In re State ex rel. T.H.

561 So. 2d 904, 1990 La. App. LEXIS 1180, 1990 WL 60943
CourtLouisiana Court of Appeal
DecidedMay 9, 1990
DocketNos. 21864-JA, 21865-JA
StatusPublished
Cited by2 cases

This text of 561 So. 2d 904 (In re State ex rel. T.H.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re State ex rel. T.H., 561 So. 2d 904, 1990 La. App. LEXIS 1180, 1990 WL 60943 (La. Ct. App. 1990).

Opinion

LINDSAY, Judge.

This is an action concerning the custody of two children, C.B. and T.H. We affirm the juvenile court judgment placing the custody of C.B. and T.H. with the State, Through the Department of Social Services, and confirming the State’s placement of physical custody of the children with the maternal grandparents.

FACTS

C.B. was born December 11, 1983 and is the illegitimate daughter of S.H. S.H., now approximately 21 years old, married R.H. on January 29, 1985. On May 26, 1986, T.H. was born of this union. In August, 1986, C.B. began telling relatives that her stepfather, R.H., burned her with cigarettes, pulled her hair, put hot sauce in her eyes, dipped her feet in hot water and sexually abused her. At one point, C.B. suffered a dislocated elbow. Her mother and stepfather could offer no explanation for this injury.

In addition to the statements made by C.B. about her abuse, the maternal grandparents also observed that T.H. had suspected cigarette burn marks on her legs.

These instances of suspected abuse were reported to the Department of Social Services on December 4, 1987. The Department refused to reveal the identity of the person who made the record. However, the record was investigated. Based upon this investigation, the State filed a verified complaint alleging that the children had been abused and that they were children in need of care. On December 10, 1987, pursuant to a juvenile court order, C.B. and T.H. were removed from the custody of S.H. and R.H. At the time, both children were placed in the actual custody of the maternal grandparents.

On January 12, 1988, the State, through the Department of Social Services, filed a petition to have the children adjudicated in need of care. The maternal grandparents of the children filed a petition of intervention, seeking to be designated the domiciliary custodians of the children.

A hearing was conducted in the juvenile court on February 19, 1988 and March 28, 1988. On March 28, 1988, based upon the evidence adduced at the hearing, the juvenile court found that the State had shown by a preponderance of the evidence that both children were at risk with S.H. and R.H. Therefore, the court adjudicated the children to be in need of care. The court then ordered that psychological evaluations be performed on the children and the adults involved. Domiciliary custody of the children was placed with the maternal grandparents, pending a dispositional hearing.

In August, 1989, a dispositional hearing was held. The paternal grandparents of T.H. appeared and also sought the domiciliary custody of the children. They were [906]*906represented by counsel at the dispositional hearing, but the record does not reflect that a petition of intervention was ever filed on their behalf nor does it appear that counsel formally enrolled to represent these parties.

Evidence was adduced at the dispositional hearing. At the conclusion of the hearing, the court rendered an oral opinion in open court, finding the children to be in need of care.

The juvenile court noted that S.H. and R.H. had not sought therapy or taken any action to address the problems which resulted in the removal of these children from their custody. The court found that returning the children to S.H. and R.H. would pose an unreasonable risk to the children. The court noted that there was a great deal of animosity between the grandparents. The court also observed that the paternal grandparents were living in the state of Texas. The court found that placing custody of the children with these grandparents would cause the State of Louisiana to be at a disadvantage in carrying out its responsibility to supervise the placement of the children. The court reasoned that by placing the children with the maternal grandparents, the State would be better able to supervise the treatment and counseling of the parents and the placement of the children.

The court found that the children had been living with the maternal grandparents since this litigation began. The court found that the children were bonded to them, and to take them away at this point would simply cause additional trauma.

Based upon all these factors, the juvenile court found that the children continued to be in need of care. The court found that it was in the best interest of the children to continue custody in the Department of Social Services of the State of Louisiana with authority to place the children in the physical care of the maternal grandparents.

Accordingly, on October 4, 1989, formal judgments were signed by the -juvenile court holding that T.H. and C.B. continue to be children in need of care and custody of the children was continued in the State of Louisiana. The State’s action in placing the children with the maternal grandparents was confirmed.

The parents, S.H. and R.H., have appealed the juvenile court judgment, arguing the court erred in finding that T.H. and C.B. were in need of care. They also contend that authorizing the State to place custody of the children with the maternal grandparents was not in the best interest of the children.

CHILDREN IN NEED OF CARE

The parents, S.H. and R.H., argue that the trial court erred in finding that the children, C.B. and T.H., were in need of care. This argument is meritless.

LSA-C.J.P. Art. 13(14)(a) defines “child in need of care” as a child:

(a) Whose parent inflicts, attempts to inflict, or, as a result of inadequate supervision, allows the infliction or attempted infliction of physical injury or sexual abuse upon the child which seriously endangers the physical, mental or emotional health of the child.

A juvenile court determination as to whether a child is in need of care is obtained by filing a petition alleging that the child is in need of care, and holding an adjudication hearing. LSA-C.J.P. Art. 45-72.

If a petition requests that the child be adjudicated a child in need of supervision or a child in need of care, the state shall prove the allegations of the petition by a preponderance of the evidence. LSA-C. J.P. Art. 73. Proof is sufficient to constitute a preponderance when the evidence, taken as a whole, shows that the existence of the facts sought to be proven are more probable than not. Duncan v. Department of Public Safety, 468 So.2d 797 (La.App. 1st Cir.1985).

In the present case, the record supports the trial court finding that C.B. and T.H. were children in need of care. In August, 1986, C.B. began telling her maternal grandparents, as well as an aunt, a great aunt and a cousin, that her stepfather, R.H., had physically and sexually abused [907]*907her. C.B. had numerous marks on her legs and feet which were suspected cigarette burns. The maternal grandmother also noted that C.B. had some swelling and redness in her genital area at the time these complaints were made.

T.H. had circular marks on her legs and feet which were suspected to be cigarette burns. ST.H. also had a linear burn on her leg which was determined to be caused by accidental contact with an electric heater.

A complaint was made to the State on December 4, 1987. This complaint was investigated by Mr. Doug Hubbart, a social worker with the Department of Health and Human Resources, who testified at the hearing to determine if the children were in need of care. Mr. Hubbard interviewed S.H. and R.H., the maternal grandparents, and other family members to whom C.B.

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State ex rel. L.M.
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795 So. 2d 414 (Louisiana Court of Appeal, 2001)

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Bluebook (online)
561 So. 2d 904, 1990 La. App. LEXIS 1180, 1990 WL 60943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-state-ex-rel-th-lactapp-1990.