Opinion
2015 CW 0616
09-21-2015
IN THE INTEREST OF L.H.
Sandra Nelson Fuselier Mandeville, Louisiana Counsel for Respondent Child, 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 Respondent
Child, 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-0617; 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 into 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 motion to intervene 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.
On August 19, 2014, the juvenile court held a hearing on the grandparents' motion to intervene. The court allowed intervention for the purpose of the grandparents seeking visitation, but denied intervention with respect to custody. The court further indicated that the grandparents would be granted some visitation with L.H., but took the extent of visitation under advisement.
The juvenile court also conducted a twelve-month case review at the same hearing. Thereafter, the court maintained DCFS's custody of L.H., approved her foster home placement, and once again approved adoption for L.H.'s permanency goal. A judgment in accordance therewith was signed on September 15, 2014. 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, however, since it was not appealed.
The juvenile court eventually signed a judgment on February 10, 2015, providing that the grandparents' motion to intervene was denied except as to visitation and granting 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., L.H.'s half-sibling. The February 10, 2015 judgment is the subject of a separate appeal taken by the grandparents that is currently pending before this court. See In the Interest of L.H., Docket No. 2015-CW-0617 (decided this same date).
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-0617, In the Interest of L.H., which may be used to the extent necessary to adequately review the issues raised in the instant 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.
On September 16, 2014, L.H.'s biological mother, B.H., stipulated in open court to the termination of her parental rights. On October 23, 2014, a termination hearing was held concerning the parental rights of L.H.'s biological father. Neither the grandparents nor their counsel were given notice of nor attended the hearing. Nevertheless, in response to an oral motion made at the hearing, the juvenile court signed a written judgment that day terminating the grandparents' visitation with L.H. The same judgment also terminated the parental rights of both of L.H.'s biological parents.
On October 31, 2014, the grandparents filed a motion to intervene requesting that they be made parties to the proceedings and allowed to adopt L.H. Alternatively, appellants requested that they be allowed to continue their visitation with L.H. while awaiting adoption, as well as after adoption. They emphasize that such visitation would foster a relationship, not only between themselves and L.H., but also between L.H. and her other maternal relatives, including S.T.
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.
The juvenile court denied the motion to intervene on November 5, 2014. The grandparents appealed this judgment, 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.
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 being taken from a nonappealable judgment. In support of dismissal, the DCFS and L.H.'s foster parents argue that the judgment denying the grandparents' intervention as to custody was a nonappealable interlocutory judgment. 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.
The basis of the contention that the juvenile court's judgment is nonappealable is 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 previously 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 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 a motion for 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 nonappealable 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. In the instant case, the grandparents filed their motion for appeal 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. Accordingly, considering 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
The grandparents contend the juvenile court erroneously denied their October 2014 motion for intervention 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 custody by DCFS in 2013.
At a hearing held on August 19, 2014, 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 DCFS custody.
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.
N.W.H. has admitted to a history of drug abuse. She claimed that she initially developed a problem with pain medications as a result of a painful orthopedic condition. In October 2012, she received a DWI citation while under the influence of opiates. Thereafter, she underwent treatment in Texas for her addiction to opiates. Although N.W.H. indicated the treatment was effective, she admitted that she later 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. According to her testimony, N.W.H. is willing to submit to court-ordered drug testing and has voluntarily begun submitting to drug testing on her own.
The record reveals that L.H., who was born in June 2013, had been in her current foster home for almost her entire life, since she was three-months old. According to an August 4, 2014 letter to the juvenile court from her DCFS case manager, L.H. and her foster parents are 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, have 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 adoption and/or 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, it is clear that the juvenile court concluded that adoption of L.H. by the grandparents and/or placing her in their custody was not a viable option. Therefore, the juvenile court evidently concluded that the grandparents failed to establish good cause for intervention, since allowing them to intervene as to adoption or 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 adoption and/or custody. See State ex rel A.L., 29 So.3d at 620-21. With respect to the grandparents' alternate request for visitation, we note that they were granted such relief in a separate judgment rendered by the juvenile court on February 10, 2015.
The grandparents also argue that the juvenile court erred in requiring that their visitation with L.H be supervised and in terminating their visitation at a hearing of which they were given no notice. Neither of these issues is properly before this court in the instant matter, which involves review of the juvenile court's November 5, 2014 judgment denying the grandparents' attempt to intervene. The November 5th judgment neither granted nor terminated visitation. We have addressed these issues of supervision and termination of visitation in the related matter pending before this court with respect to the juvenile court's February 10, 2015 judgment. See In the Interest of L.H., Docket No. 2015-CW-0617 (decided this same date). It was in that judgment that the juvenile court granted the grandparents supervised visitation with L.H. and reinstated the visitation that it had previously terminated.
Lastly, the grandparents assert that DCFS has unjustly prevented them in the past from having visitation with L.H. in order to advance its goal of adoption of L.H. by her current foster parents. These allegations are not directed at any specific ruling by the juvenile court and, therefore, present nothing for our review. In the event that DCFS should fail to comply with the visitation ordered by the juvenile court in its February 2015 judgment, the grandparents' 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 November 5, 2014 judgment of the juvenile court is affirmed. The grandparents are to pay all costs of this matter.