State ex rel. D.H.

906 So. 2d 554, 2004 La.App. 1 Cir. 2105, 2005 La. App. LEXIS 216, 2005 WL 327796
CourtLouisiana Court of Appeal
DecidedFebruary 11, 2005
DocketNo. 2004 CJ 2105
StatusPublished
Cited by15 cases

This text of 906 So. 2d 554 (State ex rel. D.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
State ex rel. D.H., 906 So. 2d 554, 2004 La.App. 1 Cir. 2105, 2005 La. App. LEXIS 216, 2005 WL 327796 (La. Ct. App. 2005).

Opinion

LWELCH, J.

In this case, Darlene H. (“the mother”) appeals from the juvenile court’s adjudication of her minor child (“D.H.”) as a child in need of care. Finding that the State of Louisiana, through the Department of Social Services, Office of Community Services (“the State” or “OCS”), failed to meet its burden of proof that D.H. was a child in need of care and that the juvenile court’s judgment adjudicating D.H. as a child in need of care was not supported by the evidence, we reverse.

[557]*557I. FACTUAL AND PROCEDURAL HISTORY

These proceedings were initially commenced on May 5, 2004, when OCS received a report of alleged neglect by the mother concerning D.H., a male born on June 24, 1996.1 As a result of this report, Robin Bickham, a Child Protection Investigator with OCS (“the investigator”), commenced an investigation into the matter.

Thereafter, OCS, through the investigator, obtained an oral instanter order placing D.H. in the temporary custody of OCS at 11:08 a.m. on May 14, 2004. The written, instanter order with supporting affidavit by the investigator was subsequently filed at 1:55 p.m. on the same date, although not signed by the juvenile court until May 17, 2004.

Thereafter, a continued custody hearing was held on May 18, 2004. The State called the investigator as its only witness. Darlene H. testified on her own behalf, as did her mother, M.R.C., and A.H., a fourteen-year-old neighbor whom Darlene H. frequently used to baby sit D.H. At the conclusion of testimony, the juvenile court found “probable cause” existed and continued custody of D.H. with the State. An order of continued custody was signed on May 24, 2004, finding treasonable grounds to believe that D.H. was in need of care and that continuing custody with the State was necessary for his safety and protection.

Thereafter, on June 7, 2004, the State, through the district attorney, filed a petition to have D.H. declared a child in need of care. In this petition,- the State alleged, “[t]hat due to lack of appropriate supervision, the mother has placed her son at risk of harm,” and requested that the juvenile court adjudicate D.H. as a child in need of care. A hearing to answer the State’s petition was held on the same date, wherein the mother denied the allegations. The juvenile court then set both the adjudication hearing and dispositional hearing for July 6, 2004. The mother’s written answer and the order setting the matter for hearing were filed on July 14, 2004 and signed by the juvenile court on July 16, 2004.

At the adjudication hearing on July 6, 2004, the State called the investigator as its only witness. Portions of the investigator’s testimony were admitted over the hearsay objection of the mother. Darlene H, testified on her own behalf. After hearing the testimony of these two witnesses, the juvenile court adjudicated D.H. a child in need of care, but ordered the State to reinvestigate the matter to find out if there were other supporting witnesses to the conduct reported to OCS. The juvenile court rendered judgment of disposition continuing custody of D.H. with the State; approving the OCS case plan dated June 9, 2004, with the goal of reunification; placing D.H. in a certified foster home; ordering liberal visitation between D.H. and his mother; and ordering the mother to submit to a drug screen following the hearing. A review of the disposition was set for November 8, 2004. The juvenile court signed a written judgment to this effect on August 12, 2004, and it is from this judgment that Darlene H. appealed.

II. ASSIGNMENTS OF ERROR

In her appeal the mother assigns as error that: (1) the State’s petition did not allege proper grounds under La. Ch.C. art. 606 to declare D.H. a child in need of Reare, nor did it set forth the specific acts or omissions of the parent as required by Article 634; (2) the juvenile court abused its discretion in adjudicating D.H. a child [558]*558in need of care; and (3) the juvenile court erred in admitting hearsay testimony of the investigator at the adjudication hearing.

III. SUFFICIENCY OF THE STATE’S PETITION

Through her first assignment of error, the mother questions the legal sufficiency of the State’s petition to adjudicate D.H. as a child in need of care. The procedural means by which to question the legal sufficiency of a pleading is through the peremptory exception raising the objection of no cause of action. City of New Orleans v. Board of Commissioners of Orleans Levee District, 93-0690 (La.7/5/94), 640 So.2d 237. The record does not reflect that the mother raised the objection of no cause of action before the juvenile court, but this does not preclude the mother from raising the objection of no cause of action before this Court.2 However, the exception is not properly before this Court because the mother did not file a pleading with this Court urging it as required by Uniform Rules — Courts of Appeal, Rules 2-7.2 and 2-7.3. Rather, the mother raised the issue of the legal insufficiency of the State’s petition to state a cause of action for the first time in her appellate brief. A brief, including an appellate brief, is not a pleading. Williams v. State, Department of Health and Hospitals, 95-0713 (La.1/26/96), 671 So.2d 899, 902. Accordingly, we find Darlene H.’s objection to the legal sufficiency of the petition has not been properly presented to this Court.

Although the peremptory exception of no cause of action may be noticed by either the trial court or the appellate court on its own motion,3 this Court declines to do so in this case. While we find, and discuss below, the reasons why the State’s petition to adjudicate D.H. a child in need of care is statutorily deficient, |fiwe find a reversal of the juvenile court’s judgment is equally warranted on other grounds as detailed herein.

Louisiana Children’s Code article 606 sets forth the grounds on which a child can be found a child in need of care, and it provides 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 [559]

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Bluebook (online)
906 So. 2d 554, 2004 La.App. 1 Cir. 2105, 2005 La. App. LEXIS 216, 2005 WL 327796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-dh-lactapp-2005.