State of Louisiana in the Interest of Z. U. ( 2020 )

STATE OF LOUISIANA IN THE INTEREST NO. 20-CA-26
OF Z. U.
FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 2018-CC-90, DIVISION "C"
HONORABLE BARRON C. BURMASTER, JUDGE PRESIDING
May 13, 2020
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and John J. Molaison, Jr.
REVERSED AND REMANDED.
SMC
FHW
JJM
COUNSEL FOR PLAINTIFF/APPELLANT,
STATE OF LOUISIANA, DEPARTMENT OF CHILDREN AND FAMILY
SERVICES
Laura W. Malveau
COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT,
Z. U.
Kirby N. Kenny
COUNSEL FOR DEFENDANT/APPELLEE-3RD APPELLANT,
M. A. AND W. A.
Sheila H. Willis
Bernadette R. Lee
Suzanne Ecuyer Bayle
Edith H. Morris
COUNSEL FOR INTERVENOR/APPELLEE,
C. L. AND J. L.
Scott L. Sternberg
William B. Gordon, III
CHEHARDY, C.J.
On appeal, the State of Louisiana, Department of Children and Family
Services-first appellant; the minor child, Z.U.-second appellant; and
intervenors/third appellants-W.A. and M.A.; seek review of the trial judge’s
October 1, 2019 ruling regarding the continued placement of the minor child, Z.U.
For the following reasons, we vacate the trial court’s ruling and remand for
proceedings consistent with this opinion.
Factual and Procedural History
On August 29, 2018, the State of Louisiana, Department of Children and
Family Services (“DCFS”) received a report of a child born “drug affected” to
parents domiciled in Jefferson Parish. At the time of his birth on August 28, 2018,
Z.U.1 tested positive for cocaine, barbiturates, amphetamines, marijuana, and
benzodiazepines. That day, his mother, E.U., also tested positive for
benzodiazepines, cocaine, opiates, barbiturates, amphetamines, and marijuana.
Because Z.U. was suffering from withdrawal from these substances, he was
hospitalized until October 19, 2018 in the neonatal intensive care unit at Ochsner
Baptist Hospital in Orleans Parish. In the interim, his biological father, F.U., died
from a drug overdose on September 15, 2018. Z.U.’s uncle, W.A., visited the
infant while he was still in the NICU during the time that W.A. was in Louisiana in
September 2018 for the funeral services of Z.U.’s father. Sometime after the death
of Z.U.’s father, E.U., his mother contacted W.A. to inform him that DCFS was
going to take Z.U. into custody when he was released from the NICU. W.A., who
resides in New York already had custody of E.U.’s older son, Ze.U., who was born
April 29, 2016, also “drug affected.” W.A. contacted DCFS at that time and
informed them that he did not want his nephew to be placed into foster care, and
1
To protect the identity of the minor children involved, the parties will be referred to using initials.
U.R.C.A. 5-1, 5-2; L.R.F. v. A.A., 13-797 n.2 (La. App. 5 Cir. 2/26/14), 133 So.3d 716, 717.
that he and his wife, M.A., would like to be considered for placement of the baby if
Z.U. was not going to be returned to E.U.’s custody when he was discharged.
Upon his discharge on October 19, 2018, Z.U. was placed in the temporary
custody of DCFS after their investigation determined that Z.U.’s mother had
ongoing substance abuse problems that prohibited her from exercising physical
custody of Z.U.2 While W.A. had indicated his wish to be considered for
placement of the child, in order for DCFS to execute its original plan for
reunification with the mother, out of state placement was not a viable option.
DCFS placed Z.U. in the certified foster home of C.L. and J.L. located in Jefferson
Parish, as at this point in time no alternative in state family placement was
available for this minor child. This would allow DCFS an opportunity to create
and execute a reunification plan with E.U.
On November 26, 2018, after further investigation, the Jefferson Parish
District Attorney filed a Child in Need of Care (“CINC”) Petition pursuant to La.
Ch. C. art. 606(A)(2), alleging that Z.U. was in need of care due to his mother’s
continued struggle with addiction after the death of his father. The child was also
continued at that time in the original placement in the foster home of C.L. and J.L.
On December 18, 2018, Z.U.’s mother, pursuant to La. Ch. C. art. 647, stipulated
that Z.U. was a child in need of care without admitting to the allegations of the
petition. DCFS filed a plan of reunification, with which E.U., his mother, was
attempting to comply. Tragically, on February 3, 2019, Z.U.’s mother died from a
drug overdose.
Shortly thereafter, according to the testimony of the original DCFS foster
care caseworker, Gerriane Jones, W.A., Z.U.’s paternal uncle, who had already
been in contact with DCFS after the death of his brother in September of 2018
2
Z.U. also has three half-sisters, E.M., B.M., J.M., who reside in Louisiana; one biological sister, Zy.U.,
who resides in Texas; and one biological brother, Ze.U., who resides in New York with W.A. and M.A.
2
regarding the status of the child, communicated with DCFS regarding permanent
placement of the child. In the interim, DCFS had become aware of another
individual who had made a claim to the paternity of Z.U. This information
interjected some confusion into the infant’s status, and W.A. hesitated initially
regarding the transfer of the child to his care in the days after the mother’s death.
However, according to Ms. Jones records, W.A. texted her on February 21, 2019,
“Good afternoon Mrs. Jones, after the last time that we spoke my wife and I
prayed about this situation. In remembering the conversation with my brother
and keeping with his wishes I have reconsidered and am looking to move forward
in the process of caring for the baby. My brother had recognized the baby as his
son and my promise was to care for his family. I would like [to] continue with
ICPC process.” In early March of 2019, paternity testing was performed by DCFS,
and the putative father of Z.U. was excluded.
Shortly thereafter, W.A. and M.A., Z.U.’s paternal uncle and aunt, and the
legal guardians of Z.U.’s older brother, Ze.U., age 2 at that time, contacted DCFS
in their home state of New York to initiate the process of becoming certified foster
parents, and to alert that office that an Interstate Compact for the Protection of
Children (“ICPC”) would be filed with the DCFS office in New York by the DCFS
office in Jefferson Parish. This was being done to initiate the process of
transferring the placement of Z.U. to them. On March 6, 2019 W.A. sent a text to
Ms. Jones inquiring about his nephew and asking about the status of the ICPC. Ms.
Jones replied that “The ICPC is in the works.” Ms. Jones, according to her
testimony, had also by this time informed the foster parents, C.L. and J.L. that Z.U.
would be transitioning to a family placement in New York. Only later would W.A.
and M.A. discover the extent to which the DCFS caseworker was lying to them
regarding the institution of the ICPC, and the transition for the placement of Z.U.
This is the first, but most egregious, in a string of events in which DCFS failed in
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this matter to act in the best interest of this minor child, and in accordance with
their own directives. Z.U. was six months old at this time.
On April 16, 2019, DCFS filed an Ex parte Motion and Order to Declare the
Minor Child Free and Eligible for Adoption on the basis that his biological parents
were both deceased. At the hearing on that motion, the trial judge heard from Ms.
Jones, who was still the acting DCFS caseworker for foster care, regarding Z.U.’s
current placement. Ms. Jones testified that Z.U.’s paternal great-aunt and
grandmother had visited him twice while he was in foster care. Ms. Jones also
testified that Z.U.’s paternal uncle, W.A., stated that he was open to caring for him
“long term or to adopting him”, and the case plan signed by Ms. Jones on April 4,
2019, and submitted into the record at that time, indicated that DCFS in Jefferson
Parish had begun the ICPC process with New York. Both foster parents were at
the hearing and were aware that it was the intention of DCFS to transition Z.U. to
his aunt and uncle in New York. At the close of that hearing, the Court found that
the case plan submitted by the Department was consistent with the health and
safety of the child and the case plan goal was adoption. The court ordered DCFS
to file a written plan for permanent placement within 90 days pursuant to La. Ch.
C. 1040. Finally, the Court determined that continued placement with the foster
parents in Louisiana was “the safest, least restrictive, most appropriate setting for
Z.U. at this time.” None of the directives of the court issued at this hearing to
DCFS were subsequently implemented by Ms. Jones.
Shortly after the hearing in April, W.A. continued to contact DCFS, and was
repeatedly told that the ICPC paperwork was in progress. This subterfuge
continued until sometime later when the DCFS case worker began to ignore
continued contact by W.A. with the agency. Whether this amounted to gross
negligence or an outright attempt to thwart Z.U.’s family placement, we may never
know, as this information was never developed in the record before this Court.
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Frustrated in his attempts to obtain further information from DCFS, on June
26, 2019, W.A. and M.A., Z.U.’s paternal uncle and aunt, filed a Petition to
Intervene, indicating that W.A. is the older brother of Z.U.’s biological father, that
W.A. and M.A., who are New York residents, had become certified foster parents
in anticipation of adopting Z.U., and that they are currently custodians of Z.U.’s
older brother, Ze.U. On July 30, 2019, Judge Burmaster granted the aunt and
uncle’s intervention and ordered a status hearing with respect to the Interstate
Compact for the Placement of Children (“ICPC”) with the State of New York and
that visitation with the minor child, ten months old by this time, be allowed, which
visitation was eventually accomplished without incident on several occasions.
Sometime after the July 30, 2019 hearing, the judge in this matter received
an ex parte communication from the foster parents, who retained physical custody
of the child, regarding the detrimental effects that could occur should the court
decide to continue with the DCFS plan of placement of Z.U. with his now 3 year
old brother and paternal family members in New York. By this point, the foster
parents had also made their intention to adopt Z.U. known to DCFS. Attached to
this correspondence were articles, photos and other information sourced by the
foster parents from the internet. The trial court did not inform any of the parties,
DCFS, the intervenors, or the advocate appointed to represent the child, of this
communication. The court did not send a copy of the communication, or its
attachments to any party, instead the letter and attachments, after being read by the
judge, were placed in the record.
On August 20, 2019, the trial court held a status hearing on visitation and the
transition plan by DCFS for Z.U. After the hearing, which included testimony
from the foster parents who were still non-parties to the matter at that time,
regarding the potential adverse impact of removal on toddlers with special needs,
the trial court declined to allow DCFS to read a consent judgement into the record,
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or to approve the transition plan because “we need expert opinions on what would
be best for the child.” The trial court instructed DCFS to present testimony at the
next status hearing from “Dr. Zeaneh or someone familiar with the case with T-
PEP … and indicate whether or not they agree with the transition plan and the
long-term adverse effects on moving the child from current placement. T-PEP is to
assess whether the child should remain in current placement and be adopted by
current caregivers with visits by the relatives in New York or vice versa.” Z.U.,
who would turn one on August 28, 2019, had now become the object of a tug-of-
war between his biological family and his foster family.
Shortly after this hearing, on September 5, 2019, the foster parents, C.L. and
J.L., filed a Petition “to intervene and participate in any proceedings involving the
Child, Z.U., and in due course [be] allowed to adopt the Child.” On September 17,
2019, the foster parents’ intervention was granted “for [the] limited purpose of best
interest for the child.” The foster parents, subsequent to the hearing on August 20,
had also contacted the same Dr. Zeaneh that the trial court had referred to at the
August 20, 2019 proceeding, and employed him to testify on their behalf.
Dr. Zeaneh and T-PEP, the Tulane Parenting Education Program, were
under contract with DCFS at that time as an independent reviewing agency of case
plans that the agency was in the process of implementing. When DCFS discovered
that Dr. Zeaneh had been privately requested to give his opinion on behalf of the
foster parents, DCFS believing that Dr. Zeaneh had a conflict, decided to utilize
another child mental health expert to review the case plan. DCFS brought in Dr.
Amy Dickson at that time, who after reviewing the plan, agreed that Z.U. should
be transitioned to his paternal family in New York.
On October 1, 2019, the trial court held an ASFA case review, permanency
hearing, and status hearing as to the New York ICPC and visitation for Z.U.’s
uncle and aunt. None of the documents filed into the record at this time indicate
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any negative information regarding the fitness of W.A. and M.A. for placement or
as prospective adoptive parents of Z.U. At the hearing the trial judge heard
testimony from Z.U.’s paternal uncle and aunt, W.A. and M.A.; his foster parents,
C.L. and J.L.; and, his maternal grandmother, E.H. E.H. testified on behalf of the
foster parents that she and Z.U.’s three older half-sisters had been allowed to visit
twice with Z.U. while he was in foster care, and she had confidence that Z.U.
would be able to maintain a relationship with his older half-siblings if he continued
to live with C.L. and J.L. E.H. stated that she had never been in contact with
anyone from Z.U.’s paternal family, although Ze.U., who lives with his paternal
uncle W.A., is her other grandson. E.H. also testified that she has not had contact
with Z.U.’s sister, her granddaughter age 2, who resides with Z.U.’s paternal aunt
in Texas. As a result, she testified that she believes that she would lose contact
with Z.U. if he were adopted by W.A. and M.A, and raised out of state.
The trial court also heard from Z.U.’s original DCFS foster caseworker, Ms.
Jones. Ms. Jones testified that she alerted the foster family about paternal family
members in January before the birth mother’s death because several family
members had expressed an interest in visiting with baby Z.U. Ms. Jones testified
that when she spoke with W.A. in February of 2019 immediately after the mother’s
death, he was told that another man had come forward to assert paternity of Z.U.
While this had initially caused some concern as to the paternity of Z.U., as
excerpted earlier in this opinion, on February 21, 2019 W.A. texted Ms. Jones and
informed her that in “keeping with [my brother’s] wishes I have reconsidered and
am looking to move forward in the process of caring for the baby. My brother had
recognized the baby as his son and my promise was to care for his family. I would
like [to] continue with ICPC process.” Ms. Jones also testified that despite her
conversation in February with the paternal uncle in New York that he wished to
proceed with the ICPC to gain custody of and eventually adopt Z.U., she learned at
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the hearing in April that the foster parents had also indicated their desire to retain
custody and eventually adopt Z.U. once he was adjudicated eligible by the court.
Detra Ward, the Child Welfare Manager over Foster Care and Adoptions for
DCFS in this region, has been the supervisor and manager of this case from the
time that Z.U. was taken into DCFS custody in October of 2018. Ms. Ward
testified that the foster parents were once candidates to adopt Z.U., but are no
longer being considered because of “the sibling connection” and the paternal
uncle’s interest in adopting this child.
Ms. Ward also admitted that when Z.U. was born, W.A. did not initially
want to foster Z.U. because another man had made a claim to the paternity of Z.U.
According to Ms. Ward, W.A. did not immediately express interest in adoption but
when “the case was transferred to the adoption unit in June of [2019],” W.A. had
expressed interest in adopting Z.U., who was at that point 10 months old. Ms.
Ward testified that she worked with Troy Thomas in June and July to create the
transition plan that would have allowed W.A. to move forward and adopt Z.U.
Troy Thomas testified that she was the current DCFS foster care caseworker
assigned to Z.U. and she had been assigned on June 21, 2019, after Ms. Jones had
been relieved of this case file. Ms. Thomas testified that she immediately noticed
that Z.U.’s paternal uncle had been in contact with the agency numerous times
about adopting him. Ms. Thomas informed the foster parents during a visit at the
DCFS office between Z.U. and his paternal grandmother on July 26, 2019 of his
uncle’s intention to adopt him. Ms. Thomas also testified that during the initial
visitation in July between Z.U. and his uncle W.A., Ms. Thomas observed Z.U.
with W.A. and noticed that Z.U. “really only wanted [W.A.]’s attention.”
Ms. Thomas testified that since August of 2019 she and her supervisor,
Detra Ward at DCFS have been preparing a transition plan to allow W.A. and
M.A. to adopt Z.U., which involved extended visits between Z.U. and W.A. in the
8
DCFS office, an overnight visit by Z.U. and W.A. in Louisiana, a weekend stay by
Z.U. with his family in New York, progressing to a week-long stay by Z.U. in New
York. Ms. Thomas herself traveled to New York with Z.U. to facilitate that week-
long trip. When questioned about being contacted by T-PEP about the
appropriateness of the visitation plan for Z.U., Ms. Thomas answered, “I don’t
recall using best interest at all. …We talked with T-PEP about it, Letia Bailey and
Hien Le Sanchez. We went over what we were planning. And they said, they
agreed.”
At trial, Hein Le Sanchez, a licensed clinical social worker with T-PEP, who
had been requested to provide support to the foster family on a single occasion in
May, testified that at the request of T-PEP, after being contacted by the foster
family to involve them in the transition, she met with Detra Ward and Troy
Thomas on August 18, 2019, regarding a visitation plan she was told by the foster
parents had been prepared by DCFS for Z.U. According to Ms. Sanchez, the plan
included the toddler going to New York as soon as possible, then continuing his
relationship with his foster family via FaceTime meetings. Ms. Sanchez expressed
concern over the baby being asked to travel to New York continually, rather than
W.A. and M.A. travelling here to spend an extended period of time getting to know
Z.U. in his current placement.
Ms. Sanchez stated that she did not agree that an immediate transfer of Z.U.
to New York with FaceTime contact with his foster family was in the child’s best
interest. “We said that we did not think this was in his best interest. That we did
not.” Ms. Sanchez specifically noted that FaceTime is “not a substitute for
interaction with a young child at Z.U.’s age.” When questioned by counsel for
DCFS as to whether she had told either DCFS employee that their plan sounded
“good,” Ms. Sanchez reiterated, “We said that this was not – we did not believe
that this was in his best interest.” Ms. Sanchez did however admit that no one at T-
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PEP had ever actually seen the final transition plan prepared by DCFS, as DCFS
had already contracted with another provider to review the plan.
Testimony from Dr. Alicia Pellegrin was offered by W.A. as she was
unavailable to testify at this hearing. In her opinion, “the younger the child, very
often, the longer the transition.” Dr. Pellegrin reviewed the records in the matter
and, in her opinion, there was already a basis for a secure attachment between Z.U.
and his uncle and aunt. She testified that, “Children are not only more physically
secure and physically stable in kinship placement, but they are also more
emotionally and behaviorally stable.” She went on to state that, “Children who are
placed with family members have fewer emotional and behavior problems.” She
opined that, “One study, in particular, showed that those children were
indistinguishable from children who were placed with biological parents.” Dr.
Pellegrin also discussed that having a biological sibling was very important.
DCFS called Dr. Amy Dickson, a psychologist that was accepted as an
expert in infant and child mental health, and with whom DCFS had contracted to
review the transition plan for Z.U. Dr. Dickson testified that her observation of
Z.U. with both his foster family and his uncle showed that he was well-cared-for
by the adults. Dr. Dickson expressed that she felt the foster parents had done an
excellent job of caring for this child, who faced tremendous obstacles, including
being born with neonatal abstinence syndrome and losing both of his parents.
Further, in Dr. Dickson’s opinion, the foster family’s attachment to Z.U. had
allowed Z.U. to be able to develop attachments, which would in turn enable him to
attach to others in the future, including his uncle and aunt. In Dr. Dickson’s
opinion, “there’s no indication that Z.U. necessarily will be traumatized or struggle
by going to [W.A. and M.A.] if he can have an ongoing connection to [his foster
parents].” Dr. Dickson was the only expert witness called to testify who had
observed Z.U. interact with all parties in this matter.
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Dr. Charles Zeanah, also with T-PEP, who testified at the request of the
foster parents, opined that children develop the capacity to form attachments at a
cognitive age of seven to nine months. Attachment is the motivation of a young
child to seek comfort, support, nurturance, and protection from specific individuals
or “attachment figures.” Dr. Zeanah testified that he had evaluated the foster
parents and observed their interaction with Z.U. and, in his opinion, Z.U. is
securely attached to both C.L. and J.L. Dr. Zeanah also testified that he has never
observed any interaction between Z.U. and his uncle, aunt, or brother, or any of his
other biological family.
He further testified that a disrupted attachment is when an attachment that
has been formed then ends. Dr. Zeanah testified that there can be long-term
consequences of disrupted attachments, and he opined, research shows that if a
focused attachment is disrupted after it is formed from seven to nine months, the
child has some risk of subsequent problems. If the focused attached is disrupted
after twelve months, the child’s risk of adverse outcomes increases. Moreover,
children with more than one disruption are at increased risk for problems. Dr.
Zeanah also testified that the cumulative risk phenomenon reflects that the
probability of a child developing long-term problems increases with the sheer
number of risk factors without regard to their severity, their chronicity, or their
nature.
Dr. Zeanah stated that Z.U. has multiple adverse exposures, which are all
risk factors, including, being orphaned; his mother smoking while pregnant; no
prenatal medical care; his mother’s incarceration during pregnancy; severe
neonatal abstinence syndrome; a seven-week hospitalization in the NICU; and
fifty-one days post-natal in methadone treatment.
When specifically asked about his recommendation for Z.U., Dr. Zeanah
stated, “I think it’s very complicated. And I think you weigh the value of genetic
11
relationships and you count that and you weigh the consequences or at least the
increased probability of harm associated with disruptions and when I put all that
together, I believe that it’s in [Z.U.]’s best interest to remain where he is and to
remain connected to his biological extended family.”
When asked on cross-examination by DCFS how he can recommend a non-
family placement, Dr. Zeanah testified “so genetic family is generally preferred.
Stability versus disruption, stability is preferred, and I weigh the stability and the
potential harm of disruption over the genetic versus non-genetic connection.”
Dr. Zeanah did state that the child, [Z.U.], could reattach to another caregiver with
proper support from T-PEP, his former caregivers, and mental health providers.
At the close of that hearing, Judge Burmaster stated:
And I think the evidence to me clearly says it is his best interest
to avoid the disruption and keep him with the current foster parents.
He has three siblings in Metairie, three in New Orleans as testified to,
in his mind, those are his siblings also, one in New York, one in
Texas. We might get the one in Texas to move to New York. I think
the best way to make sure he has, and ensures his continued
connection with that extended family and whole family is to stay with
the foster parents. They’re the ones who are going to ensure that
happens. I’ve heard testimony from the maternal grandmother that
even though [Ze.U.] is with the Angelinos, there has been no attempt
to make any connections with that particular child. I think the child --
I think [Z.U.]’s best interest, and with all due respect, [Ze.U.] has a
best interest finding also but it’s not my finding. It’s not my finding,
it’s [Z.U.]’s best interest. That’s the only case set before me and I
believe that his best chance to have a connection with all his family is
to remain with foster family and it’s also in his best interest to remain
with the foster family and stay in his current placement.
The trial judge further ordered that DCFS not move “Z.U. … from the current
placement without a court hearing.” The notice of judgment was issued on
October 4, 2019.
On October 7, 2019, DCFS, pursuant to La. Ch. C. art. 330, filed a motion
for appeal, which was granted on October 9, 2019. On October 16, 2019, attorney
for Z.U., pursuant to La. Ch. C. art. 330, filed a motion for appeal, which was
12
granted. On October 18, 2019, pursuant to La. Ch. C. art. 330, W.A. and M.A.
moved for appeal, which was granted.
On appeal, counsel for first appellant-DCFS assigns three errors: first, the
trial court erred by failing to adopt the transition plan proposed at the October 1,
2019 hearing; second, the trial court erred by failing to approve placement of Z.U.
in the home of his paternal uncle and aunt, W.A. and M.A.; and, third, the trial
court erred in its best interest finding made at the October 1, 2019 hearing. On
appeal, second appellant-the minor child, Z.U., assigns three errors: first, it is in
his best interest that the trial court approve his placement with his paternal uncle
and aunt; second, it is in his best interest to be transitioned to his paternal uncle’s
home with his uncle and aunt and his biological brother; and third, DCFS has sole
authority over placement of children in its custody and the court cannot order
permanent placement. On appeal, counsel for third appellants-W.A. and M.A.,
assigns three errors: first, the misbehavior of one caseworker from DCFS should
not be grounds to prevent the placement of Z.U. with his paternal uncle who has
custody of his full brother and has wanted him since his birth; second, the trial
court erred in allowing the foster parents to undermine the DCFS transition plan of
Z.U. to his paternal uncle; and third, the court committed legal error by allowing
the expert hired by the foster parents to improperly undermine DCFS. In essence,
all appellants agree that the trial court erred in its October 1, 2019 ruling and seek
reversal of that ruling. We agree.
Law and Discussion
Standard of Review
In Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 735, the
Louisiana Supreme Court enunciated the standard of review in custody
proceedings:
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It is well-settled that a court of appeal may not set aside a trial
court’s … finding of fact in the absence of ‘manifest error’ or unless it
is ‘clearly wrong.’ Rosell v. Esco, 549 So. 2d 840, 844 (La. 1989).
However, where 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 novo review 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.
Thus, where one or more trial court legal errors interdict the fact-finding process,
this Court should make its own independent de novo review of the record and
determine a preponderance of the evidence. Evans, supra.
At the outset, we note that the purpose of Title VI of the Children’s Code,
entitled “Child in Need of Care” and applicable to these proceedings, is “to protect
children whose physical or mental health and welfare is substantially at risk of
harm by physical abuse, neglect, or exploitation and who may be further threatened
by the conduct of others....” La. Ch. C. art. 601. Furthermore, the health, safety,
and best interest of the child shall be the paramount concern in all proceedings
under this Title. Id. Here, Z.U. is in a unique circumstance because he was
orphaned in the midst of a CINC proceeding.
There are two separate components of permanency planning: (1) the initial
case plan (La. Ch. C. arts. 671 to 677) and its review hearing process; and (2) the
identification of a permanent plan for the child and its review hearing process (La.
Ch. C. arts. 701 to 711). Permanent placement is defined in the Children’s Code as
(1) return of the legal custody of the child to his parent(s); (2) placement of the
14
child under a guardianship of the person; or (3) placement of the child with
adoptive parents pursuant to a final decree of adoption. La. Ch. C. art. 603(15).
This case review and dispositional review process continues until the child
achieves the proposed permanent plan. Nonetheless, “an assignment of legal
custody to DCFS, regardless of the stage of the proceedings, confers the exclusive
authority of DCFS to determine a particular placement of a child.” See, La. Ch. C.
art. 672, Official Comments, 2001. (Emphasis added).
La. Ch. C. art. 672(A) provides:
A. (1) Whenever custody of a child is assigned to the Department of
Children and Family Services, the child shall be assigned to the
custody of the department rather than to a particular placement
setting. The department shall have authority over the placement
within its resources and the allocation of other available resources
within the department for children judicially committed to its
custody.
(2) Upon motion of the court, for good cause shown, a
contradictory hearing shall be held and thereafter, the presiding
judge shall have the authority to disapprove a placement chosen by
the department if it is not in the best interest of the child and shall
issue a written order that the department choose a more suitable
placement with reasons supporting the court’s decision.
The plain language of this statute clearly provides that when the court assigns
custody of a child adjudicated in need of care to DCFS, the Department has
authority over the placement of those children. Further, it is well-settled in our
jurisprudence as well that the juvenile court retains the ultimate authority over a
child’s placement. See State in the Interest of Jennifer W., 485 So.2d 504, 506 (La.
1986); State In Interest of B.F., 19-115 (La. App. 5 Cir. 8/9/19), 279 So.3d 453,
470 (both recognizing that statutes which gave the courts the authority to review
the status of children placed in the custody of the Department allowed the courts to
have the ultimate authority over a child’s placement).
Further, the public policy preference for “kinship” placement is reflected in
La. Ch. C. art 683(B), which provides: “The court shall place the child in the
15
custody of a relative unless the court has made a specific finding that such
placement is not in the best interest of the child. The court shall give specific
written reasons for its findings, which shall be made a part of the record of the
proceeding.”3
La. Ch. C. art. 700(A),4 which was intended to clarify the role of the court
vis-à-vis the role of DCFS as set forth in La. Ch. C. art. 672, provides as follows:
A. At the conclusion of the case review hearing, the court may take
one of the following actions:
(1) Approve the plan as consistent with the health and safety of the
child and order compliance by all parties.
(2) Find that the case plan is not appropriate, in whole or in part,
based on the evidence presented at the contradictory hearing, and
order the department to revise the case plan accordingly.
Therefore, under the scheme imposed by these provisions, the court, at the
conclusion of the case review hearing, may either approve the plan or reject it and
order DCFS to revise the plan accordingly. The court cannot, however, direct the
placement of children in the Department’s custody as the trial court did in this
case, i.e. “Z.U. must remain in the custody of the foster parents.” While the district
court was within its authority to consider and deny DCFS’s recommendation for
transitioning Z.U. to an out-of-state kinship placement, to the extent that the
judgment of the district court rejected DCFS’s “plan” and instead ordered
permanent placement of Z.U. with the foster parents, the district court legally
erred. DCFS, Z.U., and W.A. are all correct in their assertions that the question of
where a child in its legal custody should be placed is reserved to DCFS.
This is a legal error that interdicted the fact-finding process, which allows
this Court, if the record is otherwise complete, to make its own independent de
novo review of the record and determine a preponderance of the evidence. Evans,
supra.
3
See also, La. Ch. C. arts. 622 and 627.
4
See, La. Ch. C. art. 700, Official Comments, 1991.
16
On appeal, the record before us does not contain a formal or permanent
placement request by DCFS to the trial court. The most recent case plan in the
record before this Court dated September 19, 2019 states: “The agency
recommends that Z.U. remain in state’s custody at this time, in his current
placement as we continue with transitioning Z.U. to the home of his paternal
aunt/uncle, with a case plan goal of adoption.”
Although we are cognizant that the paternal family, the foster parents, and,
most importantly, and tragically, Z.U., are caught in an emotional situation that
was created by DCFS’ mismanagement and failure to timely procure the ICPC, our
de novo review of this record reflects that it is apparent that the trial court erred in
failing to approve the DCFS plan to transition to a permanent kinship placement
with assistance from T-PEP at the earliest juncture.
In this case, there are a few procedural issues that should be noted. La. Ch.
C. art. 702(A) mandates that a permanency hearing be held to “consider in-state
and out-of-state permanent placement options for the child, within thirty days of a
judicial determination pursuant to Article 672.1 [when] reunification efforts are not
required.” (Emphasis added). In this case, it was clear no later than April 2019
that the child had no living biological parents so, by June of 2019, there should
have been a permanency hearing with placement options and a permanent plan.
See, La. Ch. C. art. 702(C).5 This failure by DCFS is what has brought us to this
moment. If the trial court determines that the agency failed to comply with the
5
La. Ch. C. art. 702(C) provides, in pertinent part:
The court shall determine the permanent plan for the child that is most appropriate and in
the best interest of the child in accordance with the following priorities of placement:
***
(2) Adoption.
***
(4) Placement in the legal custody of a relative who is willing and able to offer a safe,
wholesome, and stable home for the child.
***
17
permanency planning requirements, the trial court has, and should, utilize its
ability to sanction DCFS under La. Ch. C. art. 712.6
We further caution the parties to refrain from ex parte communications and
instruct the trial court to be wary of them. Ex parte communications are prohibited
by the Code of Judicial Conduct because they are directed in a focused way at
changing the behavior of the court, without the protection of full contemporaneous
disclosure to all parties. That guarantee is in place to ensure that the information at
issue be conveyed timely and with the equivalent ability of all parties to challenge
it simultaneously as to weight or veracity. We cannot say that this ex parte
communication itself had the effect the Code of Judicial Conduct seeks to prevent.
In a proceeding as sensitive as the one before us, the outcome of which will affect
the future of a very young child, full contemporaneous disclosure amongst all
parties and the court is of critical importance.
Conclusion
Under the statutory scheme in place for children adjudicated in need of care
and placed in the custody of DCFS, the court retains the ultimate authority over a
child’s placement and may approve or reject a case plan submitted by the
Department, but it may not revise the plan or make any particular placement itself.
In the instant case, the juvenile court’s order that Z.U., a child adjudicated in need
of care, and placed in the custody of DCFS, not be moved from a particular foster
home was in violation of La. Ch. C. art. 672(A) as it made a particular placement
6
Pursuant to La. Ch. C. art. 712, the court may:
(1) Subpoena agency witnesses to testify regarding the failure to comply.
(2) Order the agency or appropriate representatives to show cause why a contempt order should
not issue.
(3) Order that the agency not seek federal reimbursement for the cost of the child's care where the
court finds that reasonable efforts were not made.
(4) Submit a report of noncompliance to appropriate state and federal agencies.
(5) Refer the agency representative found responsible for the failure to comply to the appropriate
department personnel for administrative reprimand or other administrative sanctions.
18
choice DCFS alone was entitled to make. Therefore, the trial court’s order that
Z.U. remain with the foster parents is reversed, and the case is remanded to the
juvenile court. In consideration of the fact that this matter should have been
resolved in June of 2019, we further order that the juvenile court convene a hearing
within 15 days of the issuance of this opinion to expedite the proceedings in a
manner consistent with the reasons stated herein.
REVERSED AND REMANDED.
19
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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