Fowler v. FowlerFowler v. Fowler
I.
ISSUES
We shall resolve:
1. whether the trial court erred in allocating the burden of proof; and
2. whether the trial court erred in granting the Knapps’ motion to reopen the testimony.
II.
FACTS
Colby Fowler was born a “crack baby” on August 26, 1994. Shortly after Colby‘s birth, an investigation by the Child Protection Investigative Unit revealed that both of Colby‘s parents, Robert Fowler and Lorraine Giddings, used crack cocaine and marijuana. At the time of the investigation, Colby was residing with his maternal aunt, Tonya Knapp, and her husband, Eugene Knapp. In October of 1994, an instanter order was issued by the juvenile court placing Colby in the custody of the State of Louisiana, Department of Social Services, Office of Community Services. In December of 1994, Colby was adjudicated a “child in need of care.” He was maintained in the custody of the State and placed in the care of the Knapps.
A dispositional review hearing held in October of 1995 resulted in trial placement of Colby with his father, Robert Fowler. On January 16, 1996, Robert was charged with a DWI which he failed to report to his case manager. The charge was later reduced to a lesser offense to which Robert pled guilty. The following month, a random drug screen of Robert was classified as a “cold screen.” In August of 1996, Colby was returned to the home of the Knapps. Another review hearing was held in December of 1996. At this hearing, Robert sought custody of Colby, and the State recommended that the Knapps be awarded permanent custody.
The State asserted that its recommendation was based upon its supervision of the case, the home studies of the parties, Robert‘s failure to respond to counseling, and Robert‘s apparent indifference to the State‘s efforts to reunify the family. Patrick Voinche, the case manager, testified as to his observations of the Knapps’ home. He said it was: “Quiet. Structured. Very attentive... [Colby] was attended to. He was fed, clothed, you know played with.” Voinche stated that Colby did not encounter any problems during the fourteen months he was placed in the Knapps’ home. Voinche also testified as to his observations of Robert. He said that Robert expressed to him “that he did not have a drug or alcohol abuse problem and that he was tired of being jerked around and asked to do so many things.” Voinche stated that although Robert has completed a drug education program, he has refused to complete a drug treatment program as recommended by his counselor.
After the close of evidence, the Knapps filed a motion to reopen testimony. The trial judge granted the motion, and testimony was presented concerning a recent altercation at a casino between Robert and his new wife, Theresa. Robert admitted that he and his wife had been drinking and that an altercation between them caused their arrests for disturbing the peace. Moreover, Robert acknowledged that he had visitation of Colby at the time, but stated that he left Colby with his grandmother. Moreover, in his earlier testimony, Robert admitted that he had struck Lorraine Giddings, Colby‘s mother, on certain occasions in the past.
The trial judge denied Robert‘s request for permanent custody and awarded full and permanent custody to the Knapps. Robert was awarded one week of visitation per month. Robert appeals this judgment.
III.
LAW AND DISCUSSION
Standard of Review
The trial court‘s determination in child custody matters is entitled to “a great deal of discretion” because the trial judge has a “superior opportunity to observe the persons claiming custody and the witnesses who testified at the trial.” State in the Interest of Two Minor Children, 499 So.2d 697, 700 (La.App. 3 Cir.1986) (citations omitted). “The trial judge is in a better position to evaluate the best interest of a child ... and his decision will not be disturbed on review absent a clear showing of abuse.” State in the Interest of Sylvester, 525 So.2d 604, 608 (La.App. 3 Cir.1988) (citations omitted).
Burden of Proof
Title VI, Chapter 16 of the Louisiana Children‘s Code governs cases where a child has been removed from his parents’ custody following an adjudication as a child in need of care. The pertinent articles provide in relevant part:
La.Ch.Code art. 701 : If at any point in child in need of care proceedings, the child is removed from his parents’ care and control and placed in the custody of the department, the provisions of this Chapter shall govern the subsequent review process until such time as the child achieves a permanent placement as defined in Article 603(15). (emphasis added).
La.Ch.Code art. 702(A) : The court shall conduct a dispositional review hearing within nine months after the disposition hearing if the child was removed prior to disposition or within twelve months if the child was removed at disposition, but in no case more than twelve months after the removal. Dispositional reviews shall continue to be held at least once every twelve months thereafter until the child is permanently placed or earlier upon motion of a party for good cause shown or on the court‘s own motion, (emphasis added).(C) In the discretion of the court, dispositional review hearings need not be conducted for a child who the court has determined should remain permanently in foster care with a specific foster family or for a child who has been placed in an adoptive home.
Permanent placement is defined in the Children‘s Code as (1) return of the legal custody of the child to his parent(s); (2) placement of the child under a guardianship of the person; or (3) placement of the child with adoptive parents pursuant to a final decree of adoption.
In this case, prior to trial, Colby was in the custody of the State and placed in the care of the Knapps. Robert Fowler sought custody of Colby. The State recommended permanent placement of Colby in the full custody of the Knapps. However, the State‘s proposal does not conform to the definition of “permanent placement” as defined in
[A]t a subsequent hearing to change custody brought by the natural parent previously deemed unfit, the burden of proof should rest on that natural parent to demonstrate that he or she had rehabilitated and that facts which gave rise to him or her being deprived of custody at the initial hearing no longer exist.
Gordy v. Langner, 502 So.2d 583, 587 (La. App. 3 Cir.1987), writ denied, 503 So.2d 494 (La.1987).
In this case, the trial judge denied Robert‘s request for custody of Colby. In her reasons for judgment, the trial judge stated that Robert failed to meet his burden of proving that a modification of custody was justified. The trial judge reasoned:
This Court is forced to conclude that Robbie will not accept the conditions that would allow him to share the custody of his child. His extreme substance abuse in the past is the very reason his child was removed and, even now, he still becomes involved in alcohol related events.
We agree with the trial judge. The trial judge heard the evidence in this case, including Robert‘s testimony concerning his alleged rehabilitation. The trial judge‘s finding that Robert failed to satisfy his burden of proof is reasonably supported by the record and reflects a reasonable evaluation of Robert‘s credibility. However, we note that after the trial judge employed the proper analysis and concluded that Robert had not met his burden of proof, the trial judge further stated that Robert failed to satisfy the test set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986). The trial judge‘s consideration of Bergeron was improper as the Bergeron rule applies in cases where there has been a considered decree of permanent custody. Id. at 1196. In this case, Colby was adjudicated a child in need of care and placed in the temporary custody of the State. Nevertheless, we find that the trial judge‘s consideration of Bergeron does not constitute reversible error because it did not taint the factfinding process or the trial judge‘s legal analysis. The trial judge did apply the proper analysis in finding that Robert had not satisfied his burden of proving that a modification of custody was justified.
We reject Robert‘s contention that pursuant to
In finding that Colby should remain in the care of the Knapps, the trial judge reasoned:
[T]his Court finds the Knapps’ care of Colby commendable. Their desire to take care of Colby was evident at the earliest stages of proceedings, and they have done nothing more than provide Colby with the loving and caring environment that he should have had from the start. The Knapps have devoted much time and attention to his well-being, and through evidence received by this Court the child has apparently done very well in their care.
We conclude that the trial judge‘s finding that Colby remain in the care of the Knapps
An appellate court has the authority to “render any judgment which is just, legal, and proper upon the record on appeal.”
The Reopening of Testimony
Robert alleges that the trial court erred in granting the Knapps’ motion to reopen the testimony to receive evidence concerning the altercation between Robert and his wife at a casino. The Knapps argue that the trial court acted within its discretion and that the evidence was relevant to Robert‘s claim that he was rehabilitated.
The decision to reopen a case for the production of additional evidence “rests with the discretion of the trial judge which decision will not be disturbed on appeal unless manifestly erroneous.” Tatum v. Old Republic Ins. Co., 94-157 p. 4 (La.App. 3 Cir. 10/5/94); 643 So.2d 419, 422, writ denied, 94-2722 (La.1/6/95); 648 So.2d 929. As both parties have noted, prior to the reopening of the testimony, the hearing had been a protracted matter and was heard on various dates. Reopening the testimony was justified by the circumstances because it prevented the court from holding an additional review hearing at a later date. Accordingly, we find no manifest error in the trial court‘s decision to reopen the testimony.
IV.
CONCLUSION
Based on the foregoing reasons, we amend the judgment of the trial court and place Colby in permanent foster care with the Knapps. In all other respects, the judgment of the trial court is affirmed. Robert Fowler is cast for all costs of this appeal.
AMENDED AND AFFIRMED AS AMENDED.