Judgment rendered June 29, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,610-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
DEPT. OF CHILDREN & FAMILY Plaintiff-Appellee SERVICES – CW DOCKET NO: 2019-7392 AGENCY NO: 0002816896
IN THE MATTER OF FREGENER Defendant-Appellant DAVIS HENDERSON
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 163,238
Honorable Charles A. Smith, Judge
DAVIS LAW FIRM, LLC Counsel for Appellant By: S.P. Davis, Sr.
HARRIS LAW FIRM, LLC By: Courtney N. Harris
STATE OF LOUISIANA, DCFS Counsel for Appellee By: James M. Hoffman Penya Marzula Moses
DIVISION OF ADMINISTRATIVE LAW By: Lindsey K. Hunter Lacy Shuffield Norris
Before MOORE, PITMAN, and ROBINSON, JJ. PITMAN, J.
Fregener D. Henderson (“Henderson”) appeals the judgment of the
Administrative Law Judge (“ALJ”), who reviewed and affirmed a valid
finding of dependency brought against her by the Louisiana Department of
Children and Family Services (“DCFS”). For the following reasons, we
affirm.
FACTS
On June 4, 2018, Henderson’s adopted child, Q,1 was removed from
her home by the DCFS and placed in foster care.
On May 22, 2019, the DCFS notified Henderson that it completed the
child abuse and/or neglect investigation for a report involving a child in her
care and determined that the report was justified, or valid, for dependency of
her minor child, Q. Henderson requested an administrative hearing pursuant
to La. Ch. C. art. 616.1.1, which provides administrative appeal rights when
a report alleging abuse or neglect of a child is determined to be justified or
valid2 by the DCFS. The ALJ conducted an eight-day telephone hearing and
was presented with a voluminous record regarding Q’s medical and social
history. He determined that the DCFS proved, by a preponderance of the
evidence, that Henderson’s actions met the criteria necessary to place her
name on the State Central Registry3 as a valid perpetrator of child abuse or
neglect.
1 To protect the privacy of any child mentioned herein, only the child’s initials are used in this opinion. See La. R.S. 46:56; see also La. Const. art. 1, section 5.
2 The words justified and valid are used interchangeably, but the May 22, 2019 letter states that “justified” would thereafter be referred to as “valid.” 3 The State Central Registry is a database used for background checks by the Department of Education for its Child Care Civil Background Check System and the DCFS for its Louisiana Child Abuse and Neglect Clearance System and Child Protective Services Program for current and prospective employees of the DCFS and other agencies During the hearing, Henderson testified on her own behalf; and the
following persons testified at her request: Dr. Gregory Brown; Jon Barnes,
FNP; Dr. Lionel Guillaume; Jerell Scott; and Kergener Davis. Henderson
submitted multiple exhibits.
The DCFS called several witnesses: Benjamin Lacy, a DCFS
investigator-supervisor; Michelle Gafford, a DCFS investigator; Rolanda
Stanley, a DCFS supervisor; Maurice Watkins, a DCFS investigator; Jessica
Feeback, Q’s teacher; Jessica Smith, a DCFS foster care worker; Reginald
Hodge, Q’s present foster parent; Dr. John Simoneaux, a psychologist;
Christi Thomas, a DCFS supervisor; and Robin Turner, a DCFS consultant.
The DCFS submitted 18 exhibits into evidence.
The following facts are gleaned from the testimony and exhibits
presented by both the DCFS and Henderson. Q was born on September 11,
2008. He lived with his biological mother for two years. During that time
he was raised in an unstable and chaotic environment and allegedly was
exposed to inappropriate adult behavior. Henderson adopted him on the day
before his fourth birthday in 2012 after his biological mother’s parental
rights were terminated. Henderson testified that Q arrived at her home with
many pre-existing conditions, including allergic rhinitis, maternal hepatitis
C, developmental delays in speech, communication disorder, disruptive
disorder, fetal alcohol syndrome and post-traumatic stress disorder.
and homes where children were placed. Whether or not an individual’s name is placed on the registry depends on the tier level assigned to a valid finding by the DCFS. The DCFS Child Welfare Policy 4-220. The notice to Henderson states that this case was assigned as a Tier 2 investigation and that her name would be added to the State Central Registry after her appeal rights had been exhausted.
2 Henderson also testified that Q displayed inappropriate sexual behavior
shortly after he entered her home and that his behavior worsened as he aged.
Henderson stated that Q acted out sexually with his teddy bear,
urinated in his bed, looked under girls’ skirts at school, fondled a child and
told Henderson that he wanted to kill children and the teacher. According to
Henderson, he also tried to kill her niece because she asked him to throw
away some trash, told her he wanted to have sex with his sister, told her he
hated black people even though he himself is African-American, tried to kill
at least three dogs, was a danger to other children, wanted to touch the
genitals of both male and female children and adults, and masturbated
15 times a day. She testified that he urinated everywhere in the house, in the
car and while his home-school teacher was sitting at the table with him. He
told her he wanted to go back to Georgia (where she once put him in a
psychiatric hospital) because he wanted to have sex with a man there.
Henderson sent Q to a number of facilities for psychiatric treatment
based on physician referrals. Because he was often in these facilities for
long periods of time, he attended school in those facilities. The year he was
eight years old, Q was admitted to ten mental health facilities and was
placed on medications for mental issues Henderson claimed he had. During
his early life with Henderson, Q was diagnosed with the following illnesses,
disorders, syndromes or symptoms: intermittent explosive disorder and
conduct disorder, childhood onset; depressive/anxiety disorder; attention
deficit/hyperactivity disorder; disruptive mood dysregulation disorder; anger
management and impulse control, homicidal ideations; oppositional defiant
disorder; emotional disturbance; sexual disorder; attention
deficit/hyperactivity disorder; reactive attachment disorder; R/O antisocial 3 personality disorder; bipolar with psychotic features; schizophrenia; and
auditory hallucinations. Q was prescribed numerous medications by many
doctors and nurse practitioners because of these diagnoses, including
Seroquel, Tenex, Prozac, Zoloft, Zyprexa and Trileptal, as listed on DCFS
Exhibit 8.
Dr. John Simoneaux, a licensed psychologist, performed a forensic
psychological evaluation of Q’s medical records and all documentation
submitted by the DCFS and Henderson concerning Q. He wrote a 24-page
report on his observations during interviews and testing with Q and
Henderson on September 18 and 20, 2018, and October 31, 2018. He
reviewed all of the medical records that Henderson submitted regarding Q’s
hospitalizations.4 All of the hospital admissions began with multiple
diagnoses and symptoms as described by Henderson to the physicians and
administrators. Based on his experience,5 Dr. Simoneaux stated that he had
not seen any child who exhibited these many behaviors together as described
by Henderson. He stated that Q has been diagnosed with mental illnesses
that are diagnosed only in adults. Throughout the report, in which he
addressed the findings of each hospital, he warned that he could not tell
whether the doctors at the hospital actually observed Q behaving in these
ways or if they simply took Henderson’s word that Q typically behaves that
way.
4 These same medical records are the ones submitted by Henderson in support of her appeal of the valid determination of dependency.
5 Dr. Simoneaux’s experience included years of working in an in-patient psychiatric unit for adolescents and children, where he evaluated children and adults for trauma, abuse and, specifically, sexual abuse. 4 Dr. Simoneaux’s observation of Q was that he is a very bright and
sweet child and that he exhibited none of the behaviors attributed to him by
Henderson. His assessment of Q is that he was pleasant, cooperative and a
totally normal young male. He stated that Q laughed easily, was excited
about everything and was clearly intellectually quite able. Previous school
evaluations indicated that Q had high levels of intellectual achievement. Q
confirmed to him that his mother routinely made him say things had
happened that had not actually happened. The report also remarks that Q
“essentially said, rather shyly, that he believes that something might be
wrong with his mother. He seemed genuinely frightened at the idea that he
might have to go back to his mother.”
Dr. Simoneaux stated that there was nothing in his observations or in
his time with Q that would suggest the presence of virtually any of the
diagnoses that had been offered. He found that Q was certainly not
psychotic, and he appeared intelligent and articulate. He was not anxious or
depressed and, in fact, seemed happy. Although he admits he saw Q only
that one day, Q did not exhibit any signs of emotional distress or trauma that
his mother historically described.
Dr. Simoneaux also conducted testing and interviews with Henderson,
including the Minnesota Multiphasic Personality Inventory-2 test, which
returned with some troubling results. Based on her answers, he believed
there was a “good chance” that she suffered from a psychological disorder
that could “get in the way of her accurate view” of the circumstances. The
results of the testing he performed on her and some of her behaviors through
the course of the involvement with the DCFS “suggest that she may indeed
be delusional.” 5 Henderson’s witness, Dr. Lionel Guillaume, a psychiatrist, evaluated
her. He did not diagnose her but only reached an “impression” and found no
evidence of psychosis or mood disorder.
Dr. Simoneaux reviewed the documentation in the case and noted
there was an affidavit regarding a multidisciplinary team conference in
which Dr. Perry Hill participated. The affidavit stated that Dr. Hill reviewed
the records from one of the mental health care facilities to which Q had been
admitted, and it was his opinion that the child “is suffering from emotional
maltreatment by his adopted mother.” Based on the documents presented to
him at the team conference and Dr. Simoneaux’s notations, Dr. Hill further
opined that the child would stabilize while in the hospital but then would
regress upon return home.
At the end of Dr. Simoneaux’s report, he recommended to the DCFS
that they consider keeping Q in a foster care environment and away from
Henderson’s influence for a period of six months in order to observe
whether Q engaged in any of the behaviors described by Henderson. He
opined that the “sexual acting out, the chronic masturbation, and the
aggressive behaviors” should all be evident fairly soon if Henderson’s
accusations were correct. He stated that if those behaviors were not seen,
then Henderson’s assertions would be incorrect, and it could be assumed that
whatever had been reported in the past was the product of the interaction
between Q and Henderson and not necessarily that Q suffered from mental
illness.
For the period of February through May 2019, Q attended treatment
with Letrisha Walker, a therapist. Her treatment update noted that Q
presents as a well-adjusted child who is enjoying being a kid. She stated that 6 he participates in the session, makes good grades and does well at school,
and enjoys participating in sports. He continues to express his feelings of
not wanting to visit or be reunited with Henderson and, in fact, is adamant
about not wanting to return to her care. He also states that he is content with
being at the home of Reggie Hodge, his foster father.
After his removal on June 4, 2018, Q never returned to Henderson’s
care. Her parental rights were terminated after a September 23, 2019 trial in
Bossier Parish, and that termination was affirmed by this court in State in
Int. of J.D., 53,432 (La. App. 2 Cir. 2/5/20), 290 So. 3d 738.
Mr. Hodge reported that Q is experiencing great successes now that he
no longer lives with Henderson. He is enrolled in middle school in Bossier
City, is in the gifted program and was elected school president. He has
many friends, and there have been no reports of inappropriate behavior. He
only sees the doctor for regular wellness checkups and is no longer
prescribed daily medications. Mr. Hodge and his wife intend to adopt Q.
Following the hearing and his review of all the documents in this
matter, the ALJ ruled that the DCFS had met its burden of proof that the
determination of dependency was valid. Henderson appealed the
administrative decision to the Bossier Parish district court, which also
affirmed the ALJ’s judgment. Henderson now appeals those rulings.
DISCUSSION
Henderson’s only assignment of error is that the ALJ erred in ruling
that the DCFS met its burden of proof in finding that the determination of
dependency against her is valid. She argues that it is without dispute that
when Q entered her home, he presented with a myriad of psychological,
emotional and behavioral problems, which were caused by his biological 7 mother’s history of drug and alcohol abuse. She contends that despite the
volumes of Q’s medical history she provided to the DCFS and the ALJ, their
decisions were based on the testimony and report of Dr. Simoneaux. She
asserts that Dr. Simoneaux never treated Q and only saw him once and that
he “posited a false narrative” that if the child improved medically when he is
not in her home for an extended time, then it is she who is harmful to the
child.
Henderson also argues that the ALJ based his decision on the
professional opinion of Dr. Perry Hill, another person who had never treated
Q or her. She points out that Dr. Hill had even less of a basis of fact than
Dr. Simoneaux, yet his participation in a team meeting was mentioned in the
ALJ’s decision.
Henderson further argues that even though the DCFS might conclude
that another home would be “better” for Q’s emotional, physical and
developmental needs, that does not necessarily mean that his previous home
is bad or neglectful. She contends that the DCFS failed to meet its burden of
proof in this case.
The DCFS argues that it has the responsibility to investigate
allegations of child abuse and/or neglect and is the state agency which
maintains the repository and state central registry of valid abuse and/or
neglect findings. It contends that the caseworker’s well-documented,
thorough investigation justified the valid finding of dependency of this child.
The finding was made based upon statements of the victim, perpetrator and
collaterals in accordance with the DCFS policies, and there is clearly enough
evidence to justify the valid determination and affirm the ruling of the ALJ.
8 La. Ch. C. art. 616.1.1(A) concerns rights of appeal of a determination
of dependency and states, in pertinent part, as follows:
When a report alleging abuse or neglect is determined to be justified by the department, the individual who is or was the subject of the determination may make a formal written request to the division of administrative law for an administrative appeal of the justified determination, in accordance with the procedures set forth in Title 67 of the Louisiana Administrative Code.
When reviewing an administrative final decision in an adjudication
proceeding, the district court functions as an appellate court. Cox v. Sec’y,
Louisiana Dep’t of Health & Hosps., 41,391 (La. App. 2 Cir. 8/25/06), 939
So. 2d 550, writ denied, 06-2576 (La. 12/15/06), 944 So. 2d 1274. Once a
final judgment is rendered by the district court, an aggrieved party may seek
review by appeal to the appropriate appellate court. Id. On review of the
district court’s judgment, no deference is owed by the court of appeal to the
factual findings or legal conclusions of the district court, just as no deference
is owed by the Louisiana Supreme Court to factual findings or legal
conclusions of the court of appeal. Id. Thus, an appellate court sitting in
review of an administrative agency reviews the findings and decision of the
administrative agency and not the decision of the district court. Id.
The applicable standard of review is set forth in La. R.S. 49:964. Law
v. Dep’t of Health & Hosps., 43,417 (La. App. 2 Cir. 8/13/08), 989 So. 2d
871, writ denied, 08-2225 (La. 12/12/08), 996 So. 2d 1118. The trial court
and the court of appeal have the authority to reverse or modify the decision
of the agency if substantial rights of the party seeking review have been
prejudiced because the administrative findings, inferences, conclusions or
decisions are: (1) in violation of constitutional or statutory provisions; (2) in
excess of the agency’s statutory authority; (3) made upon unlawful 9 procedures; (4) affected by other error of law; (5) arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted exercise of
discretion; or (6) manifestly erroneous in view of the reliable, probative and
substantial evidence in the record. Id.
Dependency
DCFS investigates allegations of child abuse and neglect to determine
if there is a valid finding of abuse or neglect by an individual of a child.
DCFS Policy for the Office of Community Services, Chapter 4, Part 5,
Section 4-515; 67 La. Admin. Code Pt V, 1111. It has the burden of
proving by a preponderance of the evidence that its determination of a valid
finding of child neglect by dependency should be upheld. 67 La. Admin.
Code Pt V, 1111.F. 5. Its validity determination is a two-step process. The
first step is to determine whether an individual’s conduct met the definitional
requirements needed to make an “allegation determination.” If the
definitional requirements are met, then the second step is to determine
whether the conduct constituted a valid finding. Dependency is defined
under the DCFS Policy for Child Welfare, Chapter 4, Appendix 4-B, in
pertinent part, as follows:
Being without reasonable or necessary food, clothing, shelter, medical care, supervision or other care, or without parental care or guardianship, as a result of the severe mental illness, chronic physical illness or physical disability, mental retardation, death, incarceration, chemical abuse, or other condition related to the parent’s ability to care for the child.
The investigation performed by the DCFS resulted in a collection of
documents, interviews of witnesses and statements by physicians and
therapists proving, by a preponderance of the evidence, that Henderson is
unable to reasonably care for Q and unable to attend to his medical,
10 emotional and developmental needs. The DCFS proved that Henderson was
not meeting Q’s needs and, in fact, was severely harming him, causing him
to be placed in mental hospitals and forced to take drugs because of behavior
she provoked or fabricated. Q’s behavior as noted by Henderson was so
bizarre that Dr. Simoneaux stated that he had never seen a person with that
many diagnoses, some of which were not even given to children. Once the
DCFS removed Q from her care, he improved quickly—medically,
emotionally, developmentally and socially. He exhibited none of the
aberrant behaviors about which Henderson had complained for years. He
was able to eliminate his medications; attend school without any problems;
and, in fact, thrive by making excellent grades, making friends and
participating in sports.
To further meet the definition of “dependency,” the DCFS was
required to also prove that Q’s lack of medical care, supervision or other
care, or being without parental care or guardianship, was due to the “severe
mental illness, physical illness or physical disability” or other condition
related to the parent’s ability to care for him. Through Dr. Simoneaux’s
evaluation and testing of Henderson, he found she suffered from a
psychological disorder that could “get in the way of her accurate view” of
the circumstances. He also opined that the results of the testing he
performed on her suggested she might be delusional.
Valid Determination
The DCFS policy for Office of Community Services, Chapter 4,
Part 5, states that when determining whether allegations of child abuse and
neglect are valid, the following standards apply:
11 The available facts when viewed in light of surrounding circumstances would cause a reasonable person to believe that the following exists:
(a) An act or physical or mental injury which seriously endangered a child’s physical, mental or emotional health or safety; or
(b) A refusal or unreasonable failure to provide necessary food, clothing, shelter, care, treatment or counseling which substantially threatened or impaired a child’s physical, mental, or emotional health and safety; . . . and,
(c) The direct or indirect cause of the alleged injury, harm, or extreme threat of harm is a parent.
If the answers to (a) or (b) and (c) are “yes,” then the allegation is valid.
We agree that the DCFS met its burden of proof in showing by a
preponderance of the evidence that it validly made a determination of
neglect based on dependency. Henderson’s actions seriously endangered
Q’s physical, mental and emotional health and safety; and the direct cause of
the injury was her behavior, possibly caused by her own mental health
issues.
This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, we affirm the decision of the ALJ finding
that the DCFS proved the evidence met its policy requirements for making a
valid determination against Henderson of neglect based on dependency.
Costs of this appeal are assessed to Defendant Fregener Davis Henderson.
AFFIRMED.