Opinion
NO. 2017–CA–0616
12-06-2017
STATE of Louisiana IN the INTEREST Z.D.
Leon Cannizzaro, DISTRICT ATTORNEY, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY, J. Taylor Gray, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLANT/STATE OF LOUISIANA
Leon Cannizzaro, DISTRICT ATTORNEY, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY, J. Taylor Gray, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLANT/STATE OF LOUISIANA
(Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Daniel L. Dysart, , Judge Regina Bartholomew Woods )
Judge Rosemary Ledet
In this appeal, the State seeks review of the juvenile court's finding that Z.D. is not a child in need of care as to his father. For the reasons that follow, we find that we lack appellate jurisdiction and therefore dismiss the State's appeal.
STATEMENT OF THE CASE
On May 2, 2017, the State filed a petition, alleging, inter alia , that Z.D.'s father is incarcerated in Texas and requesting that Z.D. be adjudicated a child in need of care as to his father. The matter was then set for adjudication. At the adjudication hearing, the juvenile court found that Z.D. was not a child in need of care as to his father. The juvenile court then set the matter for "case review" on July 20, 2017. This appeal followed.
The petition also alleged a pattern of abuse and neglect by Z.D.'s mother and requested that Z.D. also be adjudicated a child in need of care as to his mother. Z.D.'s status as a child in need of care as to his mother is not an issue before the court in this appeal.
DISCUSSION
Article 330(B) of the Louisiana Code of Criminal Procedure provides that, "[i]n ... child in need of care proceedings pursuant to Title VI ... an appeal may be taken only after a judgment of disposition ... [and] shall include all errors assigned concerning the adjudication and disposition." The record in this case does not contain a judgment of disposition as to Z.D.'s father. Accordingly, we find that we lack appellate jurisdiction over this case.
DECREE
For the foregoing reasons, we dismiss the State's appeal.
APPEAL DISMISSED
LOVE, J., CONCURS IN THE RESULT WITH REASONS
DYSART, J., DISSENTS, WITH REASONS
BARTHOLOMEW–WOODS, J., DISSENTS WITH REASONS
LOVE, J., CONCURS IN THE RESULT WITH REASONS
I respectfully concur in the result. I write separately because, unlike the majority, I would exercise this Court's discretion to convert the appeal to an application for supervisory review and deny the writ.
I find the record contains a judgment of disposition as to Z.D.'s father. The juvenile court's June 27, 2017 judgment states:
See La. Ch.C. art. 782 ; also Medus v. Medus , 379 So.2d 21, 23 (La. App. 3rd Cir. 1979) (finding the minute entries and court orders constituted judgments of disposition within the meaning of the former version of La. Ch.C. art. 782(C) ).
Considering the testimony of the witness taken under oath and the information provided to the Court, the Court finds that the State did not meet its burden regarding the father in this matter for insufficient evidence...IT IS ORDERED, ADJUDGED AND DECREED that the child is hereby found NOT to be a Child in Need of Care as to the father, [J.B.].
Absent from the judgment is the appropriate decretal language, either disposing of or dismissing the State's child in need of care petition. See La. C.Cr.P. art. 330(B). When a "judgment does not contain the appropriate decretal language [either] disposing of or dismissing [the State's] child in need of care petition, [an appellate court] cannot consider it as a final judgment for purpose of an appeal." State in Interest of J.C. , 16-0138, p. 6-7 (La. App. 1 Cir. 6/3/16), 196 So.3d 102, 107. Nevertheless, when the "litigation would have been terminated had the district court included the proper decretal language dismissing the petition, [an appellate court can] exercise [its] discretion and convert th[e] appeal to an application for supervisory writ." Id. , 16–0138, p. 7, 196 So.3d at 107.
La. Ch.C. art. 330(B) provides, "[i]n...child in need of care proceedings...an appeal may be taken only after a judgment of disposition...[and] shall include all errors assigned concerning the adjudication and disposition."
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The record contains a judgment of disposition, however, it simply lacks the necessary decretal language to be considered a final appealable judgment. Considering the seriousness of cases involving a child in need of care, I would exercise our discretion and convert the present appeal to an application for supervisory review. Therefore, I address the trial court's ruling below.
In determining whether a child is in need of care, the court "is vested with great discretion [,] and such a decision will not be reversed [...] absent a showing of abuse of that discretion." State in Interest of S.T. , 14-0731, p. 3 (La. App. 4 Cir. 1/28/15), 158 So.3d 944, 946 (quoting State in the Interest of D.S. , 04-0327, p. 3 (La. App. 4 Cir. 7/28/04), 881 So.2d 764, 766 ). The June 27, 2017 judgment sets forth reasonable measures for the child's care in contemplation of the case plan goal for reunification/adoption upon the court's approval. Likewise, it put orders in place with respect to Z.D.'s mother, who is required to participate and successfully complete court-mandated counseling and "monthly medication management meetings" as well as "continue to maintain safe and stable housing free of hazards." The juvenile court judge is in a better position, having heard the testimony presented and being familiar with the case history, to determine what is in the best interests of the child. Thus, I find no abuse of the juvenile court's discretion. I would deny the writ.
Accordingly, I concur in the result but for the reasons addressed herein.
DYSART, J., DISSENTS, WITH REASONS.
Although the record does not contain a judgment of disposition, it is clear from the trial court's ruling that it dismissed the State's child in need of care petition, setting the matter for a case review hearing, and not a disposition hearing. Thus, I respectfully dissent as I find that the trial court erred in not finding Z.D. to be a child in need of care as to his father, J.B.
The purpose of Title 6, Child in Need of Care, of the Louisiana Children's Code is to protect children whose physical or mental health and welfare is substantially at risk of harm by abuse, neglect, or exploitation. La. Ch.C. art. 601. The health, safety and best interest of the child are of paramount concern. Id.; see also, State in the Interest of D.A., 10-1040, p. 7 (La.App. 5 Cir. 6/14/11), 70 So.3d 960, 963. To reverse a factfinder's determination of fact, an appellate court must review the record in its entirety and find that a reasonable factual basis does not exist, and further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, through DOTD, 617 So.2d 880 (La. 1993) ; State in the Interest of D.H., 04-2105, pp. 7-8 (La.App. 1 Cir. 2/11/05), 906 So.2d 554, 560.
After reviewing the record in its entirety and considering the best interests of Z.D., I find that it would not be a prudent use of judicial resources to require a disposition hearing prior to our ruling on the merits of the child in need of care petition. I would reverse the ruling of the trial court and find Z.D. to be a child in need of care as to his father, J.B.
BARTHOLOMEW–WOODS, J., DISSENTS WITH REASONS.
I respectfully dissent from the result reached by the majority. Whether we were to consider the merits of this matter as an appeal, or were to convert this matter to be considered on the merits under our supervisory jurisdiction, I would find that the juvenile court abused its discretion, resulting in an adjudication that Z.D. is not a child in need of care. Specifically, the juvenile court held as it did after noting the State relied upon hearsay evidence to which there was no objection. However, the law is clear that an "adjudication hearing shall be conducted according to the rules of evidence applicable to civil proceedings." La.Ch.C. art.663(A). The failure to object constitutes a waiver of the right to object to admissibility, and thereafter, the evidence may be considered and given probative effect. Guedon & Assocs., Inc. v. Haik , 533 So.2d 1256, 1260 (La.App. 4 Cir. 1988). I am unaware of any jurisprudence under the current circumstances wherein a trial court can supply or sustain an objection that was never offered. Accordingly, I would reverse.