Judgment rendered May 22, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,814-JAC
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA IN THE INTEREST OF B.W.
Appealed from the Eighth Judicial District Court for the Parish of Winn, Louisiana Trial Court No. 4049
Honorable Jimmie C. Peters, Judge (Ad Hoc)
WINN PARISH PUBLIC DEFENDER Counsel for Appellant, By: James Earl Calhoun B.T., Father
R. CHRISTOPHER NEVILS Counsel for Appellee, District Attorney State of Louisiana
MATTHEW S. KELLEY Assistant District Attorney
PUBLIC DEFENDERS OFFICE Counsel for Appellee, By: Jonathan R. McDow A.W., Mother
LEGAL SERVICES OF NORTH LOUISIANA Counsel for Appellee, By: Jacqueline C. Williams B.W., Minor Child
Before STONE, MARCOTTE, and ELLENDER, JJ. ELLENDER, J.
BW, a child less than a year old, was removed from his mother,
Alyssa Whatley (“Alyssa”), and adjudicated a child in need of care. BW’s
father, Benjamin Tripplett (“Benjamin”), whose role in BW’s life appears to
have been minimal, appeals the adjudication. We affirm.
FACTS AND PROCEDURAL HISTORY
On August 8, 2023, the Louisiana Department of Children and Family
Services (“DCFS”) received a complaint concerning the health and safety of
BW. The complaint alleged Alyssa appeared in criminal court that day but
was unable to stay awake, so the trial court ordered her to submit to a drug
test which returned positive for benzodiazepines, cocaine, THC, and opiates.
Alyssa was given the option to enter into a substance abuse program in lieu
of serving jail time, which she initially agreed to but later refused. DCFS
investigator Ivori Speed contacted Alyssa, who admitted she took Percocet
earlier that day and frequently used methamphetamine. She also told Speed
she dropped BW off with her sister before attending court. While
interviewing Alyssa, Speed stated Alyssa was unable to form a complete
sentence and was drooling from her mouth. Based on these conversations
and observations, Speed concluded Alyssa could not care for BW in her
current condition. Speed then contacted Alyssa’s sister, who informed
Speed she was unable to care for BW long term, resulting in DCFS making
the decision to remove BW.
Following a continued custody hearing on August 9, the trial court
ordered that BW remain in the custody of DCFS, that the alleged father,
Benjamin, submit to paternity testing, and that DCFS assess whether Benjamin’s mother, Kimberly Tripplett (“Kimberly”), could be a potential
caregiver. On August 14, a petition to adjudicate BW a child in need of care
was filed by the state. Benjamin, who was determined by the paternity test
to be the father, filed a motion to dismiss claiming there were insufficient
allegations in the petition to show BW was a child in need of care. The state
filed an amended petition alleging BW was in immediate danger due to the
lack of supervision and neglect caused by Alyssa and the unavailability of a
family member to provide care for him. Pursuant to a trial court order, the
state amended its petition again asserting three additional allegations: (1)
BW lacks a legal father, (2) Benjamin has not established filiation to BW,
and (3) Benjamin uses illegal drugs.
On November 15, the trial court adjudicated BW a child in need of
care, specifically finding both Alyssa and Benjamin were not fit to raise a
child and each had significant drug problems. The record shows Benjamin
had minimal involvement in BW’s life prior to the state’s removing the child
from Alyssa. It appears BW spent most days with his paternal grandmother,
Kimberly. At the conclusion of the hearing, BW’s counsel made an oral
motion to change placement of BW from foster care to BW’s grandmother,
Kimberly. The trial court directed counsel to file the motion in writing and
informed the parties a hearing date would be set after the motion was filed.
Following the child in need of care hearing, Benjamin filed an appeal
challenging the adjudication of BW.
After the appeal was filed, a hearing was held on the motion to modify
placement on December 6, at which time Kimberly was granted
guardianship of BW after the trial court found she was capable of caring for
BW as she had been doing so since BW was born. 2 DISCUSSION
Benjamin argues there was insufficient evidence submitted by the
state to declare BW a child in need of care pursuant to the factors found in
La. Ch. C. art. 606. The state claims the trial court’s decision to grant
Kimberly guardianship after Benjamin filed for appeal renders the appeal
moot. However, in advancing this argument, the state relies on language
from the dissent in George v. Dugas, 16-0710 (La. 11/7/16), 203 So. 3d
1043, and claims the granting of guardianship terminates a child in need of
care proceeding. We recognize guardianship is a dispositional alternative
under La. Ch. C. art. 681 and is considered a permanent placement, State in
Int. of K.P., 51,853 (La. App. 2 Cir. 11/15/17), 246 So. 3d 627; however, we
find nothing to suggest the granting of guardianship precludes this Court
from reviewing a prior adjudication of a child in need of care. Nevertheless,
because Benjamin does not challenge the guardianship decision, we will not
extend our review to the trial court’s guardianship determination. We do
wish to note, though, in light of the record before us and the circumstances
surrounding BW’s parents, the award of guardianship to Kimberly, who
cared for BW daily since birth, does not appear to be manifestly erroneous.
In response to Benjamin’s sole assignment of error, the state argues it
met its burden of proving BW a child in need of care based on four main
factors: (1) the factual allegations demonstrating BW was a child in need of
care were well established in the second amended petition, (2) Speed
concluded Alyssa was incapable of taking care of a child in the condition
which she observed Alyssa, (3) the evidence of Benjamin’s drug use and
recent stint in rehab, and (4) testimony showed Kimberly had been serving
as the primary caregiver of BW. 3 The law regarding child in need of care proceedings is well settled.
La. Ch. C. art. 606 provides the grounds by which a child can be adjudicated
a child in need of care. The factors applicable to this case are:
A. Allegations that a child is in need of care shall assert one or more of the following grounds: * * *
(2) The child is a victim of neglect.
(3) The child is without necessary food, clothing, shelter, medical care, or supervision because of the disappearance or prolonged absence of his parent or when, for any other reason, the child is placed at substantial risk of imminent harm because of the continuing absence of the parent. * * *
Adjudication of a child in need of care is warranted when a parent shows a
repeated pattern of placing a child at risk. State ex rel. L.M., 46,078 (La.
App. 2 Cir. 1/26/11) 57 So. 3d 518; State in Int. of A.A., 52,388 (La. App. 2
Cir. 11/14/18), 261 So. 3d 124, writ denied, 18-2060 (La. 1/28/19). At the
adjudication hearing, the state bears the burden of proving by a
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Judgment rendered May 22, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,814-JAC
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA IN THE INTEREST OF B.W.
Appealed from the Eighth Judicial District Court for the Parish of Winn, Louisiana Trial Court No. 4049
Honorable Jimmie C. Peters, Judge (Ad Hoc)
WINN PARISH PUBLIC DEFENDER Counsel for Appellant, By: James Earl Calhoun B.T., Father
R. CHRISTOPHER NEVILS Counsel for Appellee, District Attorney State of Louisiana
MATTHEW S. KELLEY Assistant District Attorney
PUBLIC DEFENDERS OFFICE Counsel for Appellee, By: Jonathan R. McDow A.W., Mother
LEGAL SERVICES OF NORTH LOUISIANA Counsel for Appellee, By: Jacqueline C. Williams B.W., Minor Child
Before STONE, MARCOTTE, and ELLENDER, JJ. ELLENDER, J.
BW, a child less than a year old, was removed from his mother,
Alyssa Whatley (“Alyssa”), and adjudicated a child in need of care. BW’s
father, Benjamin Tripplett (“Benjamin”), whose role in BW’s life appears to
have been minimal, appeals the adjudication. We affirm.
FACTS AND PROCEDURAL HISTORY
On August 8, 2023, the Louisiana Department of Children and Family
Services (“DCFS”) received a complaint concerning the health and safety of
BW. The complaint alleged Alyssa appeared in criminal court that day but
was unable to stay awake, so the trial court ordered her to submit to a drug
test which returned positive for benzodiazepines, cocaine, THC, and opiates.
Alyssa was given the option to enter into a substance abuse program in lieu
of serving jail time, which she initially agreed to but later refused. DCFS
investigator Ivori Speed contacted Alyssa, who admitted she took Percocet
earlier that day and frequently used methamphetamine. She also told Speed
she dropped BW off with her sister before attending court. While
interviewing Alyssa, Speed stated Alyssa was unable to form a complete
sentence and was drooling from her mouth. Based on these conversations
and observations, Speed concluded Alyssa could not care for BW in her
current condition. Speed then contacted Alyssa’s sister, who informed
Speed she was unable to care for BW long term, resulting in DCFS making
the decision to remove BW.
Following a continued custody hearing on August 9, the trial court
ordered that BW remain in the custody of DCFS, that the alleged father,
Benjamin, submit to paternity testing, and that DCFS assess whether Benjamin’s mother, Kimberly Tripplett (“Kimberly”), could be a potential
caregiver. On August 14, a petition to adjudicate BW a child in need of care
was filed by the state. Benjamin, who was determined by the paternity test
to be the father, filed a motion to dismiss claiming there were insufficient
allegations in the petition to show BW was a child in need of care. The state
filed an amended petition alleging BW was in immediate danger due to the
lack of supervision and neglect caused by Alyssa and the unavailability of a
family member to provide care for him. Pursuant to a trial court order, the
state amended its petition again asserting three additional allegations: (1)
BW lacks a legal father, (2) Benjamin has not established filiation to BW,
and (3) Benjamin uses illegal drugs.
On November 15, the trial court adjudicated BW a child in need of
care, specifically finding both Alyssa and Benjamin were not fit to raise a
child and each had significant drug problems. The record shows Benjamin
had minimal involvement in BW’s life prior to the state’s removing the child
from Alyssa. It appears BW spent most days with his paternal grandmother,
Kimberly. At the conclusion of the hearing, BW’s counsel made an oral
motion to change placement of BW from foster care to BW’s grandmother,
Kimberly. The trial court directed counsel to file the motion in writing and
informed the parties a hearing date would be set after the motion was filed.
Following the child in need of care hearing, Benjamin filed an appeal
challenging the adjudication of BW.
After the appeal was filed, a hearing was held on the motion to modify
placement on December 6, at which time Kimberly was granted
guardianship of BW after the trial court found she was capable of caring for
BW as she had been doing so since BW was born. 2 DISCUSSION
Benjamin argues there was insufficient evidence submitted by the
state to declare BW a child in need of care pursuant to the factors found in
La. Ch. C. art. 606. The state claims the trial court’s decision to grant
Kimberly guardianship after Benjamin filed for appeal renders the appeal
moot. However, in advancing this argument, the state relies on language
from the dissent in George v. Dugas, 16-0710 (La. 11/7/16), 203 So. 3d
1043, and claims the granting of guardianship terminates a child in need of
care proceeding. We recognize guardianship is a dispositional alternative
under La. Ch. C. art. 681 and is considered a permanent placement, State in
Int. of K.P., 51,853 (La. App. 2 Cir. 11/15/17), 246 So. 3d 627; however, we
find nothing to suggest the granting of guardianship precludes this Court
from reviewing a prior adjudication of a child in need of care. Nevertheless,
because Benjamin does not challenge the guardianship decision, we will not
extend our review to the trial court’s guardianship determination. We do
wish to note, though, in light of the record before us and the circumstances
surrounding BW’s parents, the award of guardianship to Kimberly, who
cared for BW daily since birth, does not appear to be manifestly erroneous.
In response to Benjamin’s sole assignment of error, the state argues it
met its burden of proving BW a child in need of care based on four main
factors: (1) the factual allegations demonstrating BW was a child in need of
care were well established in the second amended petition, (2) Speed
concluded Alyssa was incapable of taking care of a child in the condition
which she observed Alyssa, (3) the evidence of Benjamin’s drug use and
recent stint in rehab, and (4) testimony showed Kimberly had been serving
as the primary caregiver of BW. 3 The law regarding child in need of care proceedings is well settled.
La. Ch. C. art. 606 provides the grounds by which a child can be adjudicated
a child in need of care. The factors applicable to this case are:
A. Allegations that a child is in need of care shall assert one or more of the following grounds: * * *
(2) The child is a victim of neglect.
(3) The child is without necessary food, clothing, shelter, medical care, or supervision because of the disappearance or prolonged absence of his parent or when, for any other reason, the child is placed at substantial risk of imminent harm because of the continuing absence of the parent. * * *
Adjudication of a child in need of care is warranted when a parent shows a
repeated pattern of placing a child at risk. State ex rel. L.M., 46,078 (La.
App. 2 Cir. 1/26/11) 57 So. 3d 518; State in Int. of A.A., 52,388 (La. App. 2
Cir. 11/14/18), 261 So. 3d 124, writ denied, 18-2060 (La. 1/28/19). At the
adjudication hearing, the state bears the burden of proving by a
preponderance of the evidence that the child is a child in need of care. La.
Ch. C. art. 665; State ex rel. L.B., 08-1539 (La. 7/17/08), 986 So. 2d 62. It is
not the duty of the state to prove its case beyond a reasonable doubt, by clear
and convincing evidence, or to disprove every hypothesis of innocence.
State ex rel. L.M., supra; State in Int. of A.A., supra. It is well settled that an
appellate court cannot set aside a trial court’s findings of fact in the absence
of manifest error or unless those findings are clearly wrong. In re A.J.F., 00-
0948 (La. 6/30/00), 764 So. 2d 47; State ex rel. L.M., supra. In a manifest
error review, it is important that the appellate court not substitute its own
opinion when it is the trial court that is in the unique position to see and hear
the witnesses as they testify. Id. Where there is conflicting testimony,
reasonable evaluations of credibility and reasonable inferences of fact should
4 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.
Id. If the trial court’s findings are reasonable in light of the record reviewed
in its entirety, the appellate court may not reverse, even though convinced
that had it been sitting as the trier of fact, it would have weighed the
evidence differently. State ex rel. L.M., supra; State in Int. of A.A., supra.
After a thorough review of this record, we do not find the trial court’s
adjudicating BW a child in need of care rises to a level of manifest error.
The record shows the state proved BW a child in need of care by a
preponderance of the evidence by documenting BW was without necessary
supervision because of the condition of his mother. At the adjudication
hearing, the evidence established both of BW’s parents had significant drug
problems and were not fit to care for BW; additionally BW was primarily
being cared for by his grandmother, and his mother was facing incarceration
for her appearance in criminal court while under the influence of drugs.
Most importantly, the state’s investigator interviewed and observed BW’s
mother before ultimately concluding she was in no condition to care for BW.
The state also showed BW was being cared for on the day of his removal by
his aunt, who admitted she could not care for him long term. As stated by
this Court in State ex rel. L.M., supra, and State in Int. of A.A., supra, the
state did not have to prove BW was a child in need of care by clear and
convincing evidence or beyond a reasonable doubt, just by a preponderance
of the evidence. We find it has done so here and there is no evidence to
warrant setting aside the trial court’s finding BW was a child in need of care.
This assignment of error lacks merit.
5 Though not an assignment of error, the state also claims Benjamin has
no right to challenge the adjudication because he has not taken the necessary
steps to establish paternal filiation of BW. However, La. Ch. C. art. 700(C)
provides any person directly affected by the court’s finding at the conclusion
of the case review hearing may appeal the findings or orders of the court.
With this article in mind, and with a paternity test conclusively showing
Benjamin is BW’s father, we find no reason to prevent him from challenging
the adjudication of BW.
CONCLUSION
For the reasons expressed, the judgment declaring BW a child in need
of care is affirmed. All costs are assessed to Benjamin Tripplett to the extent
allowed by La. C.C.P. art. 5188.
AFFIRMED.