In re Dep't of Children & Family Servs.

• Decision Date: 31 March 2021
• Docket Number: NO. 20-CA-309,20-CA-309
• Parties: DEPARTMENT OF CHILDREN AND FAMILY SERVICES In the MATTER OF J. M.
• Court: Court of Appeal of Louisiana — District of US

316 So.3d 178

DEPARTMENT OF CHILDREN AND FAMILY SERVICES In the MATTER OF J. M.

NO. 20-CA-309

Court of Appeal of Louisiana, Fifth Circuit.

March 31, 2021

COUNSEL FOR PARENT/APPELLEE, J. M. Sherry A. Watters, Marta A. Schnabel, New Orleans

COUNSEL FOR DEFENDANT/APPELLANT, STATE OF LOUISIANA, DEPARTMENT OF CHILDREN AND FAMILY SERVICES Gabrielle A. Wilson, New Orleans

Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and John J. Molaison, Jr.

CHAISSON, J.

The State of Louisiana through the Department of Children and Family Services (DCFS) appeals the judgment of the Jefferson Parish Juvenile Court that reversed a decision of the Division of Administrative Law (DAL). The DAL decision affirmed DCFS’ valid findings of sexual enticement and sexual intercourse allegedly committed by J.M.¹ For the reasons that follow, we agree with the juvenile court's assessment. Accordingly, we affirm the juvenile court judgment that reversed the valid findings against J.M. of sexual enticement and sexual intercourse, and we order that DCFS’ records and the State Central Registry be corrected in accordance with the juvenile court's directive in its June 23, 2020 written judgment.

FACTS AND PROCEDURAL HISTORY

Pursuant to a child in need of care proceeding, J.B. was removed from the custody of his mother, P.B., put into the custody of DCFS, and placed in the certified foster home of J.M. and R.M. J.B. resided with these foster parents from September of 2016 until February of 2018, at which time he was placed with a paternal aunt in Texas. Subsequent to the change in placement, J.M. and his family had court-ordered visitation with J.B.

On March 18, 2019, the Texas Department of Family and Protective Services received a report of sexual abuse allegedly committed by J.M. against J.B. during a visit that occurred on the weekend of March 15-17, 2019, at a Texas hotel. The allegations regarding the suspected incident in Texas were reported to Louisiana DCFS, and following its investigation, DCFS reached a conclusion of "valid finding" for the allegations of sexual enticement and sexual intercourse. On April 30, 2019, DCFS sent J.M. a notice of the valid findings along with a notification that he had the right to appeal these findings through the DAL.

On October 28, 2019, despite J.M.’s request for a stay pending the outcome of the criminal proceedings in Texas, the DAL conducted a hearing on the matter. Thereafter, on December 3, 2019, the DAL judge issued a written decision that affirmed DCFS’ valid findings of sexual enticement and sexual intercourse, noting that the findings are supported by a preponderance of the evidence. J.M. filed a petition for rehearing, which was denied. He then filed a petition for review of the administrative decision in the Jefferson Parish Juvenile Court pursuant to La. R.S. 49:964 and Louisiana Administrative Code Title 67, Part V, § 1111.

At the June 16, 2020 hearing, the parties submitted the matter on briefs, and after considering the administrative tribunal record, the briefs of the attorneys, and the applicable law, the juvenile court reversed the decision of the administrative tribunal and overturned DCFS’ valid findings against J.M. of sexual enticement and sexual intercourse. In its June 23, 2020 written judgment, the court stated, in pertinent part, as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the administrative tribunal erred in improperly admitting evidence into the record that included double and triple hearsay, in particular a CAC video that was not in compliance with the standards set by the Children's Code and then erred in basing its decision on said evidence; that the administrative denial of a continuance or stay was improper where no harm nor prejudice was articulated by DCFS; and that, pursuant to La. R.S. 49:964(G)(5), the rights of the appellant have been substantially prejudiced by these errors of law evidencing that the findings, conclusions, and decisions of the administrative tribunal were arbitrary or capricious and characterized by abuse of discretion, with the result that said findings, conclusions and decisions of the administrative tribunal be and that they are therefore REVERSED.

DCFS now appeals this judgment, setting forth two assignments of error. DCFS first contends that the juvenile court erred in excluding the CAC forensic interview and supporting testimony of DCFS workers as hearsay, asserting that hearsay evidence was admissible pursuant to La. R.S. 49:956(2). Second, DCFS contends that the juvenile court erred in its determination that the administrative tribunal's refusal to stay the administrative proceeding pending the outcome of the criminal proceeding in Texas was "arbitrary and capricious" within the meaning of La. R.S. 49:964(G).

DISCUSSION

The Louisiana Administrative Procedure Act provides for judicial review of an administrative decision in La. R.S. 49:964, which reads, in part, as follows:

G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or

(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues.

Any one of the six bases listed in the statute is sufficient to modify or reverse an agency determination. Mid-City Automotive, LLC v. Louisiana Department of Public Safety, 19-1219 (La. App. 1 Cir. 5/11/20), 304 So.3d 457, 461. When reviewing an administrative final decision, the district court functions as an appellate court. Once a final judgment is rendered by the district court, an aggrieved party may seek review by appeal to the appropriate appellate court. La. R.S. 49:965. Id . On review of the district court's judgment, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court reviewing the agency decision. Kelley Blue Book Co., Inc. v. Louisiana Motor Vehicle Commission , 16-281 (La. App. 5 Cir. 12/7/16), 204 So.3d 1139, 1145, writ denied , 17-32 (La. 2/10/17), 216 So.3d 49. Thus, an appellate court sitting in review of an administrative agency reviews the findings and decision of the administrative agency and not the decision of the district court. Our Lady of Lake Roman Catholic Church, Mandeville v. City of Mandeville, Planning and Zoning Commission , 13-837 (La. App. 1 Cir. 2/3/14), 147 So.3d 186, 189. Consequently, this court will conduct its own independent review of the record in accordance with the standards provided in La. R.S. 49:964(G). Elio Motors, Inc. v. Louisiana Motor Vehicle Commission , 18-545 (La. App. 5 Cir. 3/27/19), 268 So.3d 1132, 1148, writ denied , 19-656 (La. 6/17/19), 274 So.3d 572.

Having conducted our own independent review of the record in this case, including the transcript from the administrative review hearing, as well as the applicable law and jurisprudence, we affirm the judgment of the juvenile court that reversed the administrative law judge's and DCFS’ valid findings against J.M. of sexual enticement and sexual intercourse. In particular, we agree with the juvenile court's assessment that the substantial rights of J.M. have been prejudiced by the administrative tribunal's admission into evidence of J.B.’s forensic interview that was not in compliance with the standards set by the Children's Code and by its denial of a continuance or stay pending the outcome of the criminal proceedings in Texas.

With regard to J.B.’s forensic interview, DCFS maintains that the administrative tribunal properly admitted and considered it in making its decision to affirm DCFS’ valid findings and that the juvenile court subsequently erred in excluding the CAC forensic interview and supporting testimony of DCFS workers as hearsay, noting that hearsay evidence is admissible pursuant to La. R.S. 49:956(2).

At the beginning of the October 28, 2019 hearing before the administrative tribunal, counsel for J.M objected to the introduction of J.B.’s March 29, 2019, forensic interview in Texas because none of the requirements for its admission under the Children's Code had been satisfied. J.M.’s attorney specifically noted that J.B.’s competency had not been proven, that the interviewer must testify, that the child must be available to be cross-examined, and that the credentials of the interviewer must be received by the court. In response, DCFS argued that the standards set forth in the Children's Code are for criminal court proceedings and not applicable to these administrative proceedings, where there are relaxed evidentiary standards.

After listening to arguments of counsel, the administrative law judge allowed the introduction of J.B.’s forensic interview based on her determination that the requirements for admissibility of a forensic video under La. Ch.C. arts. 322 through 327 are only applicable to criminal proceedings and not to the instant matter, which is civil in nature. On review, the juvenile court found that "the administrative tribunal erred in improperly admitting evidence into the record that included double...