State ex rel. of E.P.

776 So. 2d 1255, 0 La.App. 4 Cir. 0539, 2000 La. App. LEXIS 3434, 2000 WL 1874091
CourtLouisiana Court of Appeal
DecidedDecember 20, 2000
DocketNo. 2000-CA-0539
StatusPublished

This text of 776 So. 2d 1255 (State ex rel. of E.P.) 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. of E.P., 776 So. 2d 1255, 0 La.App. 4 Cir. 0539, 2000 La. App. LEXIS 3434, 2000 WL 1874091 (La. Ct. App. 2000).

Opinion

LPLOTKIN, Judge.

This appeal arises from the juvenile court’s denial of a motion filed by the State of Louisiana, Department of Social Services, Office of Community Services (hereinafter “OCS”) seeking modification of a prior court order in this “Child in Need of Care” proceeding. For the reasons detailed below, we affirm.

Facts

The child at issue in this case, E.P., was adjudged a “Child in Need of Care” by the Orleans Parish Juvenile Court on September 24, 1998, when her mother, C.L., stipulated to the allegations of the “Child in Need of Care” petition. That petition, which was filed by the OCS, alleged that E.P. was an abused and neglected child, and that her treating physician at DePaul Hospital, from which she was about to be discharged, recommended out-of home placement because she had threatened suicide if required to return to her mother’s home. The petition also alleged that E.P.’s mother was emotionally abusive towards the child, and that E.P.’s parents had failed to provide her with necessary food, clothing, shelter, medical care, or supervision. However, according to the petition, E.P.’s mother, 13who had sole custody, refused to cooperate with OCS’s efforts to place the child with relatives.

On December 16, 1998, the juvenile court, following a status review of this matter, instructed OCS to pursue overnight visitation of the child with her mother, stating as follows: “if overnight [1257]*1257visitation goes well, OCS is to pursue reunification with the mother with six (6) months supervision.” According to an April 26, 1999, report from OCS, visitation between E.P. and her mother began in December of 1998, but did not go well. Thereafter, on January 15, 1999, E.P. started living with her maternal grandmother.

On April 27, 1999, following a Permanency Planning Review Hearing, the juvenile court ordered that E.P. remain in placement with her grandmother, but that she remain in the legal and physical custody of OCS. The court noted at that time that the OCS/DSS Permanency Plan was to transfer custody to E.P.’s maternal grandmother. Nevertheless, the court ordered E.P. to attend counseling and psychotherapy to prepare her for return of placement and custody to her mother. Noting that E.P.’s mother had been in substantial compliance with the court’s orders and the caseplan for re-unification, the court authorized weekly visitation between E.P. and her mother, including overnight visitation on weekends.

On June 8, 1999, the OCS filed a “Motion to Modify Judgment of Disposition,” seeking the immediate cessation of unsupervised weekend visitation by E.P. in her mother’s home. The motion alleged that conflict between E.P. and her mother had escalated into physical altercations during the last two weekend visits, resulting in E.P.’s mother calling the police and ambulances. Thereafter, on August 18, 1999, the juvenile court held another Permanency Planning Review Hearing, after which it granted legal and physical custody of E.P. to her maternal ^grandmother, subject to OCS supervision. The court also noted that the permanency plan offered by OCS was to transfer custody to E.P.’s maternal grandmother, and stated “the court now agrees with said permanency plan.” The juvenile court also appointed Court Appointed Special Advocate (hereinafter “CASA”) to the case. Noting that E.P.’s mother had been in moderate compliance with the court’s orders and the case plan for re-unification, the court ordered twice weekly visitation between E.P. and her mother, but no overnight visitation.

On December 2, 1999, OCS filed the “Motion to Modify Judgment of Disposition” that resulted in the juvenile court judgment at issue in this appeal. That motion stated, in pertinent part, as follows:

And that since the time of the last Court hearing, the following conditions and circumstances have arisen that would justify modification of the court’s Judgment, to-wit: During the most recent visit between the above noted child and her mother, which was supervised by two OCS case managers, conflict between the two escalated into a physical altercation and the police were called. [E.P.] continues to reside with her maternal grandmother, to whom custody was granted at the August 18, 1999 hearing, without incident and is not at risk in her custody.
Mover desires that the Judgment in the above entitled and numbered case be therefore modified in the following respects, to-wit: The supervised visitation by [E.P.] in her mother’s home is to cease immediately. [E.P.] is to remain in her grandmother’s custody, OCS is to be relieved of all responsibility for supervision and this case is to be placed on inactive status.

At the hearing on the motion to modify, the OCS presented the testimony of Brenda Banks, the OCS case worker who supervised some 20 visits between E.P. and her mother between August 18 and November 17, 1999. Ms. Banks testified that the interaction between the two was “varied,” but that she did not see any significant improvement in E.P.’s relationship to her mother. Ms. Banks noted that she could not recommend that E.P. move back with her mother any time in the “near future.”

|,Next, Mary Nixon, another OCS case worker, testified. Ms. Nixon had super[1258]*1258vised only one visit between E.P. and her mother, the November 22, 1999, visit that gave rise to the motion to modify. Ms. Nixon noted that the incident began when E.P. was disciplined by her mother for throwing rocks at her younger sister; the mother told E.P. that she could not watch television. Later in the evening, on Ms. Nixon’s request, E.P.’s mother asked E.P. to give her the telephone so she could call E.P.’s grandmother to remind her to pick E.P. up on time. E.P. refused to get off the telephone and give it to her mother. The mother unplugged the telephone, but E.P. still refused to give the telephone to either her mother or Ms. Nixon. Eventually, E.P. and her mother became involved in a physical altercation over the telephone. Moreover, E.P. hit her mother, cursed her mother, and called her mother names. The mother called the police. While waiting for the police, E.P. rubbed her wrist against the floor. Ms.' Nixon also noted that E.P. was not offered food or given gifts when the other children were during that visit. However, it was Ms. Nixon’s opinion that E.P. had an “attitude,” and that the family simply chose to go on with what they were doing.

Lillian Davis, the CASA volunteer assigned to E.P., testified that E.P.’s placement with her grandmother was “positive.” Ms. Davis had visited E.P. at her grandmother’s house about four times, and felt that E.P. was not at risk living there. She stated her opinions that remaining with her grandmother was in E.P.’s best interest and that no progress had been made in E.P.’s relationship with her mother. Moreover, CASA supervisor Mrytis Thompson testified that E.P. was not at risk with her grandmother, and that no “incidents” had occurred with the grandmother.

[^Finally, E.P.’s grandmother testified that she had rules for E.P. and that E.P. abides by her rules. However, on cross-examination, she admitted that E.P. had gotten her ears pierced for the third time while living with her, despite the fact she knew that neither her mother nor her grandmother approved.

Following the hearing, the juvenile court denied the motion to modify. After briefly reciting the history of this case, the juvenile court stated as follows:

Now, we’ve had other hearings in this case.

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Bluebook (online)
776 So. 2d 1255, 0 La.App. 4 Cir. 0539, 2000 La. App. LEXIS 3434, 2000 WL 1874091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-of-ep-lactapp-2000.