State in the Interest of C.H.

• Court: Louisiana Court of Appeal
• Decided: September 27, 2006
• Docket: JAC-0006-0336
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

06-336

STATE OF LOUISIANA

IN THE INTEREST OF C.H.

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APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF ACADIA, NO. JC-3986, HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

MICHAEL G. SULLIVAN JUDGE

Court composed of Sylvia R. Cooks, Michael G. Sullivan, and Glenn B. Gremillion, Judges.

REVERSED AND REMANDED.

L. Antoinette Beard 825 Kaliste Saloom Road Brandywine I, Room 218 Lafayette, Louisiana 70508 (337) 262-1555 Counsel for Appellant: State of Louisiana, Department of Social Services

James D. Landry Attorney at Law Post Office Box 1368 Crowley, Louisiana 70527 (337) 788-1850 Counsel for Appellee: E. H. Brett A. Stefanski Attorney at Law Post Office Drawer 730 Crowley, Louisiana 70527-0730 (337) 783-7000 Counsel for Appellee: C. H.

Thomas B. Harrington, Jr. Attorney at Law Post Office Drawer B Crowley, Louisiana 70527 (337) 783-8580 Counsel for Appellee: L. T. SULLIVAN, Judge.

The State of Louisiana appeals the trial court’s division of legal custody and

physical custody of a child between the Department of Social Services and one of the

child’s parents. We reverse.

Facts

The minor, C.H., came into the custody of the Louisiana Department of Social

Services (State) on October 28, 2004, by an Oral Instanter Order that was confirmed

in writing the following day. Subsequently, C.H. was adjudicated a child in need of

care.

Three review hearings were held on April 11, 2005, October 17, 2005, and

December 5, 2005. C.H. was continued in the custody of the State at the first hearing.

At the October 17 hearing, the trial court ordered that C.H. “be continued in the

custody of the [State] for the next six months.” However, the trial court also ordered

that “physical custody of [C.H.] is placed with her father at the beginning of the

Christmas school holiday in December.” Thereafter, at the hearing held on

December 5, the trial court again ordered that the legal and physical custody of C.H.

be split, maintaining legal custody of the child with the State until February 13, 2006,

but granting physical custody of the child to the father as of December 17, 2005. The

trial court further ordered that the legal custody of C.H. be placed with her father on

February 13, 2006.

On December 15, 2005, the State filed a “Notice of Intent to Apply for

Supervisory Writs” and a “Motion and Order to Stay Pending Application for

Supervisory Writs.” The trial court denied the State’s request for a stay. The State

timely filed a writ application with this court on January 13, 2006, which was denied. See State of Louisiana in the Interest of C.H., an unpublished writ bearing docket

JWC 06-47 (La.App. 3 Cir. 1/30/06). This appeal followed.

Discussion

The basis of this appeal is La.Ch.Code art. 672(B) which provides in pertinent

part: “The court shall not divide legal and physical custody whenever assigning

custody to a department in accordance with this Article, Articles 619, 622, 627, 681,

700, or 716, or any other statute or provision of law.” This court upheld the mandate

of Article 672 in N.B. v. State Department of Social Services, 94-647 (La.App. 3 Cir.

11/2/94), 649 So.2d 591, observing that Article 672 was amended after the Fourth

Circuit Court of Appeal held in State in the Interest of M.L., 611 So.2d 658 (La.App.

4 Cir. 1992), writ denied, 613 So.2d 977 (La.1993), that the legal and physical

custody of a child in the custody of the State could be divided between the State and

another party. This court held: “Article 672 as amended no longer permits a division

of legal and physical custody to a department in accordance with Article 672, Article

619, 681, 700 or 716 or, any other statute or provision of law.” N.B., 649 So.2d at

592.

The trial court’s judgment assigning legal custody to the State and physical

custody to the father violates the mandate of Article 672(B) and must be reversed.

Disposition

The judgment of the trial court is reversed, and this case is remanded for further

proceedings in accordance with this opinion.