State in the Interest of D.A., D.G., D.G., D.D., and Z.K.

• Court: Louisiana Court of Appeal
• Decided: August 27, 2014
• Docket: JAC-0014-0517
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

JAC 14-517

STATE IN THE INTEREST OF

D.A., Dy.G., De.G., D.D., AND Z.K.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 201439, DIVISION E HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of John D. Saunders, Billy Howard Ezell, and J. David Painter, Judges.

REMANDED. Michael Harson District Attorney Fifteenth Judicial District Court Sharon Michelle M. Breaux Assistant District Attorney P. O. Box 3306 Lafayette, LA 70502 (337) 232-5170 COUNSEL FOR APPELLEE: State of Louisiana

Tracey Davenport-McGraw OCS - Indigent Defender P. O. Box 931 Rayne, LA 70578 (337) 334-1576 COUNSEL FOR APPELLEE: T. B.(father of De. G)

Paula Murphy Acadiana Legal Services 1020 Surrey Street Lafayette, LA 70501 (337) 237-4320 COUNSEL FOR APPELLEE: D. A. (child) Dy. G. (child) De. G. (child) D. D. (child) Z. K. (child)

Jane Hogan Public Defenders Office 600 Jefferson Street, Suite 902 Lafayette, LA 70501 (337) 232-9345 COUNSEL FOR APPELLANT: L. G. (mother)

LaShonda G. Derouen 425 W. Vermilion Street Lafayette, LA 70501 (337) 237-4300 COUNSEL FOR APPELLEE: T. B.(father of De. G) Casa Coordinator c/o Casa of Acadiana 1819 W. Pinhook Rd., #103 Lafayette, LA 70508 COUNSEL FOR APPELLEE: Casa of Acadiana

Katrina Cetnar CWSII, Brandywine II 825 Kaliste Saloom Road, #104 Lafayette, LA 70508 (337) 262-1555 COUNSEL FOR APPELLEE: State of Louisiana Department of Social Services EZELL, Judge.

L.G. appeals the decision of the trial court below finding her five children,

D.A., Dy.G., De.G., D.D., and Z.K., to be children in need of care. For the

following reasons, we hereby remand this case for completion of the record.

On February 25, 2012, L.G. gave birth to her second-youngest child, D.D.

Around the same time, the Department of Child and Family Services (DCFS)

received a report that D.D.’s meconium tested positive for marijuana. D.D. was

also born with syphilis. At this time, DCFS opened a Family Services case on L.G.

but did not remove her children. As part of her Family Services plan, L.G. was to

undergo substance abuse treatment, which she failed to do. Although it is

undisputed that L.G. did not comply with her Family Services plan, DCFS never

removed her children and eventually closed L.G.’s 2012 Family Services case plan,

noting that while L.G. was non-compliant, there was no imminent risk to her

children’s safety. After closing the case, DCFS did not have any contact with L.G.

until the instant matter.

Roughly two years later, L.G. gave birth to her youngest child, Z.K. That

child also was born with a positive test for marijuana in her meconium and syphilis.

DCFS sought an instanter order of removal for not just Z.K., but also for L.G.’s

four older children, which was granted by the trial court. The children were

ordered into the custody of the State.

On March 25, 2014, an adjudication hearing and disposition was held for

D.A., Dy.G., De.G., and D.D. The father of Z.K. was not present, and so the

matter as to this child was continued until April 15, 2014, to allow for the

appointment of a curator. On March 25, the trial court found the four oldest

children to be children in need of care and ordered them to remain in State custody.

From that decision, L.G. appeals. La.Code Civ. Proc. Ann. art. 2164 provides that an “appellate court shall render any judgment which is just, legal and proper upon the record on appeal.” It is well settled that an appellate court is empowered under this article to remand a case to the district court for the taking of additional evidence where it is necessary to reach a just decision and to prevent a miscarriage of justice. Vallo v. Gayle Oil Company, Inc., 94-1238 (La.11/30/94), 646 So.2d 859, 866. Although a court should always remand a case whenever the nature and extent of the proceedings dictate such a course, whether or not any particular case should be remanded is a matter which is vested largely within the court’s discretion and depends upon the circumstances of the case. Jones v. LeDay, 373 So.2d 787, 789 (La.App. 3 Cir.1979).

Alex v. Rayne Concrete Serv., 05-1457, 05-2344, 05-2520, p. 23 (La.1/26/07), 951

So.2d 138, 155.

Examination of the record reveals that it does not contain the disposition or

transcript from Z.K.’s adjudication hearing. Because the record lacks the trial

court’s judgment on Z.K., we cannot determine the merits of this matter as to that

child. Therefore, we must pretermit ruling on this appeal because the record

contains no judgment at all for our review as to her. Rather than ruling on the four

oldest children alone, we hereby remand this case for completion of the trial record

so L.G.’s appeal may be properly heard as to all five of her children at once.

For the above reasons, we hereby remand this case to the trial court for the

purpose of completing the record to include the judgment and transcript of the

adjudication as to Z.K. Because counsel for L.G. requested the transcript be placed

in the record, but had that request denied by the trial court, L.G. has no fault in this

omission. Accordingly, costs of this appeal of $480.10 are to be assessed against

the State.

REMANDED.

This opinion is NOT DESIGNATED FOR PUBLICTION. Uniform Rules—Courts of Appeal. Rule 2–16.3.