State ex rel. I.B.W.

124 So. 3d 567, 13 La.App. 3 Cir. 517, 2013 WL 5539160, 2013 La. App. LEXIS 2069
CourtLouisiana Court of Appeal
DecidedOctober 9, 2013
DocketNo. 13-517
StatusPublished
Cited by2 cases

This text of 124 So. 3d 567 (State ex rel. I.B.W.) 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. I.B.W., 124 So. 3d 567, 13 La.App. 3 Cir. 517, 2013 WL 5539160, 2013 La. App. LEXIS 2069 (La. Ct. App. 2013).

Opinion

AMY, Judge.

|,The State sought to take the appellant’s newborn into State custody on the basis that the mother had continuing dependency problems and had not been progressing on her already-extant case plan. At the hearing on that order, the mother moved to dismiss based on the failure to hold a continued custody hearing within three days. The trial court denied the motion. The mother also objected to the trial court’s consolidation of the instant case with the pending case concerning her two other children. The trial court also denied that motion and consolidated the two cases. The mother appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, two of A.V.’s minor children, G.K. and C.S.,1 were previously placed in foster care. A child-in-need-of-care case under docket number J-2674 is pending concerning G.K. and C.S. In February of 2013, A.V. gave birth to I.B.W. Shortly thereafter, the Department of Children and Family Services responded to a report that A.V. had a substance dependency problem. After investigating the report, the State sought an instanter order. Under docket number J-2737, the trial court granted that order on February 28, 2013, and ordered that I.B.W. be taken into temporary State custody. A contin[569]*569ued custody hearing was scheduled for March 6, 2013.

At the continued custody hearing, A.V. moved to dismiss the proceedings on the basis that the continued custody hearing was not held within the three-day period prescribed by La.Ch.Code art. 624. The trial court denied that motion. On its own motion, the trial court consolidated the instant matter, J-2737, with docket 12number J-2674. A.V. objected to the consolidation, and her objection was overruled by the trial court.

A.V. appeals. Although A.V. has not formally specified any assignments of error, she asserts that 1) the trial court erred in failing to dismiss the case and 2) that the evidence is insufficient to support a finding that I.B.W. is a child in need of care.

Discussion

Motion to Dismiss

Pursuant to La.Ch.Code art. 624(A), “[i]f a child is not released to the care of his parents, a hearing shall be held by the court within three days after the child’s removal or entry into custody.” That time is calculated as follows:

A. In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event, or default after which the period begins to run is not to be included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.
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D. All Saturdays and Sundays are also considered as legal holidays.

La.Ch.Code art. 114.

According to the record, the instanter petition was signed on February 28, 2013, a Thursday. The application of La. Ch.Code art. 114 indicates that the third day following the child’s entry into custody would have been Tuesday, March 5. However, the continued custody hearing was not held until Wednesday, March 6.

We observe that the record contains references indicating that the delay was partly attributable to the recusal of one of the trial court judges. Further, La.Ch.Code art. 624(B) provides that, after notice to all parties and a showing of |sgood cause, the trial court may continue the continued custody hearing for up to three days “in accordance with the best interests of the child.” We also note that A.V. was provided with a full hearing on the continued custody of I.B.W., as required by La.Ch. Code art. 624. Finally, the State has indicated in its brief that,' if the matter were dismissed, the State would seek another instanter order. Thus, with respect to the facts of this particular case, we find that any error in holding the continued custody hearing on Wednesday, March 6, rather than Tuesday, March 5, requires no correction on appeal.

Insufficiency of Affidavit

A.V. also complains that there was insufficient evidence in the affidavit in support of the instanter order and insufficient evidence produced at the continued custody hearing to support a finding that I.B.W. was a child in need of care. Louisiana Children’s Code Article 626(A) states that “[t]he court may authorize continued custody of a child prior to adjudication if there are reasonable grounds to believe the child is in need of care and that continued custody is necessary for his safety and protection.” In State in the Interest of P.J., 47,550, pp. 10-11 (La.App. 2 Cir. 9/12/12), 104 So.3d 517, 522-23, the second circuit discussed the appellate review of juvenile matters, stating:

An appellate court cannot set aside a juvenile court’s findings of fact in the [570]*570absence of manifest error or unless those findings are clearly wrong. Allerton v. Broussard, 10-2071 (La.12/10/10), 50 So.3d 145; In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47; State ex rel. J.B., 35,032 (La.App.2d Cir.5/9/01), 794 So.2d 899. Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court. In re A.J.F., supra; Rosell v. ESCO, 549 So.2d 840 (La,1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In order to reverse.a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does[4not exist for the finding, and if such a basis does exist, (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Allerton, supra; Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); State ex rel. D.H., 04-2105 (La.App.1st Cir.2/11/05), 906 So.2d 554.

Pursuant to La.Ch.Code art. 606, allegations that a child is in need of care must include one or more of the following grounds, in relevant part:

(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.

Abuse and neglect are defined in La.Ch. Code art. 603. “Abuse” is defined as “any one of the following acts which seriously endanger the physical, mental, or emotional health and safety of the child[.]” La.Ch. Code art. 603(1). As relevant here, those acts include “[t]he infliction, attempted infliction, or, as a result of inadequate supervision, the allowance of the infliction or attempted infliction of physical or mental injury upon the child by a parent or any other person.” Id.

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Related

State ex rel. S.C.
217 So. 3d 642 (Louisiana Court of Appeal, 2017)
State ex rel. G.E.K.
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State in the Interest of I. B. W.
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State in the Interest of G. E. K. & C. E. S.
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Bluebook (online)
124 So. 3d 567, 13 La.App. 3 Cir. 517, 2013 WL 5539160, 2013 La. App. LEXIS 2069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ibw-lactapp-2013.