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Docket Number

No. 10603.

Attorney(S)

James W. Blackman, Marrero, for Deedri Davis, appellant. Craig J. Cimo, Gretna, for Patricia C. Aple and Richard C. Aple, III, appellees.

Judges

Susan M. Chehardy

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Smart Summary

Case Summary: The State of Louisiana in the Interest of Robert Joseph Davis, No. 10603 (La. App. 4th Cir. Jan. 10, 1980)

Factual and Procedural Background

Deedri Davis voluntarily relinquished temporary custody of her minor son Robert in April 1978 because she stated she was financially unable to care for him; temporary custody was granted to Mr. and Mrs. Richard Aple. In August 1978 Ms. Davis informed the juvenile court she wished to regain custody and provided contact information for a home-study in Florida, but no investigation was conducted. The case was transferred between parish Health and Human Resources offices and a rule to revoke custody was set (then continued). At a hearing the juvenile court admitted evidence (over appellant's counsel's objection) that suggested neglect and abandonment and orally found the child "in need of care," continuing custody with the Aples and setting the matter for further disposition in six months. Ms. Davis appealed the juvenile court's authority to maintain temporary custody.

Legal Issues Presented

Whether the Juvenile Court had authority to maintain temporary custody of the child after the mother voluntarily relinquished custody.
Whether a parent who voluntarily surrenders custody may request the child's return without proving parental fitness.
Whether a petition (C.J.P. art. 45) is a prerequisite to adjudicating a child as neglected or in need of care.
Whether the juvenile court could authorize continued custody prior to adjudication under C.J.P. art. 40(6) and (7) absent the filing of a petition.

Arguments of the Parties

Appellant's Arguments

Appellant challenged the juvenile court's authority to maintain temporary custody of her son after she had voluntarily surrendered custody.
Appellant asserted she later became financially able to care for the child and wished custody returned.
Appellant's counsel objected to admission of evidence relevant only to neglect, abuse or abandonment where no formal charges had been filed.

Appellees' Arguments

Appellees (and the trial court) relied on L.R.S. 13:1570(C) (and its successor C.J.P. art. 17(A)(2)) as the statutory basis for the juvenile court's jurisdiction to award custody when a parent wishes to relinquish custody so the child may receive adequate care and protection.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dillon v. State, 336 So.2d 1066 (La.App. 2d Cir. 1976)	Held that a parent who voluntarily surrenders a child to the state need not prove fitness to reacquire custody; irrevocable custody to the state occurs only by formal surrender for adoption or adjudication of neglect/abandonment.	The court relied on Dillon to conclude the mother could request return of her child and that voluntary surrender did not extinguish her right to regain custody absent adoption or adjudication of neglect/abandonment.
Dillon v. State, 336 So.2d 1066 (La.App. 3d Cir. 1976)	Expresses the same jurisprudence regarding the non‑irrevocability of voluntary surrender unless formal adoption or adjudication occurs (as cited in the concurrence).	The concurring judge cited this authority to support that the burden rests with the State to prove the parent is unfit before denying return of custody and to emphasize due process protections via petition requirements.

Court's Reasoning and Analysis

The court analyzed statutory provisions and the record. It observed that the initial custody transfer followed the mother's voluntary relinquishment and that the juvenile court found, based on admitted evidence, the child was "in need of care." The court compared the earlier statutory provision cited by appellees (L.R.S. 13:1570(C)) with the successor C.J.P. art. 17(A)(2), finding them substantially the same for purposes of the case. Relying on Dillon, the court recognized that voluntary surrender does not bar a parent from requesting return unless there has been formal surrender for adoption or an adjudication of neglect/abandonment. The court held that C.J.P. art. 45 (petition requirement) is a prerequisite to adjudicating a child as neglected and that under C.J.P. art. 40(6) and (7) the court could authorize continued custody prior to adjudication. The court further invoked C.J.P. art. 2 to construe the code liberally for the child's welfare. Exercising authority under C.C.P. art. 2164, the court limited the Aples' continued custody to three additional weeks and ordered that custody be rescinded and restored to Ms. Davis if the petition required by C.J.P. art. 45 was not filed within that period.

Holding and Implications

Holding: The judgment appealed from is amended and rendered to limit the continued custody of Robert Davis in Mr. and Mrs. Richard Aple to only an additional three weeks after the decree of this court becomes final; custody is to be rescinded and restored to Ms. Deedri Davis if proceedings satisfying C.J.P. art. 45 are not taken within that time.

Implications: The direct effect is a time-limited continuation of custody with the Aples for three weeks pending compliance with the petition requirement; if the requisite petition is not filed within that period, custody is to be returned to the mother. The opinion does not discuss broader implications beyond the case-specific disposition.

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THE STATE OF LOUISIANA IN THE INTEREST OF ROBERT JOSEPH DAVIS.

CHEHARDY, Judge.

By this appeal Deedri Davis challenges the authority of the Juvenile Court for the Parish of Jefferson to maintain temporary custody of her minor son Robert in Mr. and Mrs. Richard Aple. The Aples were given temporary custody when the mother voluntarily relinquished custody because she was financially not able to take care of him.

Upon receiving a letter dated April 14, 1978 from appellant in which she said she was financially unable to care for her child, the juvenile court granted temporary custody to the Aples. Approximately four months later, Ms. Davis informed the court she wished to get her child back. She stated she was living in Florida with her mother and could provide adequate care, and inquired as to how she could regain custody. By response dated August 24, 1978 a juvenile court social worker informed the mother that the Jefferson Parish Department of Health and Human Resources would request a home study into her Florida environment. On September 7, 1978 Ms. Davis advised the Jefferson social worker how to reach her so that the investigation could be conducted.

No investigation was ever made in Florida; more than four months elapsed during which time the case was transferred from the Jefferson Parish office to the Orleans Parish division of the Health and Human Resources Department because the Aples lived in Orleans Parish. On January 30, 1979, the Jefferson office advised the Orleans office that Ms. Davis intended to bring a rule to revoke custody. The rule, originally set for February 22, 1979, was continued by consent until March 9, 1979.

Appellant testified she was now financially able to take care of her child and desired to have him returned. Although appellant was never formally charged with neglecting, abusing or abandoning her child, the juvenile court, over the objection of appellant's counsel, admitted evidence that would have been relevant had neglect, abuse or abandonment charges been before the court. His verbal findings of fact would support conclusions of neglect and abandonment.

The learned trial judge in his oral reasons for finding the child neglected observed: "I find that the child, I find beyond reasonable doubt, I don't have to use that standard, but that's the standard . . . was grossly neglected child at that time."

In discussing the living conditions of the child at the time the mother consented, over the phone, for the Aples, whom she did not know, to take the child, the court noted:

"* * * Nobody ever controverted that the apartment was deplorable, absolutely deplorable with vomit and the urine * *. The mother never controverted that. * * I don't believe there was medicine available * * * the mother said in rebuttal that she fed the child, I can't believe that. And find a child with a distended stomach weighing only ten pounds. A healthy child weighs pretty much that at birth. At six months? You should have doubled your weight just about. * * * [T]he mother, there's great, great [in]consistencies in what she says, that she was tremendously unemployed at the time, she had to . . . yet, under cross-examination it turns out that she had been out of work for about two weeks at this time. Just about two weeks only. There was no electricity, lights coming in with an extension cord from someplace else, and yet, the grandmother who offers now to provide all kind of assistance, the maternal grandmother, she was living in the apartment at the same time. * * * The neighbor said that the child, that he really stank * * * a smell that came from the child, dressed in filthy rags, mildew on the sheet the apartment stunk, bed full of urine, that's what the neighbor said, not what Mrs. Aple said. The mother did take off that night, she was supposed to be gone from 9 to 11, she was in fact gone the entire night when they were called. The mother testified that she had met Mrs. Aple, that's just not so. I'm not prepared to say that Mrs. Aple just making up this story * * * it has the ring of truth. The mother's testimony just does not have the ring of truth. There is inconsistencies in at least three different areas. * * * [A]nd this arrangement [giving up of the child in April of 1978] was done on the phone, now whether you say `I'm giving to you temporarily.' Whether you say `I'm giving to you for adoption', that's not the important point. The important point is this was done with somebody over the phone, you never even met one time. * * The child is . . . child was defenseless * * * we find the child to be a child in need of care. This is the new terminology pursuant to . . . a grossly, neglectful situation that existed then. * * * [N]ot one single bit has been proven to show that the situation has been changed. * * * Accordingly then, pursuant to new law, the child stays where it is * * * we find the child to be in need of care. The Aples are granted custody, pursuant to law, this matter will be set for further disposition in six months. * * *"

The trial court held and appellee argues the jurisdiction conferred in this case was granted by L.R.S. 13:1570(C), which provides:

"To award the custody of a child domiciled within the parish or who is actually in the parish to an agency, institution or individual when the parent or other person having custody or care of the child wishes to relinquish custody or care for the purpose of enabling the child to receive adequate care and protection."

When this matter was tried, the quoted section of the revised statutes had been superseded by C.J.P. art. 17(A)(2), which states substantially the same thing as the quoted section. Insofar as it relates to issues in this case, the new law is a restatement of the old.

C.J.P. art. 17(A)(2) applies only in a situation where the parent voluntarily acquiesces in temporary custody being vested in a nonparent and the jurisdiction conferred by this section continues only so long as the surrendering parent continues to consent to the juvenile court's exercising discretion to award custody. In Dillon v. State, 336 So.2d 1066 (La.App. 2d Cir. 1976), the court held that a parent who voluntarily surrenders a child to the state need not prove her fitness to be a parent in order to reacquire custody. Dillon noted that irrevocable custody is given to the state only if the parents voluntarily surrender the child for adoption and signify their assent by authentic act or if the parents are adjudged to have neglected, abused or abandoned the child.

In this case the court continued the child in the custody of the Aples on a finding that he "* * * was in need of care." C.J.P. art. 15 gives the court exclusive jurisdiction to conduct a proceeding in which a child is alleged to be in need of supervision. C.J.P. art. 45 states any proceeding under Article 15 must be commenced by petition. Article 46 requires the petition to be filed at least 48 hours before any hearing to determine continued custody and further states that if no petition is filed the child should be released.

We share Judge Gothard's concern for the child and recognize that the first obligation of this court is to make certain that the child receives the care he is in need of.

We therefore conclude that Ms. Davis could request the return of her child where she had voluntarily surrendered custody; that the juvenile judge was correct in his finding that the child is a child in need of care; that pursuant to C.J.P. art. 45 filing of a petition is a prerequisite to the finding that a child is a neglected child; that under paragraphs (6) and (7) of C.J.P. art. 40 the court could authorize continued custody prior to adjudication; and that C.J.P. art. 2 requires this code to be liberally construed to do what is best for the welfare of the child.

Under the authority vested in this court by C.C.P. art. 2164 it is the judgment of this court that the custody of Robert Davis vested in Mr. and Mrs. Richard Aple be continued for three weeks from the signing of this judgment and that if proceedings are not taken within that time to satisfy the requirement of C.J.P. art. 45, the custody of the child Robert Davis vested in Mr. and Mrs. Richard Aple shall be rescinded and custody restored to Ms. Deedri Davis.

For the reasons assigned, the judgment appealed from is amended to limit the continued custody of Robert Davis in Mr. and Mrs. Richard Aple to only an additional three weeks after the decree of this court becomes final.

AMENDED AND RENDERED.

[18] STOULIG, Judge, concurring.

I concur in that part of the majority opinion which holds the filing of a petition (C.J.P. art. 45) is a prerequisite to vesting exclusive jurisdiction in the juvenile court to adjudge if a child is a delinquent, in need of supervision, or in need of care (C.J.P. art. 15). I also agree that jurisdiction vests in a juvenile court under C.J.P. art. 17(A)(2) to make an award of custody when the parent voluntarily relinquishes the custody of the child in order for it to receive care and protection.

However, under the jurisprudence expressed in Dillon v. State, 336 So.2d 1066 (La.App. 3d Cir. 1976), the voluntary surrender of custody by a parent is not irrevocable unless made in a formal surrender for adoption or if the parent is adjudged to have neglected, abused, or abandoned the child. It therefore follows that the parent is entitled to the return of the custody upon request unless it is established that the child has been formally placed for adoption or that the parent is not a proper or fit person to be entrusted with the care of the juvenile. The burden of this proof rests with the State.

The mandatory requirement of a petition is for the sole purpose of affording the parent and child their constitutional right of due process by timely informing them of the nature of the complaint and giving them an opportunity to be heard.

I do not subscribe to the holding of the majority that C.J.P. art. 40(6) and (7) vests continued jurisdiction in the juvenile court over custody of the child. The implication is that this article relieves the juvenile authorities of the necessity of complying with C.J.P. art. 45. On the contrary, a reading of art. 40 authorizes the court to order continued custody of a child prior to adjudication for several causes enunciated in the article. Art. 46 specifically provides that if a child is continued in the custody of the juvenile court prior to adjudication, then "a petition shall be filed within forty-eight (48) hours of the hearing to determine continued custody" and the failure to do so will result in the release of the child. These two articles must be read in pari materia and in effect mandate filing a petition within 48 hours or release of the child.

In the instant case no petition was filed. When the mother sought the return of her child, the juvenile court no longer had jurisdiction to determine custody and the child should have been returned to her. Should the juvenile authorities feel that the welfare of the child demands either a hearing or continued control of custody in the court, it has at its disposal the simple expedient of ordering of a filing of a petition under C.J.P. art. 45 for any of the causes enumerated in C.J.P. art. 15.

STATE IN INTEREST OF DAVIS