author: CHEHARDY, C.J.

text:
    E. R. v. T. S.
    NO. 18-CA-286
    Court of Appeal of Louisiana, Fifth Circuit.
    October 11, 2018
    PLAINTIFF/APPELLEE, E. R., In Proper Person
    COUNSEL FOR DEFENDANT/APPELLANT, T. S., Kernan A. Hand, Myles B. Steib, Benjamin B. Perkins
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg
   CHEHARDY, C.J.

Mr. S, the father, appeals the district court's October 25, 2017 judgment overruling his objection to the domestic commissioner's May 24, 2017 order maintaining a joint custody arrangement with Ms. R, the mother of their two minor children. For the reasons that follow, we affirm the district court's October 25, 2017 judgment.

FACTUAL AND PROCEDURAL HISTORY

Mr. S and Ms. R, who were never married, have two minor children together. Their daughter, KS, was born on August 31, 2009, and their son, AS, was born on December 17, 2013. AS is diagnosed with spina bifida.

Mr. S claimed that on or about February 1, 2015, Ms. R told him that she had used her tongue and mouth to clean AS's penis while bathing him. Mr. S asked Ms. R to leave the house that day. Ms. R responded by calling the police and reporting that Mr. S had been physically and verbally abusive to her.

On February 26, 2015, Ms. R moved out of the house and filed a petition for protection from abuse, in which she alleged physical and verbal abuse at the hands of Mr. S. In conjunction therewith, Ms. R obtained a temporary restraining order against Mr. S, prohibiting contact with her and placing the children in the temporary custody of Ms. R. This order was effective through March 18, 2015, at which time the matter would be heard. The next day, February 27, 2015, Ms. R filed a petition for custody of the two children. This petition was also set for hearing on March 18, 2015. On March 5, 2015, Mr. S answered and filed a reconventional demand to establish custody.

Following the hearing on Ms. R's petition for custody and the petition for protection from abuse, the parties entered into an interim consent judgment on April 20, 2015, wherein they agreed to joint custody and a visitation schedule. In this judgment, the domestic commissioner also dismissed with prejudice Ms. R's petition for protection from abuse. The judgment also ordered the parties to undergo a custody evaluation to determine the domiciliary parent, custody, visitation, and instructed them to participate in parenting classes. This judgment further ordered Mr. S to pay child support to Ms. R in the amount of $350.00 per month.

On May 25, 2015, nearly four months after Mr. S learned of the alleged oral sexual abuse of his son, he lodged a complaint with the Louisiana Department of Children and Family Services ("DCFS"). It is not entirely clear from this designated record, but it appears that when speaking with the DCFS case agent, Ms. R somehow inculpated herself which led the agent to validate the oral sexual abuse complaint. At the hearing on September 25, 2017, however, Ms. R denied this and explained that her "confession" stemmed from a misunderstanding of the documents she was signing. She described the incident that was misconstrued as oral sex:

I ran out of wipes...and so he was crying because he didn't want to be on his back, and so I got nervous, and the first thing I thought of is-and I spat on my knuckle to wipe part of the rim of his penis, and that's exactly what happened.

Mr. S spoke with JPSO detectives about the allegation the next day that resulted in a police report. The record does not reflect that criminal charges were filed against Ms. R. On May 27, 2015, Mr. S filed a petition for protection from abuse, in which he alleged the oral sexual abuse, among several other concerns.

That same day, the domestic commissioner issued a protective order granting temporary custody of the children to Mr. S

and set the matter for a show cause hearing. Meanwhile, in accordance with the parties' April 20, 2015 consent judgment, on May 29, 2015, the parties agreed to the appointment of a custody evaluator pursuant to La. R.S. 9:331.

Over the next several months, the show cause hearing was continued several times, during which time the conditions of the May 27, 2015 protective order remained in effect. On November 30, 2015, the custody evaluator issued his report, in which he recommended joint custody.

On December 2, 2015, Ms. R obtained her own protective order from the domestic commissioner which granted her temporary custody of the children, and set the matter for a show cause hearing.

With the custody evaluator's report issued, on January 5, 2016, Mr. S moved to set a hearing on his previously-filed reconventional demand to establish custody. Trial on the matter was set for February 3, 2016.

On January 28, 2016, Mr. S moved to voluntarily dismiss his petition for protection from abuse and requested the parties proceed to the merits of the custody issue. The full custody trial was held before the domestic commissioner on May 4, 2016.

Thirteen days later, in a letter dated May 17, 2016, DCFS notified Mr. S that his allegation that Ms. R had sexually abused AS was found to have been valid and that DCFS was notifying the district attorney, as required by law. The letter specifically stated: "We have determined...that the facts show, by the agency standard, the report is justified (valid) for Oral Sex of your child by [ER]." The record does not reflect that criminal charges were filed against Ms. R.

The domestic commissioner issued his judgment on July 25, 2016. Adopting the recommendations of the custody evaluator, the commissioner awarded Mr. S and Ms. R joint custody and did not designate either as the domiciliary parent.

On February 21, 2017, Mr. S filed another petition for protection from abuse, in which he raised additional allegations of child neglect/abuse against Ms. R. He alleged that on or about November 27, 2016, while KS was in the care of Ms. R, a thirteen-year-old boy was permitted to play in KS's bedroom, where he touched KS's vagina and forced KS to touch his penis. KS complained to her mother, who ultimately called the police, resulting in a JPSO police report. The record indicates that the teenager was later adjudicated in juvenile court.

Mr. S also alleged that AS sustained a burn on the bottom of his foot while in Ms. R's care on October 6, 2015, and that Ms. R attempted to conceal it from him. Mr. S stated that he did not learn of this injury until October 8, 2015, when he picked up his son from daycare. Due to AS's spina bifida, he attends a daycare that caters to special needs children where all of the employees have medical training. The notes of Danielle Corso, a registered nurse at the daycare, reflect that when Ms. R dropped off AS on October 7, 2015, she notified the daycare of the burn. Nurse Corso's notes also state: "[Ms. R] then asked if there was anything we could apply to it that might make it heal faster because she did not want [AS's] father to see it." Similarly, the notes dated October 8, 2015 reflect that when Ms. R dropped off AS that morning, she asked, "Can we keep his socks on to keep it covered so his dad won't see it?" The notes further reflect that the daycare notified AS's pediatrician, Dr. Reita Lawrence, who instructed the daycare to notify DCFS. In her deposition, however, Dr. Lawrence did not recall instructing the daycare to notify DCFS. She explained that she advised the nurse if she felt it needed to be reported, then report it.

Mr. S followed this petition for protection from abuse with an ex parte motion for change of custody on March 17, 2017. In this motion, Mr. S detailed the allegations against Ms. R of sexual abuse, neglect, and child endangerment. This matter was heard on May 24, 2017, following which the domestic commissioner denied relief on Mr. S's motion for change of custody, continued the joint custody arrangement, and named Mr. S as the domiciliary parent.

On May 30, 2017, Mr. S filed an objection to the May 24, 2017 order, specifically objecting to the continued arrangement of joint custody. This objection was heard before the district court on September 25, 2017, in which extensive testimony and evidence was adduced.

On the oral sex allegation, both Mr. S and Ms. R testified. She denied touching her son's penis with her tongue or mouth, but explained that she spit on her fingers to clean her son's penis. The police report investigating this incident was introduced, as was the May 27, 2016 letter from DCFS that found the allegation to be valid.

Regarding the incident involving KS and the teenaged boy, Ms. R did not deny it occurred and explained that she called the police.

Other testimony established that when Dr. Lawrence prescribed KS Vyvanse for attention deficit disorder, Ms. R asked if she could try the medicine for herself. Dr. Lawrence advised her against it, but, according to Mr. S, Ms. R nonetheless tried some of the medicine. Ms. R denied this.

Ms. R offered the testimony of Dr. Roy Salgado, a licensed therapist who supervised KS's therapy treatment for attention deficit disorder and was qualified as an expert in child psychology and family counseling. Dr. Salgado testified that he was aware of the allegations of sexual abuse of both children, but nonetheless believed that KS would benefit from the joint custody arrangement. He was unaware that DCFS had validated the abuse of AS, and opined, "I would never say that someone who has sexually abused a child should have access to children." But he added: "Abandonment impacts children more so than molestation."

Mr. S offered the testimony of Dr. Kathryn Lawing, a licensed developmental psychologist who was qualified as an expert in child and developmental psychology. Dr. Lawing, who did not personally interview either of the parties or the children, was presented with "hypothetical" scenarios based on the facts in this case and testified that "she would have some very serious clinical concerns about the children's safety within the presence of [Ms. R]."

At the conclusion of the hearing, the court took the matter under advisement and issued its judgment without reasons on October 25, 2017, wherein the court overruled defendant's objection to the domestic commissioner's order entered on May 24, 2017. The court further ordered that, in accordance with the domestic commissioner's ruling of May 24, 2017, the custody judgment of July 25, 2016 was to remain in effect and Mr. S shall be the domiciliary parent.

In accordance with Twenty-Fourth Judicial District Court Rule 35.5(E), Mr. S moved for and was granted an appeal from this ruling on November 21, 2017.

Upon review of the designated record in this case, this Court requested two per curiams from the district court to gain further insight into the district court's October 25, 2017 ruling. The record was supplemented with these per curiams on September 18 and 25, 2018.

DISCUSSION

On appeal, Mr. S assigns three errors: (1) the district court manifestly erred in failing to properly consider the facts regarding his and Ms. R's custody modification; (2) the district court misapplied the standard of review; and (3) the district court erred by disallowing experts to testify.

Assignment of Error One

In Mr. S's first assignment of error, he argues that the district court failed to give proper consideration to the facts under the guiding standard that custody is to be awarded in accordance with the best interest of the children.

It is well settled that the paramount consideration in any determination of child custody is the best interest of the child. See Tracie F. v. Francisco D. , 15-1812 (La. 3/15/16), 188 So.3d 231, 238-39. This applies not only in actions setting custody initially, but also in actions to change custody. Id. at 239.

The Louisiana Supreme Court recognizes a distinction between two types of custody awards. Tracie F. , supra . One type of custody award is a "considered decree," which is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Id. The second type of custody award has been referred to as a "stipulated judgment," which a court renders when the parties consent to a custodial arrangement, and no evidence of parental fitness is taken. Id.

Different burdens of proof apply to each of the two types of custody awards. Tracie F. , supra . The jurisprudential requirements of Bergeron v. Bergeron , 492 So.2d 1193 (La. 1986) are applied to actions to change custody rendered in considered decrees. Id. That is, the proponent of change must show that a change of circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody. Id. Additionally, for considered decrees, the party seeking a change bears the heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Id.

In contrast to considered decrees, in cases where custody has been established by a stipulated judgment, the party seeking modification must prove: (1) that there has been a material change of circumstances since the original custody arrangement was entered, and (2) that the proposed modification is in the best interest of the child. Tracie F. , supra at 239-40.

Here, the initial custody arrangement of April 20, 2015 was established by stipulated judgment when Mr. S and Ms. R agreed to a joint custodial arrangement. This changed on July 25, 2016, when the domestic commissioner entered a considered decree after a full custody trial and established the joint custodial arrangement currently in effect.

On March 17, 2017, Ms. S sought to modify this arrangement imposed by considered decree. Accordingly, the jurisprudential requirements of Bergeron , supra , govern, and Mr. S bore a burden of proving: (1) a change of circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody; and (2) the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or, by clear and convincing evidence, that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Id.

At the time of the considered decree in 2016, La. C.C. art. 132 provided:

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

At the time of the full custody trial on May 4, 2016, DCFS had not yet made known its validation of Ms. R's sexual abuse of AS and the sexual abuse of KS had not yet occurred. Therefore, based on the evidence before him on May 4, 2016, we find no abuse of the domestic commissioner's discretion in his determination, in accordance with La. C.C. art. 132, that joint custody was in the best interest of the children.

However, when Mr. S filed his ex parte motion for change of custody on March 17, 2017, he attached to his motion the DCFS letter validating Ms. R's sexual abuse of AS, the police report investigating the incident, and the police report investigating the incident involving KS. The commissioner denied this motion and maintained joint custody, to which Mr. S objected. At the district court's hearing on this objection, evidence and testimony was adduced regarding the sexual abuse of AS and KS, and the district court overruled Mr. S's objection.

We are asked to determine whether the district court abused its discretion in overruling this objection and maintaining the joint custodial arrangement. See A.E.B. v. J.B.E. , 99-2668 (La. 11/30/99), 752 So.2d 756, 761 ("The determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse.").

This Court's primary concern here is the alleged sexual abuse of both children. It is this Court's opinion that the numerous other allegations, even considered collectively, amount to a catalog of the trials and tribulations of parenting. They do not, on their own, warrant judicial interference. Sexual abuse of both children, on the other hand, does and, in our view, is the crux of this case. Accordingly, we focus our attention and analysis on those allegations.

As noted above, to successfully change the custody arrangement imposed by considered decree, Mr. S was burdened with proving: (1) a change of circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody; and (2) the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or, by clear and convincing evidence, that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Id.

The Louisiana Supreme Court has recognized that this Bergeron standard has been sparingly applied to upset considered custody arrangements and is reserved for the most egregious offenses. Gray v. Gray , 11-548 (La. 7/1/11), 65 So.3d 1247 n.16. One such case in which the Bergeron standard had been met involved oral sexual abuse of the child by his older stepbrother. See A.E.B. v. J.B.E. , 99-2668 (La. 11/30/99), 752 So.2d 756.

In A.E.B. , following the parties' separation, they both sought sole custody of their infant son, JE. A.E.B. , supra at 757. After an evidentiary hearing, the trial court awarded joint custody and designated the mother as domiciliary parent subject to visitation in favor of the father as set forth in a joint custody and visitation implementation plan. Id. Approximately two years later, JE's mother remarried and her husband moved into her home with his two children, an eight-year-old son, BB, and a six-year-old daughter. Id. at 757-58. Soon thereafter, JE, who was about four years old at the time, reported to his father and paternal grandmother that BB had placed his mouth on JE's penis. Id. at 758. His father reported the incident to the sheriff and Child Protective Services. Id.

After approximately one year of JE's complaints that his penis was burning and treatment by several doctors and counselors, JE's father filed a petition to change custody to make him the domiciliary parent. A.E.B. , supra at 758. Following a hearing on the petition, at which testimony and evidence was introduced regarding the sexual abuse allegations, the trial court found a change in circumstances materially affecting the welfare of JE, including his mother's remarriage, the introduction of BB into JE's life, and the proven instances of inappropriate sexual contact by BB upon JE. Id. at 761. The court concluded that JE's father met the heavy burden of proving that JE's interest would be better served by making the father the domiciliary parent with visitation granted in favor of the mother with certain conditions or restrictions including no overnight visitation with the mother when BB was spending the night, that JE was not allowed to be alone with BB at anytime and that adult supervision was required at any time JE and BB were together. Id. The court therefore ruled that the parties would continue to have joint custody, but designated the father as domiciliary parent. Id.

The Louisiana Second Circuit reversed, see AEB v. JBE , 32,647 (La. App. 2 Cir. 8/11/99), 741 So.2d 189, but on certiorari review, the Louisiana Supreme Court reversed the Second Circuit and reinstated the trial court's judgment.

In determining that the Bergeron standard had been met, the supreme court found "[t]he change of circumstances is not based upon one act or incident but results from a combination of factors including the remarriage of JE's mother, the introduction of BB into JE's life, the occurrence of incidents of inappropriate oral sexual conduct perpetrated by BB upon JE and the failure of JE's mother to acknowledge that these incidents occurred and take sufficient steps to prevent any future occurrences." A.E.B. , supra at 761.

In the instant case, we conclude that Mr. S has proven by a preponderance of the evidence that there has been a material change of circumstances affecting the children's welfare since the custody trial on May 4, 2016, and the resultant custody order of July 25, 2016. This is evidenced by DCFS's validation of the sexual abuse of AS and the testimony of both Ms. R and Mr. S that KS was sexually abused by a teenaged boy.

As for the second prong of the Bergeron standard, this Court has recognized that an unsupported allegation of sexual abuse against a party is insufficient to justify modification of a custody agreement, see Rodriguez v. Wyatt , 11-82 (La. App. 5 Cir. 12/12/11), 102 So.3d 109, 117. The Louisiana Supreme Court's decision in A.E.B. , supra , on the other hand, makes clear that supported allegations of sexual abuse are sufficient to justify modification of even a considered decree.

In A.E.B. , after JE's initial disclosure of the abuse, JE was referred to a psychologist, who met with JE on three or four occasions. A.E.B. , supra at 758. This psychologist testified that after their several meetings, which included a variety of tests and clinical interviews, he concluded that oral sexual contact had occurred on several occasions. Id. at 758-59. A second treating psychologist, who interviewed JE and his father only once, concluded there was a seventy-five percent likelihood that sexual contact had occurred. Id. at 759. The supreme court found the psychologists' testimony, in conjunction with testimony from JE's father and paternal grandmother, established by a preponderance of the evidence that sexual contact had occurred. Id. at 761. The court concluded: "In sum, we conclude that the father has met the heavy burden of proving the present domiciliary custody with the mother, due to the change in circumstances, is so deleterious to the child that a modification of the custody decree is warranted." Id. at 762.

In the present case, the evidence offered on the alleged sexual abuse of AS was the conflicting testimony of Ms. R and Mr. S, and the DCFS letter validating the allegation. And on the sexual abuse of KS, while the parties may disagree on details of the incident, the parties do not dispute that the incident occurred.

Additionally, expert testimony was offered regarding the impact of the abuse on the children. Dr. Salgado, the therapist who had been supervising KS's treatment for attention deficit disorder prior to her sexual battery and who treated her after the sexual battery, testified that KS "appeared to be resilient and responding in as well a manner as anyone would expect someone to respond" to sexual battery. He explained that KS's "preoccupation was more with her worry about her parents and their arguing, and she not having a relationship with one or the other." He added:

Children thrive on having good relationships with both parents. Each parent brings to the relationship different skill sets and different attributes that are beneficial, and [KS] appears to have relationships with both parents that she cherishes and that she appreciates and that she benefits from. [KS] does not appear to feel threatened or in any imminent danger within the company of either of the parents.
* * *
I believe if [the joint custody arrangement] stays this way, [KS]...would benefit from the way that it currently is. She would benefit from having both her mother and her father in her life on a regular basis.

Regarding the sexual abuse of AS, Dr. Salgado acknowledged that while he knew that a complaint of sexual abuse by Ms. R against AS had been submitted to DCFS, he did not know how DCFS ruled on the complaint. So he opined on the hypothetical scenario in which DCFS confirmed a complaint of sexual abuse by a parent: "I would never say that someone who has sexually abused a child should have access to children." In the end, Dr. Salgado concluded: "These parents need to put their animus aside and do what's in the best interest of [KS] and [AS]." Dr. Lawing, on the other hand, did not personally interview either of the parties or KS or AS and offered no opinion on the custody arrangement.

In the district court's September 25, 2018 per curiam , the court explained its appreciation of the DCFS-validated complaint against Ms. R:

A DCFS investigator visited and questioned [Ms. R] at her home regarding the allegations, and [Ms. R] willingly answered her questions. However, [Ms. R] was not represented by counsel at that meeting. [Ms. R] told the investigator: "I may have said I put some spit on his penis, but I did not say mouth. I did not say anything about putting my mouth in (sic) my son's penis." The DCFS investigator then presented [Ms. R] with a document to sign. That document, a copy of which has not been provided to this Court, apparently provided the DCFS investigator with sufficient evidence to conclude, "by agency standards," that [Mr. S's] report was justified. To this Court's knowledge, DCFS did not conduct any further investigation.
Despite finding that the report was justified, the children were not removed from the home at that time. The DCFS investigator presented [Ms. R] with a "Safety Plan," and informed [Ms. R] that she would have to attend parenting classes. The matter was turned over to and investigated by the police department, and [Ms. R] was not arrested. The matter was reported to the District Attorney who did not press charges. The matter was considered by the Juvenile Court who did not revoke [Ms. R's] custody. The matter was considered by a custody evaluator who did not recommend that the children be removed from [Ms. R's] custody. The matter was considered by the Domestic Commission twice; yet, he ordered that the parties have equal shared custody.
It is this Court's opinion that [Mr. S] embellished the facts when reporting the incident to DCFS, and that [Ms. R] unwittingly substantiated those allegations by signing a document presented to her by a DCFS investigator outside the presence of counsel. This is a case of "he said/she said," and the Court found [Ms. R] to be the more credible witness. Furthermore, other than DCFS, no other agency or Court (including this one) has found that the allegations rise to the level of sexual abuse.

When confronted with conflicting testimony, the trier of fact is tasked with a credibility determination and is free to accept or reject, in whole or in part, the testimony of any witness. See Greene v. Lovisa , 16-660 (La. App. 5 Cir. 5/17/17), 221 So.3d 270, 278, writ denied , 17-1017 (La. 10/9/17), 227 So.3d 837. These determinations of credibility greatly influence the factual inferences drawn from the testimony, where the nuances in a witness's demeanor and tone of voice bear so heavily upon the listener's understanding and belief in what is said. Id.

Here, the district court discounted the DCFS letter of May 17, 2016, was left with the conflicting testimony of Ms. R and Mr. S, and found Ms. R more credible. As a result, the court determined that the alleged sexual abuse of AS by Ms. R was not proven by a preponderance of the evidence, and thus neither La. R.S. 9:341 nor La. R.S. 9:364 was triggered. As an appellate court, we will not second-guess the district court's credibility determinations. Where conflict exists in the testimony, a factfinder's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's. See Magee v. W. Jefferson Levee Dist. , 17-294 (La. App. 5 Cir. 12/13/17), 235 So.3d 1230, 1245.

In its custody determination, the district court also weighed the sexual abuse of KS. It was not disputed that this incident occurred, and the facts suggest that it was an unfortunate incident brought on by a momentary lapse in better judgment. However, Ms. R responded properly by immediately reporting the incident to the police and notifying Dr. Salgado, KS' treating psychologist.

Dr. Salgado testified that KS is resilient and that she is responding well. He explained that his primary concern is KS's relationship with her parents. He believed that she would benefit from a relationship with both parents, and ultimately opined that the joint custody arrangement is in her best interest.

In a child custody action, a trial court is not bound by the testimony of an expert; rather, expert testimony is to be weighed the same as any other evidence. McCaffery v. McCaffery , 13-692 (La. App. 5 Cir. 4/9/14), 140 So.3d 105, 116-17. Thus, the effect and weight to be given to expert testimony is within the broad discretion of the trial court, who may accept or reject in whole or in part the opinion expressed by an expert. Id. Here, the district court evidently accepted Dr. Salgado's testimony, and we find no abuse of the court's discretion in doing so.

In conclusion, we must admit concern with the fact that DCFS validated oral sexual abuse of AS. Cognizant, however, that our review is limited to a cold and designated record, we requested two per curiams from the district court to try to better understand this troubling case. After extensive consideration of the record, the parties' briefs, the district court's per curiams , and oral argument, we are satisfied that the district court accorded the abuse allegations due consideration in its final determination that joint custody is in the children's best interest. Upon our review, we therefore conclude that the district court did not abuse its discretion in determining that the second prong of Bergeron was not satisfied and that joint custody is in the children's best interest.

This assignment of error is without merit.

Assignment of Error Two

In Mr. S's second assignment of error, he argues that the district court committed legal error when it did not apply the correct standard governing custody determinations, i.e. , that custody is to be awarded in accordance with the best interest of the children, but applied a standard that parental cooperation is the paramount concern. He argues this legal error necessitates our de novo review of this matter.

In support of this argument, Mr. S cites a portion of the district court's remarks at the conclusion of the hearing on September 25, 2017, in which the court directly addressed Mr. S and Ms. R:

I hope [the children] don't have bad feelings about either one of you because of...something you've done or something you've failed to do. And I tell parents all the time that I think that's one of the worse things that parents can suffer in the future is to realize that they've done something or they failed to do something that has had a lasting impact on-a negative impact on the children. I don't want either of you in the future to have those guilt[y] feelings.
* * *
I can't make you like each other. I can't make you be friends. I think that would nice for the benefit of the children if some day you could do that because I've seen a lot of couples that eventually they've seen the light and that happens. You know, whatever happened between the two of you as adults, that shouldn't affect the kids whenever you have animosity against [Mr. S] or [Mr. S] has animosity towards you, [Ms. R]. That's neither here nor there, it should not affect the kids, okay?

Initially, we note the well-settled rule that a trial court's oral or written reasons for judgment form no part of the judgment, and that appellate courts review judgments, not reasons for judgment. Double NRJ Trucking, Inc. v. Johnson , 17-667 (La. App. 5 Cir. 5/16/18), 247 So.3d 1125, 1131. Nevertheless, a court of appeal may review the lower court's reasons "to gain insight" into the court's judgment. Id.

The district court's remarks here do not constitute the court's "reasons for judgment"; rather, they are sage counsel that we encourage the parties to heed. And although these remarks are not the subject of our review, we nonetheless consider them insofar as Mr. S offers them as support for his contention that the district court applied the incorrect legal standard in determining custody. In so doing, we observe that in his citation of the district court's remarks, Mr. S omitted the following portion that we emphasize here with italics:

...I don't want either of you in the future to have those guilt[y] feelings.... Don't have those guilt[y] feelings. You won't if you both put the children first and you make them number one.
And...sometimes it's not convenient for mom or dad, but it's the right thing for the kids, or it's not maybe in the best interest of the mom or the dad, but it's in the best interest of the children, and that's what you have to consider. When you make those decisions or any decisions you make in the future that concerns the children, don't think about...what's best for me, what's more convenient for me. Think about what's best for the kids because let me tell you what happens. Good parents sacrifice for their kids. Good parents make sacrifices for their kids, and so, again, if you do that, I think you're going to be happier, the kids are going to be happier, and they'll grow up to be the good people that you want them to be. So please try to remind yourselves how important that is.
I can't make you like each other....

This omitted portion makes clear that in offering advice to both parents, the court intended to convey that the best interest of the children should be the guiding standard in all decisions affecting the children. To the extent Mr. S submits that his cherry-picked portion of the court's remarks demonstrates that the court applied a standard other than the best interest of the children, we find no merit to this argument. This advice does not indicate, one way or the other, what legal standard the court applied in its custody determination. That, we find, is established in the district court's September 18, 2018 per curiam .

Therein, the court described the issue as follows: "The issue presented is whether [Mr. S] has proved by clear and convincing evidence that the current joint custody arrangement is deleterious to the children, and that an award of sole custody to [Mr. S] would be in the best interest of the children." The court also set forth the governing law as follows: "The burden on the parent seeking sole custody is to demonstrate, by clear and convincing evidence, that the granting of custody to that parent alone will be in the best interest of the child." Upon our review of the designated record in this matter, we conclude that the district court applied the standard of the children's best interest in determining custody.

This assignment of error is without merit.

Assignment of Error Three

In Mr. S's third assignment of error, he argues that the district court improperly excluded expert testimony based on a res judicata exception that was adjudicated subsequent to the testimonies of both experts.

On April 17, 2017, in response to Mr. S's Motion for Change of Custody, Ms. R filed exceptions of no cause of action and res judicata. On the exception of res judicata, Ms. R argued that the incidents of oral sexual abuse and the burn had been adjudicated at the custody trial before the domestic commissioner on May 4, 2016. She submitted that because Mr. S's motion references these already-adjudicated incidents, his motion should be dismissed pursuant to the exception of res judicata. On April 26, 2017, the domestic commissioner overruled the exception of no cause of action and sustained the exception of res judicata, barring Mr. S from relying on these allegations previously adjudicated at the May 4, 2016 hearing.

On July 31, 2017, Mr. S filed a memorandum in support of his motion for change of custody, in which he again raised the oral sexual abuse and burn incidents. Ms. R responded with a motion to strike, in which she sought to have these issues stricken pursuant to the res judicata ruling. This motion was referred to the September 25, 2017 hearing.

At that hearing, before the motion to strike was taken up, during the cross-examination of Dr. Salgado, Mr. S's counsel began to question the doctor on the oral sexual abuse incident but stopped to seek the court's advice on the res judicata issue. Counsel for Ms. R objected to the questioning, and the court permitted the questioning to continue. Later in the hearing, after both experts had testified, the court took up Ms. R's motion to strike. Argument was submitted, the court denied the motion to strike and permitted questioning of the oral sexual abuse and burn.

Mr. S submits that because the court made this ruling after the testimony of the experts, the experts were not permitted to be questioned on those topics. This, he argues, was prejudicial and constitutes reversible error.

Our review of the transcript of the September 25, 2017 hearing reveals that both experts were questioned about the oral sexual abuse and the burn and the court did not restrict this questioning. We conclude this argument is without merit.

DECREE

For the foregoing reasons, we affirm the district court's October 25, 2017 judgment.

AFFIRMED

      Because the parties were never married, we are unable to presume Mr. S's paternity on the basis of marriage. See La. C.C. art. 186. However, Mr. S was adjudicated the children's biological father and the parties do not dispute Mr. S's paternity of KS and AS.

      La. R.S. 13:717(F)(4)(b) provides:
      Any party who disagrees with a judgment or ruling of a commissioner may file a written objection thereto. The objection shall be filed within three days of the judgment or ruling being received by the party either from the commissioner or by service through the clerk of court and shall be filed in accordance with the rules of the Twenty-fourth Judicial District Court. The objection shall be heard by the judge of the Twenty-fourth Judicial District Court to whom the matter was originally allotted.
      The domestic commissioner's May 24, 2017 ruling was issued on Wednesday. The following Monday, May 29, 2017, was Memorial Day, a legal holiday. See La. R.S. 1:55(A)(1). Thus, in accordance with La. C.C.P. art. 5059, Mr. S's objection was timely.

      La. R.S. 13:717(F)(4)(c) provides:
      The judge may decide the objection based on the record of the proceedings before the commissioner or may receive further evidence and rule based on that evidence, together with the prior evidence, or may recommit the matter to the commissioner with instructions.

      Twenty-Fourth Judicial District Court Rule 35.5(E) provides: "Any party who is aggrieved by a judgment entered by a district judge on objection from a decision of the domestic commissioner may appeal or take a writ from that judgment in the same manner as any other judgment entered by a district court."

      The version of La. R.S. 9:341 in effect at the time of the custody trial provided in pertinent part:
      A. Whenever the court finds by a preponderance of the evidence that a parent has subjected his or her child to physical abuse, or sexual abuse or exploitation, or has permitted such abuse or exploitation of the child, the court shall prohibit visitation between the abusive parent and the abused child until such parent proves that visitation would not cause physical, emotional, or psychological damage to the child. Should visitation be allowed, the court shall order such restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child. All costs incurred in compliance with the provisions of this Section shall be borne by the abusive parent.

      The version of La. R.S. 9:364 in effect at the time of the custody trial provided in pertinent part:
      D. If any court finds, by clear and convincing evidence, that a parent has sexually abused his or her child or children, the court shall prohibit all visitation and contact between the abusive parent and the children, until such time, following a contradictory hearing, that the court finds, by a preponderance of the evidence, that the abusive parent has successfully completed a treatment program designed for such sexual abusers, and that supervised visitation is in the children's best interest.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF C.C., Jr., P.B., M.B., J.B.
    NO. 18-CA-440
    Court of Appeal of Louisiana, Fifth Circuit.
    October 12, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, DEPARTMENT OF CHILDREN & FAMILY SERVICES, Elizabeth G. Lincoln
   COUNSEL FOR DEFENDANT/APPELLANT, J.M. AND R.M., Sherry A. Watters

Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr.

SUSAN M. CHEHARDY, CHIEF JUDGE

On appeal, foster parents, J.M. and R.M., seek review of the denial of their motion to intervene and modify the custody determination for their former foster child, J.B. For the following reasons, we vacate the trial court's ruling and remand for further proceedings.

Factual and Procedural History

In August of 2016, the Jefferson Parish District Attorney and the State of Louisiana, Department of Children and Family Services ("DCFS") received reports that four minor children - C.C., P.B., M.B., and J.B. - located in Jefferson Parish were suffering from neglect, abuse, and/or lack of supervision by their mother, P. At that time, C.C. was twelve years old, P.B. was nine, M.B. was four, and J.B. was ten-months-old.

On September 16, 2016, as a result of the DCFS investigation, all four children were removed from their mother's custody, put into the emergency custody of DCFS, and placed into foster care. At that time, the mother, who has never been married, reported that C.C., Sr. was the father of her three older children, C.C., P.B., and M.B., but not the baby's biological father. On September 20, 2016, at the initial custody hearing, the trial judge found that the circumstances warranted maintaining the children in the continued custody of DCFS.

On October 5, 2016, after further investigation, the Jefferson Parish District Attorney filed a Child in Need of Care ("CINC") Petition pursuant to La. Ch.C. art. 606(A), alleging that the children were in need of care because of abuse and neglect by their mother and the prolonged absence of their fathers. On October 18, 2016, the State dismissed the CINC allegation against C.C., Sr. in reference to the baby, J.B., because the mother denied that C.C., Sr. was the baby's father. That day, J.B.'s father was listed as "unknown" and the previous appointment of the curator ad hoc to represent him was recalled.

On November 15, 2016, the trial judge held an adjudication hearing, in accordance with La. Ch.C. art. 659 et seq ., to determine if the State could prove that the children were in need of care. During that hearing, both P. and C.C., Sr. stipulated without admitting the allegations of the CINC petition that the children were in need of care pursuant to La. Ch.C. art. 647. The Court accepted their stipulations, adjudicated the children in need of care, and maintained the children in DCFS custody in their respective foster care placements.

In anticipation of the December disposition hearing, DCFS filed a report with the trial judge. In its report, DCFS listed J.B.'s father as "unknown" and specified its case plan goal for the children was "reunification with a concurrent goal of adoption."

On December 13, 2016, the trial court held a disposition hearing. After hearing the testimony, the judge found that, because the issues that brought the children into care still exist, the children were still in need of care and should remain in DCFS custody in their current foster care placements. Further, the trial judge found that the case plan submitted by DCFS is "consistent with the health and safety of the children and is in the best interest of the children ... and orders all parties to comply therewith." At the close of the disposition hearing, the trial court advised P. and C.C., Sr. that the State was statutorily required to file a petition to terminate their parental rights if the children remained in DCFS custody for a period of fifteen months out of a twenty-two month period. The judge set a status hearing for March of 2017.

On February 21, 2017, in anticipation of the status hearing, DCFS produced a progress report for the family, in which it again recommended that all the children remain in their current placement because the risk factors that brought them into care still existed. DCFS's case plan goal for all of the children at that time was "reunification with a concurrent goal of adoption." Further, the Court Appointed Special Advocate ("CASA") for M.B. and J.B. reported that her recommendation to "protect and promote the best interest of M.B. and J.B." was for the two siblings to "remain in the custody of the State and in their current placement in the certified foster home of J. and R.M."

The minute entry from the March status hearing reflects that the trial judge determined that the children should remain in DCFS custody as "the issues that brought them into care still exist." Further, the court found that the children's current foster care placements were the "safest, least restrictive, most appropriate setting for the children at this time" and were meeting all of the children's needs. The judgment issued after that hearing states that the trial judge informed the parents that, "Federal law requires the state to file a petition to terminate parental rights when a child has been in custody for 15 of the most recent 22 months." Finally, the trial judge set a permanency hearing for September of 2017.

On August 22, 2017, in anticipation of the permanency hearing, DCFS submitted a report to the trial judge again determining that the risk factors that brought the children into care still existed and recommending that the children remain in DCFS custody in their current foster care placements. In its report, DCFS specifically noted that J.B. and his sister remained in the certified foster home of Mr. and Mrs. M. where M.B. and J.B. "feel as if they are part of the family. J.B. only knows the [foster parents] as his parents ." (Emphasis added.) Finally, DCFS requested that the court accept the new case plan goal of adoption into the record.

According to a minute entry dated September 7, 2017, the trial judge learned in a pre-trial conference that P. had named D.W. as J.B.'s putative father. That day, the trial judge ordered DCFS to locate D.W., who was reportedly incarcerated, to perform genetic testing to determine if he was J.B.'s biological father. The permanency hearing for all of the children was continued until September 26, 2017.

In anticipation of that permanency hearing, DCFS reported to the trial judge, again recommending that the children continue in DCFS custody in their current placements. Although DCFS listed D.W. as J.B.'s father, the agency's report made no further mention of any paternity determination and reiterated that the case plan goal for all of the children was adoption.

At the September 26, 2017 permanency hearing, the trial judge found that the new case plan goal of adoption was in the "best interest of the children" and approved it. Further, the trial judge advised P. and C.C., Sr. of the option of voluntarily surrendering their rights and consenting to adoption. The trial judge ordered that the children remain in the custody of DCFS in their current foster care placements.

On November 21, 2017, J.B.'s court-appointed attorney moved to set a status hearing after "becoming aware" that "J.B.'s biological father" proposed a "custody arrangement" that would transfer physical custody of J.B. to the father's sister in Texas. The status hearing was scheduled for February 6, 2018.

In the interim, the clinicians at T-PEP were advised that DCFS might recommend that J.B. be removed from his foster family and placed with his paternal aunt, L.W., in Texas. In a letter to the trial judge dated December 31, 2017, the clinicians voiced their opposition to the proposed change in custody as follows:

We are opposed to moving J.B. to his Aunt's home in Texas. J.B. has been living with [his foster family] since September 2016, when he was 9 months old. He is currently 25 months old. [His foster parents] are the only parents he knows, and it would be detrimental to his well-being to remove him from his psychological parents. J.B. has been doing well in the [foster] home, and they are committed to adopting him. In addition, J.B. has been placed with his 5-year-old sister since he was taken into care. He is very close to his sister, who would be remaining with [their foster family]. We believe it would be very detrimental to J.B.'s and his sister's well-being to separate them.
If DCFS decides to continue visits with the Aunt, we would like to be involved closely, and would like to conduct a prospective caregiver evaluation with her. In addition, we will provide a detailed transition plan to be implemented if DCFS decides to move forward with the transition, against our recommendation.

On December 27, 2017, in anticipation of the status hearing requested by J.B.'s counsel, DCFS reported to the trial court that D.W.'s sister, L.W., and her live-in boyfriend, G.C., visited J.B. in Louisiana. DCFS reported that, pursuant to the Interstate Compact on the Placement of Children ("ICPC"), the Texas Department of Family and Protective Services was investigating whether L.W. was an appropriate custodian for J.B.

On January 15, 2018, Dr. Zeanah, the Co-Director of T-PEP, wrote to DCFS, stating, in pertinent part:

As you know we strongly oppose moving J.B. to his Aunt's home in Texas. J.B. has been living with [his foster family] since he was 9 months old. He is currently 25 months old. The [foster parents] are the only parents he knows, and it would be detrimental to his well-being to remove him from his psychological parents to send him to strangers. J.B. has been thriving in the [foster] home, and they are committed to adopting him. In addition, J.B. is very close to M.B., who would be remaining with the [foster family], and to C.C. and P.B., with whom he visits [weekly]. We believe it would be very detrimental to J.B. and his siblings' ... well-being to be separated.
It is our understanding that prior to November 2017, J.B. had no contact with his Aunt. They have since had two visits together, which have reportedly gone well. Yet, it would not be in J.B.'s best interest to have a precipitous move out of state, to an aunt with whom he has had very limited contact, especially following all of the turmoil in his life. From J.B.'s perspective, this will create an unnecessarily frightening transition to a new caregiving situation.
If DCFS decides to continue visits with the Aunt, we would like to be involved closely, and would like to conduct a prospective caregiver evaluation with her. For more than 20 years, our approach in these situations has been for out of town relatives to come to New Orleans for a period of a week or two. ... We are unclear why we have not been asked to advise about the aunt's suitability or the proposed transition.
As you know, there are abundant data about the harmful effects on young children associated with multiple placement disruptions. It seems to us that we are positioned to avoid another precipitous move for J.B. We would like to align the plan for J.B. with best practices concerning placement transition by providing an expected and well-planned transition.
* * *

On February 6, 2018, the trial judge held a status hearing regarding a potential change in J.B.'s placement by DCFS. J.B.'s counsel argued that it was not in J.B.'s best interest to be removed from his current placement as D.W., who had never met J.B. and was unknown until September of 2017, remained incarcerated and, thus, was not able to take custody of J.B. In response to J.B.'s counsel requesting a "best interest" hearing, the trial judge stated,

Best interest only comes into play if there are allegations against the dad.
* * *
Best interest is something that kicks in when I have jurisdiction over the dad. If he makes a plan and there are no allegations of child in need of care, there is no best interest that I could even look at.
* * *
If there are no allegations against the dad, I really don't have jurisdiction to go to a best interest finding.

That day, the trial judge sustained J.B.'s counsel's objections to any change in placement and ordered DCFS to maintain the current placement until a permanency hearing could be held.

Also, that same day, in anticipation of the permanency hearing, DCFS made a report to the trial judge. In it, DCFS reiterated that, after fifteen months as the children's custodian, its case plan goal for all of the children was adoption. DCFS reported that, since November of 2017, J.B. had been in telephone contact with his paternal relatives in Texas. Further, his aunt had visited him twice in Louisiana and, accompanied by his DCFS case worker, J.B. had visited his aunt and her family once in Texas. On February 19, 2018, DCFS notified the trial judge that "the IPCP[sic ] for Ms. L.W. was approved by Texas."

In a letter to the trial judge dated February 20, 2018, the children's CASA advocate, among other things, expressed her concern about D.W.'s desire to relocate J.B. to Dallas. To support her recommendation that the children should remain in their current placements, she stated her opinion as follows:

[M]oving a child away from his foster family, no matter the age, is traumatic, but moving him away from his siblings and the only stable home-life he'd known will be an additional trauma in his young life , not to mention the trauma for the others, losing their baby brother to be placed so far away, reducing any contact opportunities. (Emphasis added.)

On February 23, 2018, counsel for J.B. moved to enjoin DCFS from removing J.B. from his current foster care placement "without a court approved transition plan from Tulane Parenting Education Program." On February 27, 2018, the trial judge denied the motion.

During a pretrial conference before the case review hearing on February 27, 2018, counsel for J.B. filed a petition to terminate P. and D.W.'s parental rights, which the trial judge denied as premature. At the ensuing case review hearing, the trial judge ruled that he did not have jurisdiction over D.W. as no petition had been filed against D.W. Further, the trial judge found that he was precluded from holding a "best interest" hearing since there were no allegations of abuse against D.W. and D.W. had set forth a placement plan pursuant to La. Ch.C. art. 1036.2.

Specifically, in response to the foster father's ardent request to the trial judge to make a "best interest" determination, the trial judge stated the following on the record:

Sir, as I said - if it was up to me [J.B.] would be going home with you right now. I don't think the law allows me to do that.
* * *
[I]t's the Court's opinion that the law doesn't give me the authority to do it. ... I feel sorry for you. As I said, I think it's ... in the best interest of the child to be with you. I think that that would be the best for the child, but I don't have the authority to do that.
* * *
If it was up to me, [J.B.] would be going home with you right now.
* * *

At the close of the hearing, over counsel for J.B.'s objection, the trial judge revoked custody of J.B. from DCFS and granted custody of J.B. to his aunt, L.W.

On March 2, 2018, J.B.'s foster parents, J.M. and R.M., moved to intervene in the proceedings and moved to modify custody of J.B. Counsel for J.B. later joined those motions. DCFS opposed both motions. At the March 20, 2018 hearing on the motion to intervene, the trial judge took the matter under advisement. On April 19, 2018, the trial judge, relying on La. Ch.C. art. 1036.2, denied the foster parents' and the child's motions to intervene and reopen and modify custody. On appeal, the foster parents seek review of the change in custody, the denial of their intervention, and the denial of their motion to reopen and modify the custody determination.

Law and Discussion

Standard of Review

In Evans v. Lungrin , 97-0541 (La. 2/6/98), 708 So.2d 731, 735, the Louisiana Supreme Court enunciated the standard of review in custody proceedings:

It is well-settled that a court of appeal may not set aside a trial court's ... finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. Esco , 549 So.2d 840, 844 (La. 1989). However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Ferrell v. Fireman's Fund Ins. Co. , 94-1252 (La. 2/20/95), 650 So.2d 742, 747, rev'd in part, on other grounds , 96-3028 (La. 7/1/97), 696 So.2d 569, reh'g denied , 96-3028 (La. 9/19/97), 698 So.2d 1388. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. See Lasha v. Olin Corp. , 625 So.2d 1002, 1006 (La. 1993). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. See Lasha, 625 So.2d at 1006. When such a prejudicial error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo . Lasha, 625 So.2d at 1006.

Thus, where one or more trial court legal errors interdict the fact-finding process, this Court should make its own independent de novo review of the record and determine a preponderance of the evidence. Evans, supra . Because our review of this record reveals that the trial court committed legal error, we have made our own de novo review of the record.

Paternity

Our first concern is that the record in this case lacks any proof regarding D.W.'s biological connection to J.B. Although there was discussion of genetic testing performed at the request of DCFS, results of that testing were not introduced into evidence in court. Thus, although D.W. is referred to as J.B.'s father, the record does not support that determination. Furthermore, even if those results had been properly introduced into evidence, genetic test results do not automatically convey filiation under Louisiana law.

Filiation is the legal relationship between a child and his parent. La. C.C. art. 178 ; Dep't of Children & Family Servs. ex rel. A.L. v. Lowrie , 14-1025 (La. 5/5/15), 167 So.3d 573, 579. In Louisiana, filiation is established by proof of maternity or paternity or by adoption. La. C.C. art. 179. In the event that the parents are not married at the time of the child's birth, a biological father has two options to establish his paternity of a child not filiated to another man: one is to acknowledge the child in an authentic act and the second is to file filiation proceedings in a court of competent jurisdiction. La. C.C. art. 196 ; La. C.C. art. 198 ; La. R.S. 9:408.

Before instituting filiation proceedings, the alleged biological father may petition a court to order blood testing to establish biological paternity. La. R.S. 9:398.2(B). However, La. R.S. 9:398.2(E) precludes the court from making a paternity determination based on the test results and conclusions of the experts filed in the record. Instead, La. R.S. 9:398.2 specifically states that "the test results shall be admissible in any subsequent action filed by any of the parties relating to filiation of the child." Thus, the statutory law requires a putative father to file an action to establish filiation, rather than allowing the test results alone to establish filiation. Accordingly, we find that the juvenile court judge committed legal error in this matter by allowing possible DNA results to equate to filiation under Louisiana law. Finding legal error that prejudiced the material outcome of this matter and deprived the parties of substantial rights, we vacate the trial court's February 27, 2018 ruling revoking custody from DCFS and granting custody to L.W., reinstate custody to DCFS, and remand for further proceedings consistent with this opinion.

Because we are vacating the change in custody with respect to J.B., we pretermit discussion of further legal errors that were evident in this case. But if this Court were to review further claims, it would point out that the juvenile court has exclusive original jurisdiction over CINC proceedings, which gives the juvenile court "exclusive original jurisdiction ... over any child alleged to be in need of care and the parents of any such child." La. Ch.C. art. 303(2) ; La. Ch.C art. 604. Thus, in a CINC proceeding, once a person is established to be a parent, the law gives the juvenile court jurisdiction over that parent. Here, if D.W. was properly filiated and established as a parent, the trial court would have jurisdiction over him under La. Ch.C. art. 604 by virtue of the child being the subject of CINC proceedings.

Conclusion

Based on the foregoing, we vacate the trial court's February 27, 2018 ruling revoking custody from DCFS and granting custody to L.W., reinstate custody of J.B. to DCFS, and remand for further proceedings consistent with this opinion.

VACATED AND REMANDED.

      To protect the identity of the minor children involved, the parties will be referred to using initials. U.R.C.A. 5-1, 5-2; L.R.F. v. A.A ., 13-797 (La. App. 5 Cir. 2/26/14), 133 So.3d 716, 717 n.2.

      The petition to begin the children in need of care proceedings in this case indicated that the mother's sister reported her concerns for the safety of the children because, on a recent visit, she had observed no food in the house and no formula for the baby. Further, the children's aunt reported that her sister was not "mentally present" and was making bizarre statements about buying a "house in China for $1.00."
      Further, when child protection investigators entered the mother's house, they located two of the children hiding in the master bedroom closet and the mother hiding naked under the bed in that room. When the investigators encountered the children, they noticed that the children were not groomed and had foul body odor. The eldest child, C.C., had a large and obvious bruise on his thigh. Investigators observed at least five cans of food with several punctures from a knife or sharp object.
      When investigators spoke with the mother, she stated strange things, such as: "all of the ligaments have been taken from my body;" that she was kidnapped by the mob; that she worked for DCFS under a different name; that "someone had replaced her kids with black kids, her kids were white ... and these were not her children;" and that her sister "went into my daughter's room and put peas all over it, peas all over my house too. And she knows that my family doesn't even like peas."
      The children reported that they were not allowed to go outside or to open the door for anyone. They stated their mother has physically choked them on several occasions. The eldest child asked the investigators for help to get out of the situation. Additionally, the child protection investigator discovered that none of the three school-aged children were enrolled in school or being homeschooled. Finally, the property manager at the mother's complex stated, on two separate occasions, when the manager needed access to the property, there was no adult in the home at the time.

      As the mother and one child have the same initials, the mother will be referenced as P. in this opinion.

      J.B. was born November 25, 2015.

      Although it is not relevant to this appeal, we note that C.C., Sr. was, and remains, incarcerated and, thus, could not take custody of his biological children.

      There is no transcript of that hearing in the appellate record before us.

      In May of 2017, on recommendation from the clinicians at T-PEP, DCFS moved to suspend P.'s visits with her children until P. is psychiatrically stable as her visits have a "harmful impact" on the children. The trial court granted the motion and suspended visitation.

      The children were taken into care on September 16, 2016.

      The record before us does not contain genetic test results for either J.B. or D.W.

      Due to inclement weather all over Louisiana, the status hearing, which was originally scheduled for January 17, 2018, was postponed until February 6, 2018.

      Within days of the denial of their motions to intervene and reopen the matter, the foster parents filed an application for supervisory review with this Court. Finding that the judgments involved were appealable and, thus, not properly reviewable under our supervisory jurisdiction, this Court, on May 3, 2018, granted the intervenors' writ application "for the limited purpose of remanding this matter to the juvenile court for preparation and lodging of the record for appeal." On June 5, 2018, the juvenile court judge granted a motion and order for appeal directing the Clerk of Court for Juvenile Court to prepare the record, which was lodged electronically with this Court on July 31, 2018. Because the matter arises from a child in need of care proceeding, this appeal was set on the first available docket pursuant to U.R.C.A. 5-1 et seq .

      The husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage. La. C.C. art. 185.

      Further, we note that the purpose of Child in Need of Care proceedings, is "to protect children whose physical or mental health and welfare is substantially at risk of harm ... and who may be further threatened by the conduct of others ...." La. Ch.C. art. 601. Specifically, La. Ch. C. art. 601 states that, "The health, safety, and best interest of the child shall be the paramount concern in all proceedings under this Title." (Emphasis added.) More specifically, "the child's interest is paramount over that of the parent in balancing the sometimes competing interests between the rights of the parent and a child's best interest ...." State ex rel. J.A. , 99-2905 (La. 1/12/00), 752 So.2d 806, 811 ; State ex rel. J.T.C. , 04-1096 (La. App. 5 Cir. 2/15/05), 895 So.2d 607, 616. Here, the trial judge stated numerous times during the February 27, 2018 hearing that, in his opinion, J.B. should remain in the custody of DCFS in his foster care placement. Thus, if we were to reach the merits of this matter, we would find further legal error in the trial judge's February 27, 2018 ruling made in contravention of what the judge believed to be the best interest of J.B.