Opinion
2013 CJ 0835
2013-09-13
STATE OF LOUISIANA IN THE INTEREST OF M.B. AND N.B.
CB Pensacola, Florida Pro Se Kathryn Landry Baton Rouge, Louisiana Counsel for Plaintiff-Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE CITY COURT OF SLIDELL JUVENILE DIVISION
NUMBER 12 JS 3231, PARISH OF ST. TAMMANY
STATE OF LOUISIANA
HONORABLE JAMES LAMZ, JUDGE
CB
Pensacola, Florida
Pro Se Kathryn Landry
Baton Rouge, Louisiana
Counsel for Plaintiff-Appellee
State of Louisiana
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
Disposition: AFFIRMED; MOTION FOR COUNSEL TO ASSIST ON APPEAL DENIED.
KUHN, J.
CB, the biological father of the minor child, NB, and the putative father of the minor child, MB, appeals the city court's six-month case review order, continuing the custody of the children in the Department of Children and Family Services (DCFS). We affirm.
Based on representations made by the children's mother indicating that MB had been sexually abused in her custody, DCFS filed a verified complaint alleging detailed facts of the abuse. After a hearing for which the mother was present and a court-appointed attorney represented CB's interests, the city court concluded that reasonable grounds existed and found NB and MB were in need of care. The emergency removal of the children for their protection was ordered. Notice of the judgment was served on CB's attorney and mailed to CB at his address in Pensacola, Florida.
DCFS subsequently filed a petition seeking a determination that the children were in need of care, averring that both the mother and CB had placed the children in a situation beyond their abilities to cope. CB's court-appointed attorney subsequently answered the petition, denying the allegations of DCFS's petition. After a hearing at which CB was present, the city court issued a judgment of adjudication and disposition, which concluded that the children were in need of care and that continuation in the home of either parent would be contrary to the children's welfare, safety, and best interests. Custody was placed in DCFS. The city court also ordered DCFS to develop a case plan, indicating that the plan for permanent placement of the children was reunification with the parents, and scheduled case review hearings. Lastly, the judgment specifically ordered CB to submit to a psychiatric evaluation, the suspension of visitation until the psychiatric evaluation report was received, and an expedited home study on CB. After a six-month review hearing, the city court issued an order, which continued the custody of the children in DCFS. CB appeals.
Filing a bare-bones brief with this court, CB first urges that he has been denied due process. Reviewing various documents CB has filed into the record, we understand his argument is he received no notice or due process when the city court issued the instanter order that concluded reasonable grounds existed for the emergency removal of the children based on a finding that they were in need of care.
The record shows compliance with the requirements of La. Ch.C. art. 619, which establishes the procedure for instanter orders of custody. And while CB was not physically present at the subsequent hearing, held in compliance with La. Ch.C. art. 624 (providing the requirements for continued custody hearings), he was represented by a court-appointed attorney. As such, there has been no violation of CB's due process rights.
CB complains that he has not been advised of the reasons that the children were placed in DCFS's custody rather than his upon the removal of the children from the mother's custody. In concluding that CB had placed the children in a situation beyond their abilities to cope, the city court apparently found that his custody was unsuitable since he had left the children with the mother without maintaining a meaningful contact with either her or the children, particularly since the perpetrator of the sexual abuse on MB was a person the father knew or should have known had a criminal history of sexual abuse on a minor and it was foreseeable he would have access to the children. There is no error by the city court in this implicit finding.
CB's next complaint on appeal is that he has not been advised by either the city court or his court-appointed attorney why his visitation was revoked. But the adjudication and disposition order that the city court rendered (on the same date as the hearing at which CB was present and which was served on him) specifically stated that CB's visitation was suspended pending receipt of a psychiatric evaluation. Thus, he has been advised of the basis for the suspension and we have not found any error. See La. Ch.C. art. 681A(1) and (5) (once a child has been adjudicated in need of care, because the child's health and safety is of paramount concern, the court may place the child in the custody of a parent on such terms and conditions as deemed in the best interest of the child, or may make any other disposition or combination of the enumerated dispositions as the court deems to be in the best interest of the child); see also La. Ch.C. art. 669(A) (the court may order such physical and mental examination and evaluation of the child and his parents as may be helpful in determining a fair and just disposition).
In his last complaint, CB maintains that he has had ineffective assistance of counsel. The record shows that CB was advised by the Twenty-Second Judicial District Public Defender's Office that after the appointment of two different attorneys to represent him, each of whose performances he was displeased with "to the extent that [he has] either threatened or filed bar complaints against them," the office was "unable to provide" CB with another appointed attorney. Thus, CB was initially represented by court-appointed counsel in these child-in-need-of-care proceedings. CB has cited, and we have found, no provisions for ineffective assistance of counsel relief in this context. Cf . La. C.Cr.P. arts. 924-930.9 (establishing a means by which a person in the custody of the Department of Public Safety and Corrections after imposition of a sentence following conviction for the commission of a criminal offense may seek to have the conviction and sentence set aside). Clearly, by his actions toward the two attorneys, CB knowingly waived his right to court-appointed representation. See La. Ch.C. art. 608A (the parent of a child who is the subject of a child in need of care proceeding shall be entitled to counsel, which right may be waived by the parent). CB further indicated his desire to proceed without counsel at the six-month case review hearing from which he appealed. Accordingly, there is no error.
CB urges that because he has not been given an explanation as to why he must comply with DCFS rules and regulations, the city court gave jurisdiction to DCFS. But all orders of compliance with DCFS regulations were imposed by the city court as a condition for the permanent plan of reunification. While it is true that the particulars of the reunification plan are administered by DCFS, it is the city court which oversees that administration and thereby retains jurisdiction over the proceeding.
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Lastly, we note that subsequent to lodging of this appeal, CB filed a motion pro se seeking counsel to assist him on appeal. Because we have concluded that CB waived his right to counsel, the motion is denied.
DECREE
For these reasons, we affirm the city court's six-month case review order, continuing the custody of the children in the Department of Children and Family Services. Appeal costs are assessed against CB, the biological father of NB and the putative father of MB,
AFFIRMED; MOTION FOR COUNSEL TO ASSIST ON APPEAL DENIED.