State in the Interest of L.S.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

JAC 17-618

STATE IN THE INTEREST OF LS.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 17-JV-18661
HONORABLE LEWIS H. PITMAN, JR., DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

eR oR OR ER

Court composed of Mare T. Amy, D. Kent Savoie, and Van H. Kyzar, Judges.

AFFIRMED

S. Marie Johnson

Public Defender’s Office

St. Martin Parish — 16th JDC

106 W. Berard Street

St. Martinville, LA 70582

(337) 394-1446

COUNSEL FOR APPELLANT:
L. B. (father)
K. S. (mother)

Shentell Brown
Assistant District Attorney
16th Judicial District Attorney Office
415 S. Main Street
St. Martinville, LA 70582
(337) 394-2220
COUNSEL FOR APPELLEE:
State of Louisiana

Denise Henderson

Mental Health Advocates

302 Dulles St., Rm-U47

Lafayette, LA 70506

(337) 262-2030

COUNSEL FOR APPELLEE:
L. S. (child)

KYZAR, Judge.

The appellants, K.S. and L.B.,' appeal from a judgment adjudicating their
minor child, L.S., as being a child in need of care and ordering family services. On
considering the record before us, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

The appellants, K.S. and L.B., are the mother and father, respectively, of the
minor child, L.S., born October 6, 2016. Immediately following the birth of the
child, the State of Louisiana, Office of Juvenile Justice, Department of Children
and Family Services (“DCFS”), was notified the child was born positive for the
presence of amphetamines in its system and that the mother had also tested positive
for the same drug at the time of the birth. An investigator was assigned the case
and immediately went to the hospital to commence an investigation into allegations
of abuse or neglect. On January 31, 2017, a child in need of care petition was filed
alleging as follows:

[L.S.]’ is a victim of Parental Neglect for being a drug
exposed newborn when she was born on October 7, 2016

[sic]. The infant’s meconium was positive for
amphetamines and the mother’s urine was positive for
amphetamines, benzos and cocaine. [K.S.] admitted to
using drugs throughout her pregnancy and could not
provide prescriptions for the amphetamines. This is Ms.
[K.S.’] second drug exposed newborn.

All reasonable, available and appropriate attempts and efforts

have been made to encourage and assist this family to deal with the

allegations set forth herein and to provide all available services but to

no avail and said attempts have been exhausted. Ms. [K.S.] admits to

being overwhelmed with the issues in her life. However, she does not

feel she needs any of the recommended services such as Early Steps
and Healthy Start.

'The initials of the children and their parents are used to protect the identity of the minor child.
Uniform Rules—Courts of Appeal, Rules 5-1, 5-2.

? The original petition set forth the full names of the parties. We have only included their initials
herein.

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An adjudication hearing was held on April 3, 2017. At the conclusion of the
hearing, the trial court found the child to be a child in need of care and ordered
family services. As part of the judgment, DCFS was ordered to look into the
possibility of providing or finding financial assistance for the parents to offset the
rehabilitative treatment services for the mother at an inpatient substance abuse
rehabilitation facility. A review hearing was further set for October 19, 2017. This
appeal was thereafter taken by the parents, K.S. and L.B.

ASSIGNMENT OF ERROR
The appellants assert one assignment of error on appeal, as follows:

Whether the trial court erred in granting judgment in favor of the State
of Louisiana adjudicating the minor child, L.S., a child in need of
care?

OPINION
In State In Interest of S.C., 16-740, p. 2 (La.App. 3 Cir. 4/19/17), 217 So.3d
642, 644, the standard of appellate review applicable in child in need of care cases
was recognized as follows:

“We review the juvenile court’s findings of fact under the manifest
error standard of review[.]” State ex rel. JY.M, 09-1335, p. 5
(La.App. 3 Cir. 8/4/10), 45 So.3d 1128, 1132. In State ex rel. D.H.,
04-2105, pp. 7-8 (La.App. 1 Cir. 2/11/05), 906 So.2d 554, 560, the
first circuit noted:

[I]t is important that the appellate court not substitute its
own opinion when it is the juvenile court that is in the
unique position to see and hear the witnesses as they
testify. [In re A.JF., 00-948 (La. 6/30/00), 764 So.2d
47.] Where there is conflicting testimony, reasonable
evaluations of credibility and reasonable inferences of
fact should not be disturbed upon review, even when
the appellate court may feel that its own evaluations and
inferences are as reasonable as those of the juvenile
court. /d.; see Rosell v. ESCO, 549 So.2d 840 (La.1989).
If the juvenile court’s findings are reasonable in light of
the record reviewed in its entirety, the appellate court
may not reverse, even though convinced that had it been

sitting as the trier of fact, it would have weighed the
evidence differently. /d.; see Pinsonneault v. Merchants
& Farmers Bank & Trust Co., 2001-2217 (La. 4/3/02),
816 So.2d 270.

In order to reverse a fact finder’s determination of fact,
an appellate court must review the record in its entirety
and (1) find that a reasonable factual basis does not exist
for the finding, and if such a basis does exist, (2) further
determine that the record establishes that the fact finder is
clearly wrong or manifestly erroneous. See Stobart v.
State, through DOTD, 617 So.2d 880 (La.1993). If there
are two permissible views of the evidence, the fact
finder’s choice between them cannot be manifestly
erroneous or clearly wrong. /d.

Thus, in the instant case, we are tasked with determining whether the trial
court committed manifest error in finding the minor L.S. to be a child in need of
care based upon the evidence presented at the adjudication hearing on April 3,
2017. The grounds for finding that a child is in need of care are set out in
La.Ch.Code art. 606, as follows:

A. Allegations that a child is in need of care must assert one or
more of the following grounds:

(1) The child is the victim of abuse perpetrated, aided, or
tolerated by the parent or caretaker, by a person who maintains an
interpersonal dating or engagement relationship with the parent or
caretaker, or by a person living in the same residence with the parent
or caretaker as a spouse whether married or not, and his welfare is
seriously endangered if he is left within the custody or control of that
parent or caretaker.

(2} The child is a victim of neglect.

(3} The child is without necessary food, clothing, shelter,
medical care, or supervision because of the disappearance or
prolonged absence of his parent or when, for any other reason, the
child is placed at substantial risk of imminent harm because of the
continuing absence of the parent.

(4) As a result of a criminal prosecution, the parent has been
convicted of a crime against the child who is the subject of this
proceeding, or against another child of the parent, and the parent is

now unable to retain custody or control or the child’s welfare is
otherwise endangered if left within the parent’s custody or control.

(5) The conduct of the parent, either as principal or accessory,
constitutes a crime against the child or against any other child.

(6) The child is a victim of human trafficking or trafficking of
children for sexual purposes.

Subpar. (A)(7) effective when a child, who is a victim of
commercial sexual exploitation, human trafficking, or
trafficking of children for sexual purposes perpetrated by
someone other than a parent or caretaker, becomes an

eligible victim for which federal match funds are
available through Title IV-E of 47 U.S.C. 672

(7) The child is a victim of commercial sexual exploitation,
human trafficking, or trafficking of children for sexual purposes
perpetrated by any person regardless of their relationship to the child.

B. A child whose parent is unable to provide basic support,
supervision, treatment, or services due to inadequate financial
resources shall not, for that reason alone, be determined to be a child
in need of care.

Although the appellants assert that the trial court committed manifest error
in its determination that L.S. is a child in need of care, the argument is narrowed by
the claims that the trial court erred in allowing the State to introduce the drug
screen reports showing that the baby and the mother tested positive for
amphetamines, and as to the mother, other drugs as well. Without this evidence,
appellants claim, the remaining evidence is insufficient to warrant the findings of
the trial court.

Megan Elaire, an investigator for DCFS, was the only witness and testified
on behalf of the State at the adjudication hearing. She stated that she was called to
the hospital to investigate allegations that L.S. was a drug exposed newborn and

that the mother, K.S., had also tested positive for drugs. While testifying, the

following colloquy occurred:

Q: And to what allegations were you called out to investigate?

A: We received the report on October 7, 2016, stating that [L.S.’]

urine screen was positive for amphetamines and [K.S.’] drug screen

was positive for amphetamines, [benzos] and cocaine.

Counsel for the parents objected to the results of the drug screen but not to
the fact that she was called out for a substance exposed newborn, arguing the
specific results of the screen were hearsay. The State countered that the evidence
was admissible under the business records exception to the hearsay exclusionary
rule. The trial court allowed the State to lay a foundation for the introduction of
the evidence and ultimately allowed its introduction, as well as the State’s
introduction of the drug screen report of the hospital showing that the child and the
mother tested positive for amphetamines and that the mother tested positive for
benzodiazepines and cocaine. The State contended, in addition to the business
records exception, that the evidence was also admissible pursuant to La.R.S.
15:499, et seq.? Counsel for the parents argued that La.R.S. 15:499, et seq. allows

for the introduction of criminalistics laboratory reports and certificates in criminal

proceedings, as opposed to non-investigatory drug screen records of a hospital in

> Louisiana Revised Statutes 15:499 provides in pertinent part as follows:

A. All criminalistics laboratories established by laws of this state or by laws of the United States,
and all coroners, forensic pathologists, and other persons, partnerships, corporations, and other legal
entities practicing in fields of knowledge and expertise in the gathering, examination, and analysis of
evidence by scientific means are authorized to make proof of examination and analysis of physical
evidence by the certificate of the person making the examination or analysis. Such certificate shall list:

(1} The date and time such evidence was delivered to such facility.

(2) The name of the person making such delivery, and the person receiving same.

(3) A brief description of the evidence.

(4) The type of examination or analysis requested.

(5) The name of the person making the examination or analysis.

(6) The date or dates of the examination or analysis.

(7) The results of the examination or analysis.

Louisiana Revised Statutes 15:500 provides:

In all criminal cases and in all cases in juvenile or family courts which are of a criminal nature,
and in civil forfeiture proceedings arismg from criminal activity, the courts of this state shall receive as
evidence any certificate made in accordance with R.S. 15:499 subject to the conditions contained in this
Section and R.S, 15:501. The certificate shali be received in evidence as prima facie proof of the facts
shown thereon, and as prima facie proof of proper custody of the physical evidence listed thereon from
time of delivery of said evidence to the facility until its removal therefrom.

juvenile courts. The trial court ultimately allowed the introduction of the reports of
the drug screens, ruling as follows:

Well, I agree that the Melendez notice was not appropriate at this time

because this is not a criminal matter and that is strictly limited to

criminal investigations and documentations. On the other hand it was
documents which were presented to the department of Children’s and

Family Services in connection with an ongoing investigation and I’m

going to accept them at this time.

Appellants argue that without this evidence, the only other evidence offered
by the State, through the testimony of Ms. Elaire, is that the child was released
from the hospital to home after only a couple of days with no residual problems.
Thus, appellants assert that the evidence does not support the finding that L.S. is a
child in need of care in the absence of the improperly admitted hearsay evidence.

Louisiana Children’s Code Article 663(A) provides, with relation to the
rules of evidence applicable to adjudication hearings in juvenile court, that the
“hearing shall be conducted according to the rules of evidence applicable to civil
proceedings.” As a result, we look to the Louisiana Code of Evidence to determine
first whether the trial court erred in allowing Ms. Elaire’s testimony concerning
receipt of the verbal report by the hospital staff that the mother and child tested
positive for amphetamines and second whether it further erred in allowing the
written drug screen reports showing the same results to be introduced.

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. art. 803. The

Code of Evidence also provides in article 1101(A)}(1) that “[jJuvenile adjudication

hearings in non-delinquency proceedings shall be governed by the provisions of
this Code applicable to civil cases.” The general rule of the inadmissibility of
hearsay evidence is one such rule of evidence enforceable in juvenile adjudication
proceedings. State ex rel. D.H., 04-2105 (La.App. 1 Cir. 2/11/05), 906 So.2d 554;
State In The Interest of Prestridge, 323 So.2d 868 (La.App. 2 Cir. 1975); State In
The Interest of Garza, 388 So.2d 458 (La.App. 2 Cir. 1980); State In The Interest
of Rotolo, 361 So.2d 468 (La.App. 4 Cir. 1978); and State In The Interest of
Clark, 400 So.2d 334 (La.App. 4 Cir. 1981).

In Bandy v. Bandy, 07-849 (La.App. 3 Cir. 12/5/07), 971 So.2d 456, the
defendant father in a child custody dispute offered as evidence a drug screen report
showing that he tested negative for drugs in his system. The reports were part of
his work records as the screens were required for his employment. The trial court
allowed the evidence pursuant to the “business records” exception to the hearsay
rule. We reversed, finding the evidence to be inadmissible hearsay, and therein
provided the following:

In the present case, Patrick represented himself and introduced
the drug test results into evidence without calling a single witness to
testify as to their authenticity and to the practices under which the
information was gathered. Patrick indicated that they were faxed to
the court by the laboratories themselves, but there was no testimony
regarding the collection process or the chain of command, and no
testimony identifying the defendant, Patrick, as the contributor of the
hair and urine samples. The Louisiana Supreme Court in State v.
Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, cert. denied, Juniors v.
Louisiana, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006),
affirmed a trial court’s refusal to admit drug test results, stating as
follows:

The witness laying the foundation for the admissibility of
business records need not have been the preparer of the
records; however, the witness must be familiar with and
able to testify from personal knowledge about the
bookkeeping and accounting procedures of the entity
whose business records are sought to be

introduced. Cole Oil & Tire Co., Inc. v. Davis, 567
So.2d 122, 129 (La.App. 2 Cir.1990). “Under Art[icle]
803(6), it is essential that a custodian or other qualified
witness testimonially explain the record-keeping
procedures of the business and thus lay the foundation for
the admissibility of the records.” /d. If the foundation
witness cannot vouch that the requirements of the Code
of Evidence have been met, the evidence must be
excluded. Jd. See also, State v. Borne, 96-1130 (La.App.
4 Cir. 3/19/97), 691 So.2d 1281, writ denied, 97-1021
(La.10/3/97), 701 So.2d 197 [cert. denied, Borne v.
Louisiana, 523 U.S. 1009, 118 S.Ct. 1196, 140 L.Ed.2d
325 (1998) ].

Bandy, 971 So.2d at 462.

In this case, as in Bandy, there was no foundation evidence as is required to
allow the written reports of the drug screen results pursuant to the business records
exception to the hearsay rule. No witness familiar with the sample-collecting or
record-keeping practices of the hospital laboratory testified at trial. In fact, no one
from the hospital, which administered the drug screens, testified at all. Further, the
records did not meet the requirements to be admissible as criminal laboratory
reports under La.R.S. 15:499, et seq. as correctly noted by the trial court. Thus, we
find that the records were, in fact, hearsay and not admissible pursuant to any
exception provided for by La.Code Evid. art. 803. Accordingly, we find the
introduction of the drug screen reports, as allowed by the trial court, to be improper
hearsay evidence. However, such a finding does not end our inquiry.

In Evans v. Lungrin, 97-0541, 97-0577 (La. 2/6/98), 708 So.2d 731, the
supreme court recognized that where a legal error or ruling, particularly as to the
introduction of evidence, so impacts the fact finding process that a manifest error

review is not possible, appellate courts should then exercise a de novo review,

stating:

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[W]here one or more trial court legal errors interdict the fact-finding
process, the manifest error standard is no longer applicable, and, if the
record is otherwise complete, the appellate court should make its own
independent de novoreview of the record and determine a
preponderance of the evidence. Ferrell v. Fireman’s Fund Ins.
Co., 94-1252 (La.2/20/95); 650 So.2d 742, 747, rev’d in part, on other
grounds, 96-3028 (La.7/1/97); 696 So.2d 569, reh'g denied, 96-3028
(La.9/19/97); 698 So.2d 1388. A legal error occurs when a trial court
applies incorrect principles of law and such errors are
prejudicial. See Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993).
Legal errors are prejudicial when they materially affect the outcome
and deprive a party of substantial rights. See Lasha, 625 So.2d at
1006. When such a prejudicial error of law skews the trial court’s
finding of a material issue of fact and causes it to pretermit other
issues, the appellate court is required, if it can, to render judgment on
the record by applying the correct law and determining the essential
material facts de novo. Lasha, 625 So.2d at 1006.

Lungrin, 708 So.2d at 735. This standard was applied in a similar child in need of
care case in State in Interest of A.H., 51,053 (La.App. 2 Cir. 9/28/16), 206 So.3d
1081, reh'g denied (10/19/16), writ denied, 214 So.3d 867 (La. 1/9/17). There, the
second circuit held that the trial court improperly allowed the introduction of
hearsay testimony by the DCFS case worker and a detective with the sheriffs
office as to the results of a drug screen on the mother and the I1 year old child
showing positive for amphetamines. In reviewing the trial court’s decision in light
of the improperly admitted evidence, the court stated as follows:

Although the testimony offered by the witnesses regarding the results
of the drug tests was inadmissible hearsay and should not have been
admitted during the adjudication hearing, the error alone does not
warrant a reversal. A reversal requires application of the manifest
error doctrine. The court must review the entire record de novo for
properly admitted evidence that establishes a reasonable factual basis
for the trial court’s finding. If such a basis does not exist, the
appellate court must conclude that the fact finder is clearly wrong or
manifestly erroneous.

At an adjudication hearing, the state has the burden to prove the
allegations of the petition by a preponderance of evidence. La. Ch. C.
art. 665; State in Int. of JK, 33,878 (La.App. 2 Cir. 6/23/00), 764
So.2d 287, writ denied, 2000-2637 (La. 10/6/00), 771 So.2d 83.

i

Proof is sufficient to constitute a preponderance of the evidence when
the entirety of the evidence, both direct and circumstantial, establishes
that the fact or causation sought to be proved is more probable than
not. Talbot v. Talbot, 2003-0814 (La. 12/12/03), 864 So.2d
590; Pearce v. Medallion Const., 36,351 (La.App. 2 Cir. 11/6/02), 830
So.2d 576.

Id. at 1087.

In the instant case, we find that there was sufficient evidence properly before
the court to support the finding that the child, L.S., was a child in need of care.
Pursuant to the investigation by DCFS, Ms. Elaire testified that she questioned
K.S., the mother, and stated as follows:

From there we staffed the case and placed [K.S.] into family
services. [K.S.] did admit to using opioids. She said she was using
Oxycodone that she was getting off the streets at the time. She was
willing to [cooperate] with the agency and seek substance abuse
treatment. You know she stated to me at the hospital that in fact she
had an appointment with Dr. John on 10/13/2016 at 9:00 a.m. for
mental health and substance abuse treatment. She notified me while I
was visiting her at the hospital as well.

In addition, Ms. Elaire testified that K.S. had previously been involved with the
agency in another case involving a child born with drugs in its system. Although
the appellant objected to later questioning concerning this case, the fact of the prior
drug positive birth was not objected to. Ms. Elaire further testified that K.S. was in
drug treatment at the time of the hearing. Indeed, the ruling of the trial court
indicates that more emphasis was placed on the referenced evidence than on the
specific drug screen results, as the following statement of the court reflects:

All right. We went in a roundabout way of getting to where we
needed to be, but we’re here. The documentation is sufficient for the
Court to indicate that at the time of this little one’s birth he had been
exposed to some type of drug. There was no indication that this drug
was prescribed to mom at this time, in fact there was some indications
that mom may have been acquiring it outside of the prescription
procedure. In any case there’s no doubt that the little one has had

some difficulties because of the ingestion of the drugs by mom. There
was some brief indication that mom may have sought some type of

12

rehab which I think is a magnificent thing to hear, but thirty (30) days
doesn’t cure a difficulty, so therefore I believe family services are
going to be necessary at this time. So the Court is going to order
family services for the little one at this time.
Accordingly, we find sufficient admissible evidence was presented to meet the
preponderance of the evidence standard of proof required of the State in the
adjudication hearing.
DECREE

For the reasons assigned herein, we affirm the judgment of the trial court.

AFFIRMED.

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