State in the Interest of J.F., J.F. and A.F.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-1496

STATE IN THE INTEREST OF J.F., J.F., AND A.F.

**********
APPEAL FROM THE
OPELOUSAS CITY COURT
PARISH OF ST. LANDRY, NO. JV-7033
HONORABLE KENNETH BOAGNI, JR., CITY COURT JUDGE
**********

GLENN B. GREMILLION
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir and
Glenn B. Gremillion, Judges.

AFFIRMED.

Hazel Coleman
303 South Court Street
Opelousas, LA 70570
(337) 942-4355
Counsel for Appellant:
J.F., Sr.

Lauren Mouret
DeJean, Mouret and Mouret
115 North Court Street
Opelousas, LA 70570
(3337) 948-8276
Counsel for Appellee:
J.F.
A.F.
J.F., Jr.

Brandon Guillory
215 South Court Street
Opelousas, LA 70570
(337) 948-4500
Counsel for Appellee:
P.N.

J.F., Sr.
In Proper Person
412 Sapphire St.
Opelousas, LA 70570

GREMILLION, Judge.

The plaintiff, J.F., Sr., appeals in proper person, the findings of the trial

court pertaining to the defendant’s, the State of Louisiana through the Department of

Social Services (DSS), custody of his three minor children.

FACTUAL AND PROCEDURAL BACKGROUND

J.F., Sr. and P.N. are the parents of three minor children, J.F., Jr., J.F.,

and A.F.1 Their involvement with DSS is lengthy and dates back in this record to

2001, when the State filed a children in need of care petition urging that the children

were in need of care.2 J.F., Jr. had been cared for by his paternal grandmother who

alleged that J.F., Sr. removed J.F., Jr. from her home. Following an investigation, the

agency recommended that J.F., Jr. be placed in the care of J.F., Sr. with no further

supervision by the agency. Pursuant to a judgment entered by the trial court, J.F., Jr.

was placed in his father’s custody.

In 2004, DSS again filed a child in need of care petition pertaining to

J.F., Jr. DSS found that J.F., Sr. and P.N. left their children in the care of the paternal

grandmother whose son, P.F., was residing in the home. P.F. had been convicted of

indecent behavior with a juvenile. J.F., Sr. and P.N. were aware of this fact. DSS

found that P.F. sexually abused J.F., Jr. by sodomizing him. They further found that

J.F., Sr. was unable to provide for J.F., Jr.’s needs. The trial court’s August 2004

judgment placed the children in the care of P.N.

1
J.F., Jr. was born 3/09/94; J.F. was born 1/28/01, and A.F. was born 11/25/02.
2
P.N.’s older child was removed from her care in 1992, due to her ongoing substance
abuse problem.

1

In February 2005, while in P.N.’s custody, an Instanter Order was issued

placing temporary custody of all three of the children with the State due to medical

neglect and lack of supervision. A petition to declare the children in need of care was

filed due to neglect and the children were placed in foster care. The case plan for the

children revealed that both P.N. and J.F., Sr. asked for custody of the children. The

children were continued in state custody through August 2005, at which time a review

hearing was set.

In April 2005, J.F., Sr. filed a motion to return the minor children to his

care. J.F., Sr.’s mother filed an ex parte motion to take provisional custody of the

children pending the continued custody hearing under La.Ch.Code art. 622 and 624.

She urged that until custody could be determined, the children should be placed with

her, a relative, pursuant to La.Ch.Code art. 627. DSS conducted a home study and

found that J.F., Sr.’s mother would be a suitable placement for the children at the end

of the school year. The trial court rendered a judgment in April 2005, continuing

custody in the State. J.F., Sr. filed a motion for appeal to this court, which was

apparently granted, but later rescinded.3

On May 25, 2005, J.F., Sr. filed an “Objection to O.C.S.

Recommendation” urging that the children should be placed with him instead of his

mother and, further, seeking full custody of them. The minutes from the May 25,

2005 hearing state that the trial court refused to sign the order and placed the children

with J.F., Sr.’s mother. The review judgment dated the same day continued custody

3
On June 27, 2005, J.F., Sr. filed a petition for writ of mandamus in relation to his April
2005 motion for appeal to this court urging that the City Court of Opelousas had not complied
with the order to forward the appeal.

2

with DSS and approved the case plan.

On August 3, 2005, DSS submitted a report in preparation for an August

10, 2005 hearing. The children remained in the home of J.F., Sr.’s mother. The

agency recommended that the children remain in her home while P.N. worked her

case plan and to allow J.F., Sr. to have his appeal heard. Following the August 10,

2005 hearing, the trial court concurred with DSS’s recommendations and placement

continued in the grandmother’s home. J.F., Sr. filed another Motion for Appeal to

this court which was denied by the trial court.

On December 2, 2005, DSS submitted a report in preparation for a

December 7, 2005 hearing. As in the previous report, DSS reported that J.F., Sr.

refused to work his case plan while awaiting the ruling of this court. DSS

recommended that the children remain in state custody for six months with placement

continuing at the paternal grandmother’s home. On the date of the hearing, J.F., Sr.

filed a “Motion to Take Provisional Custody of the Children Because the Action of

the Court is Illegal and Due Process is Violated in This Case.” The review judgment

following the December 7, 2005 hearing maintained the status quo as recommended

by DSS. J.F., Sr. filed a motion for appeal from the December 7, 2005 judgment.

On January 11, 2006, J.F., Sr. filed a motion to dismiss, presumably the

petition to declare the children in need of care, requesting that they be placed in his

custody. On January 18, 2006, the trial court dismissed the motion with prejudice.

On January 19, 2006, DSS forwarded a report to the trial court

recommending that legal custody of the children be awarded to the paternal

grandmother. On January 25, 2006, J.F., Sr. filed a motion for supervisory writs from

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the January 18, 2006 judgment wherein his motion to dismiss was denied and

dismissed. In March 2006, this court sent J.F., Sr. a letter alerting him that his filings

with us were procedurally incorrect. Thereafter, in May 2006, we denied the writ as

being untimely. In June 2006, J.F., Sr. then filed a “Motion for Reinstated” (sic)

urging that his writ was not untimely. Later that same month, we granted the motion

to reinstate the supervisory writ application, but denied the writ because the judgment

sought to be reviewed was a final appealable judgment, therefore, J.F., Sr. had an

adequate remedy through appeal. Although the time for appeal had expired, we

treated the writ application as a timely appeal.4

Following a review hearing on March 8, 2006, the trial court denied J.F.,

Sr.’s motion to dismiss the child abuse and neglect case. The trial court concurred

with DSS that custody be given to the paternal grandmother and further terminated

state supervision. Guardianship of the children was granted to the paternal

grandmother to remain in effect until each child reaches the ages of eighteen. On

April 7, 2006, J.F., Sr. and P.N. filed a motion for supervisory writ to this court

pertaining to the March 8, 2006 judgment.

On May 23, 2007, we rendered an unpublished opinion vacating the

judgment awarding guardianship of the children to the paternal grandmother and

remanded the case to the trial court for further proceedings.5 We found that the trial

court’s failure to determine if J.F., Sr.’s waiver of his right to appointed counsel was

knowing and intelligent required vacation of the March 8, 2006 review judgment.

4
On June 30, 2006, J.F., Sr. filed a petition for writ of certiorari and review to the
Louisiana Supreme Court. Thereafter, the record ends.
5
State in the Interest of J.F., J.F. and A.F., 06-1484 (La.App. 3 Cir. 5/23/2007) (an
unpublished opinion).

4

Thereafter, on May 30, 2006, the trial court, in an ex parte order, returned the custody

of the children to the state and vacated its March 8, 2006 judgment. On June 17,

2007, J.F., Sr. filed an application for supervisory writ to this court pertaining to the

trial court’s May 30, 2006 ex parte order.

The minutes of a July 18, 2007 hearing indicate that the trial court reset

the hearing pending our finding in J.F., Sr.’s most current writ. J.F., Sr. objected to

the hearing being reset. On August 3, 2007, we rendered an opinion pertaining to

J.F., Sr.’s June 17, 2007 writ. That writ was granted in part and made peremptory and

denied in part. We found:

We find no abuse of discretion in the trial court’s ruling of temporary
placement of these children with the State of Louisiana, Department of
Social Services. We grant this writ solely for purposes of ordering that
the Review and/or Permanency hearing be held no later than September
4, 2007. In all other respects, we deny the writ application.

Following a review hearing on August 15, 2007, the trial court concurred

with the State’s opinion that the children should remain with their paternal

grandmother. J.F., Sr. then filed a “Petition for Returned Date,” in which he appealed

the August 15, 2007 review judgment. He also filed a motion for appeal on August

20, 2007.

ISSUES

J.F., Sr. first requests that we review the record for errors patent in the

interest of justice. He then assigns as error:

1. The trial court’s allowing DSS to initiate removal
proceedings when certain formalities were not met.

2. “Whether the trial court has erred at the review hearing
when the court considered the best interest of the children,
and failure to consider the factors in La.Civ.Code art. 131

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and La.Civ.Code art. 134 and deprive the appellant of due
process.”

3. The trial court’s allowing unsworn testimony by a DSS
caseworker which is a violation of La.Ch.Code art. 603 and
a denial of his due process rights to confront and cross-
examine the witness.

4. The trial court’s failure to comply with La.Ch.Code art.
101.

5. The trial court denied the parents and children their due
process rights by failing to comply with La.Ch.Code art.
625 at an August 15, 2007 review hearing.

ERRORS PATENT

J.F., Sr. urges that we review these proceedings for “errors patent.” The

Louisiana Children’s Code does not provide for an errors patent review of the record.

An errors patent review is only available in criminal appeals pursuant to La. Code

Crim.P. art. 920.

VALIDITY OF REMOVAL PROCEEDINGS

Authority of DSS

It appears that J.F., Sr. is arguing that the original removal proceedings

instituted in 2005, were faulty because (1) a caseworker filed a written affidavit into

the court without the approval of the district attorney under La.Ch.Code art. 615(B)

1-4 and La.Ch.Code art. 631 and (2) a February 28, 2005 hearing was not recorded

in violation of La.Ch.Code art. 410.

Louisiana Children’s Code Article 615 is found in Chapter Five of the

Louisiana Children’s Code. That chapter pertains to child abuse reporting and

investigation. Article 615 pertains to the agency’s responsibilities pertaining to the

disposition of reports following a report of child abuse. Article 615(B)1-4 (emphasis

6

added) states:

After investigation, the local child protection unit shall make one
of the following determinations:

(1) The child appears to be a child in need of care and his
immediate removal is necessary for his protection from further abuse or
neglect, in which case, whenever such extraordinary justification arises,
it shall apply for an instanter removal order to place the child in the
custody of a suitable relative or other suitable individual capable of
protecting the health and safety of the child or the state authorized under
Articles 619 and 620 and shall notify the district attorney as soon as
possible.

(2) The report appears to be justified, in that there is evidence of
child abuse, or neglect, and a protective order would eliminate the need
for removal of the child in order to protect him from further abuse, in
which case it may apply for a temporary restraining order or protective
order authorized by Article 617 and Article 618.

(3) The report appears to be justified, in that there is evidence of
child abuse or neglect, in which case it shall report all pertinent
information to the district attorney, as soon as possible but in no case
more than thirty days after such determination, for evaluation of whether
a child in need of care petition should be filed in the court with juvenile
jurisdiction.

(4) The report is inconclusive, in that the evidence tends to
support a finding of abuse or neglect, but there is not enough
information to confirm a justified report.

Louisiana Children’s Code Article 619 (emphasis added) pertains to instanter orders

of custody, and states in part:

A. (1) A peace officer, district attorney, or employee of the local
child protection unit of the department may file a verified complaint
alleging facts showing that there are reasonable grounds to believe that
the child is in need of care and that emergency removal is necessary to
secure the child’s protection.

....

B. The court shall immediately determine whether reasonable
efforts have been made by the department to prevent or eliminate the
need for the child’s removal, including whether the department has

7

requested a temporary restraining order pursuant to Article 617 or a
protective order pursuant to Article 618. In making and determining
reasonable efforts, the child’s health and safety shall be the paramount
concern. However, the court may authorize the removal of the child
even if the department’s efforts have not been reasonable.

....

C. (2) If the court determines that the child’s welfare cannot be
safeguarded without removal, the court shall immediately issue a written
instanter order directing that the child be placed in the provisional
custody of a suitable relative or other suitable individual capable of
protecting the health and safety of the child taken into the custody of the
state. The order shall contain written findings of fact supporting the
necessity for the child’s removal in order to safeguard his welfare. If the
court determines that emergency removal is not necessary to secure the
child’s protection, the court shall issue a written order denying the
request for custody. If custody is given to a suitable relative or other
suitable individual, the safety plan shall be made an order of the court
and shall direct the provisional custodian to adhere to the condition of
the safety plan. The safety plan shall set forth condition sof contact with
the parents or other third parties.

....

D. An instanter order shall be executed by either an employee of
the local child protection unit or any peace officer having territorial
jurisdiction over the child.

Louisiana Children’s Code Article 631(A) (emphasis added) states:

A child in need of care proceeding shall be commenced by
petition filed by the district attorney. Any other person authorized by
the court may file a petition if there are reasonable grounds to believe
that the child is a child in need of care.

J.F., Sr. urges that the Office of Community Support worker “did not

have exclusive jurisdiction to initiate the removal of custody proceeding by the filing

of an affidavit, and without the approval of the District Attorney.” He argues that

only the district attorney could initiate the proceedings. We disagree. The Louisiana

Children’s Code clearly provides that an employee of the local child protection unit

8

can file a complaint for removal of a child via an instanter order and commence a

child in need of care proceeding by filing a petition. Accordingly, this assignment of

error is without merit.

Recordation at the Hearing

In the second portion of his first assignment of error, J.F., Sr. urges that

at a hearing on February 28, 2005, there was no court reporter present in violation of

La.Ch.Code art. 410, which states that “[j]uvenile proceedings, except in cases of

traffic violations pursuant to Title IX, shall be recorded.” The minutes of the

February 28, 2005 instanter hearing indicate that J.F., Sr.’s counsel was present at the

hearing. However, there is nothing in the record to indicate that this hearing was

recorded. We agree that the failure to record this hearing was in error as it

contravenes the demands of Article 410. In State in the Interest of T.T., 96-06

(La.App. 3 Cir. 5/8/96), 677 So.2d 466, we vacated and remanded so that a new

disposition hearing could be held because there was no record of the juvenile’s

disposition. In T.T., the juvenile was declared a delinquent and placed with the

Department of Youth Services and Corrections until his twenty-first birthday for

simple burglary of an inhabited dwelling. There are no other cases addressing the

Article 410 recordation requirement. In the case at hand and considering its lengthy

history, we find it would be highly inappropriate and not at all in the children’s best

interests to vacate an instanter order issued over three years ago. While we do find

it was erroneous not to record the hearing, we find it was harmless error in this case.

Accordingly, this assignment of error is without merit.

9

APPLICABILITY OF LA.CIV. CODE ARTS. 131 AND 134

In this assignment of error, J.F., Sr. urges that the trial court erred in

failing to consider the factors found in La.Civ.Code arts. 131 and 134 when

determining the best interests of the children at the August 15, 2007 review hearing.

Articles 131 and 134 are found in Title V of the civil code under the heading of

“DIVORCE.”

Louisiana Civil Code Article 131 states, “In a proceeding for divorce or

thereafter, the court shall award custody of a child in accordance with the best interest

of the child.” Article 134 requires the court to consider all relevant factors when

determining the child’s best interests and lists twelve factors that may be included in

such a determination. While the Louisiana Children’s Code provides that the best

interests of the children are of paramount concern, it does not require that the trial

court use the factors listed in Article 134. Accordingly, this assignment of error is

without merit.

Additionally, in this subsection, J.F., Sr. seems to argue his case on the

merits and refers this court to his numerous “exhibits” as proof of his stable and

loving home. J.F., Sr. essentially urges that custody should be awarded to him. In

our August 3, 2007 opinion, we ruled that the trial court did not abuse its discretion

in placing the children in the State’s custody. Having reviewed the lengthy record,

we again find that the trial court has not erred in placing the children in the paternal

grandmother’s home. A review of the hearing records and reports filed by DSS make

it clear that J.F., Sr. refused to work the case plan and cooperate with DSS because

he is awaiting the outcome of his appeal to this court. That is simply an insufficient

10

reason to refuse to cooperate with DSS. Moreover, J.F., Sr., although appointed an

attorney by the trial court, continues to represent himself arguing with the trial court

that this court held that his due process rights were violated when the children were

originally taken. We are making it very clear for J.F., Sr.’s benefit, that this court has

not rendered any such ruling. Although it appears that J.F., Sr. has a genuine interest

in reuniting with his children, we find no error in the trial court’s current placement.

At the most recent hearing, J.F., Sr. had no running water in his home, no proof of

income, and had drug charges pending against him. We urge J.F., Sr. to work the

case plan if he wants to regain custody of his children. This assignment of error is

without merit.

WITNESS TESTIMONY

In this assignment of error, J.F., Sr. urges that the trial court erred in

allowing unsworn testimony of a caseworker in violation of La.Code Evid. art. 603

and further denied him due process by not allowing him to confront and cross-

examine the witnesses. Article 603 requires that “[b]efore testifying, every witness

shall be required to declare that he will testify truthfully, by oath or affirmation.” A

review of the August 15, 2007 hearing transcript indicates that each and every witness

was sworn before testifying. A notation is indicated before the start of each witness’s

testimony, which states: “ [The witness’s name] called as a witness, after first being

duly sworn, took the witness stand and testified as follows[.]” Prior to this particular

witness the notation is in the record, but is missing the word “sworn.” We find this

to be a typographical error rather than an indication that the witness was not sworn.

We further note no contemporaneous objection by J.F., Sr. See LaHaye v. Allstate

11

Ins. Co., 570 So.2d 460 (La.App. 3 Cir. 1990), writ denied, 575 So.2d 391 (La.1991).

Additionally, J.F., Sr. cites no place in the record indicating that he was denied the

right to confront and cross-examine witnesses. Accordingly, this assignment of error

is without merit.

ABANDONED ISSUES

In his fourth assignment of error, J.F., Sr. recites La.Ch.Code art. 101,

but provides no argument as to how the trial court failed to comply with its

provisions. Similarly, pertaining to his fifth assignment of error, he recites

La.Ch.Code art. 625, but provides no argument as to how the trial court failed to

comply with these provisions. The Uniform Rules—Courts of Appeal, Rule 2-12.4

states in part: “All specifications or assignments of error must be briefed. The court

may consider as abandoned any specification or assignment of error which has not

been briefed.” Accordingly, we consider these assignments of error abandoned.

CONCLUSION

The judgment of the trial court is affirmed. All costs of this appeal are

assessed against J.F., Sr.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION, Uniform
Rules—Courts of Appeal, Rule 2-16.3.

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