State of Louisiana in the Interest of C. C., Jr., P. B., M. B., J. B.

STATE OF LOUISIANA IN THE INTEREST NO. 20-CA-307
OF C. C., JR., P. B., M. B., J. B.
FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-CC-85, DIVISION "C"
HONORABLE BARRON C. BURMASTER, JUDGE PRESIDING

March 17, 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 PLAINTIFF/APPELLEE,
STATE OF LOUISIANA, DEPARTMENT OF CHILDREN AND FAMILY
SERVICES
Rachel E. Hurd

COUNSEL FOR INTERVENOR/APPELLANT,
J. M. AND R. M.
Sherry A. Watters
Marta A. Schnabel

COUNSEL FOR PARENT/APPELLEE,
D. W., FATHER
Jennifer G. Womble

CHAISSON, J.

In this child in need of care proceeding, J.M. and R.M., the former foster

parents of J.B.,1 appeal the July 17, 2020 judgment of the Jefferson Parish Juvenile

Court that granted D.W., the biological father of J.B., a new trial on his motion to

establish paternity, found D.W. to be the father of J.B., granted D.W. immediate

unsupervised custody of J.B., dismissed the motion to intervene filed by J.M. and

R.M., and closed the child in need of care proceeding as to J.B. For the reasons

that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 25, 2015, P.B., who was not married at the time, gave birth to

a son, J.B. No father was named on J.B.’s original birth certificate.

On September 16, 2016, as a result of an investigation by the Louisiana

Department of Children and Family Services (“DCFS”) into allegations of abuse

and neglect, J.B., who was ten months old at the time, along with his three older

siblings, were removed from the custody of their mother, P.B., put into the

emergency custody of DCFS, and placed into foster care. J.B. and his sister, M.B.,

were placed in the certified foster home of J.M. and R.M. It is noted that at this

point in the proceedings, C.C., Sr., was named as the father of the three oldest

children; however, the father of the youngest child, J.B., was listed as “unknown.”2

On October 5, 2016, the Jefferson Parish District Attorney filed a child in

need of care (“CINC”) petition pursuant to La. Ch.C. art. 606(A), alleging that the

children were in need of care because of abuse and neglect by their mother, P.B.,

and the prolonged absence of their father, C.C., Sr. On October 18, 2016, the State

1
To protect the identity of the minor children 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).
2
As DCFS had no information regarding the biological father of J.B, no one was served as the father of
J.B. with notice of the instanter custody order or the continued custody hearing.

20-CA-307 1

dismissed the CINC allegation against C.C., Sr., in reference to J.B. because C.C.,

Sr., is not the father of J.B.

On November 15, 2016, the juvenile court held an adjudication hearing, at

which time P.B. and C.C., Sr. stipulated that the children were in need of care

without admitting the allegations of the CINC petition. The juvenile court

accepted their stipulations, adjudicated the children in need of care, and maintained

the children in the custody of DCFS in their respective foster care placements.3 At

the subsequent disposition hearing conducted on December 13, 2016, the juvenile

court determined that the children were still in need of care and should remain in

the custody of DCFS in their current foster care placements.

The matter was eventually scheduled for a permanency hearing in

September of 2017. According to a minute entry dated September 5, 2017, the

juvenile court learned in a pre-trial conference that D.W. had recently been

identified as the possible father of J.B., who up to this point in the proceedings, had

been listed as “unknown.” In light of this information, the juvenile court ordered

DCFS to locate D.W., who was reportedly incarcerated, to determine if he was

J.B.’s biological father.

D.W. subsequently submitted a DNA sample for testing. The DNA report,

dated October 26, 2017, revealed D.W. to be the biological father of J.B. The

report specified the probability of D.W.’s paternity to be 99.9995%.4 According to

DCFS, once notified, D.W. and his family cooperated fully with DCFS, and D.W.

had a plan in place to have J.B. placed with his sister, L.W., who lived in Texas

and was participating in the Interstate Compact for the Placement of Children

(ICPC). While awaiting ICPC approval, L.W. began visiting and having phone

3
M.B. was subsequently adopted by J.M. and R.M. in September of 2018.
4
La. R.S. 9:397.3(B)(2)(b) provides, “A certified report of blood or tissue sampling which indicates by a
ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the father of
the child creates a rebuttable presumption of paternity.”

20-CA-307 2

contact with J.B., who was still residing with his foster parents. Ultimately, after

numerous court hearings and the consideration of various reports, the juvenile

court, on February 27, 2018, relying upon the DNA results revealing D.W. to be

the biological father of J.B., revoked custody of J.B. from DCFS and granted

custody of J.B. to his paternal aunt, L.W., who, by this time, had been ICPC

approved as an appropriate placement.

Thereafter, on March 2, 2018, J.B.’s foster parents, J.M. and R.M., moved to

intervene in the proceedings and moved to modify custody of J.B. Counsel for J.B.

later joined in these motions. After a hearing, the juvenile court took the matter

under advisement, and on April 19, 2018, relying on La. Ch.C. art. 1036.2,5 denied

the motions to intervene and reopen and modify custody. J.M. and R.M. thereafter

appealed, seeking review of the change of custody, denial of their intervention, and

denial of their motion to reopen and modify the custody determination.6

5
La. Ch.C. art. 1036.2 provides, in part, as follows:

A. An incarcerated parent of a child in the custody of the department shall provide a
reasonable plan for the appropriate care of his child other than foster care. Failure by the
incarcerated parent to provide an appropriate plan may result in an action to terminate his
parental rights.
B. Within thirty days of notification that a parent of a child in foster care is incarcerated
in this state, a representative of the department shall visit the incarcerated parent and give
written notification to the incarcerated parent of his duty to provide a reasonable plan for
the appropriate care of the child. The department, at that time, shall obtain information
regarding the plan, including the names, addresses, cellular numbers, telephone numbers,
and other contact information of every potential suitable alternative caregiver.

C. The incarcerated parent shall provide the department with the required information in
writing within sixty days of receipt of the notification form. During that period, a parent
may submit additional information or names of other caregivers using the form attached
to the notice. The department shall provide the parent with a stamped, self-addressed
envelope for this purpose. No additional caregiver names will be accepted after the
expiration of the sixty-day period, as evidenced by a postmark.

D. The department shall conduct an assessment of the persons named as caregivers by the
incarcerated parent and shall notify the parent within ten days of completion of the
assessment whether the persons named are willing and able to offer a wholesome and
stable environment for the child.
6
It is noted that the foster parents originally filed a writ application in this Court seeking review of the
juvenile court’s rulings. Upon review of the writ application and attachments thereto, this Court found
that the juvenile court judgment revoking DCFS’ custody of J.B. was an appealable judgment. This Court
further found that relators, as interested parties in the CINC proceedings pertaining to J.B., timely sought
review of the juvenile court’s February 27, 2018 judgment. Accordingly, their writ application was
granted for the limited purpose of remanding the matter to the juvenile court for preparation and lodging
of the record for appeal. State in the Interest of J.B. and M.B., 18-234 (La. App. 5 Cir. 5/3/18)
(unpublished writ disposition).

20-CA-307 3

On October 12, 2018, this Court vacated the trial court’s February 27, 2018

judgment that revoked custody from DCFS and granted custody to L.W., reinstated

custody of J.B. to DCFS, and remanded for further proceedings. This Court, in

particular, found that the juvenile court committed legal error that prejudiced the

material outcome of this matter by allowing possible DNA results to equate to

filiation under Louisiana law. In so ruling, this Court noted that the DNA results

were not introduced into evidence in court, and even if they had been properly

introduced, “genetic test results do not automatically convey filiation under

Louisiana law.” See State in the Interest of C.C., Jr., P.B., M.B., J.B., 18-440 (La.

App. 5 Cir. 10/12/18), 256 So.3d 565, 572, writ denied, 18-1766 (La. 12/3/18), 257

So.3d 192.

After this matter was remanded, the juvenile court, on October 30, 2018,

granted the former foster parents’ motion to intervene, but denied their request that

custody be transferred to them, instead ordering that J.B. have visitation with them

on a regular basis. In addition, the juvenile court ordered that all parties be

assessed to determine the best interest of J.B. as to placement. The foster parents

thereafter sought review of the juvenile court’s judgment that denied their request

for transfer of custody of J.B. from L.W. to them, asserting the ruling was contrary

to this Court’s October 12, 2018 opinion. This Court denied the foster parents’

writ application noting that in this Court’s prior opinion, we reinstated custody of

J.B. to DCFS, but did not order that J.B. be placed with the foster parents “as we

do not have the authority to do so.” In so ruling, this Court cited La. Ch.C. art.

672(A) that provides that DCFS shall have the sole authority over the specific

placement of children assigned to its custody. See State in the Interest of C.C., Jr.,

P.B., M.B. and J.B., 18-634 (La. App. 5 Cir. 11/8/18) (unpublished writ

disposition).

20-CA-307 4

In the meantime, on November 9, 2018, D.W. filed a motion to modify

disposition asking that he be granted custody of J.B. In his motion, he asserted that

he had been released from prison on September 7, 2018, that he had moved to

Texas and was visiting with his son daily, that he had obtained gainful employment

and was therefore able to support his son, and that he had complied fully with

every request that DCFS had made of him. Thereafter, pursuant to a motion filed

by DCFS, the record was supplemented to include a certified putative father

registry certificate showing D.W. is registered as the biological father of J.B.

In response, J.M. and R.M., the former foster parents, filed exceptions of

lack of procedural capacity/standing and no right of action contending that D.W.’s

registry with the putative father registry is insufficient to establish filiation or any

legal right to the child, other than possibly visitation. In the alternative, the former

foster parents filed a motion for interim extended visitation.

On December 11, 2018, the juvenile court conducted a hearing on the

motion to modify disposition as well as a best interest hearing. Dr. Amy Dickson

testified about the evaluations she conducted of J.B., his aunt, L.W., and his former

foster parents, J.M. and R.M., on November 26, 2018. During her testimony, she

detailed her observations and the interactions between J.B. and L.W. and J.B. and

his former foster parents, concluding that all three caregivers were very loving and

clearly committed to J.B. and that J.B. has an attachment to both his aunt and his

former foster parents. When Dr. Dickson was asked whether she could give the

Court guidance as to what would be in J.B.’s best interest going forward, Dr.

Dickson replied:

I think it’s a difficult decision for the judge. The good news is
lots of people love this little guy. He’s clearly happy. He’s thriving.
He’s doing terrifically. And that’s due to all three of these caregivers
giving him a lot of love and support.

I think [J.B.] would do well in either home. He will be loved
and cared for very well in either home. It’s a very tough decision for

20-CA-307 5

the judge because he has family in both places. And my
recommendation is no matter where he goes permanently, it’s my
hope that he will be able to visit the other home and spend time with
those family and relatives in that home.

After considering the evidence presented as well as arguments of counsel,

the juvenile court denied D.W.’s motion to modify disposition, ordered legal

custody to remain with DCFS and J.B. to remain in his current placement with his

aunt in Texas, and granted J.M. and R.M.’s motion for extended visitation. In

addition, the Court found D.W. to be the biological father of J.B., noting that he

has done everything to establish his parental rights, and denied the former foster

parents’ exceptions. Thereafter, J.M. and R.M. filed a writ application in this

Court seeking review of the juvenile court’s denial of the exceptions.

On March 25, 2019, this Court granted the foster parents’ writ application

and vacated the juvenile court’s ruling denying their exceptions of lack of

procedural capacity/standing and no right of action. This Court found that based

upon the limited information provided in the writ application, “we cannot say that

D.W. has proven even that he properly executed a formal acknowledgement since

our prior opinion was rendered.” See State in the Interest of C.C., Jr., P.B., M.B.

and J.B., 18-728 (La. App. 5 Cir. 3/25/19) (unpublished writ disposition).

In the meantime, allegations surfaced that J.M. engaged in inappropriate

sexual behavior with J.B. during one of their overnight visits in Texas. As a result

of these allegations, the juvenile court suspended J.M.’s visitation with J.B., but

allowed R.M. and M.B., J.B.’s sister, to have FaceTime visits with J.B. In

addition, the State filed a motion to dismiss the foster parents’ intervention based

on the allegations of sexual misconduct. However, the juvenile court deferred

ruling on the motion pending completion of the criminal investigation in Texas.

Ultimately, the Texas Grand Jury handed down a “no bill” and failed to indict J.M.

20-CA-307 6

on the sexual assault charges.7 It is noted that during the delay in these

proceedings due to the ongoing investigation, J.B. was maintained in the custody

of DCFS, resided with his aunt, L.W., and was allowed FaceTime visits with R.M.

and his sister, M.B.

On January 21, 2020, the juvenile court again took up the matter of the

paternity of D.W. After considering the testimony of witnesses and the documents

presented, the juvenile court ruled that the act of acknowledgment did not meet the

requirements of La. R.S. 9:408 insofar as J.B.’s mother had not signed it and that

D.W. did not have standing in the proceedings.

Thereafter, D.W. filed a motion for new trial on the paternity issue. The

matter came for hearing on July 17, 2020, at which time the juvenile court granted

D.W.’s motion for new trial and allowed his attorney to proceed to offer proof of

his paternity.8 At the hearing, Erin Luquette, the DCFS case worker, testified that

once P.B., the child’s mother, named D.W. as the possible father of J.B., DCFS

arranged to have DNA testing done to determine paternity and thereafter obtained

the results of the testing, which she identified in court as an original certified copy.

She also identified the certified copy of the amended birth certificate of J.B. that

showed D.W. now named as the father. Ms. Luquette testified that as soon as

7
DCFS in Louisiana also conducted an investigation into the allegations of inappropriate sexual behavior
by J.M. that allegedly occurred during one of the visits in Texas. After DCFS found the allegations to be
valid, J.M. sought administrative review. The administrative law judge affirmed DCFS’ valid findings of
sexual enticement and sexual intercourse. J.M. thereafter appealed this decision to the Jefferson Parish
Juvenile Court. Upon review, the juvenile court reversed the findings of the administrative law judge and
overturned DCFS’ valid findings of sexual abuse. DCFS filed an appeal in this Court seeking review of
the juvenile court’s ruling and asking this Court to uphold the findings of the administrative law judge.
State in the Matter of J.M., Appeal Number 20-CA-309 (which has been designated as a companion case
to the present appeal).
8
Prior to the start of the paternity hearing, DCFS and D.W.’s attorney asserted that the former foster
parents are not parties to the paternity hearing and asked that they be excused. The juvenile court noted
their objection but allowed the former foster parents and their attorneys to be present, noting, “the Court
had a question about whether or not they even had standing to raise the paternity issue, but the Fifth
Circuit let them raise it, and they brought it in, so I’m going to allow them to remain in the courtroom
with regards to the paternity issue.” We note that in a CINC proceeding, the role of foster parents is
limited, and in this matter, they were given much leeway in their participation, even after they were no
longer J.B.’s foster parents. See La. Ch.C. arts. 695 and 697 and State in the Interest of G.H., 18-465 (La.
App. 5 Cir. 1/30/19), 265 So.3d 960, 965.

20-CA-307 7

D.W. was notified that he was the father, he obtained a case plan and completed a

Partners in Parenting Course during his incarceration. She further testified that,

since his release from prison, D.W. has acted as J.B.’s father and has taken an

active part in J.B.’s life through regular visitation, bringing him to doctors’

appointments and therapy appointments, and participating in all of his life

activities, such as birthday parties and family outings. According to Ms. Luquette,

D.W.’s active participation in J.B.’s life proved to DCFS that he is committed to

his child.

D.W. also testified at the hearing. He admitted he had a sexual relationship

with J.B.’s mother, acknowledged in court that he is J.B.’s father, and identified in

court the acknowledgement of paternity that he executed. He maintained that he

did not know that P.B. was pregnant or that she had this baby prior to the notice by

DCFS while he was incarcerated. D.W. affirmed that he wants to be and has been

an active part of his son’s life and has taken financial responsibility for him. He

testified that he sees J.B. at least three times a week, that J.B. calls him dad, and

that he is willing to take on the rights as well as responsibilities of being a father.

After considering the testimony and exhibits presented, including the

complete and certified DNA test results, an original acknowledgment of paternity

affidavit executed by both the mother and D.W., and a certified copy of the

amended Louisiana birth certificate listing D.W. as the father of J.B., the juvenile

court found that D.W. is the father of J.B., noting that he has complied with all the

statutory requirements.

After finding D.W. to be the father, the juvenile court then considered the

motion by DCFS to have the CINC proceeding dismissed as the father had

completed the required case plan. At that point, Ms. Luquette, the DCFS case

worker, testified about D.W.’s compliance with the case plan. Ms. Luquette

testified that she has been working on the case since September 2016, that D.W.

20-CA-307 8

was located in 2017, and that he obtained a case plan shortly thereafter. She

referenced the most recent case plan of April 20, 2020, and testified that D.W. has

completed his case plan. Specifically, D.W. had safe and stable housing and had

been approved by DCFS in Louisiana and by Texas ICPC as a relative placement

for his child. In addition, D.W. was working full-time, was an active part of J.B.’s

life, and was co-parenting J.B. with his sister.

Further, D.W. was complying with his parole conditions and had received

random drug screens over the prior two years as part of his parole, none of which

had been positive for drugs. According to Ms. Luquette, D.W. had actually been

put on low status by his parole officer because he was not at risk of re-offending.

D.W. completed a substance abuse assessment at the beginning of his case and also

completed a parenting program while incarcerated. Ms. Luquette asserted that

D.W. is an active part of J.B.’s life, that J.B. considers D.W. his dad, and that

J.B.’s medical, emotional, and developmental needs are being met. Based on

D.W.’s compliance with his case plan, DCFS recommended that custody be

granted to D.W. and that the case be closed.

After considering the evidence presented, the juvenile court judge granted

DCFS’s motion to dismiss the intervention, granted immediate unsupervised

custody to D.W., and closed the case, stating, in part, as follows:

I do find that [D.W.] has completed his case plan as required by law.
… But based on the fact that he has completed his case plan and there
is a statement that there is no concern for the health and safety of the
child, I am going to order that the child be put back in [D.W.’s]
custody and that the case be dismissed.

I’ll note two main things to remember when this case first came about.
[D.W.] was not able to take custody of the child. He had a plan for
the child, but he was not able to take custody at that time because he
was still incarcerated. That’s been a change. He’s now not in
custody. He’s not simply making a plan for his child. He’s actually
available for the child and he has completed a DCFS case plan.

There has been no motion to not have reunification efforts under
672.1 so reunification is mandated if it can be achieved. Further,

20-CA-307 9

when this first happened, there was [sic] questions about whether the
child, through his attorney, objected to the case plan. Ms. Legendre,
who represents the child’s interest -- everyone else represents other
interests -- has filed a motion to have the best-interest hearing taken
care of, that the permanency of [J.B.] is best served by being returned
to his father at this time. I do believe you joined in with DCFS’s
motion for all this to take place.

So at this time, I am going to grant the motion to dismiss the
intervention and the best-interest hearing. The case will be closed.

J.M. and R.M., the former foster parents, now appeal, requesting that this

Court vacate the July 17, 2020 judgment and reinstate the permanent plan for their

adoption of J.B. On appeal, they list two assignments of error: 1) The trial court

erred in granting D.W.’s motion for new trial, allowing him a fourth chance to

establish paternity, but preventing evidence of timeliness, fitness, and other

elements necessary to a finding of best interest; and 2) The trial court made a

mistake of law in applying La. Ch.C. art. 682 to a CINC case that was far past

disposition, and improperly awarding custody to a putative father on the basis of

alleged completion of an unapproved, deficient case plan that did not address the

child’s best interest, safety, or the requirements of La. R.S. 9:364. They further

assert that since the decisions at issue are rulings of law, and not factual

determinations, this Court has the authority to undertake a de novo review of this

case. Alternatively, they argue that this Court should use an abuse of discretion

standard if we determine that the juvenile court’s rulings were not errors of law.9

In response, DCFS and D.W. assert that the juvenile court did not err in

granting D.W.’s motion for new trial on the issue of paternity because D.W. was

not subject to any time limitation in establishing his paternity in this case. Further,

9
It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of
“manifest error” or unless it is “clearly wrong.” However, when one or more trial court legal errors
interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is
otherwise complete, the appellate court should make its own independent de novo review of the record
and determine a preponderance of the evidence. A legal error occurs when a trial court applies incorrect
principles of law and such errors are prejudicial. Evans v. Lungrin, 97-541 (La. 2/6/98), 708 So.2d 731,
735. Because our review of the record reveals no legal errors committed by the juvenile court
(subsequent to the prior appeal in this case), we will apply a manifest error standard of review to the
juvenile court’s factual determinations.

20-CA-307 10

they point out that the best interest of J.B. was paramount throughout the entirety

of the proceedings, and that evidence was in fact presented as to J.B.’s best interest

at the July 17, 2020 hearing, which resulted in custody of J.B. being returned to his

father.

DISCUSSION

In their first assignment of error, the foster parents contend that the juvenile

court erred in granting D.W. a new trial on the issue of paternity. They argue that

D.W. did not establish grounds for a new trial and his fourth attempt to establish

paternity was untimely. In particular, the foster parents assert that on July 17,

2020, D.W. “did not establish grounds for a new trial as to his paternity in that no

proof was offered that the three previous holdings were a mistake of law or fact.

The evidence available in July of 2020 had been available earlier, but it had not

been offered.” To support this argument, the foster parents point to La. C.C.P. art.

1972, which sets forth mandatory grounds for new trial. Admittedly, D.W. did not

prove that he was entitled to a new trial based on the three grounds articulated in

La. C.C.P. art. 1972. However, pursuant to La. C.C.P. art. 1973, “A new trial may

be granted in any case if there is good ground therefor, except as otherwise

provided by law.” For the reasons that follow, we find that the juvenile court did

not abuse its discretion in granting relator a new trial on the paternity issue.10

Regarding the former foster parents’ arguments pertaining to the timeliness

of D.W.’s ability, by reliance upon a motion for new trial, to eventually establish

his legal filiation to J.B., we note that La. C.C. art. 198, which deals with the time

periods for establishing paternity, reads as follows:

10
With regard to his ruling on the motion for new trial, the juvenile court judge noted: “I will point out
that whether or not he can have the new trial, it wasn’t based on a finding that he wasn’t the father. It was
based on the legal insufficiency of that actual acknowledgment document. So I granted the new trial
based on the fact that the document has been properly filled out and now they have made the motion for
new trial. I did not rule in the past that he was not the father. I just ruled that the documents were not
proper at the time.”

20-CA-307 11

A man may institute an action to establish his paternity of a child at
any time except as provided in this Article. The action is strictly
personal.

If the child is presumed to be the child of another man, the action shall
be instituted within one year from the day of the birth of the child.
Nevertheless, if the mother in bad faith deceived the father of the
child regarding his paternity, the action shall be instituted within one
year from the day the father knew or should have known of his
paternity, or within ten years from the day of the birth of the child,
whichever first occurs.

In all cases, the action shall be instituted no later than one year from
the day of the death of the child.

The one-year and ten-year time constraints in this article do not apply to this

case as J.B. is not presumed to be the child of another man, and J.B. is alive.

Therefore, pursuant to the express language of La. C.C. art. 198, D.W. was able to

institute his action to establish his paternity of J.B. “at any time.” However,

because this is a CINC proceeding, we have carefully examined the specific

provisions of the CINC articles of the Children’s Code to ascertain whether those

provisions contain a time limitation for a previously unknown father to institute

action to establish his paternity. After such examination, we are unable to identify

any such provision that specifically addresses this question. Nor have the former

foster parents cited any such provision to this Court.

La. Ch.C. art. 601 provides that CINC “proceedings shall be conducted

expeditiously to avoid delays in achieving permanency for children” and the

provisions of the CINC Title are “intended to provide the greatest possible

protection as promptly as possible for such children.” Furthermore, the CINC

provisions provide time restrictions within which various stages of the proceedings

should be achieved and various review hearings held, all with the objective of

achieving prompt permanent placement of a child who has been removed from his

parents. See, e.g., La. Ch.C. art. 632 (time for filing petition), La. Ch.C. art. 659

(time for adjudication hearing), La. Ch.C. art. 678 (time for disposition hearing),

20-CA-307 12

La. Ch.C. art. 692 (time for case review hearings), and La. Ch.C. art. 702 (time for

permanency hearing).

Despite the stated goal of expeditious resolution of a CINC proceeding by

permanent placement of the child and the numerous provisions providing timelines

for various stages of the proceedings and review hearings, the Louisiana

Legislature has not provided a time limitation in the CINC Title within which a

previously unknown father must institute an action to establish his paternity.

Indeed, in a CINC proceeding, the Children’s Code imposes a “continuing

responsibility of all persons before the court to advise the department and the court

in writing of the whereabouts … of an absent parent and the identity and the

whereabouts … of any relative or other individual willing and able to offer a

wholesome and stable home for the child.” La. Ch.C. art. 684(E)(4); See also

La. Ch.C. art. 682(B)(4). Clearly, the Children’s Code contemplates that until such

time as a permanent placement is achieved and the CINC case is closed, the

juvenile court must explore all possible resources to provide a wholesome and

stable home for the child, which must include a biological parent whose rights

have not been terminated.11

In this case, as soon as P.B. advised DCFS in September of 2017 of the

identity of J.B.’s father, DCFS contacted him, and he submitted to DNA testing,

which confirmed his paternity of J.B. At the time of this occurrence, this case had

not progressed to the point of termination of parental rights with regards to D.W. 12

Furthermore, despite the fact that a year later this Court vacated the juvenile

11
The Children’s Code defines “permanent placement” as “(a) return of the legal custody of a child to his
parent or parents; (b) placement of the child with adoptive parents pursuant to a final decree of adoption;
or (c) placement of the child with a legal guardian.” La. Ch.C. art. 603(22).
12
In CINC cases, the grounds for termination of an unknown father’s parental rights do not arise until
“the child is in the custody of the department pursuant to a court order for at least one year, unless sooner
permitted by the court …” La. Ch.C. art. 1015(10). In this case, J.B. was in court-ordered DCFS custody
just short of one year when P.B. identified D.W. as his father in September of 2017. Even six months
later, at a pretrial conference prior to a case review hearing on February 27, 2018, the juvenile court
denied as premature a motion filed by J.B.’s counsel to terminate D.W.’s parental rights.

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court’s February 27, 2018 ruling that transferred custody of J.B. from DCFS to

L.W., because D.W. had not sufficiently proved his legal filiation to J.B., we note

that the juvenile court was well within its discretion to maintain placement of J.B.

with L.W., D.W.’s sister, and to allow D.W., who had shown his biological

relationship to J.B. through DNA test results, to continue to work his DCFS case

plan in an effort to gain custody of his son.13 Given this posture, as well as the lack

of any authority that places a time limitation for establishing paternity on this

previously unidentified father, we find that the juvenile court did not abuse its

discretion in granting D.W. a new trial on the issue of legal filiation pursuant to La.

C.C.P. art. 1973.

The foster parents next contend that even if the juvenile court correctly

allowed the fourth attempt to establish paternity, the proof offered does not give

custodial rights to D.W. They contend that the documentation alone regarding

paternity was insufficient to establish D.W.’s right to custody and that he should

have been required to demonstrate his fitness for parental responsibilities, timely

commitment to those responsibilities, concrete actions taken to grasp his

opportunity to be a father, and the potential for him to make a valuable

contribution to the child’s development.

In In re Adoption of B.G.S., 556 So.2d 545, 549-550 (La. 1990), the

Louisiana Supreme Court discussed the constitutional liberty interest of a parent

having a relationship with his children:

The interest of a parent in having a relationship with his children is
manifestly a liberty interest protected by the Fourteenth Amendment's
due process guarantee. The United States Supreme Court has
declared it “plain beyond the need for multiple citation” that a
biological parent's right to “the companionship, care, custody, and
management” of his children is a liberty interest far more important
than any property right. Santosky v. Kramer, 455 U.S. 745, 758–59,
102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982); Lassiter v. Department

13
Under the Children’s Code, “parent” is defined as “any living person who is presumed to be a parent
under the Civil Code or a biological or adoptive mother or father of a child.” La. Ch.C. art. 116(17)
(emphasis added).

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of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2160, 68 L.Ed.2d
640 (1981). Accordingly, the interest of an unwed father in the
children he has sired and raised is entitled to protection under the Due
Process Clause. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31
L.Ed.2d 551 (1972). Even when the natural father has not lived
continuously with his child, he enjoys a similar constitutional
protection of his paternal interest when he develops and maintains a
substantial relationship with his child by accepting responsibility for
the child's future. Lehr v. Robertson, 463 U.S. at 262, 103 S.Ct. at
2993–94, 77 L.Ed.2d at 625; cf. Caban v. Mohammed, 441 U.S. 380,
389 n. 7, 99 S.Ct. 1760, 1766 n. 7, 60 L.Ed.2d 297, 305 n. 7 (1979).

… Although an unwed father's biological link to his child does not
guarantee him a constitutional stake in his relationship with that child,
such a link combined with a substantial parent-child relationship will
do so. As the Court stated in Lehr v. Robertson:

When an unwed father demonstrates a full commitment to
the responsibilities of parenthood by “coming forward to
participate in the rearing of his child,” ... his interest in
personal contact with his child acquires substantial
protection under the Due Process Clause. At that point it
may be said that he “act[s] as a father toward his
children.”....

In the B.G.S. case, the court also recognized the significance of the

biological connection in that it offers the natural father an opportunity that no other

male possesses to develop a relationship with his offspring. If he grasps that

opportunity and accepts some measure of responsibility for the child's future, he

may enjoy the blessings of the parent-child relationship and make uniquely

valuable contributions to the child's development. Id. at 550.

In their appellate brief, the foster parents rely partly on the B.G.S. case to

support their assertion that D.W., in addition to proving his biological connection,

also had to prove his fitness and timely commitment to parental responsibilities to

gain custody of his child.14 We note that the instant case is in a totally different

14
When discussing an unwed father’s constitutionally protected interest to develop a relationship with his
child, the court stated:
This interest does not come into existence or is soon lost, however, if the father is unable
to demonstrate that he is fit and committed to the responsibilities of parenthood.
Moreover, he must show that he has taken concrete actions to grasp his opportunity to be
a father and that there is a potential for him to make a valuable contribution to the child’s
development. Consequently, the mere existence of a biological link and fitness will not

20-CA-307 15

posture and is distinguishable from B.G.S., as well as the other cases relied upon

by the foster parents to support their assertion about the father’s burden of proving

his fitness and timely commitment to his parental responsibilities. In B.G.S., the

child’s mother had already surrendered the baby for adoption, and the Court was

faced with the issue of the constitutionality of a state law that empowered the

mother of an illegitimate child to terminate the parental rights of the unwed father

without notice and an opportunity to be heard.

The foster parents also cite La. Ch.C. art. 1138 to support their assertion

regarding the father’s burden of proof in these proceedings. La. Ch.C. art. 1138(A)

provides, “At the hearing of the opposition, the alleged or adjudicated father must

establish his parental rights by acknowledging that he is the father of the child and

by proving that he has manifested a substantial commitment to his parental

responsibilities and that he is a fit parent of his child.” This burden of proof,

however, applies in situations where the alleged or adjudicated father is opposing

the adoption of his child in instances where a surrender had been executed or a

petition for adoption had been filed. La. Ch.C. art. 1137. In the present case, J.B.

had not been surrendered for adoption by the mother and no petition for adoption

had been filed. Accordingly, La. Ch.C. art. 1138, which requires the alleged or

adjudicated father to establish his parental rights in order to oppose the adoption of

his child, is not applicable under the circumstances of this case.

Rather, this is a CINC proceeding governed by Title VI of the Louisiana

Children’s Code, the purpose of which is to temporarily remove a child from the

custody of his parents, if deemed necessary, pending the State’s investigation into

allegations of abuse and/or neglect, with the ultimate goal of reunification and

sustain the father’s interest; it is defeasible if not preserved by dedicated, opportune
fatherly action.
In re Adoption of B.G.S., 556 So.2d at 550.

20-CA-307 16

return to the parents’ custody. Indeed, if reunification is not possible, DCFS “may

file a motion for a judicial determination that efforts to reunify the parent and child

are not required.” La. Ch.C. art. 672.1(A). That article further provides, “The

department shall have the burden of demonstrating by clear and convincing

evidence that reunification efforts are not required, considering the health and

safety of the child and the child's need for permanency.” La. Ch.C. art. 672.1(B).

In the present case, no motion was ever filed by DCFS or presented to the

juvenile court to suggest that reunification efforts with the father should not be

pursued. As discussed in this opinion, D.W., in fact, complied with his case plan,

and no efforts were made to terminate his parental rights. Thus, this case never

progressed to the point where J.B. was freed for adoption.

In any event, even if D.W. had the burden of proving his fitness and timely

commitment to his parental responsibilities, we find that the record establishes his

timely commitment to his parental responsibilities as well as concrete actions taken

to grasp his opportunity to be a father. In their appellate brief, the former foster

parents seems to suggest that D.W.’s delays in submitting the proper

documentation to establish his legal right to the custody of J.B. through filiation

equate to an untimely commitment to his parental responsibilities and his efforts to

establish a relationship with his son and provide for him. Although there were

clearly delays in D.W. establishing legal filiation, the record itself and the evidence

introduced clearly indicate that during these delays, D.W. was making substantial

efforts toward establishing a relationship with J.B. and providing for him.

In particular, the record and evidence introduced at the hearings show that as

soon as DCFS advised D.W. that he possibly was the father of J.B.,15 he engaged in

15
The foster parents contend that D.W. knew of P.B.’s pregnancy and J.B.’s birth prior to his notification
by DCFS. The actual time frame in which he was notified of his possible paternity of J.B. is of no
consequence to our ultimate determination in this matter, considering the apparent lack of any time
limitations applicable to him for establishing his paternity in light of the posture and circumstances of this
case.

20-CA-307 17

DNA testing, proposed a plan for the placement of his son with his sister, and took

a parenting course in prison. Further, when he was released from prison, he took

steps to begin establishing a relationship with his son and became an active part of

his life through regular visitation and through participation in daily activities, such

as bringing J.B. to doctors’ appointments, therapy appointments, school activities,

and family outings. Further, D.W. was approved by ICPC for placement, followed

the case plan prepared by DCFS, and obtained housing and employment.

Based on the foregoing, we find no merit to the foster parents’ argument that

the trial court erred in granting D.W.’s motion for new trial, allowing him a fourth

chance to establish legal filiation, but preventing evidence of timeliness, fitness,

and other elements necessary to a finding of best interest.16

In their second assignment of error, the former foster parents basically

complain about the juvenile court’s failure to hold a best interest hearing, which

they argue this Court ordered in its October 12, 2018 opinion. They assert that the

juvenile court made a mistake of law in applying La. Ch.C. art. 682 to a CINC case

that was far past disposition and improperly awarding custody to a putative father

on the basis of alleged completion of an unapproved, deficient case plan that did

not address the child’s best interests, safety, or the requirements of La. R.S. 9:364.

16
As part of their argument that D.W. failed to prove his fitness and timely commitment to his parental
responsibilities, the foster parents also assert, in their appellate brief, that the juvenile court erred in
failing to consider and preventing them from presenting evidence about D.W.’s lack of fitness. The
attorney for the foster parents specifically tried to introduce jail phone calls of D.W. in order to impeach
his credibility regarding when he actually knew about P.B.’s pregnancy and the birth of J.B. The juvenile
court denied her request for admission on the basis that the evidence was not relevant to the determination
before the court. The attorney for the foster parents also sought to introduce two domestic abuse
convictions of D.W., citing La. R.S. 9:364 as authority for the request. The juvenile court denied her
request on the basis that, “This is a 682 hearing concerning removal of a child from parental custody and
whether or not he should be reunified because he has met all the safeguards necessary.” The juvenile
court further stated, “I do think the reason behind the law you’re trying to cite is when a mother and father
are fighting for custody, not when all parties agree with custody.” A trial court has wide discretion
concerning the admissibility and relevancy of evidence, and a trial court's ruling will not be disturbed on
appeal absent a clear abuse of discretion. Succession of Olsen, 19-348 (La. App. 5 Cir. 1/29/20), 290
So.3d 727, 735, writ denied, 20-362 (La. 6/3/20), 296 So.3d 1067.

20-CA-307 18

The purpose of CINC proceedings, is “to protect children whose physical or

mental health and welfare is substantially at risk of harm … and who may be

further threatened by the conduct of others …” Specifically, La. Ch.C. art. 601

states that, “[t]he health, safety, and best interest of the child shall be the

paramount concern in all proceedings under this Title.”

Despite the foster parents’ assertion to the contrary, the juvenile court did, in

fact, subsequent to this Court’s October 12, 2018 opinion, consider testimony and

evidence regarding J.B.’s best interest throughout the entirety of the proceedings.17

As previously noted in this opinion, on December 11, 2018, Dr. Dickson testified

regarding her evaluations of J.B., his aunt, L.W., and J.B.’s former foster parents,

J.M. and R.M., and concluded that all three caregivers were very loving and clearly

committed to J.B. and that J.B. had an attachment to both his aunt and his former

foster parents. However, during her testimony, she was unable to advise the court

as to which placement would be in his best interest because J.B. would be loved

and cared for in each home. Later in December, Dr. Dickson provided an

addendum to her relationship assessment regarding her opinion as to the best

interest of J.B. Therein, she stated that J.B.’s “interests would best be served by

being allowed to remain with his paternal aunt.” In her addendum, Dr. Dickson

noted that this placement provided him frequent access to his biological father and

other paternal relatives, that J.B. was happy with his father and building a strong

relationship with him, and that there was “no good reason” to prevent D.W. from

parenting his child.

At the July 17, 2020 hearing, Ms. Luquette testified regarding D.W.’s

successful completion of his case plan. She specifically mentioned that D.W. has

17
In its October 30, 2018 order, the juvenile court specifically ordered that all parties be assessed to
determine the best interest of J.B. as to placement, which clearly indicates that the juvenile court
anticipated that it would be considering J.B.’s best interest when making its further determinations
regarding J.B.’s placement and custody.

20-CA-307 19

safe and stable housing; he was approved by Texas ICPC as a relative placement

for his child; he is working full-time; he is following his parole conditions; he has

never had a positive drug screen; he co-parents J.B. with his sister, L.W.; and he is

an active part of J.B.’s life. Ms. Luquette also testified that all of J.B.’s medical,

emotional, and developmental needs are being met and that DCFS does not have

any concerns for the safety of J.B. should he be reunited with his father.

Further, DCFS submitted numerous reports to the court, which give detailed

updates on all aspects of the case, including an overall assessment and

recommendation as to the placement that would be in J.B.’s best interest.

From our review of the record it is clear that the juvenile court did, in fact,

consider the best interest of J.B. in making its determination to award custody to

D.W. Upon our review of this case we are unable to say that the juvenile court was

manifestly erroneous in its factual determinations regarding D.W.’s efforts at

reunification with J.B. or that the juvenile court abused its discretion in awarding

custody of J.B. to D.W. after determining that it was in J.B.’s best interest.

We further note that the posture of the proceedings was different at the time

of the former foster parents’ first appeal. In particular, according to this Court’s

prior opinion, D.W. had not sufficiently established himself as J.B.’s parent, and

therefore, the issue of best interest at that time related to whether J.B. should be

placed with the foster parents or J.B.’s biological aunt. Since this Court’s first

opinion, the circumstances in the proceedings have changed. D.W. has since

established his paternity and has complied with the DCFS case plan. Further, the

State did not file a petition against D.W. in this CINC proceeding, D.W. has never

had custody removed from him, and the CINC case has now been closed. In

addition, J.M. and R.M. are no longer J.B.’s foster parents and have not been his

foster parents since February 27, 2018. Because of these changes of

20-CA-307 20

circumstances, we find no merit to the foster parents’ suggestion that a further best

interest hearing is warranted.

CONCLUSION

Accordingly, for the reasons set forth herein, we affirm the juvenile court’s

July 17, 2020 judgment that granted D.W., the biological father of J.B., a new trial

on his motion to establish paternity, found D.W. to be the father of J.B., granted

D.W. immediate unsupervised custody of J.B., dismissed the motion to intervene

filed by J.M. and R.M., and closed the child in need of care proceeding as to J.B.

AFFIRMED

20-CA-307 21

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
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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 17, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-CA-307
E-NOTIFIED
JUVENILE COURT (CLERK)
HON. BARRON C. BURMASTER (DISTRICT JUDGE)
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