Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
In this child in need of care proceeding, the mother has appealed from a juvenile court judgment that (1) denied the mother's motion to modify a previously entered disposition and a permanency hearing judgment, both of which placed her child in the legal custody of the child's adult brother; and (2) granted the child's motion for guardianship. For the reasons set forth below, we affirm the judgment of the juvenile court.
FACTS AND PROCEDURAL HISTORY
K.K., who was 11 years old, was removed from her mother K.A.'s custody on August 8, 2014, based on allegations that K.K. was a child in need of care pursuant to La. Ch. C. art. 606(A) due to neglect, lack of supervision and inadequate shelter. Because of instances of domestic violence between the mother and her ex-husband, he had secured a restraining order against her. After a recent altercation, the mother was arrested and detained overnight for violation of the restraining order. Because the mother and her daughter had been kicked out of the home they had previously shared with the mother's ex-husband, the child was forced to find a place to stay with neighbors while her mother was in custody. Also included in the child in need of care allegations were concerns about the effects that the mother's neglect of her mental health issues had on the child.
The child was placed in the custody of the Louisiana Department of Children and Family Services ("DCFS"). A continued custody hearing was held on August 12, 2014. The juvenile court vacated the custody of the DCFS and granted custody of K.K. to her adult brother, Chad Cherry, a resident of Colorado, pursuant to La. Ch. C. art. 627(B).
On October 24, 2014, after an evidentiary hearing, the mother stipulated that the child was a child in need of care. The juvenile court accepted the stipulation and adjudicated the child as a child in need of care under Title VI of the Louisiana Children's Code.
A disposition hearing was held on November 21, 2014. The juvenile court found that the child continued to be in need of care and entered a judgment of disposition which, inter alia, maintained custody of the child with her brother and listed reunification as the case plan goal. The court minutes also show that the judge entered an order allowing the mother to communicate with the child via text messaging and by telephoning the mother once every other week.
In a motion for modification of visitation filed by counsel for the child on March 12, 2015, it was alleged that the phone calls and texts from the mother were adversarial in nature and stressful to the child. Attached to the motion was a copy of a letter in support from the child's counselor in Colorado. After a contradictory hearing held on March 31, 2015, the visitation order was revised to allow contact between the child and the mother only if or when initiated by the child.
A permanency hearing was held on August 6, 2015. The DCFS report to the court indicated that the mother had secured housing and employment. The mother advised the court that she had begun counseling with a new therapist, Shari Moncla, and her counsel requested additional time during which her client could demonstrate compliance with her case plan. The juvenile court agreed to give the mother additional time before closing the case and declined to approve reunification as a case plan goal at that time. Thus, the "Permanency/Case Review Judgment" rendered on August 19, 2015, did not contain a ruling setting forth the court's findings regarding the permanent plan that it considered to be in the best interest of the child. The court set the matter for a case review hearing on October 29, 2015.
Evidence was adduced at the review hearing on October 29, 2015. The mother's attorney filed a motion for a continuance and an objection to the latest case plan filed by the DCFS; this plan had as its goal guardianship with the child's older brother rather than reunification with the mother. The motion for continuance was granted, and the matter was reset for a review hearing on December 11, 2015.
At the review hearing, counsel for the mother filed a motion to modify disposition pursuant to La. Ch. C. art. 714. In her motion, the mother reiterated her objection to the latest case plan proposed by DCFS, and asserted that her counselor was available to testify as to her significant progress in treatment. Attorneys for the other parties sought a continuance as they were served with the motion and supporting memorandum in court. The matter was reset, and the parties were informed that a contested hearing would be held on January 28, 2016. Prior to this hearing, counsel for the child filed a motion for guardianship.
The hearing on the parties' competing motions, both of which addressed the issue of the appropriate permanency plan for the child that had been left unresolved by the court at the August 6, 2016, hearing, took place over the course of several days, with live testimony from witnesses, before concluding on March 30, 2016. After receiving memoranda from the parties, the juvenile court rendered its judgment on October 31, 2016, denying the mother's motion to modify disposition and granting the child's motion to have her brother Chad appointed as her guardian. The judgment also relieved the DCFS from further involvement in the case. The mother filed the instant appeal.
In her first assignment of error, the mother asserts that the juvenile court erred in granting custody of the child to her half-brother Chad at the continued custody hearing held on August 12, 2014. This assignment of error is without merit. As set forth in La. Ch. C. art. 330:
In her second assignment of error, the mother argues that the juvenile court erred in denying her motion to modify disposition, which granted custody of the child to her half-brother, Chad. The mother urges this Court to reverse the juvenile court's judgment granting guardianship to Chad and order the immediate return of the child so mother and daughter can reconnect and rebuild their lives together.
The purpose of Title VI of the Children's Code, entitled "Child in Need of Care," is "to protect children whose physical or mental health and welfare are substantially at risk of harm by physical abuse, neglect, or exploitation and who may be further threatened by the conduct of others[.]" La. Ch. C. art. 601; State in Interest of A.H., 51,053 (La. App. 2 Cir. 09/28/16), 206 So.3d 1081, writ denied, 16-2017 (La. 01/09/17), 214 So.3d 867; State ex rel. L.M., 46,078 (La. App. 2 Cir. 01/26/11), 57 So.3d 518. The health, safety, and best interest of the child shall be the paramount concern in all proceedings under Title VI. Id.
The trial court may modify a judgment of disposition on its own motion or on the motion of the district attorney, the department, the child or his/her parents. La. Ch. C. art. 714. A judgment of disposition may be modified if the court finds that the conditions and circumstances justify the modification. La. Ch. C. art 716. The burden of proving justification for modification of a custody disposition of a child earlier found in need of care is on the party who seeks to modify the disposition of custody. State in the Interest of Tooraen, 397 So.2d 69 (La. App. 2 Cir. 1981); Fowler v. Fowler, 98-953 (La. App. 3 Cir. 12/09/98), 722 So.2d 125; State in the Interest of S.G., 95-2063 (La. App. 1 Cir. 03/25/96), 676 So.2d 109.
Louisiana Children's Code article 702 provides in part:
Permanent placement is defined in the Children's Code as: (1) return of the legal custody of the child to his or her parent(s); (2) placement of the child with adoptive parents pursuant to a final decree of adoption; or (3)
A juvenile court's determination that a parent has not made significant measurable progress toward achieving the goals of his/her case plan, as required by La. Ch. C. art. 702(C)(1), has been held sufficient to support the permanent placement of a child outside the parental home. See State in the Interest of T.B., 16-215 (La. App. 5 Cir. 09/22/16), 202 So.3d 555; State ex rel. E.F.,Jr., 10-1185 (La. App. 1 Cir. 10/29/10), 49 So.3d 575.
After a child has been adjudicated to be in need of care, a motion for guardianship may be filed by the department, parent, counsel for the child or person named as a successor guardian, or the department may submit a case plan along with the case review report to the court and all counsel of record recommending guardianship. La. Ch. C. art. 720(A). The purpose of guardianship is to provide a permanent placement for children when neither reunification with a parent nor adoption has been found to be in their best interest; to encourage stability and permanence in the lives of children who have been adjudicated to be in need of care and have been removed from the custody of their parent; and to increase the opportunities for the prompt permanent placement of children, especially with relatives, without ongoing supervision by the department. La. Ch. C. art. 718.
An appellate court's review of a juvenile court's permanent placement determination is governed by the manifest error standard. State in Interest of N.C., 50,446 (La. App. 2 Cir. 11/18/15), 184 So.3d 760; State in Interest of C.S., 49,955 (La. App. 2 Cir. 03/18/15), 163 So.3d 193; State ex rel. C.M. v. Willis, 41,908 (La. App. 2 Cir. 12/27/06), 946 So.2d 316, writ denied, 07-0190 (La. 02/16/07), 949 So.2d 413; State in Interest of T.B., supra.
As set forth above, La. Ch. C. art. 702(C) orders that the trial court determine the permanent placement that is most appropriate and in the best interest of the child. In order for reunification to remain as the permanent plan for the child, the parent(s) must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care. La. Ch. C. art. 702(C)(1). To find that a parent has made significant and measurable progress on a case plan, the record must show a reasonable expectation of reformation by the parent. State ex rel. P.A.P, 44,221 (La. App. 2 Cir. 02/04/09), 4 So.3d 182. Reformation requires more than mere cooperation with the department. The parent must have altered or modified in a significant way the behavior that was the basis of the child's removal. State in Interest of S.M., 98-0922 (La. 10/22/98), 719 So.2d 445; State ex rel. J.B. v. J.B., Jr., 35,846 (La. App. 2 Cir. 02/27/02), 811 So.2d 179.
In its judgment of guardianship rendered on October 31, 2016, the juvenile court held, inter alia:
The judge issued written reasons for judgment in which he further explained his findings. Specifically, the court wrote:
After a thorough review of the record and due consideration of the arguments of the parties on appeal, this Court does not find that the juvenile court was manifestly erroneous in denying the mother's motion to modify disposition and in concluding that guardianship was the permanent plan that is the most appropriate and is in the child's best interest.
For the reasons set forth above, we affirm the judgment of the juvenile court awarding guardianship of the child, K.K., to Chad Cherry.