Title VI].” Id.

The allegations in a petition that a child is in need of care must assert

one or more of several grounds contained in La. Ch. C. art. 606(A). In this

case, DCFS alleged:

(2) The child is a victim of neglect. Art. 606(A)(2).

(3) The child is without necessary food, clothing, shelter,

medical care, or supervision because of the

disappearance or prolonged absence of his parent or

when, for any other reason, the child is placed at

substantial risk of imminent harm because of the

continuing absence of the parent. Art. 606A(3).

However, Art. 606(B) states:

A child whose parent is unable to provide basic support,

supervision, treatment, or service due to inadequate financial

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resources shall not, for that reason alone, be determined to be a

child in need of care.

In this case, DCFS alleged in paragraph 4 of its petition that “there is

good cause to believe that [H.J.] is unable to be adequately protected from

danger or harm if she remains in the caretaker’s custody due to Neglect/Lack

of Adequate Shelter and Lack of Adequate Supervision.” Additionally,

DCFS alleged that D.J. has a history with DCFS, and it currently has

custody of her three older children on the same or similar grounds.

“Abuse” and “Neglect” are defined by La. Ch. C. art. 603(2) & (18)

for purposes of CINC proceedings:

(2) “Abuse” means any one of the following acts which

seriously endanger the physical, mental, or emotional health

and safety of the child:

(a) The infliction, attempted infliction, or, as a result of

inadequate supervision, the allowance of the infliction or

attempted infliction of physical or mental injury upon the

child by a parent or any other person.

***

(18) “Neglect” means 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.

. . . Consistent with Article 606(B), the inability of a parent or

caretaker to provide for a child due to inadequate financial

resources shall not, for that reason alone, be considered neglect.

Adjudication of a child in need of care is warranted when a parent

shows a repeated pattern of placing a child at risk and exposing a child to a

lack of adequate shelter. State in the Interest of A.R., 99–0813 (La. App. 1

Cir. 9/24/99), 754 So. 2d 1073.

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DCFS argues that because D.J. stipulated to the facts alleged in the

affidavit it used to obtain the July 2 instanter order and the July 10 continued

custody order, and these facts were essentially uncontradicted by evidence at

trial, D.J. has not shown that her circumstances have changed such as there

is no longer the need for continued custody by DCFS as a CINC. Nor has

D.J. demonstrated, it contends, that she is capable of providing stable

housing and the basic needs of the infant on either a short-term or long-term

basis. These facts, it maintains, fit the legislatively broad definition of

“neglect.”

On the contrary, D.J. argues that she did not stipulate that H.J. was a

child in need of care at the July 10 continued custody hearing. Rather, she

stipulated that, “if called to testify, the DCFS worker would testify in

accordance with the affidavit she prepared.” The court simply found that

there were “reasonable grounds” to believe that H.J. was a child in need of

care.

D.J. maintains that the evidence adduced at trial showed that D.J. was

living with her sister on DeSoto Street when H.J. was born. D.J. testified

that she had clothes, a baby bed, and a stroller for the baby; she had recently

received her Social Security check and was going to purchase additional

things, including Pampers; and when she needs help she can turn to Eric

Perow, who may be the father of H.J.

The DCFS worker, Jade Montgomery, testified that she visited the

apartment in mid-July. There were two bedrooms and two beds in the

apartment, but there was no crib for the baby. Ms. Montgomery admitted,

however, if D.J. were given custody of H.J., DCFS could supply her with a

“Pack ʼn Play” that can be used as a baby bed.

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D.J. maintains that the state did not introduce any evidence that H.J.

had ever been subjected to any neglect or abuse. Her counsel contends that

DCFS’s entire argument is “anticipatory neglect” based on D.J.’s prior

history.

DCFS argues that the court’s denial of D.J.’s motion for involuntary

dismissal was a finding by the court that the DCFS established by a

preponderance of the evidence that H.J. was a child in need of care, citing

C.C.P. art. 1672(B): This article states:

In an action tried by the court without a jury, after the

plaintiff has completed the presentation of evidence, any party,

without waiving his right to offer evidence in the event the

motion is not granted, may move for a dismissal of the action as

to him on the ground that upon the facts and law, the plaintiff

has shown no right to relief. The court may then determine the

facts and render judgment against the plaintiff and in favor of

the moving party or may decline to render any judgment until

the close of all evidence.

Our review of the trial transcript indicates that after D.J.’s counsel

made the motion for involuntary dismissal, the court said, “That’s denied at

this stage. * * * Any witnesses?” The ruling complies with the statute, and

DCFS’s complaint in this regard appears to be baseless.

At the time of trial, D.J. was living with her cousin, Natasha Hayes.

She told the trial judge that she wanted H.J. to live with her presumed father,

Eric Perow, and stated in her appellate brief that H.J. is currently living with

Eric Perow.

During final arguments, the court floated the idea of not adjudicating

H.J. a CINC, but placing H.J. in Mr. Perow’s custody. It asked Mr. Perow,

who expressed his desire to have custody of the child, if he would care for

the child until it was determined if he is the biological father of the child

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subject to the mother’s rights or parent’s rights in the event he is not the

father. D.J. said she would agree to that arrangement. Mr. Perow said he

would and the court indicated that it could leave the status quo undisturbed

without an adjudication that H.J. is a child in need of care.

DCFS contested this, stating that such an order would be illegal. It

argued that H.J. must be adjudicated a CINC before Mr. Perow could be

given custody of H.J.

The court ruled from the bench that the evidence did not warrant

adjudication.

After review of this record, we conclude that the trial court clearly

erred when it declined to adjudicate H.J. a child in need of care. While we

are cognizant of the right of people to be left alone and free from undue

government intrusion into their lives, this state has a strong, overriding

policy to protect children from abuse and neglect by anyone, including their

parents. This is particularly true for children who are as young and

vulnerable as the infant, H.J., in this case, who is obviously unable to speak

for herself.

Because the state obtained custody of H.J. the day she was born and

continued custody of her until the September 3, 2019, hearing, there is no

evidence that H.J. was subject to neglect or abuse by her mother, D.J.

However, this is not a criminal case in which prior unrelated bad acts are

generally inadmissible evidence to prove a current criminal act.

In this case, the record shows that D.J. is 29 years old and has given

birth to six children including H.J. None of the five older children are in

D.J.’s custody. Two of them were apparently fathered by Mr. Perow and are

in his custody and care. The state has custody of the three other children due

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to incidents of abuse and neglect. The record shows that D.J. is unable to

provide stable housing and care for herself and the children without the aid

of someone else. Her only income is a $707.00 per month Social Security

check. She is unemployed and, apparently, has never had a job.

Experience teaches us that actions in the past are predictive of actions

in the future. As noted by DCFS, the evidence presented does not show that

D.J.’s circumstances have changed to a significant degree despite her efforts.

The risks are far too great to leave this matter to the status quo in hopes

things may work out for H.J. We therefore reverse the judgment of the

juvenile court and determine that H.J. is a child in need of care.

This conclusion is supported by our opinion in the case of In re B.M.,

50,977 (La. App. 2 Cir. 9/22/16), 201 So. 3d 974 (on rehearing), writ denied,

2016-1916 (La. 10/24/16), 209 So. 3d 94, where this court held that the

juvenile court’s judgment in which it declined to adjudicate the child, B.M.,

as a CINC, but at the same time ordering that the child could not return to

the parent’s travel trailer where they resided until a raw sewage problem was

fixed, was an incomplete judgment because the return of B.M. to his parents

was conditioned on alleviating the sanitation problem where there was no

provision for monitoring that such action was taken. We reversed the

judgment of the juvenile court declining to adjudicate B.M. a CINC. We

concluded that the evidence of the squalid conditions of the trailer and the

fact that the parents were using marijuana and arrested for possession when

the state took B.M from the trailer, warranted a finding that B.M. was indeed

a CINC. We remanded the case to the juvenile court to continue the

proceedings toward disposition.

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Similarly, in this case, the juvenile court concluded that the evidence

did not warrant adjudication of H.J. as a child in need of care. It appears that

the court declined to adjudicate H.J. a CINC based on the belief that Mr.

Perow would continue to care for the baby at least until it was determined

whether he was the father. There was no plan or order to monitor the results

of the DNA testing or to determine what happens in the event that Mr.

Perow is not the father. The evidence clearly showed that the mother was

not capable of providing a stable, wholesome home environment for the

baby.

Additionally, we note that the record does not contain a CASA report.

On remand for disposition, the juvenile court will have the benefit of a

CASA report.

CONCLUSION

For the reasons stated above, we conclude that the evidence warrants a

finding that H.J. is a child in need of care and render judgment finding H.J. a

child in need of care. We remand to the juvenile court for disposition of the

case with the benefit of a CASA report.

JUDGMENT REVERSED; CHILD ADJUDICATED A CHILD

IN NEED OF CARE; CASE REMANDED.

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