State in the Interest of D.A., D.G., D.G., D.D., and Z.K.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

JAC 14-517

STATE IN THE INTEREST OF

D.A., Dy.G., De.G., D.D., AND Z.K.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 201439, DIVISION E
HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and J. David Painter,
Judges.

REVERSED AS TO D.A., Dy.G., De.G., AND D.D.

Michael Harson
District Attorney
Fifteenth Judicial District Court
Sharon Michelle M. Breaux
Assistant District Attorney
P. O. Box 3306
Lafayette, LA 70502
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Tracey Davenport-McGraw
OCS - Indigent Defender
P. O. Box 931
Rayne, LA 70578
(337) 334-1576
COUNSEL FOR APPELLEE:
T. B.(father of De. G)

Paula Murphy
Acadiana Legal Services
1020 Surrey Street
Lafayette, LA 70501
(337) 237-4320
COUNSEL FOR APPELLEES:
D. A. (child)
Dy. G. (child)
De. G. (child)
D. D. (child)
Z. K. (child)

Jane Hogan
Public Defenders Office
600 Jefferson Street, Ste 902
Lafayette, LA 70501
(337) 232-9345
COUNSEL FOR APPELLANT:
L. G. (mother)

LaShonda G. Derouen
Attorney at Law
425 W. Vermilion Street
Lafayette, LA 70501
(337) 237-4300
COUNSEL FOR APPELLEE:
T. B.(father of De. G)

Casa Coordinator
c/o Casa of Acadiana
1819 W. Pinhook Rd., #103
Lafayette, LA 70508
COUNSEL FOR APPELLEE:
Casa of Acadiana

Katrina Cetnar
CWSII, Brandywine II
825 Kaliste Saloom Road, #104
Lafayette, LA 70508
(337) 262-1555
COUNSEL FOR APPELLEE:
State of Louisiana Department of Social Services

EZELL, Judge.

L.G. appeals the decision of the trial court below finding her five children,

D.A., Dy.G., De.G., D.D., and Z.K., to be children in need of care. For the

following reasons, we hereby reverse the decision of the trial court.

On February 25, 2012, L.G. gave birth to her second-youngest child, D.D.

Around the same time, the Department of Child and Family Services (DCFS)

received a report that D.D.’s meconium tested positive for marijuana. D.D. was

also born with syphilis. At this time, DCFS opened a Family Services case on L.G.

but did not remove her children. As part of her Family Services Plan, L.G. was to

undergo substance abuse treatment, which she failed to do. Although it is

undisputed that L.G. did not comply with her Family Services plan, DCFS never

removed her children and eventually closed L.G.’s 2012 Family Services case plan,

noting that while L.G. was non-compliant, there was no imminent risk to her

children’s safety. Moreover, that plan was not court ordered. After closing the

case, DCFS did not have any contact with L.G. until the instant matter.

Roughly two years later, L.G. gave birth to her youngest child, Z.K. That

child also was born with a positive test for marijuana in her meconium and syphilis.

DCFS sought an instanter order of removal for not just Z.K., but also for L.G.’s

four older children, which was granted by the trial court. The children were

ordered into the custody of the State.

On March 25, 2014, an adjudication hearing and disposition was held for

D.A., Dy.G., De.G., and D.D. The father of Z.K. was not present, and so the

matter as to this child was continued until April 15, 2014, to allow for the

appointment of a curator. On March 25, the trial court found the four oldest

children to be children in need of care and ordered them to remain in State custody.

From that decision, L.G. appeals.

L.G. asserts two assignments of error on appeal. She claims that the trial

court erred in issuing the instanter order removing the children from her care,

because no exceptional circumstances existed at the time of its issue to warrant the

removal of the children. She also claims that the trial court erred in adjudicating

the four oldest children in need of care when the State did not allege or prove

neglect by a preponderance of the evidence at trial. We agree with L.G.’s second

assignment of error.

We first address L.G.’s argument that the trial court erred in issuing the

instanter order. Louisiana Children’s Code Article 332 states, in pertinent part:

A. Except as otherwise provided within a particular Title of this
Code, appeals shall be taken within fifteen days from the mailing of
notice of the judgment. However, if a timely application for a new
trial is made pursuant to Paragraph C, the delay for appeal commences
to run from the date of the mailing of notice of denial of the new trial
motion.

B. Notice of judgment, including notice of orders or judgments
taken under advisement, shall be as provided in Code of Civil
Procedure Article 1913.

The instanter order was issued on January 17, 2014. L.G. does not dispute

service of the order, which was ordered the same date. Thus, the appeal delay

would have expired on February 2, 2014. No such appeal was taken during that

time frame. She did not seek supervisory writs, and the record contains no

indication of any such objection at the continuing custody hearing on January 27,

following the issuance of the order. Thus, L.G.’s appeal with respect to the

instanter order is untimely, and we dismiss the appeal insofar is it raises issues

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related thereto. Accordingly, we will not consider L.G.’s first assignment of error.

See State ex rel. J.Y.M., 09-1335 (La. App. 3 Cir. 8/4/10), 45 So.3d 1128.

L.G.’s second assignment of error asserts that the trial court erred in

adjudicating the four oldest children in need of care. We agree. The petition

alleging a child is in need of care shall set forth “[f]acts which show that the child

is a child in need of care, including the acts or omissions of either parent, which

caused or contributed to the child’s condition.” La.Ch.Code art. 634(A)(3). Once a

petition is filed alleging that the child is in need of care, the State bears the burden

of proving the allegations of the petition by a preponderance of

evidence. La.Ch.Code art. 665 and State in the Interest of A.R., 99-813 (La.App. 1

Cir. 9/24/99), 754 So.2d 1073. Louisiana Children’s Code Article 606 enumerates

the grounds upon which a child is found to be in need of care. Article

606 provides that “[a]llegations that a child is in need of care must assert one or

more of the following grounds . . . . (2) The child is a victim of neglect.”

It is well settled that an 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. State in the Interest of S.M.W., C.D.W., C.N.W., and E.S.W., 00-3277 (La.

2/21/01), 781 So.2d 1223. In its manifest error review, it is important that the

appellate court not substitute its opinion when it is the juvenile court who is in the

unique position to see and hear the witnesses as they testify. Id.

We have reviewed the record in this case and find that it contains no

evidence whatsoever that the four oldest children suffered any neglect. In fact, the

witness testifying on behalf of DCFS, Katrina Cetnar, testified that she had no

evidence that the four oldest children were unhealthy, not being properly fed, or

that they were otherwise harmed in any way. Furthermore, DCFS reports reflected

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that L.G. was nurturing and acted appropriately in her interactions with her

children. Mrs. Cetnar testified that, while L.G. had positive drug tests, she had no

evidence of marijuana abuse. Moreover, while the hair sample taken at the time of

Z.K.’s birth was positive, L.G.’s urine sample was negative for all drugs at that

time. Mrs. Cetnar further testified that the prior case plan was abandoned because

the previous case worker found no imminent danger to the children at all.

The record before this court simply contains no evidence at all that L.G.

neglected her four oldest children. The trial court committed manifest error in

adjudicating them children in need of care. Accordingly, we hereby reverse the

adjudication as to D.A., Dy.G., De.G., and D.D. Because L.G. did not claim that

the trial court erred in adjudicating Z.K. in need of care, we cannot rule as to the

adjudication of that child being in need of care.

For the above reasons, the decision of the trial court below adjudicating D.A.,

Dy.G., De.G., and D.D. in need of care is hereby reversed. In addition to the

original costs of $480.10 assessed against the State in our prior opinion ordering

remand, costs of this appeal of $41.00 are hereby also assessed against the State.

REVERSED AS TO D.A., Dy.G., De.G., AND D.D.

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

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