State ex rel. C.J.K.

774 So. 2d 107, 2000 La. LEXIS 3040
Supreme Court of Louisiana·Decided November 28, 2000·No. Nos. 00-CJ-2375, 00-CJ-2504·Published·Cited by 28 cases

Opinion

|, TRAYLOR, J.

We granted a writ of certiorari to determine whether the court of appeal correctly reviewed the trial court’s ruling in a proceeding to terminate parental rights. We conclude that the court of appeal erred in reversing the trial court’s finding by clear and convincing evidence that the children had been abused or neglected which had resulted in life-threatening and gravely disabling psychological injuries to the children. Accordingly, we reverse the judgment of the court of appeal and remand to the trial court for further proceedings on an expedited basis.

FACTS AND PROCEDURAL HISTORY

R.K. and J.K. were in a relationship for approximately eight years prior to January 1997, the last five during marriage. C.K., a male child, was born July 21, 1991, and K.K., a female child, was born November 2, 1992. According to J.K., R.K. began to frequently and violently abuse her the day they were married. Unfortunately, the children often witnessed this abuse.

J.K. obtained several restraining and protective orders against R.K. and attempted to have him arrested for the abusive behavior on numerous occasions. However, J.K. testified that R.K. often violated the restraining and protective orders. She further complained that sometimes the sheriffs department would not pick her husband up when he violated the court orders or when she reported his abuse. However, J.K. acknowledged that she repeatedly returned to R.K. after filing the protective orders, and failed to pursue contempt of court proceedings for his violation of the protective orders. Additionally, she acknowledged that no divorce proceedings were initiated.

li>On January 22, 1997, R.K. again became abusive toward J.K., but she escaped [109] to the Calcasieu Women’s Shelter. She left the children with R.K., but when she returned, neither R.K. nor the children were present in the home. Some two weeks later, R.K. telephoned J.K. twice, informing her first that he had hurt the children, and then, that he had killed them. Actually, R.K. had spanked the children with a paint stick sufficiently hard to leave bruises.

Following the spanking incident, the children were returned to J.K. at the Cal-casieu Women’s Shelter. While at the shelter, the Sheriffs office responded to her complaint and took pictures of the children’s injuries. Subsequently, she and the children went to stay with a Mend. According to J.K., despite having a restraining order issued against him, three or four times a week R.K. would enter the property where she and the children were staying. Because law enforcement failed to help her keep R.K. away, and purportedly based on law enforcement’s advice, J.K. called child protection services in March of 1997 and voluntarily surrendered her children for their protection.

On March 26, 1997, Cheryl James, a Child Protection Investigator for the State’s Department of Social Services, Office of Community Services (OCS), sought and obtained an oral instanter order from a judge of the Fourteenth Judicial District Court in Calcasieu Parish to take K.K. and C.K. into protective custody. In her affidavit in support of the instanter order, Ms. James recited the following investigated facts:

The father, [R.K.] spanked the children with a paint stick and left bruises on their buttocks and he does not have the ability to care for the children due to chemical abuse and/or mental illness.
The mother, [J.K.] is unable to protect the children from further harm by the father and herself. Further, [J.K’s] mental state has deteriorated drastically in the last few months.
The agency’s contacted the paternal grandmother who refused to get involved and the agency was unable to locate relatives in Texas.

After issuing the oral instanter order, the trial court set a continued custody hearing for April 1, 1997. At the April 1 hearing, the State, through the District Attorney’s office, filed a petition requesting an adjudication that the “children are Physically Abused and Neglected Children in Need of Care ... and further, that a date and time should be fixed by this Court for a hearing on this matter.” 1 Attached to the petition was the same affidavit submitted in support of the instanter order, Land a “parental notice” advising J.K. of the seriousness of the suit filed against her, and her right to an attorney.2 J.K. was not represented by counsel at the [110] hearing. When asked by the judge whether she wanted an attorney, she replied “no, sir.”

The trial court issued a judgment maintaining custody with OCS, and adjudicating the children as “Physically Abused and Neglected Children in Need of Care, pursuant to Title VI of the Louisiana Children’s Code, and by virtue of admission to the allegations in the petition.” Subsequently, at the dispositional hearings held on May 1 and September, 1997, the trial court rendered judgment maintaining custody of the two children with OCS and approving, the OCS case plan goal of family reunification.

Pursuant to the OCS case plan, J.K. underwent a psychological evaluation by Dr. Sam Williams, a clinical psychologist. Specifically, Dr. Williams evaluated J.K. on May 14, 1997, and concluded that she was suffering from chronic depression, present since childhood. According to Dr. Williams, J.K. was abandoned by her mother at the age of seven months and adopted at the age of two years. J.K’s adoptive father was physically abusive to her, and her mother was mentally and emotionally abusive. Additionally, Dr. Williams believed that J.K. was suffering from a chronic self-defeating personality disorder. According to Dr. Williams, J.K. “[had] come to believe that she kind of deserves the worst in life.” In terms of strengths, Dr. Williams found that J.K. was an intelligent, sensitive woman who had a legitimate concern for her children.

Using Dr. Williams’ evaluation conclusions, OCS authorized twelve therapy sessions with Dr. Ann Pittman Menou, another clinical psychologist, between July and December of 1997. J.K. 14missed two of her therapy sessions, and, when the sessions ended, Dr. Menou found that she was making progress in facing her problems. However, Dr. Menou advised OCS that the twelve sessions were not enough. OCS refused to authorize additional therapy, but offered to refer J.K to therapy available at minimal cost for additional treatment. J.K. refused the referral and instead sought psychiatric treatment with Dr. Paul Matthews.3

At the third and fourth dispositional review hearings on April 24 and September 9, 1998, OCS changed its case plan goal from reunification to relative placement. The trial court approved this new case plan goal and continued the children in the custody of OCS. Additionally, the judgment from the September 9 hearing ordered court-appointed counsel for J.K.

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State ex rel. C.J.K., 774 So. 2d 107, 2000 La. LEXIS 3040 (La. 2000).

774 So. 2d 107 (State ex rel. C.J.K.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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