State in the Interest of B.J.G.B.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-172 consolidated with 12-171

STATE IN THE INTEREST OF B.J.G.B., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 24075 C/W 23106
HONORABLE GUY ERNEST BRADBERRY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Marc T. Amy, Judges.

AFFIRMED.

Stephen A. Berniard, Jr.
Raggio, Cappel, Chozen & Berniard
P. O. Box 820
Lake Charles, LA 70601
Telephone: (337) 436-9481
COUNSEL FOR:
Appellee - State of Louisiana, Office of Community Services

Nicholas Pizzolatto, Jr.
Louisiana Department of Children & Family Services
4250 5th Avenue
Lake Charles, LA 70607
Telephone: (337) 475-3037
COUNSEL FOR:
Appellee – Louisiana Department of Children & Family Services

Ronald Augustin Rossitto
District Attorney – 14th Judicial District Court
P. O. Box 3206
Lake Charles, LA 70602
Telephone: (337) 437-3400
COUNSEL FOR:
Appellee - State of Louisiana

James Wade Smith
P. O. Box 1706
Lake Charles, LA 70602
Telephone: (337) 436-8424
COUNSEL FOR:
Appellant - J. J. B. (Father)

Douglas K. Hall
1011 Lakeshore Drive – Suite 316
Lake Charles, LA 70601
Telephone: (337) 564-6722
COUNSEL FOR:
Appellee - J. M. B. (Mother)

Mark Semien
One Lakeside Drive, Suite 1585
Lake Charles, LA 70601
COUNSEL FOR:
Appellees - B. J. B. (child), D. W. B. (child), and S. C. B. (child)

THIBODEAUX, Chief Judge.

In this termination of parental rights case, J.J.B., Jr. argues that the trial

court erred by refusing to grant a continuance of the termination hearing. J.J.B., Jr.’s

criminal trial was scheduled for the same week as the termination hearing.

Nevertheless, the trial court received assurances from the division of the court

involved in the criminal matter that it would be highly unlikely for J.J.B., Jr.’s

criminal trial to occur the same week as his termination hearing. For the following

reasons, we find no error in the trial court’s refusal to grant the continuance.

I.

ISSUE

We shall consider whether J.J.B., Jr.’s due process rights were violated

where the trial court denied J.J.B., Jr.’s motion to continue the termination of J.J.B.,

Jr.’s parental rights hearing, where J.J.B., Jr.’s criminal trial was scheduled to occur

the same week as his termination hearing, and where the trial court received

assurances from the criminal division that J.J.B., Jr.’s criminal trial would not occur

the same week as the termination hearing.

II.

FACTS

J.J.B., Jr. is the father of three children, B.J.G.B., D.W.B., and S.C.B.,

who were originally taken into the State’s custody in February of 2010 because of

alleged sexual abuse. J.J.B., Jr. and his wife were each given a case plan. Except for

undergoing sexual offender assessment, J.J.B., Jr. substantially complied with his case

plan up until his incarceration in February of 2011. J.J.B., Jr. refused to undergo the

sexual offender assessment on advice of the attorney who represented him in the

criminal matter.

All of the children suffer from psychological/psychiatric problems,

including ADHD and autism. J.J.B., Jr. and his wife supplied the names of persons

who could potentially care for the children, but none of those persons proved to be

acceptable to the State for various reasons. Thus, after J.J.B., Jr. and his wife’s

incarceration, the State filed a petition for adoption certification and termination of

parental rights.

In September 2011, the court held a termination of parental rights hearing

during which J.J.B., Jr. requested a continuance. J.J.B., Jr. argued that the criminal

trial on sexual abuse charges was scheduled the same week as the termination hearing,

and, therefore, J.J.B., Jr.’s due process rights would be violated. The trial judge then

checked with the criminal division of the court which gave assurances to the judge

that the criminal matter would not be tried that week. This was because J.J.B., Jr.’s

matter was number three on the criminal docket, and numbers one and two would

have to be tried first. Thus, after receiving these assurances, the trial judge denied

J.J.B., Jr.’s request for continuance.

After the trial on the merits, the trial court terminated J.J.B., Jr.’s parental

rights, and J.J.B., Jr. appealed. In his appeal J.J.B., Jr. does not argue that the trial

court committed a manifest error by holding that the State proved its case by clear and

convincing evidence. Instead, J.J.B., Jr. argues that the trial court erred by denying

him a continuance and, thereby, deprived him of his due process rights. We now

consider the matter.

III.

STANDARD OF REVIEW

In the case of parental rights termination, an appellate court reviews the

trial court’s denial of a continuance for abuse of discretion. S.J.G. v. A.A.G., 07-625

(La.App. 1 Cir. 9/19/07), 970 So.2d 1022.
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IV.

LAW AND DISCUSSION

The State must not take a person’s life, liberty, or property without due

process of law. U.S. Const. amends. V & XIV. The due process clause protects a

person’s freedom to engage in activities that involve fundamental rights. See Allain v.

Martco P’ship, 02-1796 (La. 5/23/03), 851 So.2d 974.

The people of Louisiana recognize the family as
the most fundamental unit of human society; that
preserving families is essential to a free society; that the
relationship between parent and child is preeminent in
establishing and maintaining the well-being of the child;
. . . that the role of the state in the family is limited and
should only be asserted when there is a serious threat to
the family, the parents, or the child; and that
extraordinary procedures established by law are meant to
be used only when required by necessity and then with
due respect for the rights of the parents, the children, and
the institution of the family.

La.Ch.Code art. 101. Thus, because J.J.B., Jr.’s parental rights were terminated in this

case, the due process inquiry is appropriate. The question this court faces is how

much process is due to J.J.B., Jr. and the answer depends on the circumstances of the

deprivation. See Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976). The court

must consider the following factors:

First, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal
and administrative burdens that the additional or
substitute procedural requirement would entail.

Mathews, 424 U.S. at 335, 96 S.Ct. at 903 (citing Goldberg v. Kelly, 397 U.S. 254, 90

S.Ct. 1011 (1970)).

Here, J.J.B., Jr.’s interest in remaining the father of his three children is

paramount, indeed. Nevertheless, the risk of an erroneous deprivation in this case is
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minimal. J.J.B., Jr. had notice and opportunity to be heard. The record reveals that

during the termination hearing he was not questioned regarding criminal matters, with

the exception of public information, such as the charges against him. Furthermore, as

the trial court observed, J.J.B., Jr.’s criminal trial did not occur at the same time as the

termination hearing. Therefore, J.J.B., Jr. should not have had difficulties being

present at both trials.

Finally, while the State’s fiscal and administrative burdens would pale in

comparison with J.J.B., Jr.’s interest, they are not insignificant. When a hearing day

is rescheduled, witnesses must be contacted anew, attorneys must prepare again, and

so on.

Therefore, because the risk of erroneous deprivation was so low in this

case, this court concludes that J.J.B., Jr. received all the process that was due to him in

this matter. The trial court committed no error by denying J.J.B., Jr.’s motion to

continue.1

V.
CONCLUSION
Based on the above considerations, the trial court’s judgment terminating

J.J.B., Jr.’s parental rights to B.J.G.B., D.W.B., and S.C.B. is affirmed.

AFFIRMED.

1
Because J.J.B., Jr. did not brief the issue of whether the trial court committed a manifest
error by holding that the State proved by clear and convincing evidence that his parental rights
should be terminated, we do not consider this question. See Uniform Rules-Courts of Appeal, Rule
2-12.4.
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