Dept. of Children & Family Services – CW Docket No: 2019-7392 Agency No: 0002816896 In the Matter of Fregener Davis Henderson

Judgment rendered June 29, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,610-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

DEPT. OF CHILDREN & FAMILY Plaintiff-Appellee
SERVICES – CW
DOCKET NO: 2019-7392
AGENCY NO: 0002816896

IN THE MATTER OF FREGENER Defendant-Appellant
DAVIS HENDERSON

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 163,238

Honorable Charles A. Smith, Judge

*****

DAVIS LAW FIRM, LLC Counsel for Appellant
By: S.P. Davis, Sr.

HARRIS LAW FIRM, LLC
By: Courtney N. Harris

STATE OF LOUISIANA, DCFS Counsel for Appellee
By: James M. Hoffman
Penya Marzula Moses

DIVISION OF ADMINISTRATIVE LAW
By: Lindsey K. Hunter
Lacy Shuffield Norris

*****

Before MOORE, PITMAN, and ROBINSON, JJ.

PITMAN, J.

Fregener D. Henderson (“Henderson”) appeals the judgment of the

Administrative Law Judge (“ALJ”), who reviewed and affirmed a valid

finding of dependency brought against her by the Louisiana Department of

Children and Family Services (“DCFS”). For the following reasons, we

affirm.

FACTS

On June 4, 2018, Henderson’s adopted child, Q,1 was removed from

her home by the DCFS and placed in foster care.

On May 22, 2019, the DCFS notified Henderson that it completed the

child abuse and/or neglect investigation for a report involving a child in her

care and determined that the report was justified, or valid, for dependency of

her minor child, Q. Henderson requested an administrative hearing pursuant

to La. Ch. C. art. 616.1.1, which provides administrative appeal rights when

a report alleging abuse or neglect of a child is determined to be justified or

valid2 by the DCFS. The ALJ conducted an eight-day telephone hearing and

was presented with a voluminous record regarding Q’s medical and social

history. He determined that the DCFS proved, by a preponderance of the

evidence, that Henderson’s actions met the criteria necessary to place her

name on the State Central Registry3 as a valid perpetrator of child abuse or

neglect.

1
To protect the privacy of any child mentioned herein, only the child’s initials are
used in this opinion. See La. R.S. 46:56; see also La. Const. art. 1, section 5.

2
The words justified and valid are used interchangeably, but the May 22, 2019
letter states that “justified” would thereafter be referred to as “valid.”
3
The State Central Registry is a database used for background checks by the
Department of Education for its Child Care Civil Background Check System and the
DCFS for its Louisiana Child Abuse and Neglect Clearance System and Child Protective
Services Program for current and prospective employees of the DCFS and other agencies

During the hearing, Henderson testified on her own behalf; and the

following persons testified at her request: Dr. Gregory Brown; Jon Barnes,

FNP; Dr. Lionel Guillaume; Jerell Scott; and Kergener Davis. Henderson

submitted multiple exhibits.

The DCFS called several witnesses: Benjamin Lacy, a DCFS

investigator-supervisor; Michelle Gafford, a DCFS investigator; Rolanda

Stanley, a DCFS supervisor; Maurice Watkins, a DCFS investigator; Jessica

Feeback, Q’s teacher; Jessica Smith, a DCFS foster care worker; Reginald

Hodge, Q’s present foster parent; Dr. John Simoneaux, a psychologist;

Christi Thomas, a DCFS supervisor; and Robin Turner, a DCFS consultant.

The DCFS submitted 18 exhibits into evidence.

The following facts are gleaned from the testimony and exhibits

presented by both the DCFS and Henderson. Q was born on September 11,

2008. He lived with his biological mother for two years. During that time

he was raised in an unstable and chaotic environment and allegedly was

exposed to inappropriate adult behavior. Henderson adopted him on the day

before his fourth birthday in 2012 after his biological mother’s parental

rights were terminated. Henderson testified that Q arrived at her home with

many pre-existing conditions, including allergic rhinitis, maternal hepatitis

C, developmental delays in speech, communication disorder, disruptive

disorder, fetal alcohol syndrome and post-traumatic stress disorder.

and homes where children were placed. Whether or not an individual’s name is placed
on the registry depends on the tier level assigned to a valid finding by the DCFS. The
DCFS Child Welfare Policy 4-220. The notice to Henderson states that this case was
assigned as a Tier 2 investigation and that her name would be added to the State Central
Registry after her appeal rights had been exhausted.

2

Henderson also testified that Q displayed inappropriate sexual behavior

shortly after he entered her home and that his behavior worsened as he aged.

Henderson stated that Q acted out sexually with his teddy bear,

urinated in his bed, looked under girls’ skirts at school, fondled a child and

told Henderson that he wanted to kill children and the teacher. According to

Henderson, he also tried to kill her niece because she asked him to throw

away some trash, told her he wanted to have sex with his sister, told her he

hated black people even though he himself is African-American, tried to kill

at least three dogs, was a danger to other children, wanted to touch the

genitals of both male and female children and adults, and masturbated

15 times a day. She testified that he urinated everywhere in the house, in the

car and while his home-school teacher was sitting at the table with him. He

told her he wanted to go back to Georgia (where she once put him in a

psychiatric hospital) because he wanted to have sex with a man there.

Henderson sent Q to a number of facilities for psychiatric treatment

based on physician referrals. Because he was often in these facilities for

long periods of time, he attended school in those facilities. The year he was

eight years old, Q was admitted to ten mental health facilities and was

placed on medications for mental issues Henderson claimed he had. During

his early life with Henderson, Q was diagnosed with the following illnesses,

disorders, syndromes or symptoms: intermittent explosive disorder and

conduct disorder, childhood onset; depressive/anxiety disorder; attention

deficit/hyperactivity disorder; disruptive mood dysregulation disorder; anger

management and impulse control, homicidal ideations; oppositional defiant

disorder; emotional disturbance; sexual disorder; attention

deficit/hyperactivity disorder; reactive attachment disorder; R/O antisocial
3

personality disorder; bipolar with psychotic features; schizophrenia; and

auditory hallucinations. Q was prescribed numerous medications by many

doctors and nurse practitioners because of these diagnoses, including

Seroquel, Tenex, Prozac, Zoloft, Zyprexa and Trileptal, as listed on DCFS

Exhibit 8.

Dr. John Simoneaux, a licensed psychologist, performed a forensic

psychological evaluation of Q’s medical records and all documentation

submitted by the DCFS and Henderson concerning Q. He wrote a 24-page

report on his observations during interviews and testing with Q and

Henderson on September 18 and 20, 2018, and October 31, 2018. He

reviewed all of the medical records that Henderson submitted regarding Q’s

hospitalizations.4 All of the hospital admissions began with multiple

diagnoses and symptoms as described by Henderson to the physicians and

administrators. Based on his experience,5 Dr. Simoneaux stated that he had

not seen any child who exhibited these many behaviors together as described

by Henderson. He stated that Q has been diagnosed with mental illnesses

that are diagnosed only in adults. Throughout the report, in which he

addressed the findings of each hospital, he warned that he could not tell

whether the doctors at the hospital actually observed Q behaving in these

ways or if they simply took Henderson’s word that Q typically behaves that

way.

4
These same medical records are the ones submitted by Henderson in support of
her appeal of the valid determination of dependency.

5
Dr. Simoneaux’s experience included years of working in an in-patient
psychiatric unit for adolescents and children, where he evaluated children and adults for
trauma, abuse and, specifically, sexual abuse.
4

Dr. Simoneaux’s observation of Q was that he is a very bright and

sweet child and that he exhibited none of the behaviors attributed to him by

Henderson. His assessment of Q is that he was pleasant, cooperative and a

totally normal young male. He stated that Q laughed easily, was excited

about everything and was clearly intellectually quite able. Previous school

evaluations indicated that Q had high levels of intellectual achievement. Q

confirmed to him that his mother routinely made him say things had

happened that had not actually happened. The report also remarks that Q

“essentially said, rather shyly, that he believes that something might be

wrong with his mother. He seemed genuinely frightened at the idea that he

might have to go back to his mother.”

Dr. Simoneaux stated that there was nothing in his observations or in

his time with Q that would suggest the presence of virtually any of the

diagnoses that had been offered. He found that Q was certainly not

psychotic, and he appeared intelligent and articulate. He was not anxious or

depressed and, in fact, seemed happy. Although he admits he saw Q only

that one day, Q did not exhibit any signs of emotional distress or trauma that

his mother historically described.

Dr. Simoneaux also conducted testing and interviews with Henderson,

including the Minnesota Multiphasic Personality Inventory-2 test, which

returned with some troubling results. Based on her answers, he believed

there was a “good chance” that she suffered from a psychological disorder

that could “get in the way of her accurate view” of the circumstances. The

results of the testing he performed on her and some of her behaviors through

the course of the involvement with the DCFS “suggest that she may indeed

be delusional.”
5

Henderson’s witness, Dr. Lionel Guillaume, a psychiatrist, evaluated

her. He did not diagnose her but only reached an “impression” and found no

evidence of psychosis or mood disorder.

Dr. Simoneaux reviewed the documentation in the case and noted

there was an affidavit regarding a multidisciplinary team conference in

which Dr. Perry Hill participated. The affidavit stated that Dr. Hill reviewed

the records from one of the mental health care facilities to which Q had been

admitted, and it was his opinion that the child “is suffering from emotional

maltreatment by his adopted mother.” Based on the documents presented to

him at the team conference and Dr. Simoneaux’s notations, Dr. Hill further

opined that the child would stabilize while in the hospital but then would

regress upon return home.

At the end of Dr. Simoneaux’s report, he recommended to the DCFS

that they consider keeping Q in a foster care environment and away from

Henderson’s influence for a period of six months in order to observe

whether Q engaged in any of the behaviors described by Henderson. He

opined that the “sexual acting out, the chronic masturbation, and the

aggressive behaviors” should all be evident fairly soon if Henderson’s

accusations were correct. He stated that if those behaviors were not seen,

then Henderson’s assertions would be incorrect, and it could be assumed that

whatever had been reported in the past was the product of the interaction

between Q and Henderson and not necessarily that Q suffered from mental

illness.

For the period of February through May 2019, Q attended treatment

with Letrisha Walker, a therapist. Her treatment update noted that Q

presents as a well-adjusted child who is enjoying being a kid. She stated that
6

he participates in the session, makes good grades and does well at school,

and enjoys participating in sports. He continues to express his feelings of

not wanting to visit or be reunited with Henderson and, in fact, is adamant

about not wanting to return to her care. He also states that he is content with

being at the home of Reggie Hodge, his foster father.

After his removal on June 4, 2018, Q never returned to Henderson’s

care. Her parental rights were terminated after a September 23, 2019 trial in

Bossier Parish, and that termination was affirmed by this court in State in

Int. of J.D., 53,432 (La. App. 2 Cir. 2/5/20), 290 So. 3d 738.

Mr. Hodge reported that Q is experiencing great successes now that he

no longer lives with Henderson. He is enrolled in middle school in Bossier

City, is in the gifted program and was elected school president. He has

many friends, and there have been no reports of inappropriate behavior. He

only sees the doctor for regular wellness checkups and is no longer

prescribed daily medications. Mr. Hodge and his wife intend to adopt Q.

Following the hearing and his review of all the documents in this

matter, the ALJ ruled that the DCFS had met its burden of proof that the

determination of dependency was valid. Henderson appealed the

administrative decision to the Bossier Parish district court, which also

affirmed the ALJ’s judgment. Henderson now appeals those rulings.

DISCUSSION

Henderson’s only assignment of error is that the ALJ erred in ruling

that the DCFS met its burden of proof in finding that the determination of

dependency against her is valid. She argues that it is without dispute that

when Q entered her home, he presented with a myriad of psychological,

emotional and behavioral problems, which were caused by his biological
7

mother’s history of drug and alcohol abuse. She contends that despite the

volumes of Q’s medical history she provided to the DCFS and the ALJ, their

decisions were based on the testimony and report of Dr. Simoneaux. She

asserts that Dr. Simoneaux never treated Q and only saw him once and that

he “posited a false narrative” that if the child improved medically when he is

not in her home for an extended time, then it is she who is harmful to the

child.

Henderson also argues that the ALJ based his decision on the

professional opinion of Dr. Perry Hill, another person who had never treated

Q or her. She points out that Dr. Hill had even less of a basis of fact than

Dr. Simoneaux, yet his participation in a team meeting was mentioned in the

ALJ’s decision.

Henderson further argues that even though the DCFS might conclude

that another home would be “better” for Q’s emotional, physical and

developmental needs, that does not necessarily mean that his previous home

is bad or neglectful. She contends that the DCFS failed to meet its burden of

proof in this case.

The DCFS argues that it has the responsibility to investigate

allegations of child abuse and/or neglect and is the state agency which

maintains the repository and state central registry of valid abuse and/or

neglect findings. It contends that the caseworker’s well-documented,

thorough investigation justified the valid finding of dependency of this child.

The finding was made based upon statements of the victim, perpetrator and

collaterals in accordance with the DCFS policies, and there is clearly enough

evidence to justify the valid determination and affirm the ruling of the ALJ.

8

La. Ch. C. art. 616.1.1(A) concerns rights of appeal of a determination

of dependency and states, in pertinent part, as follows:

When a report alleging abuse or neglect is determined to be
justified by the department, the individual who is or was the
subject of the determination may make a formal written request
to the division of administrative law for an administrative
appeal of the justified determination, in accordance with the
procedures set forth in Title 67 of the Louisiana Administrative
Code.

When reviewing an administrative final decision in an adjudication

proceeding, the district court functions as an appellate court. Cox v. Sec’y,

Louisiana Dep’t of Health & Hosps., 41,391 (La. App. 2 Cir. 8/25/06), 939

So. 2d 550, writ denied, 06-2576 (La. 12/15/06), 944 So. 2d 1274. Once a

final judgment is rendered by the district court, an aggrieved party may seek

review by appeal to the appropriate appellate court. Id. On review of the

district court’s judgment, no deference is owed by the court of appeal to the

factual findings or legal conclusions of the district court, just as no deference

is owed by the Louisiana Supreme Court to factual findings or legal

conclusions of the court of appeal. Id. 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. Id.

The applicable standard of review is set forth in La. R.S. 49:964. Law

v. Dep’t of Health & Hosps., 43,417 (La. App. 2 Cir. 8/13/08), 989 So. 2d

871, writ denied, 08-2225 (La. 12/12/08), 996 So. 2d 1118. The trial court

and the court of appeal have the authority to reverse or modify the decision

of the agency if substantial rights of the party seeking review 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 agency’s statutory authority; (3) made upon unlawful
9

procedures; (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) manifestly erroneous in view of the reliable, probative and

substantial evidence in the record. Id.

Dependency

DCFS investigates allegations of child abuse and neglect to determine

if there is a valid finding of abuse or neglect by an individual of a child.

DCFS Policy for the Office of Community Services, Chapter 4, Part 5,

Section 4-515; 67 La. Admin. Code Pt V, 1111. It has the burden of

proving by a preponderance of the evidence that its determination of a valid

finding of child neglect by dependency should be upheld. 67 La. Admin.

Code Pt V, 1111.F. 5. Its validity determination is a two-step process. The

first step is to determine whether an individual’s conduct met the definitional

requirements needed to make an “allegation determination.” If the

definitional requirements are met, then the second step is to determine

whether the conduct constituted a valid finding. Dependency is defined

under the DCFS Policy for Child Welfare, Chapter 4, Appendix 4-B, in

pertinent part, as follows:

Being without reasonable or necessary food, clothing, shelter,
medical care, supervision or other care, or without parental care
or guardianship, as a result of the severe mental illness, chronic
physical illness or physical disability, mental retardation, death,
incarceration, chemical abuse, or other condition related to the
parent’s ability to care for the child.

The investigation performed by the DCFS resulted in a collection of

documents, interviews of witnesses and statements by physicians and

therapists proving, by a preponderance of the evidence, that Henderson is

unable to reasonably care for Q and unable to attend to his medical,

10

emotional and developmental needs. The DCFS proved that Henderson was

not meeting Q’s needs and, in fact, was severely harming him, causing him

to be placed in mental hospitals and forced to take drugs because of behavior

she provoked or fabricated. Q’s behavior as noted by Henderson was so

bizarre that Dr. Simoneaux stated that he had never seen a person with that

many diagnoses, some of which were not even given to children. Once the

DCFS removed Q from her care, he improved quickly—medically,

emotionally, developmentally and socially. He exhibited none of the

aberrant behaviors about which Henderson had complained for years. He

was able to eliminate his medications; attend school without any problems;

and, in fact, thrive by making excellent grades, making friends and

participating in sports.

To further meet the definition of “dependency,” the DCFS was

required to also prove that Q’s lack of medical care, supervision or other

care, or being without parental care or guardianship, was due to the “severe

mental illness, physical illness or physical disability” or other condition

related to the parent’s ability to care for him. Through Dr. Simoneaux’s

evaluation and testing of Henderson, he found she suffered from a

psychological disorder that could “get in the way of her accurate view” of

the circumstances. He also opined that the results of the testing he

performed on her suggested she might be delusional.

Valid Determination

The DCFS policy for Office of Community Services, Chapter 4,

Part 5, states that when determining whether allegations of child abuse and

neglect are valid, the following standards apply:

11

The available facts when viewed in light of surrounding
circumstances would cause a reasonable person to believe that
the following exists:

(a) An act or physical or mental injury which
seriously endangered a child’s physical, mental
or emotional health or safety; or

(b) A refusal or unreasonable failure to provide
necessary food, clothing, shelter, care, treatment
or counseling which substantially threatened or
impaired a child’s physical, mental, or emotional
health and safety; . . . and,

(c) The direct or indirect cause of the alleged injury,
harm, or extreme threat of harm is a parent.

If the answers to (a) or (b) and (c) are “yes,” then the
allegation is valid.

We agree that the DCFS met its burden of proof in showing by a

preponderance of the evidence that it validly made a determination of

neglect based on dependency. Henderson’s actions seriously endangered

Q’s physical, mental and emotional health and safety; and the direct cause of

the injury was her behavior, possibly caused by her own mental health

issues.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the decision of the ALJ finding

that the DCFS proved the evidence met its policy requirements for making a

valid determination against Henderson of neglect based on dependency.

Costs of this appeal are assessed to Defendant Fregener Davis Henderson.

AFFIRMED.

12