Opinion
2015 CW 0617
09-21-2015
IN THE INTEREST OF L.H.
Sandra Nelson Fuselier Mandeville, Louisiana Counsel for Child-Respondent L.H. Sandra B. Terrell Covington, Louisiana Counsel for Respondent Department of Children and Family Services Brian A. Dragon Slidell, Louisiana Counsel for Respondent State of Louisiana Angelle Delacroix Covington, Louisiana Counsel for Respondent Mother, B.H. Randall A. Fish Lacombe, Louisiana Counsel for Respondent Father, J.V. Ellen Cronin Badeaux Covington, Louisiana Counsel for Relators Maternal Grandparents R.H. and N.W.H. Brett M. Bollinger Covington, Louisiana Counsel for Amici Curiae Certified Foster/Adoptive Parents Of L.H.
NOT DESIGNATED FOR PUBLICATION ON SUPERVISORY REVIEW FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
DOCKET NUMBER 9072JJ, PARISH OF ST. TAMMANY
STATE OF LOUISIANA
HONORABLE WILLIAM J. BURRIS, JUDGE Sandra Nelson Fuselier
Mandeville, Louisiana
Counsel for Child-Respondent
L.H.
Sandra B. Terrell
Covington, Louisiana
Counsel for Respondent
Department of Children and
Family Services
Brian A. Dragon
Slidell, Louisiana
Counsel for Respondent
State of Louisiana
Angelle Delacroix
Covington, Louisiana
Counsel for Respondent
Mother, B.H.
Randall A. Fish
Lacombe, Louisiana
Counsel for Respondent
Father, J.V.
Ellen Cronin Badeaux
Covington, Louisiana
Counsel for Relators
Maternal Grandparents
R.H. and N.W.H.
Brett M. Bollinger
Covington, Louisiana
Counsel for Amici Curiae
Certified Foster/Adoptive Parents
Of L.H.
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
Disposition: RECORD SUPPLEMENTED WITH RECORD IN DOCKET NUMBER 2015-CW-0616; APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT; WRIT OF CERTIORARI GRANTED; AND JUDGMENT AFFIRMED.
CHUTZ, J.
R.H. and N.W.H. ("the grandparents"), the maternal grandparents of L.H., appeal a juvenile court judgment denying their attempted intervention seeking custody in a child in need of care (CINC) proceeding. For the following reasons, we convert this appeal to a writ application, grant a writ of certiorari, and affirm the juvenile court judgment.
FACTS AND PROCEDURAL BACKGROUND
L.H. was born a drug-exposed infant on June 27, 2013. The Louisiana Department of Child and Family Services (DCFS) took L.H. into custody on August 31, 2013. Although L.H.'s maternal grandfather, R.H., testified that he requested that L.H. be placed in the grandparents' home, DCFS did not recommend such placement. L.H. remained in her initial foster home for only a few weeks before being placed in her current foster home on September 25, 2013. The juvenile court signed a judgment of disposition on November 19, 2013, adjudicating L.H. a child in need of care.
The initials of the minor child and other individuals will be used throughout this opinion to ensure the confidentiality of the minor child. See Uniform Rules - Courts of Appeal, Rule 5-2.
Almost eight months later, on July 10, 2014, the grandparents' filed a motion to intervene seeking custody of L.H. A special review hearing was previously scheduled for July 22, 2014, and the motion to intervene was set for the same date. The hearing on the requested intervention was later continued at the grandparents' request, but the juvenile court proceeded with the special review hearing. At the conclusion of the hearing, the juvenile court adopted DCFS' recommendation that the permanency goal for L.H. be changed from reunification to adoption. Subsequently, a petition to terminate the parental rights of L.H.'s parents was filed on July 30, 2014.
At a hearing on August 19, 2014, the juvenile court considered the grandparents' motion to intervene and also conducted a twelve-month case review. Pursuant to that review, the court maintained DCFS's custody of L.H., approved her current foster home placement, and once again approved adoption as L.H.'s permanency goal. A corresponding written judgment was signed on September 15, 2014. No appeal was taken from that judgment.
Although the grandparents neither assigned error to nor made any specific arguments regarding the September 15 judgment, they request in brief that the judgment "be stricken." This court lacks jurisdiction to review the judgment since it was not appealed.
With respect to the grandparents' motion to intervene, the juvenile court allowed intervention for the purpose of the grandparents seeking visitation, but denied intervention with respect to custody. Although the court indicated that the grandparents would be granted some visitation with L.H., it took the extent of visitation under advisement.
In written reasons dated August 27, 2014, the juvenile court reiterated that intervention was granted only as to visitation. The court indicated that DCFS should allow the grandparents supervised visitation with L.H. without requiring the presence of the child's parents (as DCFS had previously required) and should also arrange for supervised visitation between L.H. and S.T., L.H.'s half-sibling. Finally, the juvenile court stated it would "sign a Judgment prepared by counsel for the grandparents upon presentation." The grandparents counsel did not present a written judgment to the juvenile court for several months.
S.T. was removed by DCFS from the custody of her mother, B.H., on June 12, 2013, and eventually was placed in the custody of her biological father, J.T. By agreement with J.T., the grandparents have maintained contact with S.T.
In the interim, on October 23, 2014, a termination hearing was held regarding the parental rights of L.H.'s biological father. Neither the grandparents nor their counsel were present. It was the juvenile court's position that, since the grandparents were interveners for visitation purposes only, they had no right to participate in the termination proceedings. Nevertheless, in response to an oral motion made at the termination hearing, the juvenile court signed a written judgment that same date terminating the grandparents' visitation with L.H.
On September 16, 2014, L.H.'s biological mother, B.H., stipulated in open court to the termination of her parental rights. The juvenile court signed a judgment incorporating the stipulation and terminating B.H.'s parental rights as to L.H. on October 23, 2014.
On January 21, 2015, the grandparents' counsel submitted a proposed judgment containing the juvenile court's August 19, 2014 ruling on the motion to intervene. The juvenile court signed the judgment on February 10, 2015. The judgment provided that the grandparents' motion to intervene was denied except as to visitation and granted the grandparents supervised visitation with L.H. at a time suitable to R.H.'s employment. The judgment further ordered DCFS to arrange for supervised visitation between L.H. and S.T. In written reasons for judgment, the juvenile court acknowledged that since it had allowed the grandparents to intervene as to visitation, it was improper to terminate their visitation at a hearing in which they did not participate. Accordingly, the juvenile court sua sponte reinstated visitation until a hearing could be held on the issue.
The grandparents took an appeal, arguing the juvenile court erred in not awarding them custody of L.H., in permitting only supervised visitation, and in terminating visitation with L.H. at a hearing of which they were not given notice.
In a separate matter currently pending before this court, the grandparents also appealed another judgment rendered in the same juvenile court proceedings. Because the two matters involve identical parties and arise from the same proceedings, we issue the following order.
IT IS HEREBY ORDERED that the record in the instant matter be supplemented with the record in Docket No. 2015-CW-0616, In the Interest of L.H., which may be used to the extent necessary to adequately review the issues raised in this matter. See Uniform Rules - Courts of Appeal, Rule 2-1.14; Slaughter v. Board of Supervisors of Southern University and Agricultural and Mechanical College , 10-1114 (La. App. 1st Cir. 8/2/11), 76 So.3d 465, 469, writ denied, 11-2112 (La. 1/13/12), 77 So.3d 970.
MOTION TO DISMISS
On April 28, 2015, this court, ex proprio motu, issued a rule to show cause why this appeal should not be dismissed as untimely. In support of dismissal, the DCFS and L.H.'s foster parents argue the instant appeal is improper because: (1) it was taken from a non-appealable interlocutory judgment; and (2) it was untimely. In opposition, the grandparents argue that even if the judgment denying their motion to intervene for custody is interlocutory, it is nevertheless appealable because it caused them irreparable harm. They further argue that their motion for appeal was timely, regardless of whether it is treated as an appeal or a writ application.
The contention that the juvenile court's judgment is not an appealable judgment is based on La. Ch.C. art. 330, which provides:
A. An appeal may be taken from any final judgment of a court and shall be to the appropriate court of appeal.
B. In delinquency proceedings pursuant to Title VIII, child in need of care proceedings pursuant to Title VI, and families in need of services proceedings pursuant to Title VII, an appeal may be taken only after judgment of disposition. The appeal shall include all errors assigned concerning the adjudication and disposition. [Emphasis added.]
This court has interpreted Article 330 as allowing appeals in delinquency and CINC proceedings only from a judgment of disposition. See State in Interest of J.C., 13-0776 (La. App. 1st Cir. 9/13/13), 134 So.3d 611, 614; State ex rel C.J., 06-1441 (La. App. 1st Cir. 2/14/07), 959 So.2d 972, 975, writ denied, 07-0579 (La. 4/5/07), 954 So.2d 147. Moreover, a judgment denying a motion for intervention is not a judgment of disposition. See La. Ch.C. art. 684 (setting forth the criteria of a judgment of disposition). Therefore, this court lacks appellate jurisdiction to consider an appeal taken from the denial of an intervention in a CINC proceeding. See State in Interest of J.C., 134 So.3d at 614; State ex rel C.J., 959 So.2d at 975.
Further, there is no merit in the grandparents' argument that even if the juvenile court judgment is interlocutory, it is still appealable because it causes them irreparable harm. Since the 2005 amendment of La. C.C.P. art. 2083, the appeal of an interlocutory judgment is permitted "only when expressly provided by law." La. C.C.P. art. 2083(C); Bennett v. Arkansas Blue Cross Blue Shield , 05-1714 (La. App. 1st Cir. 9/15/06), 943 So.2d 1124, 1126 n.1. The grandparents have pointed out no provision authorizing an appeal in the instant case.
See La. Acts 2005, No. 205, § 1, effective January 1, 2006.
However, a court of appeal may exercise supervisory jurisdiction in all matters arising within its jurisdiction. La. Const. Art. V, § 10A. Therefore, when a motion for appeal is taken from a non-appealable judgment, an appellate court has discretion to convert the appeal to a writ application. See State in Interest of J.C., 134 So.3d at 614.
DCFS and L.H.'s foster parents argue the instant appeal cannot be converted to a writ application because it was not timely filed within the thirty-day delay allowed for writ applications. See La. Ch.C. art. 338; Uniform Rules - Courts of Appeal, Rule 4-2 & 4-3. They argue that since the judgment denying the intervention as to custody was an interlocutory judgment rendered in open court on August 19, 2014, no written judgment was required and delays for seeking review began immediately upon rendition of judgment. Because the grandparents' motion for appeal was not filed until January 22, 2015, they contend it was untimely. We disagree.
Generally, a written judgment is not required when an interlocutory judgment is rendered in open court. See CamSoft Data Systems , Inc. v. Southern Electronics Supply , Inc., 15-0881 (La. App. 1st Cir. 7/14/15), ___ So.3d ___. Louisiana Code of Civil Procedure article 1914(B) provides several exceptions to this rule, including instances when the court orders that an interlocutory judgment should be reduced to writing. Since the denial of appellants' motion to intervene for custody was an interlocutory judgment rendered in open court, a written judgment normally would not be required, and the thirty-day writ delay period would begin immediately. La. C.C.P. art. 1914. In its reasons for judgment, however, the juvenile court specifically stated that it would "sign a Judgment prepared by counsel for the grandparents upon presentation." Because this statement was tantamount to a court order to reduce the judgment to writing, as contemplated by La. C.C.P. art. 1914(B), a written judgment denying the grandparents' motion to intervene for custody was required in this case.
Juvenile court proceedings are governed by the Louisiana Children's Code. When procedures are not provided for in the Children's Code, the Louisiana Code of Civil Procedure governs. La. Ch.C. art. 104.
Furthermore, the delay for filing a writ application did not begin until the grandparents received notice that the written judgment was signed on February 10, 2015. La. C.C.P. art. 1914; Uniform Rules - Courts of Appeal, Rule 4-3. The grandparents filed their motion for appeal on January 22, 2015, well before the signing of the judgment and the mailing of notice of judgment. Even though the motion was premature, any defect arising from a premature motion for appeal is cured once the final judgment has been signed. Overmier v. Traylor , 475 So.2d 1094, 1094-95 (La. 1985) (per curiam); Chauvin v . Chauvin , 10-1055 (La. App. 1st Cir. 10/29/10), 49 So.3d 565, 569 n.1. Thus, the motion for appeal was filed within the thirty-day period applicable to writ applications. Considering the timeliness of the motion, as well as the interests of judicial economy, we will convert this appeal to a writ application and grant a writ of certiorari to review this matter under our supervisory jurisdiction.
INTERVENTION AS TO CUSTODY
The grandparents contend the juvenile court erroneously denied their intervention for custody of L.H. as a result of unproven allegations of drug use by N.W.H., as well as confusion by DCFS between the case plans of S.T. and L.H., the two children of B.H. taken into DCFS custody in 2013.
At the August 19, 2014 hearing, there was testimony by a DCFS employee that there was a violation in 2013 of the requirement in L.H.'s safety plan that N.W.H. not be alone with L.H. The grandparents contend, however, that while S.T.'s safety plan placed such a restriction on N.W.H.'s visitation with S.T., no such restriction was included in L.H.'s safety plan. Thus, the grandparents argue there was no violation of L.H.'s safety plan, and they were unjustly denied custody of L.H. as a result of the mix up between the files of L.H. and S.T. Additionally, they point out that under La. Ch.C. art. 683(B), relatives should be given preference for placement of a child taken into custody by DCFS.
Louisiana Children's Code articles 697 and 707 provide that for "good cause shown, the court ... may allow any interested person ... to intervene" in the case review and permanency review proceedings, respectively, "to facilitate the permanent plan for the child and to insure that the best interests of the child are protected." Under these provisions, intervention is limited to the purpose of facilitating the child's permanent placement and protecting the child's best interests. Moreover, whether to allow intervention is discretionary with the juvenile court. State ex rel A.L., 09-1085 (La. App. 1st Cir. 10/27/09), 29 So.3d 618, 620-21.
At the hearing on the motion to intervene, N.W.H. admitted to a history of drug abuse. She testified that she initially developed a problem with pain medications as a result of a painful orthopedic condition. She indicated that she underwent treatment in Texas for her addiction to opiates in 2010 or 2011. Thereafter, in October 2012, she received a DWI citation while under the influence of opiates. Further, although N.W.H. testified the drug rehabilitation program she attended was effective, she admitted that, in addition to the DWI, she also became addicted to heroin.
When N.W.H. was asked on cross-examination how she began using heroin, she replied:
I got out of rehab for the opiates. And my daughter [B.H.] had it in the house and I was recovering and I was clean for, like, three months and she had it and I walked in on her. And I, I turned to that instead of, you know. I stayed clean off the pills the whole time, off narcotics, and I ended up turning to that.At the time that N.W.H. walked in on B.H. and discovered heroin in her possession, B.H. was pregnant with L.H. N.W.H.'s response was to begin taking heroin herself.
In October 2013, N.W.H. and B.H. both sought treatment at a drug rehabilitation center in Florida. N.W.H. testified that she completed the program and has been clean of drugs and has not taken heroin since completing that program. She further testified she has been attending a church support group and Narcotics Anonymous meetings. N.W.H. indicated she was willing to submit to court-ordered drug testing and had voluntarily begun submitting to drug testing on her own.
As of the time of the August 19, 2014 hearing, L.H. had been in her current foster home for almost eleven months, since she was three-months old. According to an August 4, 2014 letter to the juvenile court from L.H's DCFS case manager, L.H. and her foster parents were very bonded to one other. Additionally, L.H., who suffers from cognitive and muscle issues, was making improvements in those areas, with her foster parents working with her daily on cognitive and muscle skills. Her foster parents, who were described as patient and caring, had committed to adopting her should she be freed for adoption.
Although the placement of children with relatives is generally preferred, the best interest of the child trumps all other considerations in CINC proceedings. See La. Ch.C. art. 601; State In Interest of C.P.C., 12-0851 (La. App. 1st Cir. 1/29/13) (unpublished); State ex rel. T.M., 03-929 (La. App. 3d Cir. 3/24/04, 11), 869 So.2d 339, 346. Based on the record, we find no abuse of the juvenile court's discretion in its obvious conclusion that the grandparents failed to establish "good cause" to allow an intervention for the purpose of seeking custody of L.H. N.W.H.'s troubling history of drug addiction, including at least one relapse, is a clear area of concern. Moreover, L.H. appears to be thriving in her current placement with her foster parents.
Under the circumstances, the court evidently concluded that custody and/or placement of L.H. with the grandparents was not a viable option. Therefore, allowing intervention by the grandparents as to custody would neither facilitate the permanent placement of L.H. nor protect her best interests. Considering the totality of the evidence, we find no abuse of discretion by the juvenile court in denying the grandparents intervention as to custody. See State ex rel. A.L., 29 So.3d at 620-21.
Moreover, we note that the grandparents' motion to intervene for custody of L.H. could be construed as a request to modify the juvenile court's prior judgment of disposition, since the grandparents were requesting that custody of L.H. be changed from DCFS to them. See State in the Interest of H.W., 13-0231 (La. App. 1st Cir. 7/25/13), 121 So.3d 1200, 1203, writ denied, 13-2217 (La. 10/11/13), 123 So.3d 1229; State ex rel T.M., 869 So.2d at 346. To the extent that the grandparents were seeking such a remedy, they had no right to do so. A judgment of disposition may be modified by a juvenile court upon its own motion or upon the motion of the district attorney, the DCFS, the child, or his parents. La. Ch.C. art. 714(A); State in Interest of S.G., 95-2063 (La. App. 1st Cir. 3/25/96), 676 So.2d 109, 111. Under Article 714, the grandparents had no right to seek modification of the judgment of disposition granting custody of L.H. to DCFS.
An appellate court may notice on its own motion the failure of a pleading to disclose a right of action. La. C.C.P. art. 927(B).
SUPERVISED VISITATION
The grandparents contend the juvenile court erred in requiring that their visitation with L.H be supervised. Once again, they contend this error resulted from confusion by DCFS between the safety plans of S.T. and L.H., as well as what they refer to as N.W.H.'s "alleged" drug use.
A trial court is vested with vast discretion in matters of child visitation. The court's determination regarding visitation is entitled to great weight and will not be disturbed on appeal unless an abuse of discretion is clearly shown. Shaw v. Dupuy , 06-0546 (La. App. 1st Cir. 2/9/07), 961 So.2d 5, 6, writ denied, 07-0505 (La. 3/21/07), 951 So.2d 1092.
In the instant case, the purported connection between the restriction in the February 10, 2015 judgment that the grandparents' visitation be supervised and the question of whether L.H.'s safety plan was violated by N.W.H. in 2013 is unclear. The grandparents insist that no violation occurred because, contrary to the testimony of a DCFS employee, there was no restriction in the safety plan on N.W.H.'s visitation with L.H. They claim this restriction applied only to S.T.'s safety plan. Regardless, the issue of whether a violation of L.H.'s safety plan occurred in 2013 was, at best, only peripheral to the issue of the conditions of visitation imposed in 2015.
Based on the record, the juvenile court was not manifestly erroneous and did not abuse its discretion in ordering that the grandparents' visitation with L.H. be supervised. In view of N.W.H.'s admitted history of drug addiction, the juvenile court's order of supervised visitation was completely justified and supported by the record. The grandparents' contentions to the contrary lack merit.
TERMINATION OF VISITATION
The grandparents also assert the juvenile court erred in granting a motion to end their visitation with L.H. at a hearing held on the issue of terminating the parental rights of L.H.'s biological father. The grandparents were not given notice of the parental rights termination hearing nor did they attend. Nevertheless, in a judgment signed by the juvenile court on October 23, 2014, terminating the parental rights of L.H.'s biological parents, the court also terminated the grandparents' visitation.
The juvenile court, however, subsequently recognized that its judgment "ending visitation without notice to the [grandparents] was improper" since it had allowed them to intervene as to visitation. Further, the court sua sponte reinstated visitation, signing a judgment on February 10, 2015, granting the grandparents supervised visitation with L.H. As a result, any issue as to the propriety of the October 2014 judgment terminating visitation was rendered moot. Consideration of the issue by this court would serve no useful purpose nor afford appellants any practical relief. See City of Hammond v. Parish of Tangipahoa , 07-0574 (La. App. 1st Cir. 3/26/08), 985 So.2d 171, 178. This court will not consider matters that are moot.
Appellants also assert that DCFS has unjustly prevented them for having visitation with L.H. in order to advance its goal of adoption of L.H. by her current foster parents. As an example, appellants point out that DCFS has previously scheduled visitations at times when it was impossible for R.H. to visit L.H. because of his work schedule.
These allegations are not directed at any specific ruling by the juvenile court and, therefore, present nothing for our review. Moreover, any past refusals by DCFS to allow visitation is now moot in view of the juvenile court's February 10, 2015 judgment. In that judgment, the juvenile court not only ordered that the appellants be allowed supervised visitation with L.H. but also ordered DCFS to accommodate R.H.'s work schedule in arranging visitation. If DCFS should fail to comply with this judgment in the future, appellants' remedy is to file a rule for contempt.
CONCLUSION
For the above reasons, this appeal is converted to an application for supervisory writs, a writ of certiorari is granted, and the February 10, 2015 judgment of the juvenile court is affirmed. The grandparents are to pay all costs of this matter.