STATE OF LOUISIANA IN THE INTEREST OF AND v. << (2025)

In this appeal, the biological father ¹ of An.M., Ar.M., and Al.M.² appeals the juvenile court's October 1, 2024 order adjudicating An.M., Ar.M., and Al.M. as children in need of care. For the following reasons, we convert the appeal to an application for supervisory writs, grant the writ application, and affirm the October 1, 2024 order adjudicating An.M., Ar.M., and Al.M. as children in need of care.

FACTUAL AND PROCEDURAL HISTORY

On May 21, 2024, the Department of Children and Family Services (DCFS) began an investigation into allegations of abuse and neglect of Al.M.³ by her mother and father based on a report made by Al.M.’s teacher, who observed a burn on Al.M.’s back and bruising on Al.M.’s forehead, hands, and head. Initially, DCFS was denied access to the family's residence, and the juvenile court signed an “Entry Order” ordering that DCFS be allowed entry into the residence. On May 23, 2024, Valencia Johnson, the DCFS child welfare worker who investigated this matter, made contact with the father and was allowed in the home to speak with him. While Ms. Johnson was there, the father received a call that Al.M. was taken to the hospital emergency room because she was having multiple seizures. Ms. Johnson then went to the hospital and was able to speak to the mother as well as the other minor children, An.M. and Ar.M. An.M. and Ar.M. disclosed to Ms. Johnson that they had been abused by their father and that he was also abusive toward their mother. Ms. Johnson also learned that Al.M. had not been given her seizure medication as needed.

Thereafter, based on the affidavit executed by Ms. Johnson, the juvenile court issued an instanter order and placed the children in the provisional custody of the State of Louisiana. On June 13, 2024, the state filed a petition alleging that the children were in need of care because of physical abuse, domestic violence, and medical neglect of Al.M. The adjudication hearing occurred on September 3, 2024 and October 1, 2024. At the conclusion of the adjudication hearing, the juvenile court adjudicated Al.M. in need of care for neglect as to La. Ch. Code art. 606(A)(2), and An.M. and Ar.M. in need of care for abuse and neglect as to La. Ch. Code art. 606(A)(1) and (2). It is from this ruling that the father appeals, contending that the juvenile court erred in adjudicating the children in need of care because the state failed to prove by a preponderance of the evidence that Al.M. was medically neglected, that the father's punishment of his children was unreasonable, and that there was ongoing domestic violence that rendered the children neglected.

JURISDICTION

At the conclusion of the adjudication hearing, a disposition hearing was set for October 31, 2024. On the day of the disposition hearing, the father filed a motion and order for appeal of the October 1, 2024 ruling adjudicating the children in need of care. He did not appeal the disposition judgment.⁴ Louisiana Children's Code article 330(B) provides in pertinent part, “[i]n ․ child in need of care proceedings pursuant to Title VI․ an appeal may be taken only after a judgment of disposition. The appeal shall include all errors assigned concerning the adjudication and disposition.” In this matter, the father's motion for appeal is not time stamped, and we are unable to determine whether the appeal was taken “after the judgment of disposition.” Furthennore, based on this court's consideration of Article 330, the appeal should be taken from the judgment of disposition, not the adjudication.⁵ However, in considering the exigencies of the ongoing matter involving children in need of care, and considering that the father's appeal was filed within the delays allowed for applying for supervisory writs and that the record contains a judgment of disposition that was rendered prior to the motion for appeal being signed by the juvenile court, we convert the appeal to an application for supervisory writs and review the application under our supervisory authority rather than dismiss the appeal. See La. Const. art. 5, § 10. See also State in Interest of Z.D., 2017-2118 (La. 9/14/18), 251 So.3d 1086 (wherein the Supreme Court granted a writ application regarding the dismissal of an appeal in a child in need of care matter and instructed the Fourth Circuit to convert the appeal to an application for supervisory writs and consider the application on the merits.)

LAW AND ANALYSIS

The father contends that the state did not meet its burden of proving that An.M., Ar.M., and Al.M. were in need of care. Title VI of the Louisiana Children's Code, i.e., La. Ch. Code arts. 601 to 725.6, sets forth the statutes regarding children in need of care. Louisiana Children's Code article 601 states the purpose of this Title is:

[T]o protect children whose physical or mental health, welfare, and safety is substantially at risk of harm by physical abuse, neglect, or exploitation and who may be further threatened by the conduct of others, by providing for the reporting of suspected cases of abuse, exploitation, or neglect of children; by providing for the investigation of complaints; and by providing, if necessary, for the resolution of child in need of care proceedings in the courts.

Article 601 adds that “[t]he health, welfare, safety, and best interest of the child shall be the paramount concern in all proceedings pursuant to this Title.” Louisiana Children's Code article 606(A) provides the grounds by which a child can be adjudicated a child in need of care. The factors in La. Ch. Code art. 606(A) that are applicable to this case are:

(1) The child is the victim of abuse perpetrated, aided, or tolerated by the parent or caretaker, by a person who maintains an interpersonal dating or engagement relationship with the parent or caretaker, or by a person living in the same residence with the parent or caretaker as a spouse whether married or not, and his welfare is seriously endangered if he is left within the custody or control of that parent or caretaker.

(2) The child is a victim of neglect.

In the adjudication hearing, the state has the burden to prove the allegations of the petition by a preponderance of evidence. See La. Ch. Code art. 665.

In child in need of care cases, the juvenile court is vested with a vast amount of discretion. See State ex rel. AR, 99-0813 (La. App. 1st Cir. 9/24/99), 754 So.2d 1073, 1077. The juvenile court is in a better position to evaluate the best interest of a child because of its superior opportunity to observe the parties and the witnesses who testified at the trial. It is well-settled that an appellate court cannot set aside a juvenile court's decision except in the clearest case of abuse of the juvenile court's great discretion. See State ex rel. AR, 754 So.2d at 1078; see also State in Interest of C.K., 2016-0305 (La. App. 1st Cir. 9/1/16), 2016 WL 4586039 *3(unpublished). The two-part manifest error test considers: 1) whether there is a reasonable factual basis in the record for the finding of the court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). If a reasonable factual basis exists, an appellate court may set aside a juvenile court's factual finding only if, after reviewing the record in its entirety, it determines the juvenile court's finding was clearly wrong. State ex rel. D.H., 2004-2105 (La. App. 1st Cir. 2/11/05), 906 So.2d 554, 559-560. Moreover, where factual findings are based on determinations regarding the credibility of witnesses, the trier of fact's findings demand great deference and are virtually never manifestly erroneous or clearly wrong. Id.

Several witnesses testified during the hearing. The first witness was Dr. Patrice Tyson, a pediatric gastroenterologist, who had one appointment with Al.M. in the office and one appointment by phone. Dr. Tyson testified that Al.M. was referred to her because of concerns about Al.M.’s significant weight loss. Dr. Tyson noted that Al.M.’s seizure medications were not being given as directed, which can lead to increased sleeping and uncontrolled seizures that can cause weight loss. Dr. Tyson attempted to discuss a gastrostomy tube with the mother at the appointment, but the mother preferred to wait and discuss it with the father at the follow-up visit. The follow-up visit was a “phone visit” where Dr. Tyson said her medical advice was not being taken, and the father became abusive over the phone.

Juanita East is a special education teacher who taught Al.M. during the 2023-2024 school year. Ms. East testified that after Christmas, Al.M. began frequently missing school, and after a while, she stopped coming to school. Ms. East said when Al.M. returned to school in May, she observed a burn on Al.M.’s back that she was concerned about. Ms. East consulted with her principal, and they decided to report their concerns to DCFS.

The minor children's aunt and the mother's sister, T.M. testified. She said the father brought all three kids to her when DCFS's investigation began because he did not want DCFS to “get them.” She said the father did not send Al.M. with her medication, and when she asked the mother about the medication, the mother said the pharmacy did not have it. T.M. testified that she and the mother had to take Al.M. to the hospital because she was suffering from seizures. T.M. said while at the hospital, the mother told her and the security guard that she was afraid of the father. T.M. said the father was “very abusive” to the mother. She said she has not observed the father be abusive to the children because he isolates the children and their mother from her. T.M. testified that she believes that An.M. and Ar.M. are being abused because they told her and her mother that their father was abusing them.

Ms. Johnson, the DCFS child welfare worker who investigated this matter, testified. Ms. Johnson said she went to the hospital while Al.M. was there and spoke with the mother, who told her that she “has been beat for almost 20 years by [the father]” and that the children have been abused when they do not follow directions. Ms. Johnson said she spoke to both An.M. and Ar.M., who stated that there was physical abuse in the home and that there were verbal altercations daily that almost always rose to the father striking the mother. Ms. Johnson testified that Al.M.’s doctor indicated to her that Al.M. had not been getting her seizure medication properly based on what was detected in Al.M's blood work.

The oldest child, An.M., testified during the hearing. An.M. said there was “neglect and abuse” towards her, her sisters, and her mother. She described her father whipping her out of anger, hitting her hard with the belt, and hitting her with an open hand on the back and forehead. She said her father would hit her with the belt ten times and that the belt would leave marks. She said she does not feel safe at home.

An.M. also described what she did to assist with Al.M. including bathing her, feeding her, giving her medicine, and helping her during a seizure. She noted that sometimes she could not give Al.M. the medication “when she didn't have any.” She said her mother would “give up” when Al.M. would not take her food or medicine, leaving An.M. to take care of Al.M. She also said her mother would not get up and get Al.M. on the bus so she would have to get Al.M. on the bus.

The Child Advocacy Center interview of Ar.M. was introduced into evidence. In the interview, Ar.M. said she did not want to go around her dad after what he did to them. She said he was abusive with them, like whipping them and other stuff. She said when he gets mad, he goes crazy. She stated that she has heard her mom in pain and her dad yelling at her mom.

The father also testified. He said that he and the mother had a hard time getting Al.M.’s medication because sometimes the pharmacy did not have it. He also said he wanted a second opinion on the use of a gastrostomy tube for Al.M. The father testified that he rarely whipped his children and did so maybe “every six months.” He testified that he loves his kids. The father suggested that the girls do not want to come home because he is strict. He said he believed the children were coerced by the mother's sister and mother to say he abused them. He noted that the mother's sister and mother did not like him, stating, “They take it out [on me] ․ because of my aggression at times.”

The father denied any abuse of the mother, but he agreed that he and the mother previously separated because of domestic violence. He said that “ten sounds accurate” when saying how many times he struck An.M. with a belt at one time. He also acknowledged an incident when he whipped Ar.M. with a belt on a school morning when she was wearing only a towel because she showered in the morning rather than obeying his rules of showering at night.

At the conclusion of the hearing, the juvenile court gave extensive well-considered reasons for adjudicating An.M. and Ar.M. in need of care under La. Ch. Code art. 606(A)(1) and (2) and Al.M. in need of care under La. Ch. Code art. 606(A)(2). In its reasons, the juvenile court discussed the abuse described by An.M., the father's control over everything in his household, the father whipping Ar.M. for taking a shower in the morning, the children's aunt's testimony about the father's aggression and control, the mother initially telling Ms. Johnson that she was fearful of the father, and the father's admission of his “aggression at times” and that the mother left because of “domestic violence.” The juvenile court noted that the father's testimony conflicted with other witnesses’ testimony, and the juvenile court questioned the credibility of the father especially considering his inconsistent responses when questioned whether he was married to the mother. The juvenile court found the testimony of An.M., Ms. Johnson, and Dr. Tyson to be credible. The juvenile court also pointed out the father's behavior in the courtroom, which included loud outbursts, over talking the attorneys and the bailiff, and interrupting the court. The juvenile court stated that this behavior was consistent with An.M.’s testimony of the father's reaction to her behavior.

The juvenile court also discussed the neglect of Al.M. under Article 606(A)(2). The juvenile court noted that Al.M.’s wound was not properly taken care of despite the father's testimony that he could handle it himself; that Al.M. had significant weight loss; that the father cut off the conversation with Dr. Tyson, despite the concerns about Al.M.’s weight loss; that the lack of proper care resulted in Al.M. being hospitalized; and that An.M. had to handle much of the care for Al.M.

At the conclusion of its reasons, the juvenile court determined that the state met its burden of proving the allegations of the petition by a preponderance of the evidence and that An.M. and Ar.M. were in need of care under La. Ch. Code art. 606(A)(1) and (2) and Al.M was in need of care under La. Ch. Code art. 606(A)(2). The juvenile court's decision adjudicating the children in need of care was based heavily on credibility determinations, which are owed great deference. Furthermore, the adjudication was thoroughly supported by the evidence presented and was well within the juvenile court's vast discretion in child in need of care cases. Accordingly, we find no merit to the father's assignment of error that the state did not prove its allegations of abuse and neglect by a preponderance of the evidence.

CONCLUSION

For the foregoing reasons, we convert the appeal to an application for supervisory writs, grant the writ application, and affirm the juvenile court's October 1, 2024 ruling adjudicating An.M., Ar.M., and Al.M. as children in need of care.

WRIT GRANTED; OCTOBER 1, 2024 ADJUDICATION AFFIRMED.

FOOTNOTES

1.   The father, the mother, and all three children have the initials of A.M. For ease of reading, we will refer to the parents as “the father” and “the mother” rather than by their initials.

2.   At the time of the hearing, An.M was fifteen, Ar.M. was fourteen, and Al.M. was ten.

3.   Al.M. is nonverbal, needs assistance to walk, and suffers from frequent seizures.

4.   The father's appeal is from the October 1, 2024 ruling and addresses only the juvenile court adjudicating the children in need of care. The father attached to his appeal the minute entry from that date, and there is no written judgment of the October 1, 2024 ruling in the record.

5.   In State ex rel. C.J., 2006-1441 (La. App. 1st Cir. 2/14/07), 959 So.2d 972, 975, writ denied, 2007-0579 (La. 4/5/07), 954 So.2d 147, this court pointed out that the source article of La. Ch. C. art. 330 was Article 97 of the Code of Juvenile Procedure, which provided that when a child is adjudicated in need of care, “an appeal may be taken only from a judgment of disposition[.]” This court pointed out that in Article 330, the legislature chose to use the phrase “after a judgment of disposition” rather than “from a judgment of disposition,” but found no intent to change the application of the codal provision. State ex rel. C.J., 959 So.2d at 975 n.8.

HESTER, J.

Edwards, J. concurs in the result