STATE OF LOUISIANA in the Interest of A.A., J.A., A.D.,H.D., & J.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-658

STATE OF LOUISIANA

IN THE INTEREST OF

A.A., J.A., A.D., H.D., & J.D.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. JC-2014203
HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Shannon J. Gremillion, Judges.

EXCEPTION OF NO CAUSE OF
ACTION DENIED. AFFIRMED.

Annette Fuller Roach
15th Judicial District Public Defenders Office
P. O. Box 3622
Lafayette, LA 70502
Telephone: (337) 436-2900
COUNSEL FOR:
Appellant – L.D.

Jennifer O. Robinson
115 West Main Street – Suite 16
Lafayette, LA 70501
Telephone: (337) 237-0503
COUNSEL FOR:
Appellee – A. A.

Tracey Davenport-McGraw
OCS – Indigent Defender
P. O. Box 931
Rayne, LA 70578
Telephone: (337) 257-4669
COUNSEL FOR:
Appellee - F.D.

Paula Murphy
Acadiana Legal Services
1020 Surrey Street
Lafayette, LA 70501
Telephone: (337) 237-4320
COUNSEL FOR:
Appellees – J.D., H.D., A.D., and J.A.

Jane Hogan
Public Defenders Office
600 Jefferson Street – Suite 902
Lafayette, LA 70501
Telepohone: (337) 889-5680
COUNSEL FOR:
Appellee - L.H.

LaShonda G. Derouen
425 W. Vermilion Street
Lafayette, LA 70501
Telephone: (337) 237-4320
COUNSEL FOR:
Appellee – F.D.

Laurene D. Theriot
Child Protection Investigator
825 Kaliste Saloom – Suite 104
Lafayette, LA 70508
FOR:
Appellee – State of Louisiana, Department of Children & Family
Services

Michelle Breaux
Assistant District Attorney – 15th Judicial District
P. O. Box 3306
Lafayette, LA 70502
Telephone: (337) 232-5170
COUNSEL FOR:
Appellee – State of Louisiana

Casa Coordinator
c/o Casa of Acadiana
1819 W. Pinhook Road – #103
Lafayette, LA 70508
FOR:
Appellee – Casa of Acadiana

THIBODEAUX, Chief Judge.

The Department of Children and Family Services (DCFS) received a

report alleging the sexual abuse of a minor from an unnamed source. The report

involved a family with five minor children, where the father of three of the

children allegedly engaged in various sexual acts with one of the other two minors.

After receiving the allegations, DCFS instituted a temporary safety plan, which

prohibited the father from having any contact with the children or being in the

children’s home during the course of the investigation. The following day, DCFS

received information that the father was in the family home in violation of the

safety plan. Upon discovering the violation, an instanter order was issued to

remove the five children from the home and place them in foster care.

The State subsequently filed a petition to adjudicate the children in

need of care. After hearing testimony from a DCFS investigator and a DCFS

foster care employee regarding the violation of the safety plan and other out-of-

court conversations with the children, the trial court held that the children should

be adjudicated in need of care. L.D., the mother of all five children, now appeals

this judgment, arguing that the trial court improperly relied on inadmissible

hearsay evidence and that there was insufficient evidence to support the

adjudication. L.D. also filed a peremptory exception of no cause of action,

contending that the State’s petition failed to state sufficient facts to support a

claim. For the following reasons, we deny L.D.’s peremptory exception of no

cause of action and affirm the judgment of the trial court.

I.

ISSUES

We shall consider:

(1) whether the State’s petition to adjudicate the children in need of
care states a cause of action;

(2) whether the trial court improperly relied on evidence that
constitutes hearsay at the adjudication hearing; and

(3) whether the trial court erred in adjudicating the children in need
of care.

II.

FACTS AND PROCEDURAL HISTORY

On March 10, 2014, DCFS received a report of alleged sexual abuse

of a child from an unnamed source. The alleged abuse stemmed from a family

with five minor children (A.A., who is fourteen-years old; J.A., who is twelve-

years old; A.D, who is ten-years old; H.D., who is eight-years old; and J.D., who is

six-years old). Specifically, A.D. told the unnamed source that her father, F.D. 1,

engaged in various sexual acts with her older half-sister, A.A. After receiving the

report, DCFS spoke with the family and instituted a temporary safety plan. The

plan prohibited F.D. from having any contact with the children or being in the

children’s home during the course of the investigation. The following day, DCFS

received information that F.D. was in the family home in violation of the safety

plan. L.D. allowed F.D. back into the home because she took A.A. to have a

physical examination where it was determined that there was no evidence of sexual

intercourse. Upon discovering the violation of the safety plan, an instanter order

was issued to remove the five children from the home and place them in foster

care.

On April 15, 2014, the State filed a petition to adjudicate the children

in need of care. At the adjudication hearing, the State did not proffer any physical

evidence, but it introduced two DCFS employees as witnesses.

1
F.D. is the father of A.D., H.D., and J.D.
2

The first witness, Laurene Theriot, a DCFS investigator, testified to

the violation of the safety plan and the subsequent removal of the children from the

home, which DCFS relied upon to confirm the allegation of neglect by lack of

adequate supervision.2 She further testified that while DCFS had not confirmed

the sexual abuse allegations, it had confirmed allegations of tying and confinement

of the child, J.A. Specifically, Ms. Theriot stated that as the children were

preparing to leave, she noticed J.A. pack a straitjacket when A.A. intervened and

told J.A. that he would not need it. Ms. Theriot did not know at the time what it

was, but she testified that A.A. later told her that it was a straitjacket to handle

J.A., who had special needs and was difficult to control. Ms. Theriot testified that

forensic interviews with the other children confirmed the existence of the

straitjacket.

The State’s second witness, Ronald J. Nichols, a DCFS employee in

the foster care division, testified to discussions he had with the children. In

particular, he stated that in talking with A.A., she disclosed engaging in various

sexual acts with F.D. Mr. Nichols further testified that A.A. told him that her

parents bought the straitjacket in an adult store along with pornography. Mr.

Nichols also stated that he spoke with J.A., who indicated that the straitjacket

existed, and A.D., who said that F.D. engaged in inappropriate sexual behavior

with her. Mr. Nichols also testified that he heard from counselors and foster

parents that J.A. exhibited behavior that indicated exposure to sexually explicit

acts, including reports of touching his teachers inappropriately.

At the conclusion of the hearing, the trial court adjudicated the

children in need of care given the violations of the safety plan and the evidence of

tying and restraint via the straitjacket. L.D. now appeals this judgment, arguing

2
Ms. Theriot did acknowledge that the neglect by lack of adequate supervision allegation
involved more than just the safety plan violation. However, in regards to this allegation, no other
facts were validated at the time of the adjudication hearing.
3

that the trial court improperly relied on inadmissible references to forensic

interviews and hearsay evidence.3 L.D. further asserts that there was insufficient

evidence to support the adjudication. L.D. also filed with this court a peremptory

exception of no cause of action, contending that the State’s petition failed to state

sufficient facts to support a claim.

III.

STANDARD OF REVIEW

Louisiana Code of Civil Procedure Article 2163 states that “[t]he

appellate court may consider the peremptory exception filed for the first time in

that court, if pleaded prior to a submission of the case for a decision, and if proof

of the ground of the exception appears of record.” In considering the peremptory

exception of no cause of action, “[n]o evidence may be introduced to support or

controvert an exception[.]” Gaudet v. Jefferson Parish, 12-707, p. 4 (La.App. 5

Cir. 3/27/13), 116 So.3d 691, 693. Rather, “the court reviews the petition and

accepts the well-pleaded allegations of fact as true.” Id.

In regards to admission of evidence, the trial court’s decision to

include or exclude evidence will not be overturned absent a clear abuse of

discretion. Lamson Petroleum Corp. v. Hallwood Petroleum, Inc., 04-1038

(La.App. 3 Cir. 12/8/04), 890 So.2d 684. As for whether the evidence was

sufficient to support the adjudication, a juvenile court’s findings of fact are

generally subject to a manifest error standard of review. State in the Interest of

P.J., 47,550 (La.App. 2 Cir. 9/12/12), 104 So.3d 517. However, if the appellate

court finds that evidence was improperly admitted, it may conduct a de novo

review of the record only if the improperly admitted evidence prevents the

3
There were continuous general objections to the testimony of both DCFS witnesses on
the grounds of hearsay and improper references to forensic interviews at the adjudication
hearing. As such, the appeals of these issues were properly preserved. See Taunton v. Cane Air,
Inc., 405 So.2d 624 (La.App. 3 Cir. 1981).
4

factfinder from making a fair and impartial determination of a disputed fact.

Godchaux v. Peerless Ins. Co., 13-1083 (La.App. 3 Cir. 6/4/14), 140 So.3d 817.

IV.

LAW AND DISCUSSION

Peremptory Exception of No Cause of Action

L.D. filed an exception of no cause of action simultaneously with her

appellate brief on June 26, 2014. As this peremptory exception was submitted

prior to the submission of the case for decision, it is properly before this court and

subject to our review.

“The purpose of the peremptory exception of no cause of action is to

test the legal sufficiency of the petition by determining whether the law affords a

remedy on the facts alleged in the petition.” Veroline v. Priority One EMS, 09-

1040, p. 4 (La. 10/9/09), 18 So.3d 1273, 1275. L.D. contends that the State’s

petition failed to allege sufficient facts to support a claim for adjudicating the

children in need of care in accordance with La.Ch.Code art. 606(A). We disagree.

Louisiana Children’s Code Article 634(A)(3) requires that a petition

state “[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.”

Here, the State’s petition lists the following allegations and facts to support its

claim for adjudication:

ALLEGATION: NEGLECT, SPECIFICALLY, ON
3/10/14 THE AGENCY RECEIVED A REPORT STATING
THAT A YOUNGER CHILD IN THE HOME WAS
REPORTING SEEING HER STEP-FATHER’S PENIS
WHILE HE WAS ON TOP OF THE ELDEST CHILD ON
THE SOFA IN THE HOME. ON 3/10/14, DURING THE
INITIAL INVESTIGATION, THE AGENCY PUT A SAFETY
PLAN FOR THE ALLEGED CARETAKER/PERPETRATOR,
[F.D.], TO LEAVE THE HOME UNTIL THE AGENCY CAN
OBTAIN FORENSIC INTERVIEWS OF THE CHILD
VICTIM AND THE CHILD WITNESS. ON 3/11/14, THE
AGENCY VERIFIED THAT [L.D. AND F.D.] VIOLATED

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THE AGENCY SAFETY PLAN BY LETTING [F.D.]
RETURN TO THE HOME AFTER [L.D.] BROUGHT THE
CHILD VICTIM TO THE E/R FOR AN EXAM AND WAS
TOLD THAT THE CHILD DID NOT APPEAR TO BE
SEXUALLY ABUSED. THE AGENCY IS CONTINUING
TO OBTAIN INFORMATION REGARDING ADDED
ALLEGATIONS OF ABUSE/TYING AND CONFINEMENT
AND NEGLECT/DEPENDENCY/MENTAL HEALTH ON
THE MOTHER, [L.D.] AND HER DIMINSIHED
PROTECTIVE CAPACITY.

While the petition states that allegations of tying and confinement as well as

dependency on the mother are being investigated, it fails to list any specific facts,

acts, or omissions to support these allegations. As such, the petition is insufficient

in regards to these allegations under La.Ch.Code art. 634(A)(3). The petition does,

however, reference neglect, supported by the alleged facts that L.D. and F.D.

violated the safety plan by allowing F.D. to return to the family home and be in

contact with the children. Considering neglect is a valid ground for adjudication

under La.Ch.Code art. 606(A)(2), the pertinent question in our review of this

peremptory exception of no cause of action becomes whether the alleged violation

of the safety plan, if assumed to be true, constitutes neglect warranting the

adjudication of the children in need of care. To answer this question, we must first

address what constitutes neglect.

Neglect, as used in Louisiana Children’s Code Title VI regarding

children in need of care, is defined as:

the refusal or unreasonable failure of a parent or
caretaker to supply the child with necessary food,
clothing, shelter, care, treatment, or counseling for any
injury, illness, or condition of the child, as a result of
which the child’s physical, mental, or emotional health
and safety is substantially threatened or impaired.

La.Ch.Code art. 603(18).4 In reading this neglect provision, the clause “for any

injury, illness, or condition of the child” potentially creates two interpretations of

4
Louisiana Children’s Code Article 603 was amended on June 9, 2014, by 2014 La. Acts
No. 486, 51 (S.B. 290) to amend the definition of the Safety Plan. However, as this amendment
is substantive in nature and went into effect after the trial court issued its judgment, it applies
6

the neglect provision. On the one hand, considering this illness clause directly

follows the mandatory requirements of “food, clothing, shelter, care, treatment, or

counseling,” neglect could potentially be interpreted narrowly as a failure to

provide these mandatory requirements only in situations involving an injury,

illness, or condition of the child. If interpreted this way, we would be forced to

find the petition insufficient, as there are no alleged facts of actual injury to a child

in the petition. On the other hand, the Code could be construed broadly, where

failure to provide adequate care, irrespective of injury, is considered neglect, and

the illness clause only serves to qualify the last-listed parental requirement of

providing adequate counseling. Following this interpretation, the factual

allegations of willfully failing to follow a DCFS safety plan could constitute

neglect in the form of inadequate general care that substantially threatens the

health of the child.

Given the ambiguity of the neglect provision, we must turn to the

rules of codal and statutory interpretation in Louisiana. The Louisiana Supreme

Court has provided valuable guidance in this realm:

The rules of judicial interpretation of statutes are
designed to ascertain and enforce the intent of the
legislature in enacting the statute. SWAT 24 Shreveport
Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d
294, citing Stogner v. Stogner, 98-3044 (La.7/7/99), 739
So.2d 762, 766; State v. Piazza, 596 So.2d 817, 819
(La.1992). The fundamental question in all cases of
statutory construction is legislative intent and the reasons
that prompted the legislature to enact the law.
Succession of Boyter, 99-0761 (La.1/7/00), 756 So.2d
1122, 1128. When a law is clear and unambiguous and
its application does not lead to absurd consequences, it
shall be applied as written, with no further inquiry made
in search of the legislative intent. [La.Civ.Code.] art. 9;
La. R.S. 1:4.

The meaning and intent of a law is determined by
considering the law in its entirety and all other laws
concerning the same subject matter and construing the

prospectively only and is not applicable to this appeal. La.Civ.Code art. 6. As such, we
reference the 2013 version of the Code for all definitions.
7

provision in a manner that is consistent with the express
terms of the statute and with the obvious intent of the
lawmaker in enacting it. Boyter, 756 So.2d at 1129;
Stogner, 739 So.2d at 766. The statute must therefore be
applied and interpreted in a manner that is logical and
consistent with the presumed fair purpose and intention
the legislature had in enacting it. Boyter, 756 So.2d at
1129. Courts should give effect to all parts of a statute
and should not adopt a statutory construction that makes
any part superfluous or meaningless, if that result can be
avoided. Sultana Corp. v. Jewelers Mut. Ins. Co., 03-
0360 (La.12/3/03), 860 So.2d 1112; Langlois v. East
Baton Rouge Parish Sch. Bd., 99-2007 (La.5/16/00), 761
So.2d 504, 507; Boyter, 756 So.2d at 1129. Furthermore,
“the object of the court in construing a statute is to
ascertain the legislative intent and, where a literal
interpretation would produce absurd consequences, the
letter must give way to the spirit of the law and the
statute construed so as to produce a reasonable result.”
First Nat’l Bank of Boston v. Beckwith Mach. Co., 94-
2065 (La.2/20/95), 650 So.2d 1148, 1153 (quoting Smith
v. Flournoy, 238 La. 432, 115 So.2d 809, 814 (1959)).

Champagne v. Am. Alternative Ins. Corp., 12-1697, pp. 5-6 (La. 3/19/13), 112

So.3d 179, 183-84.

In light of these rules, the neglect provision must be interpreted

broadly with the “for any injury, illness, or condition” clause only qualifying the

last listed requirement of counseling. While interpreting this clause as a qualifier

for the other listed requirements is a plausible conclusion from a grammatical

standpoint, it is completely illogical in light of the underlying spirit behind these

laws of ensuring the safety and health of Louisiana’s children. For example, the

Code states that parents must provide food, clothing, and shelter. It is illogical to

assume that a parent must only provide these basic necessities of life in times of

injury or illness. We doubt that the legislature would be content with a parent

leaving a child out in the rain with no clothing or food just because that child has a

clean bill of health. As such, these listed requirements of food, clothing, shelter,

care, and treatment must be considered generally applicable and not subject to any

qualifying language.

8

In light of our interpretation of the neglect provision, we find that the

alleged fact of willfully violating a DCFS safety plan during an ongoing

investigation of sexual abuse with a minor constitutes neglect and is alone

sufficient to support an adjudication of the children in need of care. This safety

plan was put in place in light of very serious allegations of sexual abuse with a

minor, A.A. Considering the heinous nature of such alleged acts, it is clear the

plan was designed to protect the physical, mental, and emotional health of the

children. Both L.D. and F.D. were aware of this temporary plan. While L.D. may

have believed the plan was no longer necessary after the emergency room failed to

find any physical evidence of sexual intercourse with A.A., this was not her call to

make as the DCFS investigation was still ongoing and sexual abuse encompasses

more than just the act of intercourse. If parents and caretakers are allowed to

unilaterally interpret and violate DCFS safety plans on a personal whim or belief

without accountability, then these plans serve no practical purpose. Such a policy

would only serve to impair DCFS investigations and potentially put children in

serious danger of further harm. As such, the willful refusal to follow a safety plan

fits perfectly within the definition of neglect, as it amounts to a refusal to supply

adequate general care, the result of which substantially threatens the health of the

children. Considering the State’s petition provided sufficient facts to support the

allegation of neglect and the legal remedy of adjudicating the children in need of

care, we deny L.D.’s peremptory exception of no cause of action.

Admissibility and Sufficiency of the Evidence

L.D. contends that the trial court relied on impermissible references to

forensic interviews outside of court as well as hearsay evidence in adjudicating the

children in need of care. We agree.

9

Louisiana Children’s Code Article 663(A) states that the rules of

evidence applicable in civil proceedings also govern adjudication hearings. Under

the Louisiana Code of Evidence, hearsay is defined as “a statement, other than one

made by the declarant while testifying at the present trial or hearing, offered in

evidence to prove the truth of the matter asserted.” La.Code Evid. art. 801(C).

Given the unreliable nature of such evidence, hearsay is inadmissible at

adjudication hearings unless it falls under one of the enumerated statutory

exceptions found in La.Code Evid. arts. 803 and 804. State ex rel. D.H., 04-2105

(La.App. 1 Cir. 2/11/05), 906 So.2d 554.

In his oral reasons, the trial judge stated that while the sexual abuse

allegations were still under investigation, the violation of the safety plan and the

tying and restraint with the straitjacket provided a sufficient basis for adjudicating

the children in need of care. In regards to the tying and restraint allegations, the

evidence presented at trial consisted of Ms. Theriot’s testimony regarding her out

of court conversation with A.A. as well as the forensic interviews with the other

children. Mr. Nichols’ testimony further consisted of discussions of out of court

conversations with the children and counselors about the alleged sexual abuse, the

existence of the straitjacket, and the erratic behavior of the children.

This evidence is all inadmissible hearsay as it amounts to out of court

statements that do not fall within the enumerated statutory exceptions. While

videotapes of the forensic interviews that allegedly confirmed the tying and

restraint allegations could have been admitted into evidence to overcome the

hearsay bar under La.Ch.Code art. 327 and La.R.S. 15:440.5, videotapes were

never submitted and the requirements for admission were never met. Even though

the trial judge stated that he admitted the evidence because it only showed the

findings of the investigation, the trial judge relied on both the testimony and

references to the forensic interviews for the truth of the matters asserted, as he

10

referenced the tying and restraint issues in his oral reasons for adjudicating the

children in need of care. As the admission of this hearsay evidence amounted to

legal error that interdicted the trial judge’s fact-finding process, we shall conduct a

de novo review of the remaining evidence to determine if there was a sufficient

basis to adjudicate the children in need of care.

After striking as hearsay Mr. Nichols’ entire testimony and Ms.

Theriot’s references to her discussions with the children and the forensic

interviews, the only remaining evidence is Ms. Theriot’s testimony regarding the

violation of the safety plan. This testimony is unrefuted. As discussed above, the

violation of a temporary safety plan alone constitutes neglect and forms a sufficient

basis to adjudicate the children in need of care. As such, we affirm the judgment

of the trial court.

V.

CONCLUSION

For the foregoing reasons, we deny the appellant’s peremptory

exception of no cause of action and affirm the judgment of the trial court.

EXCEPTION OF NO CAUSE OF ACTION DENIED.

AFFIRMED.

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