State in the Interest of Drp, Sp, Jmp, Ip

• Court: Louisiana Court of Appeal
• Decided: March 5, 2014
• Docket: JAC-0013-1275
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

13-1275

STATE IN THE INTEREST OF D.R.P., S.P., J.M.P., AND I.P.

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APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 2814 HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE

SHANNON J. GREMILLION JUDGE

Court composed of Jimmie C. Peters, Billy Howard Ezell, and Shannon J. Gremillion, Judges.

REVERSED.

Audie L. Jones Department of Children and Family Services 1525 Fairfield, Room 850 Shreveport, LA 71101-4388 (318) 676-7100 COUNSEL FOR APPELLANT: State of Louisiana, Department of Children and Family Services Don M. Burkett District Attorney, Eleventh Judicial District Court P. O. Box 1557 Many, LA 71449 (318) 256-6246 COUNSEL FOR APPELLANT: State of Louisiana

Billy L. West, Jr. Attorney at Law P. O. Box 1033 Natchitoches, LA 71458-1033 (318) 352-7300 COUNSEL FOR APPELLEES: G.P. D.P.

Renee P. Cote Attorney at Law 720 Travis Street Shreveport, LA 71101 (214) 369-0024 COUNSEL FOR APPELLEES: D.R.P. S.P. J.M.P. I.P. GREMILLION, Judge.

The State of Louisiana, through the Department of Children and Family

Services (Department), appeals the trial court’s order instructing it to pay for

psychological consultations with a private psychologist that does not have a

contract with the state. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The facts surrounding the placement of the four children in the Department’s

custody in July 2013, are not at issue. The eldest three ran away from their

adoptive home and were found by police, who observed that the children had

severe bruising on their buttocks and legs.1 2 An investigation was conducted, and

the parents, G.P. and D.P., admitted that all of the children were in need of care.

The children were adjudicated as children in need of care in September 2013.

G.P. and D.P. were required to submit to psychological testing as part of the

Department’s case plan. In October 2013, the trial court signed a judgment

ordering the entire family to submit to psychological evaluations with Dr. John C.

Simoneaux. The judgment stated: ―IT IS FURTHER ORDERED that the

Department of Children and Family Services are to pay for the above evaluations.‖

The Department now appeals the order requiring it to pay for the services of a

psychologist with whom it does not have a contract.

DISCUSSION

The issue before us is whether the trial court can order the Department to

pay for the services of a private provider of psychological services. Louisiana

Children’s Code Article 672 states (emphasis added):

1 Pursuant to Uniform Rules—Courts of Appeal, Rule 5–2, initials are used throughout to ensure the confidentiality of the minors. 2 The youngest child, I.P., is the biological child of G.P. and D.P. A. Whenever custody of a child is assigned to the Department of Children and Family Services, the child shall be assigned to the custody of the department rather than to a particular placement setting. The department shall have sole authority over the placement within its resources and sole authority over the allocation of other available resources within the department for children judicially committed to its custody.

B. 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. The court shall specify other public agencies or institutions that have legal or financial responsibility, or both, to provide their particular services identified at disposition or subsequent case review. Placing custody of a child with one state department shall not remove the obligation of any other state department to provide services to that child from their resources for which the child is eligible under state or federal statute or state or federal appropriation, including but not limited to twenty-four-hour care.

Although the jurisprudence has not addressed this particular issue, the

supreme court has definitively found that the Department is not financially

responsible for the trial court’s placement of a child, in the State’s custody, in a

private facility. These were the facts in In re Sapia, 397 So.2d 469 (La.1981)3,

where the child was adjudicated in need of care and placed in a private facility.

The trial court ordered the Department to pay for the care and treatment at the

private facility. Pursuant to the provisions found in La.R.S. 15:1081-1086, which

address payment for care of children in non-state-operated agencies and facilities,

the supreme court noted that the Department ―is only authorized to make payments

for the care and treatment of children in non-state facilities where the children are

placed there by the Department.‖ Id. at 474. The supreme court concluded, ―The

juvenile court cannot order the Department of Health and Human Resources to pay

for the care and treatment of a child placed in a private facility where such

placement was made by the court itself and not by the Department.‖ Id. at 475.

3 In re Sapia was consolidated with In re Reddicks, which involved the identical issue.

2 This same issue was addressed in relation to the Department of Public Safety,

Division of Youth Services (DYS), in In re D.G., 503 So.2d 132 (La.App. 5 Cir.

1987), and the identical result was reached.

In re J.M., 490 So.2d 444 (La.App. 5 Cir. 1986), involved the juvenile

court’s order to DYS to pay for the costs of temporary placement of a juvenile in a

facility that was not state-owned. Relying on Sapia, the appellate court found that

the juvenile court had no authority to order DYS to pay for J.M.’s care in a facility

that it chose.

The juvenile court ordered the Department of Public Safety, Office of Youth

Development, to provide transportation for the juvenile’s siblings and mother for

visitation and group therapy and parenting classes for the juvenile’s mother in In re

J.H., 97-1291 (La.App. 4 Cir. 1/14/98), 706 So.2d 561. The appellate court found

that under La.Ch.Code art. 672, the Department has the sole authority over its use

of resources. The appellate court further noted the comment to Article 672 that

states that the juvenile court does not have the power to ―designate a particular

treatment or placement choice‖ once the State has been assigned custody. Id. at

563.

In re L.S., 01-2215 (La.App. 4 Cir. 3/20/02), 814 So.2d 601, writ denied, 02-

957 (La. 4/17/02), 813 So.2d 414, involved judicial review of the Department’s

decision to transfer children in its custody from one office to another. Citing In re

J.H., the appellate court held that ―there is no statutory authority for a juvenile

court to order the department to pay for therapy.‖ Id. at 607.

Similarly, based on the plain language of La.Ch.Code art. 672 and the

jurisprudence discussed above, we find that the trial court cannot order the

Department to pay for the services of a private psychologist of its choosing.

3 Accordingly, the judgment of the trial court ordering the Department to pay for the

services of Dr. John C. Simoneaux is, hereby, reversed.