State in the Interest of G.R.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-453

STATE OF LOUISIANA

IN THE INTEREST OF

G. R.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, JUVENILE COURT DOCKET NO. 4189
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.
REVERSED AND REMANDED.

L. Antoinette Beard
825 Kaliste Saloom Road
Brandywine I, Room 218
Lafayette, Louisiana 70508
(337) 262-1555
COUNSEL FOR PLAINTIFF/APPELLANT:
State of Louisiana, Department of Social Services

Michael Harson
District Attorney – Fifteenth Judicial District
ADA Angela H. Wagar
Post Office Box 288
Crowley, Louisiana 70527-0288
(337) 788-8831
COUNSEL FOR PLAINTIFF/APPELLANT:
State of Louisiana

Brett A. Stefanski
Edwards, Stefanski & Zaunbrecher, L.L.P.
Post Office Drawer 730
Crowley, Louisiana 70526-0730
(337) 783-7000
COUNSEL FOR MINOR CHILD:
G. R.

J. Marshall Montgomery
802 Johnston Street
Lafayette, Louisiana 70501
(337) 269-0083
COUNSEL FOR PARENTS/APPELLEES:
M. R. and S. H.

Edward G. Saal, Jr.
Post Office Box 176
Gueydan, Louisiana 70542-0176
(337) 536-9210
COUNSEL FOR MATERNAL GRANDPARENTS/APPELLEES:
R. H. and M. H.

GENOVESE, Judge.

This is an appeal by the State of Louisiana, Department of Social Services

(DSS), from a dispositional review hearing wherein the trial court rendered a

judgment dividing the legal and physical custody of the minor, G. R.1, placing him

in the legal custody of the DSS, and the physical custody of his maternal

grandparents. The DSS asserts that the trial court erred in dividing the physical

custody and legal custody of G. R. between it and the minor’s maternal grandparents.

For the following reasons, we reverse the judgment of the trial court and remand this

matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 14, 2005, G. R. was placed in the temporary custody of the DSS

pursuant to an oral instanter order which was confirmed by a written instanter order

that same day. A continued custody hearing was held on October 17, 2005. The trial

court ordered that custody of G. R. continue with the DSS; however, a hand-written

notation also appeared on the order of continued custody declaring “[t]he placement

of the child is to be split equally between the maternal grandparents . . . and the

paternal grandmother . . ..”

On October 25, 2005, the DSS filed a petition to adjudicate G. R. as a child in

need of care pursuant to La.Ch.Code art. 606(A)(2)2. G. R. was continued in the

custody of the DSS and was subsequently adjudicated in need of care at a hearing

held on December 5, 2005. The trial court entered a judgment of adjudication and

1
Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, the initials of the
parties will be used to protect and maintain the privacy of the minor child involved in this
proceeding.
2
Louisiana Children’s Code article 606(A)(2) provides that allegations of a child in need of
care must be made when the child is a victim of neglect.

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disposition granting the legal custody of G. R. to the DSS, and the physical custody

to the maternal grandparents of G. R., with visitation granted to the paternal

grandmother. It is from this judgment that the DSS appeals.

LAW AND DISCUSSION

“[A]n appellate court cannot set aside a juvenile court’s findings of fact in the

absence of manifest error or unless those findings are clearly wrong.” In re A. J. F.,

00-948, p. 25 (La.6/30/00), 764 So.2d 47, 61.

The DSS argues that La.Ch.Code art. 672 grants it the sole authority to make

placement determinations for children in its custody; therefore, the DSS contends that

the trial court erred by dividing the physical custody and legal custody of G.R.

between it and the minor’s maternal grandparents. We agree.

Article 672 of the Louisiana Children’s Code provides:

A. Whenever custody of a child is assigned to the Department
of Social Services, the child shall be assigned to the custody of the
department rather than to a particular placement setting. The department
shall have sole authority over the placement within its resources and
sole authority over the allocation of other available resources within the
department for children judicially committed to its custody.

B. The court shall not divide legal and physical custody
whenever assigning custody to a department in accordance with this
Article, Articles 619, 622, 627, 681, 700, or 716, or any other statute or
provision of law. The court shall specify other public agencies or
institutions that have legal or financial responsibility, or both, to provide
their particular services identified at disposition or subsequent case
review. Placing custody of a child with one state department shall not
remove the obligation of any other state department to provide services
to that child from their resources for which the child is eligible under
state or federal statute or state or federal appropriation, including but not
limited to twenty-four-hour care.

(Emphasis added.)

In State in the Interest of L. C. B., 01-2441, p. 7 (La. 1/15/02), 805 So.2d 159,

163, the supreme court interpreted La.Ch.Code art. 672 stating that “when the court

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assigns custody of a child adjudicated in need of care to [DSS], the Department has

‘sole authority’ over the placements within its resources of those children.” The court

further elaborated:

Under the statutory scheme in place for children adjudicated in need of
care and placed in the custody of [DSS], the court retains the ultimate
authority over a child’s placement and may approve or reject a case plan
submitted by the Department, but it may not revise the plan or make any
particular placements itself.

Id. at 165.

Following the supreme court’s rationale in L. C. B., this court in State ex rel.

D. B. v. M. O., 03-1408, p. 6 (La.App. 3 Cir. 2004), 870 So.2d 1143, 1146 (emphasis

added) held that:

This article [La.Ch.Code art. 672(A)] has been interpreted to mean once
custody of a child is placed with [DSS], if the court finds the child is not
being properly cared for it may remove the child from the custody of the
[DSS]. However, the court is without power to designate a particular
treatment plan or placement.

In the instant case, the trial court’s order that G. R., a child adjudicated in need

of care and placed in the legal custody of the DSS, be placed in the physical custody

of his maternal grandparents, with visitation granted to his paternal grandmother, was

in violation of La.Ch.Code art. 672. The trial court exceeded its authority by dividing

the legal and physical custody of G. R. which, in effect, ordered a particular

placement that DSS alone was entitled to make.

DECREE

For the foregoing reasons, that portion of the trial court’s judgment granting

the physical custody of G. R. to his maternal grandparents, with visitation granted to

his paternal grandmother, is hereby reversed and vacated. We remand this matter for

further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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