Louisiana

ABUSE

COMPETENCY

State v. Barbain, 2015 WL 6750317 (La. Ct. App.). Defendant with history of mental illness was convicted of molesting 11-year-old victim until she was 16 years old. Defendant failed to prove by preponderance of evidence that he was incompetent to stand trial despite his history of psychiatric illness and limited schooling. Expert testified that defendant did not exhibit overt signs of psychotic symptoms that interfered with his ability to understand proceedings or effectively assist attorney.

PROTECTION ORDER

Vallius v. Vallius, 53 So. 3d 655 (La. App. Ct. 2010). Trial court abused its discretion when it dismissed stepdaughter’s petition for protection order against stepmother on the basis that stepdaughter misrepresented herself in her petition as a parent seeking temporary custody of stepmother’s children; trial court deprived stepdaughter of chance to present evidence and testimony and should not have dismissed petition absent evidence of her misrepresentation.

SENTENCING

State v. Conway, 2016 WL 2908058 (La. Ct. App.). Mother was charged with cruelty to one of her six children when neighbor discovered burns and other injuries while caring for two-year old daughter. Despite statutory procedural bar providing defendant cannot appeal or seek review of sentence imposed as part of plea agreement, appellate court agreed to review whether defendant’s claim sentence was excessive. Defendant was never specifically informed she was waiving right to appeal, defense counsel objected to sentence, and court advised defendant she had 30 days to appeal.

SEX TRAFFICKING

State v. Sims, 2016 WL 3546401 (La.). Statute prohibiting trafficking of children for sexual purposes was not unconstitutionally vague. Statute makes it unlawful for any person to knowingly recruit minor to engage in commercial sexual activity and states that lack of knowledge of victim’s age is not a defense. Its intent is to criminalize knowing sex trafficking of juveniles, regardless of defendant’s knowledge of victim’s minority status.

CUSTODY

MEDICAL RECORDS

Gerhardt v. Gerhardt, 70 So. 3d 863 (La. Ct. App. 2011). Trial court did not abuse its discretion in custody case by admitting mother’s medical records despite flawed subpoena because mother’s testimony also described her passing out in the car; even if there was a technical error, no harm was caused by admission because the medical records did not add additional information at trial, and court’s decision was based on numerous other documents and testimony.

DELINQUENCY

ADMISSIONS

State in re K.K., 153 So. 3d 1280 (La. Ct. App. 2014). Admission to delinquency petition containing juvenile’s rights and signed by juvenile, juvenile’s attorney, trial judge, and juvenile’s mother was insufficient to satisfy statute requiring trial court to advise juvenile of his rights. Written admission to petition, which did not refer to any particular offense or recite any factual basis for offenses charged, was insufficient to support trial court’s findings.

EVIDENCE

State in re D.H., 2015 WL 1845294 (La. Ct. App.). Evidence in juvenile delinquency proceeding was insufficient to establish that juvenile had specific intent as required for theft offense. Thirteen-year-old defendant was arrested with her mother for stealing from supermarket. Store officer did not see juvenile conceal meat, and mother admitted to having stolen items in her purse. Trial judge found juvenile never had intent to steal, but once juvenile’s mother made decision to steal, juvenile was pulled into her actions.

State in re J.C.R., 157 So.3d 1284 (La. Ct. App. 2015). Trial court’s failure to enter video and audio exhibits into evidence, which were played during juvenile’s adjudication hearing for communicating false information about a planned bombing on school property, made the record on appeal incomplete and prevented sufficiency review. Juvenile’s adjudication was vacated because recordings, which included witnesses identifying his voice on 911 audio recording and his parents testifying voice was not his, were important to adjudication determination.

FIREARMS

In re J.M., 144 So.3d 853 (La. 2014). State statute prohibiting possession of a handgun by juveniles aged 16 years and younger did not violate right to bear arms provision of the state constitution. The statute was narrowly tailored to achieve a compelling government interest of public safety for the general public and juveniles. Research shows juveniles’ immaturity makes possessing a handgun a danger to the public, handguns are most available to juveniles, and most often used in committing crimes.  

SENTENCING

In re K.B., 2016 WL 4382566 (La. Ct. App.). Judge’s deviation from sentencing recommendation in delinquency case was not in error. Juvenile’s agreement was “agreed upon plea” not “agreed upon sentence.” Transfer of case for disposition to jurisdiction where juvenile was domiciled was appropriate, even though court did not take formal evidence at hearing and judge was aware of juvenile’s previous history with child welfare agency.

SEX TRAFFICKING

State in re M.J., 160 So.3d 1040 (La. Ct. App. 2015). State was not required to present evidence that alleged delinquent M.J. was not victim of sex trafficking to prove that M.J. committed delinquent act of prostitution. Judge was not required to recuse himself even though he stated that court does not use preferred names and would use name stated on M.J.’s birth certificate and in petition. Although judge’s refusal to acknowledge M.J.’s gender identity might be inconsiderate, judge made no statements that would support a finding of actual bias or prejudice.

DEPENDENCY

FAILURE TO PROTECT

In re H.C., 106 So. 3d 769 (La. Ct. App. 2013). Where child had been shaken causing brain injury while in the home with parents and grandparents, trial court erred in finding child was not dependent because it could not establish who perpetrated the abuse. Because child’s parents and grandparents were the only people with access to the child during the time she was abused, she was either abused by a parent or caretaker or they failed to protect her from persons unknown to the court, and either alternative supported adjudication.

GUARDIANSHIP

In re T.B., 2016 WL 5231855 (La. Ct. App.). Trial court’s determination that it was in best interests of children to be permanently placed in guardianship of grandparents, rather than be reunited with mother, was not manifestly erroneous. Mother’s plan required participation in sexual abuse class to understand effects of abuse on child but at each evaluation mother’s progress was reported as stunted by refusal to accept that child had been sexually abused by mother’s husband. Mother had not demonstrated significant measurable progress toward case plan goal of understanding effects of sexual abuse on child.

HOME CONDITIONS

In re L.M., 57 So.3d 518 (La. App. Ct. 2011). Record supported conclusion that mother failed to provide children with necessary food, clothing, shelter, and care and placed children’s health and safety at risk; home conditions were alarming as evidenced by children’s lack of personal hygiene, clean clothes, food, supervision, and unsanitary home.

NONCUSTODIAL PARENTS

In re K.R., 118 So. 3d 520 (La. Ct. App. 2013). Trial court properly placed child with noncustodial father after neglect adjudication and disregarded agency’s recommendation for placement with grandparents. Agency had been unable to obtain father’s records or information on substance abuse treatment, and its concerns about the child’s adjustment to school were not addressed. State statute provided noncustodial parental preference absent a showing of an inability to safely parent and state failed to meet burden to show how the concerns put child at serious risk.

REASONABLE EFFORTS

In re C.P., 2016 WL 6091694 (La. Ct. App.). After child was adjudicated dependent, juvenile court declined to change child’s case plan from reunification to adoption and awarded mother weekly, supervised overnight visits with child. Trial court’s decision, even though child had reactive airway disease and mother, grandmother, and grandmother’s boyfriend smoked, was not manifestly erroneous. Court Appointed Special Advocates, who observed ashtrays full of cigarette butts in mother’s residence, never saw mother smoking in child’s presence, and she denied anyone smoked around child.

SEX ABUSE

State in re S.T., 158 So. 3d 944 (La. Ct. App. 2015). Sufficient evidence supported juvenile court’s adjudication of child as emotionally abused child in need of care. Proceedings stemmed from allegation that father, who was divorced from child’s mother, touched and held her inappropriately, mother interfered with and at one point stopped child’s court-ordered visits with father, there was extreme animosity between child’s mother and father that caused child emotional distress.

VISITATION

In re L.M., 137 So.3d 806 (La. Ct. App. 2014). Trial court properly ordered only supervised visits for mother based on fear that mother would abscond with the children. Mother had history of placing children with questionable adults, had flight-risk tendencies, and made several references of her desire to take the children back to Virginia where her family lived. 

TERMINATION OF PARENTAL RIGHTS

ABANDONMENT

In re O.L.R., 125 So.3d 569 (La. Ct. App. 2013). Father’s parental rights were properly terminated where he was incarcerated with little likelihood of release or ability to comply with a case plan in the foreseeable future. Father had been convicted of attempted first degree murder, armed robbery, vehicle theft, assault with a firearm, burglary, and a pending battery charge from an incident that occurred while he was incarcerated. He had done little to contact or support child. 

AGGRAVATED CIRCUMSTANCES

In re M.B., 108 So.3d 1237 (La. Ct. App. 2013). Trial court properly terminated mother’s rights despite her contention that state needed to either provide further reunification efforts or move to have court determine that efforts were no longer required where child had been in care for a short time. Based on the facts at trial, including that child had only recently been returned to mother’s care after two years of foster care intervention and her unwillingness to obtain employment or seek mental health services, further efforts would likely be futile.

In re S.R., 112 So. 3d 264 (La. Ct. App. 2012). Where parents stipulated to allegations in involuntarily termination petition regarding siblings, trial court properly relied on that prior termination in finding aggravated circumstances allowed the agency to dispense with reunification efforts. Parents’ agreement to stipulate to allegations did not convert involuntary termination matter into a surrender.

BEST INTERESTS

State in re A.V., 2014 WL 5463329 (La. Ct. App.). Court improperly denied petition for termination of parental rights. Termination was in best interests of children who lived with foster family for three and one-half years. Despite physical, behavioral, and developmental deficits at entry to care, children were thriving in foster home and foster parents wished to adopt. Parents failed to develop support system to assist mentally challenged mother who lacked capacity to safely parent when father was not present.

State in re J.J.S., 2015 WL 4093925 (La. Ct. App.). Child was born prematurely and exposed to drugs, but was initially returned to mother and provided services. Mother’s parental rights were later terminated but father’s were not. On appeal by child welfare agency, court terminated father’s rights based on failure to provide significant contributions to child’s care and support for six consecutive months. Child has profound interest, often at odds with those of parents, in terminating parental rights that prevent adoption and inhibit establishing secure and stable relationships.

In re S.C.D., 80 So. 3d 3 (La. Ct. App. 2011). In case involving five siblings, trial court erred in finding it was not in the best interests of three siblings to have their parental rights terminated because they were not in adoptive placements. There was no legal justification to delay some of the siblings in foster care when the evidence established it was unlikely the parents would be able to assume care for their children in the future.

CASE PLANS

In re J.M.L., 92 So. 3d 447 (La. Ct. App. 2012). Trial court properly terminated mother’s parental rights for lack of compliance with her case plan. Despite efforts by the agency to help her devise a budget to ensure safe and stable housing, mother moved 15 to 25 times during the three years her children were in foster care. A psychologist also testified that mother’s impulsive personality characteristics made it unlikely she would improve in the future.

In re M.S., 88 So.3d 646 (La. Ct. App. 2012). Trial court properly terminated parents’ rights because of lack of compliance with case plans. Over a two-year period, parents had largely failed to obtain employment and housing, and failed to support their children. The parents also had positive drug screens for opiates and cocaine a few months before the termination hearing.

FAILURE TO IMPROVE

In re C.M.C., 101 So. 3d 585 (La. Ct. App. 2012). Trial court properly terminated mother’s parental rights based on her failure to address her substance abuse. Despite her claim that she had been drug-free for a year, she had not completed treatment as recommended. Given her 13-year history of substance abuse, the court could conclude she would be unable to safely parent in the future.

In re E.M.M., 96 So. 3d 668 (La. Ct. App. 2012). Trial court erred in terminating father’s parental rights for failing to address the conditions that led to out-of-home placement where father was faulted for not completing substance abuse and anger management programs but there was little to suggest he needed these services since mother had assaulted him, he had no significant substance abuse history, and his testimony that he was routinely drug tested through work was uncontroverted.

In re E.R.S., 141 So. 3d 307 (La. App. Ct. 2014). Where parents only complied with court-ordered case plan for the sake of completing it, rather than to improve and become fit parents for their children’s safety and well-being, the lower court properly found these efforts inadequate and terminated parental rights. Children were sexually molested by older half-brother and parents were aware this was occurring, as they witnessed it and were told by children. 

In re L.J., 118 So. 3d 526 (La. Ct. App. 2013). Though mother found safe housing, passed drug tests, and was determined by the agency to be able to safely parent child’s younger sibling, trial court properly found she had failed to remedy the conditions that led to foster care because she had not completed substance abuse treatment or couples’ counseling and was unable to manage her finances without help from a private social service agency, the state agency, and her psychiatrist.

In re P.M., 86 So. 3d 165 (La. Ct. App. 2012). Trial court erred in terminating mother’s parental rights primarily due to economic factors which had been resolved by the time of termination. She had reunited with the children’s father who had a steady income. Further, her failure to complete counseling was due to her housing instability, which was outside her control in that she repeatedly sought employment.

FAILURE TO IMPROVE

State in re K.V., 2014 WL 6498342 (La. Ct. App.). Evidence supported termination of parental rights of father and mother due to lack of substantial compliance with case plan. For two years, children had been removed from parents’ custody and there was no reasonable expectation of significant improvement in the future. Parents failed to comply with counseling and anger management requirements, children received minimal engagement or nurturing from parents, and both parents recently tested positive for illegal drugs.

GROUNDS

In re R.E., 91 So. 3d 1282 (La. Ct. App. 2012). Trial court properly terminated parental rights to child despite case being open less than a year. Agency had been working with mother for over a year on case with sibling. Ground which permits termination when a child has been in care a year and parent has failed to substantially comply with case plan allows a court to terminate earlier if supported by the facts. In this case, the mother had been using drugs almost constantly since age nine and did not comply with her substance abuse services.

INCARCERATION

In re T.J., 124 So. 3d 484 (La. Ct. App. 2013). Father who was incarcerated for 11 years failed to rebut presumptive termination ground where a parent is sentenced to incarceration for five years after his arrest for a felony while already on probation for armed robbery. Father also had little contact with his children such that one child believed he was deceased. 

TIME IN CARE

In re D.B.A., 2016 WL 732954 (La. Ct. App.). Child welfare agency had authority to file petition to terminate mother’s parental rights to child who had been in care for 22 months. Statute required agency to file for termination if child had been in custody for 17 of last 22 months, unless compelling reason showed filing was not in best interest of child. Mother pled guilty to felony cruelty to juveniles, based on her failure to seek medical attention, which resulted in child’s pain or suffering. Court appointed special advocate (CASA) also supported terminating mother’s rights.

VISITATION

GRANDPARENTS

In re D.E., 83 So. 3d 8 (La. Ct. App. 2011). Trial court erred in dismissing grandparents’ motion for visitation without a hearing because they adequately alleged extraordinary circumstances. Where grandparents were prior primary caregivers of children and they alleged the older child had a preference for visitation with them, they should have been able to present evidence at a hearing.