
    STATE of Louisiana In the Interest of Pablo Martin QUAN v. Raul and Grace QUAN, Parents of Pablo Martin Quan.
    No. C-6491.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1987.
    Rehearing Denied April 15, 1987.
    Writ Granted June 12, 1987.
    Sherry Waters, Orleans Indigent Defender Program, New Orleans, for Pablo Martin Quan.
    Evangeline G. Abriel, Loyola Law Clinic and Mark S. McTernan, McTernan, Parr, and Rumage, New Orleans, for Raul and Grace Quan.
    
      Before REDMANN, C.J., and WARD and WILLIAMS, JJ.
   WILLIAMS, Judge.

Defendants Raul and Grace Quan are Guatemalan citizens. On October 21, 1983, the Immigration and Naturalization Service detained the Quans. Raul Quan was charged with overstaying the time allotted in this country on his visa, and Grace Quan was charged with providing inaccurate information on her application to obtain a visa. The Quans remained in custody until June, 1984, at which time Raul Quan was released. Grace Quan was released in November 11, 1984. Both Quans were released after having posted bonds. A deportation hearing was held and defendants were ordered deported. This order currently is on appeal.

When the Quans were originally detained, they had three boys with them. These children were placed in the custody of the state. Three months after his release, Raul Quan obtained custody of the two older boys; the youngest child, Pablo Martin Quan, remained in foster care because of medical problems. Raul and his two older sons were given visitation rights. Before Grace Quan was released, the State of Louisiana became aware of serious charges pending against her in Guatemala. On the basis of the information it received, the state filed a motion to modify the disposition of the child in order to deny them visitation rights. The Quans apparently moved to have Pablo returned to their custody. A hearing was held in juvenile court, and the judge ordered that visitation be denied to the Quans. The record before us is somewhat sketchy due to a miscommuni-cation which resulted in the destruction of the court reporter’s notes prior to preparation of the entire transcript. A narrative has been supplied to this court by the judge below. Based upon the narrative and other evidence in the record, we conclude that the lower court was not in error in terminating the visitation rights of the Quans.

We find that the Juvenile Court did have jurisdiction over Pablo Quan. Article 15 of the Louisiana Code of Juvenile Procedure provides for jurisdiction over children who are alleged to be in need of care. Section 14 of Article 13 defines a child in need of care as a child:

(a) Whose parent inflicts, attempts to inflict, or, as a result of inadequate supervision, allows the infliction or attempted infliction of physical injury of physical injury or sexual abuse upon the child which seriously endangers the physical, mental, or emotional health of the child;
(b) Whose physical, mental, or emotional condition is substantially threatened or impaired as a result of the refusal or neglect by his parent to supply the child with necessary food, clothing, shelter treatment wither by medical care or in accordance with the tenets of a well-recognized religious method of healing with a reasonable proven record of success, counseling, or education, or as a result of the parent’s neglect or imposition of cruel punishment; however, nothing herein shall prohibit the court from ordereing medical services for the child when there is substantial risk of harm to the child’s health or welfare;
(c) Who is without necessary food, clothing, shelter, medical care, education, or supervision because of abandonment by, or the disappearance or prolonged absence of, his parent, or because of any other reason.

At the hearing, testimony was offered by a physician who stated that Pablo was suffering from rickets. Rickets is caused by either malnourishment or lack of sunshine. Although there is another type of rickets that is congenital, Pablo did not suffer from any other of the symptoms that usually accompany congenital rickets. Based upon the evidence presented by both parties, we cannot conclude that the trial court was in error in determining that Pablo was a child in need of care. The conclusion that he was suffering from non-congenital rickets is certainly borne out by the evidence, and his development of the disease would be directly due to neglect by the Quans. For this reason, the Juvenile Court had jurisdiction over this matter.

The prime consideration of both the Juvenile Court and this court in this matter is the best interest of the child. La.CJ.P. art. 85. Evidence presented at the hearing showed that Pablo has been in a foster home where he is very happy. He is, understandably, attached to his foster parents and visits by the Quan family have caused him some emotional confusion. He had no “bonding” with the Quans. It was the opinion of two social workers that Pablo should remain in the care of his foster parents. This, of course, alone would be insufficient to form a basis for denying visitation rights to the parents. In re Custody of Reed, 497 So.2d 1084 (La.App. 4th Cir.1986). When considered with the other evidence presented at trial, however, we find that the trial court did act in the child’s best interests in denying visitation rights to the Quans.

There are two issues involved in this case that are the source of much confusion: (1) the exact nature of criminal charges (if any) pending against Grace Quan in Guatemala, and (2) whether the Quans are really the adoptive parents of Pablo. The state contends that Grace Quan is wanted for kidnapping and murder in Guatemala stemming from baby-selling operations which she ran in her native country. She claims that these charges were politically motivated due to one of her son’s activities with an organization viewed with disfavor by the government in power at the time. She argues that there currently is a new government in Guatemala and that these charges have been dropped. The state attempted to introduce documentary evidence at trial to substantiate these charges, but the trial court refused to consider it. At trial, the Quans attempted to introduce evidence as to the political climate in Guatemala at the time charges may have been brought against Grace Quan. The trial court did not allow the introduction of the evidence, and it is contained in the record as a proffer. The evidence supported Mrs. Quan’s claim that she had been politically persecuted and that under the new regime, charges had been dropped.

According to the record, other evidence presented by a New Orleans police officer indicated that Mrs. Quan was under investigation for baby-trafficking as well as for four murders. We note that in another proceeding some of this evidence would not have not been admissible as it is hearsay. Article 81 of the Louisiana Code of Juvenile Procedure, however, allows the trial court considerably more latitude in a disposition hearing. Keeping in mind the hearsay nature of the officer’s testimony, it seems to us that this evidence was supported to some extent by the testimony of a woman who was in direct contact with the Quans for the purposes of obtaining a child.

We also find that the issue as to the Quans’ status as adoptive parents is, at this point, not relevant. The order from the court below does not take custody away from the Quans. They are prohibited from visiting him, but the order does not purport to be a final disposition of the matter, notwithstanding the Quans’ motion to obtain custody. Furthermore, considering all of the evidence presented below, and realizing that some of it is hearsay, we are compelled to find no abuse in the juvenile judge’s ruling that it is in Pablo’s best interests that visitation rights be denied to the Quans.

AFFIRMED.

WARD, J., concurring with reasons.

REDMANN, C.J., dissenting with reasons.

WARD, Judge,

concurring.

I concur in Judge Williams’ opinion. Additionally, I believe that after the juvenile was surrendered to the State of Louisiana, once it was discovered the child was in need of care because of neglect, the Juvenile Court retained jurisdiction. The Juvenile Court judge obviously made a determination that the child was neglected, and to return the child to those who neglected him would not only be an abuse of discretion, but inhumane.

Once having jurisdiction, the Juvenile Judge has broad discretion, particularly in “disposition” matters. Hearsay evidence is admissible, and that evidence with the direct testimony of other witnesses clearly establishes the Quans are in the business of selling babies for adoption.

That having been established, the evidence presented by the Quans is suspect, if not meaningless. Their testimony is incredible. Having been ordered deported for giving false statements to the INS, Raul Quan admitted, among other things (1) that he gave inconsistent testimony in Juvenile Court as to when and how he received the child, (2) that he and his wife earned money by importing children for adoption in the United States, and (3) that although he received money from one of the witnesses to deliver a child for adoption, he did not deliver the child, and he did not return the money to the hopeful couple. Amazingly, he also testified a valid adoption takes place when a couple goes before a minister and obtains a birth certificate, without any proof whatsoever that the natural mother concurred or surrendered the child!

Not only is this testimony unbelievable, in the light of this testimony the documentary evidence presented is worthless. Apparently anyone can go before the Ministry of Justice of Guatemala to obtain a birth certificate, claiming to be the natural parents. It is a different matter as to an adoption, and an expert testified as to the means of adoption. Admittedly, he did not say it was the only means, but neither did he say an adoption could take place merely by obtaining a birth certificate. I, for one, refuse to believe that Guatemala would sanction a procedure for adoption without some evidence of consent by the natural mother. In this case, there is none. I say none, because I reject as worthless Raul Quan’s testimony as to how he gained custody of the child. Thus the birth certificate, required for entry into the United States, was in all likelihood obtained for that purpose alone, and as to an adoption, it proves nothing.

In the light of the foregoing, I do not believe the Quans are “custodians”, under the law, because I interpret “custodians” to mean legal custodians, and in the case there is ample reason to suspect the legality of this custody. If not, then they have the means of proving it by showing a valid adoption and the burden of proof in light of the evidence has now shifted to the Quans. Moreover, the State should not be required to prove a negative proposition, always a difficult if not impossible burden.

Finally, the Juvenile Judge did not err as the dissent alleges, by excluding the expert testimony of Quans’ witness. That testimony, which was profferred, related only to the political climate and the charges against the Quans, and not to the means of adoption or validity of the adoption of the child. Since the formal criminal charges were not considered by the Trial Judge, the exclusion of testimony to disprove them was not error.

REDMANN, Chief Judge,

dissenting.

The juvenile court has, since October 21, 1983, had under its control a foreign-born infant then two years old. Since May 21, 1985, the juvenile court has refused to let the child’s foreigner parents and their two other young children even visit the child. There is in this record no evidence worthy of the name that could justify such inhumanity.

We should order that supervised visitation be restored forthwith and be conducted daily for the next three weeks, and that at that time the child Pablo be returned to Mr. and Mrs. Quan unless the state has by then proved that the Quans’ did not lawfully have the “actual” custody of Pablo at the time of their detention by the U.S. Immigration & Naturalization Service.

The only basis upon which the Juvenile Court could claim jurisdiction is that the child is “in need of care,” C.J.P. 15 C (for the child is not a delinquent nor “in need of supervision”). The child was earlier in need of care (as the Quans then agreed) because of the Quans’ detention by the INS. But that “need of care” basis is now gone, and there is no basis for holding that the child is still in need of care within C.J.P. 13(14) (quoted in Judge Williams’s opinion).

C.J.P. 13(11) defines “parent” as either parent if married and living together or, if not, “a parent or person having legal or actual custody of the child. If no parent has ... custody, it means the person ... having legal or actual custody.” At the time that the Quans were detained by INS they were at least the person having actual custody of Pablo. The Code of Juvenile Procedure cannot reasonably be interpreted to allow the state at any moment to deprive a “parent” of that status by simply seizing the “actual” custody from him or her. The Code evidently and rightly intends to refuse to allow the juvenile court to intermeddle as long as children in someone’s custody are not delinquent, in need of supervision or in need of care.

The worst thing about this case is that the juvenile judge felt that, in order to have the child returned to their custody, the parents were obliged to prove something. The second worst thing is that the trial judge would not let them do so. The judge refused to allow the parents to present testimony by a Guatemalan lawyer present in court on the validity of the Quans’ purported adoption and custody, yet allowed the state to present all kinds of hearsay, apparently including a written statement by a notary in Guatemala purporting to reproduce the wording of some Guatemalan adoption statutes (that do not, in any case, purport to provide the exclusive means for adoption). Even so, it is not the burden of the Quans to prove that their “adoption” of Pablo by having his birth officially registered with their names as his parents is an accepted manner of adoption in Guatemala (as they testify), nor even that their custody of Pablo was legal custody under the law of Guatemala. They need prove nothing but that they had the actual custody of the child — which was undisputed until the “lav/” wrested their child from them. It is, it should not have to be said, the burden of the state to prove some basis for taking their child from them.

There is in the record some far-removed hearsay about Mrs. Quan being wanted by Guatemala for baby-trafficking and for murdering four persons who sought return of a child whom she sought to place for adoption (and about Mr. Quan being wanted for four NSP checks). (The Quans would now present what they did not at trial time have, namely authenticated Guatemalan police certificates that there is no criminal charge against either. I repeat it is not their burden to prove themselves unaccused in order to retain custody of their child.) Assuming that Guatemala accuses someone in this country of crime, the remedy is extradition — not to take the accused’s infant away. Or, if there has been any crime in this jurisdiction, the district attorney’s remedy is a criminal charge— not to take the accused’s infant away.

There is some evidence of the child’s being upset by visitation with the parents, especially the mother. To a considerable extent that would appear to be an expecta-ble consequence of the mother’s not seeing the child during the 13 months she was detained by INS. Moreover, much of the evidence consists of allegations of bedwet-ting and the like by the foster parents, who themselves seek to adopt Pablo and are therefore not disinterested witnesses. They are presumably most excellent and selfless persons, but they have an inbuilt if unconscious bias because of their desire to adopt Pablo.

The child’s allegedly having rickets is immaterial. The parents proved they gave medical attention to their child. The juvenile system hasn’t cured the child in almost four years that it has had him. The child’s illness is no more a justification for taking him from his parents than is his being Guatemalan.

Since the parents’ parole from detention by the Immigration and Naturalization Service, the juvenile court no longer has jurisdiction over Pablo. It should therefore return him to his parents, unless the state can prove that Pablo was not lawfully in the “actual” custody of the Quans (e.g. because a kidnap victim) when they temporarily surrendered him because of their detention by INS. The only sense in which Pablo may be “in need of care” is that he has been deprived of his “mother” for so long that he may need some time to readjust to her: but that does not meet the statutory definition without which the juvenile court does not have jurisdiction.  