State of Louisiana in the Interest of C.S., L.K., and R.K.

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

r 2023 CJ 1166

STATE OF LOUISIANA IN THE INTEREST OF C.S., L.K., AND R.K.

DATE OF JUDGMENT. • FEB 2 3 2024

ON APPEAL FROM THE CITY COURT OF EAST ST. TAMMANY PARISH, JUVENILE DIVISION STATE OF LOUISIANA NUMBER 2023 JS 1557

HONORABLE BRYAN D. HAGGERTY, JUDGE

D. Rex English Counsel for Appellee Slidell, Louisiana State of Louisiana

Julie Miramon Knight Counsel for Appellee Covington, Louisiana Department of Children and Family Services

Destinee Prout Counsel for Appellees Mandeville, Louisiana C. S., L.K. and R.K.J. - Minor Children

Sarabeth T. Bradley Counsel for Appellant Covington, Louisiana S. S. - Father Annette Fuller Roach Lake Charles, Louisiana

BEFORE: GUIDRY, CJ, CHUTZ, AND LANIER, JJ.

Disposition: AFFIRMED. CHUTZ, I

S. S., appellant and the biological father of C. S.,' appeals the city court' s

judgment of disposition and final order of guardianship granted to C. S.' s maternal

grandparents, B. S. and J. S., and awarding specific visitation to S. S. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 1, 2023, the State of Louisiana ( State) through the Department of

Children and Family Services ( DCFS) received a report that three children were

without a legal caretaker as a result of the death of their parents, A.S. and R.K., by

an apparent murder/suicide. The eldest child, 13 -year- old C. S., is the biological

child of A.S. and S. S. Seven- year- old L. K. and two-year- old R.J. K. are the

biological children of A.S. and R.K. C. S. and L.K. were present in the family home

when the murder/ suicide occurred. DCFS learned that C. S. called 911 and advised

that his parents were not responsive and bleeding. He stated to authorities that R.K.

had moved out of the family home a couple months before the murder/suicide and

could not deal with the break up." On April 3, 2023, the children were placed in

the State' s custody.

When first interviewed, C. S. told DCFS that he wanted to go back to

Russellville, Arkansas to live with B. S. and J. S. with whom he had lived for seven

years prior to moving to St. Tammany Parish with his mother. C. S. was placed

with A.T., a neighbor, for the first six days after the deaths of A.S. and R.S. and

then, along with L.K., went to the home of B. S. and J. S. in Arkansas for a 30 -day

visit. R.J. K. remained in the care of his paternal grandmother in New Orleans.

As a result of contact with S. S., who also resides in Russellville, Arkansas,

DCFS learned that he had not been in C. S.' s life for ten years. DCFS noted that

S. S. said A.S. had made it difficult for him to maintain contact with his son and

The initials of the minor children, parents, and certain other adults will be used in this opinion to protect the privacy of the parties involved. See La. U. R.C. A. Rules 5- 1 and 5- 2.

2 that it was easier to let A. S. and C. S. live their lives without him. S. S. also had a

criminal history including substance abuse with his most recent arrest having

occurred in 2021 and for which he was on felony probation at the time of the

deaths of A.S. and R.K. C. S. reported that he had only seen S. S. one time in his life

and was unable to provide S. S.' s name to DCFS. S. S. admitted that he did not call

C. S. and had not paid child support.

A case plan was fashioned on May 1, 2023, wherein the basic obligations of

S. S. consisted of several actions including substance abuse and mental health

evaluations, maintenance of stable housing, enrollment in parenting classes,

payment of $ 25. 00 in monthly child support, and continued employment. S. S.

subsequently filed an objection to the case plan, complaining of the requirement of

a mental health evaluation.

After a disposition hearing on May 9, 2023, B. S. and J. S. were granted

guardianship of L.K. The matter of L.K. was closed without further review. An

evaluation on R.J. K.' s placement and attachment bond with his paternal

grandmother and a caregiver assessment of B. S. and J. S. were undertaken by

Tulane Comprehensive Assessment Treatment Team, which included an interview

of C. S. After a disposition hearing on May 25, 2023, B. S. and J. S. were granted

guardianship of R.J. K.

On June 6, 2023, an adjudication hearing was held as to C. S. After the

presentation of testimonial evidence, including that of C. S., the city court

adjudicated C. S. as a child in need of care ( CINC) and set the matter for a

2 disposition hearing, which was held on June 13, 2023.

After the presentation of evidence, which included a confidential report on

B. S. and J. S., the city court ruled from the bench. In conformity with its oral

ruling, the city court signed a judgment on July 27, 2023, granting B. S. and J. S.

2 Judge Elaine W. Demiceli presided pro tempore at the adjudication hearing.

3 guardianship of C. S. and awarding specific and substantial visitation to S. S. 3 S. S.

appeals.

DISCUSSION

Standard of Review:

In cases involving the custody of children, the city court is vested with a vast

amount of discretion. The city court is in a better position to evaluate the best

interest of a child because of its superior opportunity to observe the parties and the

witnesses who testified at the trial. It is well settled that an appellate court cannot

set aside a city court' s findings of fact in the absence of manifest error or in the

clearest case of abuse of the city court' s great discretion. The two-part manifest

error test considers: ( 1) whether there is a reasonable factual basis in the record for

the finding; and ( 2) whether the record further establishes that the finding is not

manifestly erroneous. If a reasonable factual basis exists, an appellate court may

set aside a city court' s factual finding only if, after reviewing the record in its

entirety, it determines the city court' s finding was clearly wrong. Moreover, where

factual findings are based on determinations regarding the credibility of witnesses,

the trier of fact' s findings demand great deference and are virtually never

manifestly erroneous or clearly wrong. Even though an appellate court may feel

that its own evaluations and inferences are more reasonable than the factfinder' s,

reasonable evaluations of credibility and reasonable inferences of fact should not

be disturbed upon review where conflict exists in the testimony. State in Int. of

A.S., 2019- 0248 ( La. App. 1st Cir. 9/ 4/ 19), 285 So. 3d 1129, 1140.

3 The city court awarded visitation to S. S. in three phases. During Phase 1, which was for the first 60 days, S. S. had visitation of C.S. for one weekend per month with no overnight visits. During Phase 1I, which was for the following 60 days, S. S. had visitation for two weekends per month, which included overnight visits on Fridays through Sundays. Phase III included the schedule set forth in Phase 11 and additional times at C.S.' s guardians' discretion. CINC Determination:

S. S. first complains that the city court manifestly erred in concluding that C. S. was a CINCA Noting that the petition fails to specifically assert actions

constituting abandonment, S. S. maintains that the record lacks evidence to support

the city court' s CINC conclusion.

La. Ch. C. art. 606 requires that allegations that a child is in need of care

assert one or more of the enumerated grounds which the State must prove by a

preponderance of the evidence. State in Int. of A.S., 285 So. 3d at 1139. Insofar as

C. S., Article 606( A) states:

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.

Preliminarily, we find no merit in S. S.' s contention that the petition fails to

specifically assert actions constituting abandonment. A CINC petition must only

allege " facts demonstrating grounds for adjudicating the child [ as] in need of care."

Moreover, nothing prohibits the parties from offering additional evidence relevant

to the CINC adjudication and the child' s safety. State in Interest of M.N., 2021-

0634 ( La. App. 5th Cir. 1/ 7/ 22), 336 So. 3d 996, 1005, writ denied, 2022- 00255

La. 3/ 15/ 22), 334 So. 3d 393.

Here, the petition cross- referenced the affidavit in support of the Instanter

Order. The affidavit established that upon the deaths of A. S. and R. K., the

children, including C. S., were without any caretakers. To C. S., his biological father

4 S. S. has correctly pointed out that the city court did not sign a judgment in conformity with its ruling that C. S. was a CINC after the adjudication hearing. Because the appealed judgment expressly provides that " by clear and convincing evidence presented ... [ C. S.] has been adjudicated a [ CINC]," we find S. S.' s challenge of the city court' s CINC conclusion is properly reviewed. See and compare State in Int. of G.O., 2021- 154 ( La. App. 3d Cir. 6/ 9/ 21), 322 So. 3d 869, 873- 74 ( appellate court converted mother' s appeal from the denial of her motion to dismiss to an application for supervisory writs, regarding neglect and dependency petition where no formal judgment was entered but record included State' s filings as to CINC allegations, supporting affidavits, and transcript from CINC hearing, which reflected trial court' s rulings on both adjudication and motion to dismiss).

5 was a stranger, since C. S. recalled only having seen S. S. once. And S. S. admitted

he neither maintained contact with C. S. nor paid child support for C. S.' s care. With

the loss of his mother and stepfather, C. S. was, therefore, without necessary food,

clothing, shelter, medical care, or supervision due to the untimely deaths of A.S.

and R.K. and the disappearance or prolonged absence of S. S. Thus, on the face of

the petition, sufficient facts have been alleged to support the grounds set forth in

Article 606( A)( 3).

S. S.' s contention that his presence, commencing on the evening of April 1,

2023 and at every subsequent proceeding involving C. S.' s custody, demonstrates

that DCFS cannot show he is a continuing absent parent as required under Article

606( A)( 3) is without merit. It is undisputed that C. S. and S. S. did not have a

meaningful or substantial connection as of April 1, 2023. From the first interview

immediately after the deaths of A.S. and R.K., C. S. consistently requested to live

with his maternal grandparents although he was amenable to becoming more

familiar with his biological father.

Additional evidence at the adjudication hearing established that DCFS was

without any knowledge of the background of S. S. who is an Arkansas resident. At

the hearing, a supervisor with DCFS testified that C. S. told her that on his birthday

shortly before his parents' deaths, he used R.K' s phone to contact S. S., but C. S.

clarified that it was S. S. who called him on R.K.' s phone, and R.K., in turn, gave

the phone to C. S. to speak to S. S. Despite that recent phone call, C. S. was unable

to provide DCFS with any contact information for S. S., and C. S. further admitted

that when DCFS workers first interviewed him, he did not know S. S.' s full name.

Additionally, S. S. admitted he was on felony probation in the State of Arkansas for

possession of a dangerous weapon ( brass knuckles) and a controlled dangerous

substance.

Z Based on the evidence adduced at the June 6, 2023 hearing, a reasonable

factual basis exists to support the city court' s adjudication of C. S. as a CINC under

La. Ch. Code art. 606( A)( 3). Accordingly, the city court was not manifestly

erroneous.

Guardianship Disposition:

S. S. also challenges the city court' s disposition insofar as its grant of

guardianship of C. S. to B. S. and J. S. S. S. maintains the city court was manifestly

erroneous in concluding that immediate guardianship to B. S. and J. S. was the least -

restrictive placement alternative and in the best interest of C. S. In so contending,

S. S. asserts that the record lacks sufficient evidence to support a finding that DCFS

made reasonable efforts to reunite him with C. S.

The purpose of guardianship is to provide a permanent placement for

children when neither reunification with a parent nor adoption has been found to be

in their best interest; to encourage stability and permanence in the lives of children

who have been adjudicated to be in need of care and have been removed from the

custody of their parent; and to increase the opportunities for the prompt permanent

placement of children, especially with relatives, without ongoing supervision by

DCFS. La. Ch.C. art. 718( A). It is intended to ensure that the fundamental needs of

children are met and the constitutional rights of all parties are recognized and

enforced. La. Ch. C. art. 718( B). State in Int. of M.N., 2023- 0174 ( La. App. 1st

Cir. 6/ 23/ 23), 370 So.3d 744, 748, writ denied, 2023- 00947 ( La. 9/ 6/ 23), 369 So. 3d

1269.

The court must determine the permanent plan for the child that is most

appropriate and in the best interest of the child in accordance with certain priorities

of placement, guardianship being below reunification and adoption. La. Ch. Code

art. 702( C). In most permanent plan determinations, the court is required to

7 determine whether DCFS has made reasonable efforts to reunify the parent and

child or to finalize the child' s placement in an alternative safe and permanent home

in accordance with the child' s permanent plan. The paramount concern in the

court' s determination of the permanent plan is the child' s health, welfare, and

safety. La. Ch. C. art. 702( E). More than simply protecting parental rights, our

judicial system is required to protect the children' s rights to thrive and survive.

State in Int. ofM.N., 370 So.3d at 748- 49.

After a child has been adjudicated to be in need of care, DCFS may submit a

case plan along with the case review report to the court and all counsel of record

recommending guardianship. La. Ch.C. art. 720( A). According to La. Ch.C. art.

722( A), a mover for guardianship shall have the burden of proving all of the

following by clear and convincing evidence:

1) The child has been adjudicated to be in need of care.

2) Adoption is not in the best interest of the child and the child

cannot be safely reunified with the parent within a reasonable time.

3) The child has resided for at least six months with the proposed guardian, unless the court waives the residence requirement for good cause.

4) The proposed guardian is able to provide a stable and safe home

for the child for the duration of minority.

In order for reunification to remain the permanent plan for the child, the parent

must be complying with the case plan and making significant measurable progress

toward achieving its goals and correcting the conditions requiring the child to be in

care. La. Ch. C. art. 702( C)( 1). Mere cooperation by a parent is not the sole focus of

the evaluation of a permanency plan. State in Int. ofM.N., 370 So. 3d at 749.

The record shows DCFS focused on C. S.' s request to be with his

grandparents and his siblings, who resided with B. S. and J. S. in their home in

Russellville, which is located close to S. S.' s residence. In seeking a permanent placement with B. S. and J. S. as guardians, DCFS supervisor Trina Gibson testified

that the decision was based on the unusual circumstances that led to C. S.' s

displacement with an emphasis on the child' s need for permanency given that he

had been " extremely traumatized."

Gibson further testified that for S. S. to obtain a custodial arrangement, he

has to work on his case plan in Louisiana. Therefore, while his siblings reside in

Russellville, Arkansas, C. S. would have to remain in Slidell, Louisiana until an

assessment of S. S. could be conducted which Gibson described as " an indefinite

amount of time." Since C. S.' s return to Louisiana from the 30 -day visit at his

grandparents' home during April and May 2023, he has stayed in the home of

neighbor A.T. where C. S. requested to stay if he could not stay with his

grandparents. Although the arrangement has worked well, the proximity of A.T.' s

residence to the crime scene was an obvious concern for C. S.' s healing.

Additionally, to move to Arkansas, an Interstate Compact for the Placement of

Children ( ICPC) 5 for both S. S. and the maternal grandparents had to be

undertaken, a process that DCFS representatives stated could take several months.

The evidence also showed that S. S.' s felony probation constituted a

temporal legal impediment to a quick working through of his case plan. According

to the terms of his probation, which were in place at the time of the disposition

hearing, S. S. was not able to leave the State of Arkansas through September 2023

without a travel pass from his probation officer, further delaying the

commencement of the time- consuming process.

J. S. testified that he supported visitation between S. S. and C. S., and that B. S.

and J. S. were " more than willing" to have S. S. in their home and would work with

S. S. to expand visitation as long as C. S. was safe. J. S. also indicated that he

supported telephone communications between C. S. and S. S. Additionally, the city

5 See generally La. Ch.C. arts. 1623- 1624.

6 court was privy to an evaluation of R.J. K.' s placement in which C. S. was

interviewed. C. S. advised the Tulane Comprehensive Assessment Treatment Team

that during the seven years he resided with B. S. and J. S., including while his

mother worked evening and overnight shifts, he felt very comfortable around them.

C. S. described his relationship with his maternal grandparents as loving.

The record shows that within a week of the deaths A.S. and R.K., C. S. was

with his maternal grandparents in Russellville where S. S. visited with C. S.

whenever he pleased." DCFS has been committed to maximum visitation. When

C. S. returned to Louisiana after 30 days, in light of the distance between

Russellville and Slidell, a bi- weekly visitation schedule was set up. S. S.

acknowledged that DCFS accommodated him with visitation, indicating he comes

to visit C. S. as often as he can. He testified that on more than one weekend, DCFS

provided a worker to supervise visitation. A.T. also testified that she has facilitated

visitation between C. S. and his biological father.

In addition, DCFS supervisor Gibson explained that to provide additional

services to S. S. to allow him to comply with his case plan in Arkansas, an ICPC

was required and had to be accepted by Arkansas. But an ICPC could not be

started until after C. S.' s adjudication, which had not occurred until June 6, 2023. 6

Given the particular facts and circumstances of how C. S. came to be

adjudicated a CINC, we cannot say the city court was manifestly erroneous in

concluding DCFS made reasonable efforts toward reunification. DCFS instituted

visitation within a short period of time and facilitated interactions between C. S.

and S. S. The impediments caused by the interstate distance between S. S. and C. S.

as well as the need for an ICPC to assist S. S. in complying with his case plan were

G At a status conference on May 30, 2023, a DCFS representative advised the city court that an expedited ICPC takes months and typically applies only to children under two years of age.

10 not obstacles created by DCFS or a result of its inaction. The evidence shows that

the health, welfare, and safety of the child was DCFS' s paramount concern.

In his appellate challenge of the city court' s disposition granting

guardianship to B. S. and J. S., S. S. overlooks the effect the ten- year period that he

had no involvement in his son' s life had on C. S. Nothing but time can repair the

void. But C. S., who will be a major in less than five years, continues to have a

need for stability and permanency. The other important concern for C. S. is to have

the presence of his siblings with him in the same household, which will assist him

and his siblings) in the healing process. Continued temporary placement with

A.T., in close proximity to the crime scene, to process an ICPC while S. S.

complies with his case plan and develops a relationship with C. S. every other

weekend offers limited stability, no permanency, and is simply not in C. S.' s best

interest.

Based on our review of the record, we conclude DCFS proved by clear and

convincing evidence that reunification with S. S. was not possible within a

reasonable time and that guardianship with J. S. and B. S. was the least restrictive

placement and in C. S.' s best interest. Mindful of the traumatic manner by which

C. S. became a CINC, we cannot say the city court was manifestly erroneous in

granting guardianship to B. S and J. S.

DECREE

For these reasons, the city court' s judgment of disposition and final order of

guardianship of C. S. to B. S. and J. S. is affirmed. Appeal costs are assessed against

appellant -father, S. S.

AFFIRMED.