
    In the INTEREST OF C.C. and P.C. v. E.C.C.
    No. 2001-1364.
    Court of Appeal of Louisiana, Third Circuit.
    March 20, 2002.
    
      Field Gremillion, Assistant District Attorney, Alexandria, LA, Counsel for Plaintiff/Appellee: State of Louisiana.
    Susan Fiser, Attorney At Law, Alexandria, LA, Counsel for Children/Appellees: C.C. and P.C.
    Ralph W. Kennedy, Attorney At Law, Alexandria, LA, Counsel for Mother/Appellant: E.C.
    Court composed of Chief Judge NED E. DOUCET, JR., HENRY L. YELVERTON, and JIMMIE C. PETERS, Judges.
   YELVERTON, Judge.

Twin boys, eleven years old, were adjudicated children in need of care in juvenile proceedings. The juvenile judge rendered a judgment of disposition terminating the custody of the State and placing the children in the custody of their father. E.C., the mother of the children, appeals. As her lone assignment of error, she asserts that the State failed to meet its burden of proving that the children were children in need of care under Louisiana law. For the reasons hereafter given, we affirm the decision of the trial court.

These are special needs children. They both have attention deficit hyperactivity disorder (ADHD). The mother’s behavior and her ability to deal with the boys has been a subject of contention within the extended family for years. She had domiciliary custody. In about 1997, the mother moved to Arizona, taking the children without telling anyone. Her mother, the children’s grandmother, found out where she was and visited them there several times. The children’s mother tried to prevent the father from having contact with his children during her two-year sojourn in Arizona. On the twins’ return to Louisiana, their proneness to violent outbursts, directed against both adults and other children, led to hospitalizations in a psychiatric treatment center. In the summer of 1999 their violent behavior caused them to be expelled from the summer program at the YMCA. They attended mental health resources and were in special education.

The mother’s personal difficulties in addressing the special psychological needs of the children were compounded by poor relations with her new husband. The record evidences fights in the presence of the children, police interventions, and |?criminal charges. In February 2000, when the events we are about to describe took place, the mother and her new husband were on the verge of divorce.

The critical events precipitating this juvenile proceeding happened on Saturday, February 12, 2000. The facts as found by the trial judge were that the children’s maternal grandmother was scheduled to pick up the twins from their mother’s house for rehearsal for a church event. The children were to stay the night with the grandmother, then return to their mother’s home the next day. The mother called the grandmother prior to the prearranged pick-up time and told her to come get the children right away. When the grandmother arrived, the mother was very distraught. In front of the children, she told the grandmother that she “couldn’t handle these f — king kids” and that the grandmother was to take them. The grandmother left with the children, stopping briefly on the way. When they arrived back at the grandparents’ house, they found four trashbags containing the children’s clothes and belongings the mother had delivered and placed on the porch.

On Monday, February 14, the grandmother contacted the father and requested that he take the children temporarily, as the grandparents were scheduled to travel out of the country. The father picked the children up, and they spent the night with him. On Tuesday morning, the mother went to the grandmother’s home and demanded her children. WTien she was told the children had spent the night with their father, she was “livid” and “in a very explosive attitude.”

The grandmother, concerned about the welfare of the children and her daughter’s prior threats to take the children off again, contacted the juvenile court judge for Rap-ides Parish and told the judge about her daughter’s most recent actions. This happened on Tuesday, February 15, 2000. On that date Judge Swent, designated |3by the rules of the Ninth Judicial District Court as the juvenile court judge, issued an oral instanter order, placing the children in the legal custody of the State of Louisiana. This was followed the next day by a formal order based on the sworn affidavit of the State agency. The juvenile court ordered physical custody to remain with the father. A continued custody hearing was scheduled, but the hearing was rendered unnecessary when the mother stipulated that the children were in need of care.

The State’s investigation was followed by a petition to adjudicate the children in need of care and protection. The mother moved to recuse Judge Swent, who then recused herself. The ease was assigned to Judge Ryland. In due course, Judge Ry-land conducted an adjudication, hearing numerous witnesses over a period of two days. Finding that the children were in need of care, the juvenile court made a disposition ruling that it was in the children’s best interests to terminate the custody of the State and place them in the custody of the father. The judgment provided visitation for the mother.

It is this judgment that is on appeal.

APPELLANT’S ASSIGNMENT OF ERROR

The mother’s sole assignment of error reads as follows: “The State did not meet its burden of proof in that it did not prove any abuse or neglect as defined by the Louisiana Children’s Code or their allegations in the petition for adjudication.” The assignment directly addresses whether the State met its burden of proof as to the merits of the adjudication. However, very little of the appellant’s brief addresses the issue of whether the State alleged abuse or neglect and met its burden of proof. Appellant’s brief is concerned almost entirely with the argument that the juvenile ^proceedings were so riddled with procedural defects that we should for those reasons reverse the disposition and return custody to the mother. We are going to address these latter arguments even though they have not been made assignments of error. We do so in the interest of justice under the broad authority we are given by Louisiana Code of Civil Procedure Article 2164. However, we will first address the specifically assigned error, because it goes to the merits of the case. An understanding of the pleadings and evidence will furnish the reader with a better understanding of the adjudication, as well as our conclusion that the trial judge correctly found the State proved by a preponderance of the evidence that the children were in need of care. We begin our analysis by addressing the pleadings.

Article 2 of the State’s petition seeking an adjudication that the children were in need of care reads:

Your petitioner alleges that the above named minors are in need of care based on the following facts and circumstances:
A. [The mother] abandoned her children to her maternal grandparents, stating “come get these (expletives deleted) kids,” and placed their personal belongings on the porch of the maternal grandparents.
B. The mother is unable to attend to the special psychological needs of the children and is unable to provide a stable home for them.

When Janice Upton, of the Rapides Child Protection Agency, received the report on February 15, 2000, Judge Swent had already placed the children in State custody. The children were brought to Ms. Upton’s office late that day by their father. On February 17, at the continued custody hearing, the mother decided to schedule a psychological examination hearing. At the request of the department, | KJudge Swent on that date ordered that both boys, and both sets of parents, have psychological evaluations with Dr. John Si-moneaux. She also ordered that the children be maintained in the State’s legal custody, but she ordered that physical custody be placed with the father. She ordered that the maternal grandparents have visitation and that the mother could have visitation with the boys at the grandparents’ house.

Three months later in May, after she received the reports of his evaluations from Dr. Simoneaux, Ms. Upton validated dependency. Explaining, Ms. Upton testified at the trial that the mother’s

emotional problems, her marital problems, her unstable lifestyle — there had been several incidents where the police had been called because of fighting between her and [her husband]. That all of that led to her inability to provide the best care for these children. These are children who have special needs. They need a very structured, nurturing environment.

Utilizing the Office of Community Services (OCS) Program Policy Manual, Chapter 4, Child Protection Investigation, on the subject of Neglect, she defined “dependency” as

Being without reasonable or necessary food, clothing, shelter, medical care, supervision or other care, or without parental care or guardianship, as a result of the severe mental illness, chronic physical illness or physical disability, mental retardation, death, incarceration, chemical abuse, or other condition related to the parent’s ability to care for the child.

It is permissible to review decisions of social workers in the light of the OCS Program Policy Manual. Todd v. State Through Social Services, 96-3090 (La.9/9/97); 699 So.2d 35. Ms. Upton testified that it was the agency’s conclusion that the mother’s problems prevented her from providing the children the care that they needed. She testified that the children were in need of care.

| fiThe trial court heard additional evidence from several sources that support its ruling in this case. First, the court heard the testimony of Dr. John Simoneaux, the psychologist assigned to this matter. The psychologist examined the father and his spouse, the mother and her spouse, and the children. From his examination of the mother, he determined that she was not able to provide a stable environment for the children to grow up in, noting problems with her new husband and the mother’s own psychological shortcomings. He noted that her test results indicated a low tolerance for frustration, poor judgment, and a difficult time seeing how her actions affected others. He also noted that telling the grandmother she “couldn’t handle these f-king kids” in front of the children bordered on emotional abuse.

The trial court heard from the grandmother, who told the court that she hated to say it in front of her daughter, but she did not think her.daughter could handle the children. The court also heard from several state agencies, including the Rap-ides Parish Child Protection Agency and the Rapides OCS. The CASA representative appointed by the court testified. The recommendations were uniform that there should be termination of State custody and placement of the children with the father.

The purpose of Title VI of the Children’s Code as stated in Article 601 is to protect children whose physical or mental health and welfare is substantially at risk of harm by physical abuse, neglect, or exploitation and who may be further threatened by the conduct of others, by providing for the reporting of suspected cases of abuse, exploitation, or neglect of children; by providing for the investigation of such complaints; and by providing, if necessary, for the resolution of child in need of care proceedings in the court.... This Title is intended to provide the greatest possible protection as promptly as possible for such children. The health, safety, and best interest of the child shall be the paramount concern in all proceedings under this Title.

See also State in the Interest of L.C.B., 01-CJ-2441 (La.1/15/02); 805 So.2d 159. “[T]he courts of this State have consistently found the interest of the child to be paramount over that of the parent.” State ex rel. G.J.L., 00-3278, p. 6 (La.6/29/01); 791 So.2d 80, 85.

It is well-settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. State in Interest of D.T. v. K.T., 29,796 (La.App. 2 Cir. 6/18/97); 697 So.2d 665. In manifest error review, it is important that the appellate court not substitute its opinion when it is the juvenile court that is in the unique position to see and hear the witnesses as they testify. “[T]he trier of fact ... is not disadvantaged by the review of a cold record and ... is in a superior position to observe the nuances of demeanor evidence not revealed in a record.” Adkins v. Huckabay, 99-3605, p. 15 (La.2/25/00); 755 So.2d 206, 215. We find no manifest error in the trial court’s finding of fact that these children were in need of care.

PROCEDURAL DEFECTS

We will now address the mother’s arguments regarding the procedural defects in this juvenile case. Although these contentions were not assigned as errors, her brief concentrates on these contentions and we will address them.

First, she contends that Judge Swent did not have the authority to unilaterally issue an instanter order based on an ex parte conversation with the grandmother. She argues that this was a usurpation of the authority of the appropriate state agency and that it branded all subsequent proceedings with nullity.

We agree that the children in need of care proceedings here were initiated in a manner not exactly in accord with Children’s Code Articles 619 and 620. There was no prior investigation by any State agency before the oral order was issued. |sHowever, we need not take a position, one way or the other, as to whether a juvenile judge has or lacks the authority, unilaterally, without the local child protection unit participation, to issue an oral instanter order placing custody in the State upon the receipt of a report from any reliable source that a child is in need of care. We need not rule on that question because in this case there is another procedural fact that eliminates the need for examining the validity of the oral instanter order. That fact is a stipulation. At the continued custody hearing held under Children’s Code Article 624 on February 17, 2000, the State did not have to prove a ground for continued custody because the mother, who was present in court with her attorney, stipulated to the children being children in need of care. There was thus no hearing. It is well-established that stipulations of fact have the effect of law between the parties. Picard v. Vermilion Parish School Board, 00-1222 (La.App. 3 Cir. 4/4/01); 783 So.2d 590, unit denied, 01-1346 (La.6/22/01); 794 So.2d 794. As a result of this stipulation, there were reasonable grounds to believe that the children were in need of care and that continued custody was necessary for their safety and protection. By stipulating to continued custody in the State, the mother waived her right to complain that the instanter custody order was without effect.

The mother’s next procedural argument, as best we can make out, is that this case should never have been decided as a juvenile matter; rather, it should have been conducted as a civil change of custody matter. The mother seems to be arguing, inconsistently, that the trial judge actually treated it as a civil custody matter, but used the burden of proof standard found in the Children’s Code for adjudication of a child in need of care. To respond to these confusing and somewhat inconsistent |flcontentions, it is necessary that we go back now and revisit other events in the background of this litigation.

In February 2000, after the mother turned the children over to their grandmother, and after the grandmother turned them over to their father, the father sued seeking a modification of custody in the ongoing civil litigation pending before Judge Ryland. The next day, Juvenile Judge Swent took jurisdiction, as explained above. On June 29 of that year, the mother filed a motion to recuse Judge Swent, on the ground that the judge would be a witness in the cause, citing Louisiana Code of Civil Procedure Article 151(A). Judge Swent voluntarily signed an order recusing herself and transferred the matter to Division E of the Ninth Judicial District Court. Judge Swent recused herself for the written reasons that she had been “provided with a copy of the Application for Supervisory Writ in Civil Suit Number 168,883, a matter allotted to Division E and that a civil custody matter is pending.... ” The recusal was made in consideration of judicial economy. The Division E judge was Judge Ryland.

The application for supervisory writs to which Judge Swent referred in her written recusal order was filed in our court on May 31, 2000. Writs were sought from a ruling of Judge Ryland in the civil custody matter. After the father moved to modify custody in the civil matter, the mother filed an exception on the ground that the civil court lacked subject matter jurisdiction. Her contention, based on the argument that the juvenile court had exclusive jurisdiction, was that the matter was then in juvenile court and should stay there. The trial court denied the exception. This was the ruling that the mother filed her writ application to overturn. Although Imwe denied the writ, thus giving the civil court the green light for proceeding in the civil matter, only the case in juvenile court went forward.

We make the above explanations for the purpose of showing that the mother never made any objection to the juvenile proceeding until after the adjudication and disposition. Although she moved for the recusal of Judge Swent, she never objected to the case going forward as a juvenile proceeding. To the contrary, she encouraged it, first by stipulating that the children were children in need of care for purposes of the continued custody hearing, and later, as we have just pointed out, by contesting the jurisdiction of the court in the civil matter brought by the father for change of custody. Only now, after judgment was rendered against her in the juvenile proceeding, does the mother seek to go back and find fault with the juvenile proceedings from their inception.

After having stipulated that the children were in need of care for purposes of continued custody, and after having sought writs from us to protect the juvenile court’s jurisdiction in the case, the mother’s next move at the district court level was to attempt to recuse Judge Ryland. In August, she moved for his recusal on the ground of Article 151(A), alleging that he would be a witness in the cause. She alleged that Judge Ryland had had contacts with the maternal grandfather and also with Judge Swent about the case. She further alleged that these contacts created prejudice in his mind, causing there to be a further ground for recusal under Article 151(B)(5). Another judge was appointed to hear this motion to re-cuse Judge Ryland, and the motion was denied.

Our careful study of this record convinces us that there is no foundation for the mother’s complaints that this case was not tried under the proper substantive and | nprocedural rules. The adjudication was conducted strictly under the auspices of the Children’s Code. It was not conducted, as the mother would have us believe, as a hybrid juvenile and civil proceeding. The nature of the proceeding was clear from the beginning. To illustrate, when the adjudication proceeding began before Judge Ryland, the mother’s counsel moved for sequestration of the witnesses. She sought to have the father sequestered, pointing out that he was unrepresented, that he was not a party to the adjudication, and that he “is the plaintiff in the companion case which is to be heard subsequent to this one.” We assume that the “companion case” to which she referred was the civil custody case pending before Judge Ryland. The mother and her counsel were clearly aware that the case on trial was a juvenile matter being heard by Judge Ry-land in his capacity as a juvenile judge.

To further illustrate, numerous times throughout the adjudication hearing there were colloquies between court and counsel indicating that all were aware that this was a juvenile matter and that the rules and burden of proof under the Children’s Code were applicable. We reject the argument that somehow this proceeding was converted by the trial judge into a civil proceeding, and that the only relationship it had with the Children’s Code was the utilization of the “best interest” burden of proof. The record reveals that this was a juvenile case from the beginning to the end and that everyone so understood.

Finally, in the short conclusion part of the mother’s brief, she submits merely that the decision of the trial court finding that the best interests of the children required their placement in the custody of their father was error. She asks that that decision be reversed and that the children be returned to her custody. We regard this |i?as an attack on the disposition ruling, which was neither assigned as error nor otherwise mentioned in the body of her brief. We will discuss it nonetheless.

In listing the dispositional alternatives of the court, Louisiana Children’s Code Article 681 begins as follows:

A. In a case in which a child has been adjudicated to be in need of care, the child’s health and safety shall be the paramount concern, and the court may:
(1) Place the child in the custody of a parent or such other suitable person on such terms and conditions as deemed in the best interest of the child including but not limited to the issuance of a protective order pursuant to Article 618.

By placing the children in the custody of the father, the court was utilizing the first dispositional alternative listed in Article 681. The trial court found that this placement was in the best interest of the children. In doing so, there is no question that the trial court used the proper standard for this disposition, as is evident in its written reasons for judgment.

CONCLUSION

The court heard an abundance of testimony concerning the mother’s ability to provide the care these children need. Based on the evidence before it and its own credibility determinations, the trial court found that the children were in need of care, as the mother could not adequately provide for the special psychological needs of the children. This finding of fact is supported by the record and is not manifestly erroneous. Therefore, it will not be disturbed. Additionally, the court found that their best interests required that the father have custody of the children. Nothing in the 11 ¡¡record indicates that this disposition as to custody was an abuse of the court’s great discretion in that realm. This ruling will also remain undisturbed.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Appellant.

AFFIRMED.

DOUCET, J., concurs and assigns written reasons.

PETERS, J., dissents, and assigns written reasons.

DOUCET, C. J.,

concurring.

I find that even though the procedure used was flawed, the result was in the best interests of the children.

hPETERS, J.,

dissenting.

E.C.’s single assignment of error is that the state failed to establish its burden of proof required in a child in need of care case. Given the procedural defects and the evidence presented in this litigation, I agree with that assertion. Therefore, I respectfully dissent from the majority result and would reverse the trial court’s judgment awarding custody of the twins to S.S., their father. I agree with E.C. that this litigation evolved into nothing more than a civil custody dispute held under the juvenile process umbrella. In my opinion, therein lies a fundamental flaw that requires reversal.

The substantive law concerning resolution of custody litigation involving illegitimate children is found in La.Civ.Code art. 131 et seq. See La.Civ.Code art. 245. Enforcement of an alleged custody right is initiated by filing a pleading which presents the demand for enforcement of that right to a court of competent jurisdiction. La.Code Civ.P. art. 421. The award of custody is based on the best interests of the child. La.Civ.Code art. 131. Procedurally, the litigation applies provisions of the Louisiana Code of Civil Procedure.

A child in need of care proceeding bears no resemblance to a civil custody action. Unlike a civil custody proceeding where the parents are the adversarial parties at interest in the litigation, the adversarial parties at interest in a child in need of care ^proceeding are the State of Louisiana, through the Department of Social Services (department), and the party or parties deprived of custody. The proceedings are initiated when “[a] peace officer, district attorney, or employee of the local child protection unit of the department” files “a verified complaint alleging facts showing that there are reasonable grounds to believe that the child is in need of care and that emergency removal is necessary to secure the child’s protection.” La.Ch. Code art. 619(A). To assert “reasonable grounds,” the individual submitting the verified complaint must assert that at least one of the grounds set forth in La.Ch.Code art. 606 exists.

Once the trial court receives the verified complaint, it must do two things: (1) It must first conclude that the verified complaint contains sufficient facts to establish the “reasonable grounds” that a child in need of care situation exists, La.Ch.Code art. 619(A), and (2) it must “determine whether reasonable efforts have been made by the department to prevent or eliminate the need for the child’s removal.” La.Ch.Code art. 619(B) (emphasis added). These are mandatory inquiries of the trial court before it can issue an instanter custody order.

In exceptional circumstances, the trial court may issue an oral instanter custody order based on orally communicated assertions from the three reporters cited in La.Ch.Code art. 619(A). La.Ch.Code art. 620. If such exceptional circumstances exist, and if the trial court issues an oral instanter custody order based on the orally communicated assertions, the department must file an affidavit containing the alleged facts relied upon “with the clerk of the court within twenty-four hours” of presentation to the trial judge. La.Ch.Code art. 620(B). In any event, the oral instanter custody order must be reduced to writing after the affidavit is filed and it 13must contain “findings of fact supporting the necessity for the child’s removal in order to safeguard his welfare.” La.Ch.Code art. 620(B).

The purpose of the child in need of care provisions is set forth in La.Ch.Code art. 601 as follows:

The purpose of this Title is to protect children whose physical or mental health and welfare is substantially at risk of harm by physical abuse, neglect, or exploitation and who may be further threatened by the conduct of others, by providing for the reporting of suspected cases of abuse, exploitation, or neglect of children; by providing for the investigation of such complaints; and by providing, if necessary, for the resolution of child in need of care proceedings in the courts. ... This Title is intended to provide the greatest possible protection as promptly as possible for such children. ... This Title shall be administered and interpreted to avoid unnecessary interference with family privacy and trauma to the child, and yet, at the same time, authorize the protective and preventive intervention needed for the health, safety, and well-being of children.

(Emphasis added.)

Thus, the child in need of care process contemplates an investigation based on a report of grounds under La.Ch.Code art. 606 and resolution of the problem without unnecessary intervention. Court intervention is a last resort. The obvious purpose of the requirements of La.Ch.Code art. 619 and La.Ch.Code art. 620 is to allow the matter to proceed through the appropriate investigative process and then to an impartial judge for action. However, that is not what happened in this case.

The juvenile judge in this matter issued an oral instanter order transferring custody of the twins to the department and awarded their father physical possession. This order was issued based on a telephone conversation, not with any agency representative listed in La.Ch.Code art. 619(A), but with the children’s maternal grandmother. Thus, no investigation by the department ever took place. By engaging in the ex parte communication with the grandmother and not referring her to the |4department, the juvenile judge became a “permitted reporter” together with the grandmother, as is authorized by La. Ch.Code art. 609(B). However, once the juvenile judge assumed that position, her obligation was, not to issue an order, but to forward the acquired information to “the local child protection unit of the department” La.Ch.Code art. 610(A) (emphasis added).

All of the evidence suggests the order was orally communicated to the department because the first written evidence of action by the trial court is the response of Janice Upton, the department’s representative, who filed an affidavit on February 16, 2000, or within twenty-four hours of the issuance of the oral instanter order. However, instead of asserting facts upon which the custody action was taken, the affidavit basically asserted that “[o]n 2/15/2000, [the juvenile judge] ordered the children to be placed in the legal custody of the State of Louisiana with physical placement with the father.” In addressing her belief that there was good cause to suggest the twins could not adequately be protected, Ms. Upton stated “as per [the juvenile judge’s] order of 2/15/2000.” Concerning the requirement that consideration be given to services provided by the department to prevent removal, Ms. Upton stated “as per [the juvenile judge’s] order of 2/15/2000.” Additionally, Ms. Upton testified that she was informed that the department was given custody because the juvenile judge “had concerns that the mother may take the children and flee the state” and that, had she investigated the matter, she would not have requested an order of custody but would have referred the family to help as a family in need of services under La.Ch.Code art. 726 et seq. Had this occurred, this litigation would have ended at that point.

Having begun, however, this litigation should have not been extended past the | Rcontinued custody hearing held February 17, 2000. The department bears the burden at that hearing of establishing a ground for continued custody. La.Ch. Code art. 624(D). That burden requires a showing that “there are reasonable grounds to believe the child is in need of care and that continued custody is necessary for his safety and protection.” La. Ch.Code art. 626(A) (emphasis added). At this point, the only basis for continued custody was the fear that E.C. might take the children from the state. Therefore, there existed no basis for a child in need of care action.

I disagree that the child in need of care stipulation entered into at the continued custody hearing rendered moot any complaints of the prior procedural defects. Importantly, La.Ch.Code art. 647 provides:

With the approval of the petitioner and the department, if a child is in the custody of the department, a parent whose child is the subject of pending proceedings may, with or without admitting the allegations of the petition, stipulate that the child is in need of care according to Article 606, provided that:
(1) A prehearing conference has been convened in accordance with Article 646.1.
(2) The parent personally appears before the court.
(3) The court fully informs the parent of his rights as required by Article 625.
(4) The court fully informs the parent of the consequences of such a stipulation, including the parent’s responsibility to comply with the case plan and correct the conditions requiring the child to be in care.
(5) The parent knowingly and voluntarily consents to the judgment.

In this case, the record does not demonstrate that the prerequisites for the trial court accepting E.C.’s stipulation have been met.

In any event, even assuming the prerequisites were met for a proper stipulation, I would still find that it should be disregarded in this case. E.C. is the mother of twins born out of wedlock. Both children suffer from attention deficit hyperactivity disorders (ADHD). Concerned only that E.C. might leave the state (a perfectly legal |fiact), E.C.’s own mother called the juvenile judge and “reported” her. This telephone call resulted in E.C. losing custody of her children without warning. Two days later, she found herself in front of the same juvenile judge and, in her mind, without hope of relief. Additionally, common sense would suggest that often the trial court is extremely reluctant to return children into an environment until more facts are known, and understandably so. I simply cannot hold E.C. to the same standard applicable in a civil custody proceeding, given the department’s involvement. While this ill-advised “stipulation” deprived E.C. of her children for an indefinite period in the future when there existed no basis in fact for continued custody, it should not be used to preclude her from arguing the defects which brought her to that point. This conclusion is reenforced, in my mind, by the fact that the department sought a continuance before filing its petition for adjudication. Louisiana Children’s Code Article 632(A) requires that an adjudication petition be filed within thirty days of the continued custody hearing when the children remain in the custody of the department. The department sought and obtained an extension of time in which to file this petition because it needed to obtain the psychological evaluation by Dr. Simoneaux. The evidence establishes why this delay was necessary— the department had no basis for its petition until it received the report.

The nature of the adjudication hearing represents further evidence of the fact that this juvenile matter was treated as a civil custody proceeding and not a child in need of care proceeding. The adjudication hearing took place on November 29 and 30, 2000. Louisiana Children’s Code Article 666(A) provides that “[fjollowing the adjudication hearing, the court shall immediately declare whether the evidence warrants a child in need of care adjudication. In exceptional circumstances, the court [7may take the matter under advisement for a period not to exceed ten days.” (Emphasis added.) The trial court took the matter under advisement and did not issue written reasons for judgment until February 21, 2001.

Furthermore, the issue at the adjudication hearing is whether the children should be found to be in need of care, and nothing else. A separate hearing is required to determine disposition of children adjudicated in need of care. La.Ch.Code art. 678. The trial court’s reasons for judgment mentions neither “adjudication” nor “disposition” and begins with the sentence: “This matter comes before the Court in a complicated custody case.” (Emphasis added.) The trial court compared the father’s environment with that of the mother’s and concluded “that the placement of the children with the mother would be detrimental to the welfare of the children and that it is in the best interest of the children to continue to live with their father.” Thus, it appears that the continued custody hearing became an adjudication hearing and the adjudication hearing functioned as a disposition hearing.

Even assuming that somehow E.C. has waived her right to object to the utter failure of the department to follow the statutory procedure in this juvenile proceeding, I still find that the evidence presented does not rise to the level of proof required of the department.

In its petition, the department limited itself to the following assertions:

A. [E.C.] abandoned her children to her maternal grandparents, stating “come get these (expletives deleted) kids,” and placed their personal belongings on the porch of the maternal grandparents.
B. The mother is unable to attend to the special psychological needs of the children and is unable to provide a stable home for them.

In my opinion, the department established neither by a preponderance of the evidence.

| RC oncerning the first, the evidence is overwhelming that E.C. never abandoned her children. While she exhibited poor judgment in making the inappropriate comment to the children’s maternal grandmother, even the grandmother never asserted that she called S.S. to take physical possession of the twins because E.C. had abandoned them to her. On the contrary, she transferred the twins to S.S. and contacted the juvenile judge because she was concerned that E.C. would take the children from the state. Even so, I would find that E.C. did not act inappropriately in bringing the children to their grandmother but instead acted in their best interest so that she could regroup — no one disputes that the children are difficult to manage. Moreover, this was an isolated incident, and E.C. returned for the children. Thus, E.C.’s assertion that the department failed to prove this assertion has merit.

In considering proof of the second assertion, the evidence in fact points to the contrary. Specifically, E.C. was the person who recognized the special psychological needs of the children in the first instance and sought help for them. Further, one has to evaluate the evidence without regard to whether S.S. or E.C. could provide the better home. Ms. Upton testified that, when the department finally attempted to perform its statutorily mandated investigation, it found no evidence of physical, sexual, or emotional abuse. In fact, her only criticism was that E.C. seemed to have neglected the children. Based solely on Dr. Simoneaux’s report, she concluded, not that E.C. could not provide a safe environment, but that “she could not provide the most structured environment ” to meet the children’s needs. However, she further admitted that she found no evidence to suggest that E.C. ever failed to provide the children with food, clothing, shelter, medical care, or even treatment or counseling for their emotional problems. Moreover, Ms. Upton admitted that this matter was not 19handled as a normal case when she testified as follows:

Under normal circumstances, when we remove a child we have a service plan, the agency requires a parent to do certain specific things to get custody back and if the parent does those things, and there is no, nothing to show a risk of harm to the child if the child is returned, that would be the normal process.

William Norton, the department employee who initially was involved with placement of the twins, testified that, although E.C. complied with everything requested of her, the department still recommended placement with S.S. and release of the department from all responsibility. He based this recommendation solely on Dr. Simo-neaux’s conclusion that S.S. was “suited to care for his children.”

Even the woman who started this unfortunate litigation in the first place, E.C.’s mother, testified that her daughter loves the twins and the twins love her. She testified that E.C. has always properly cared for the twins and that E.C. did everything that a mother is suppose to do. As previously stated, E.C.’s mother reported to the juvenile judge, not because she was fearful of the children’s safety, but because she was concerned that E.C. might leave the state. Everyone acknowledges a difficult relationship exists between the two women, and the obvious reason can be summarized in a statement by E.C.’s mother when questioned about their relationship:

The only time we argue, Mr. Kennedy, is when I correct Erin as a mother and she doesn’t, she doesn’t take too well to correction and I guess that’s just part of the mother in me, but I will continue to do that and I told her I will always continue to do that because I was always, I will always be her mother. And as you know, she’s adopted and she has never really bonded with us. Perhaps that had something to do with it.

I find myself sympathizing with E.C. having to raise two ADHD children and having to cope with a mother who obviously wants to control her life despite the fact that E.C. is an adult with teenage children.

lifiDr. Simoneaux’s testimony does not support a finding that the department bore its burden of proof either. The doctor expressed concerns that the children would have an adverse effect on the marriages of either family if placed therein. While praising S.S., Dr. Simoneaux could find only that E.C.’s stability was “questionable.” However, the doctor acknowledged that the children were with E.C. when diagnosed with ADHD and that she immediately began working toward obtaining help for them.

While the evidence seems to suggest that the children are doing better in the current environment, one might be tempted to disregard the utter failure on the part of the department in abdicating its statutory duty and in meeting its burden of proof in order to pursue what it perceived to be the court’s desired result. To disregard that failure would be to relegate such proceedings under the Children’s Code to merely a determination of who is capable of providing the better or best environment for the children. Were that the standard, our courts could be inundated with litigation over whether one environment is better or best for a child, which could fluctuate from day to day, where there is no other basis for removal of the child from his or her present environment. Even in civil custody proceedings, a higher standard of proof is required for a change of custody than a mere showing that one parent is able to provide a better environment. Further, the means should not justify the end. The department simply did not meet its burden of proof in this ease by a preponderance of the evidence.

Perhaps the most troubling aspect of this litigation is that the department, the party most responsible for seeing that all rights are protected in a juvenile proceeding, has been released with no further responsibility for the problems it created. The release of the department by the trial court eliminates the possibility of E.C. ever | ^rehabilitating herself because no plan of rehabilitation exists.

In dissenting, I do not mean to suggest that S.S. would or would not be successful in a civil custody proceeding. However, the department has failed in its burden in this juvenile proceeding. I am concerned that the result in this case will be the use of the Louisiana Children’s Code as an offensive weapon in family disagreements rather than for its proper purpose as stated in La.Ch.Code art. 101: “The people of Louisiana recognize ... that the role of the state in the family is limited and should only be asserted when there is a serious threat to the family, the parents, or the child; and that extraordinary procedures established by law are meant to be used only when required by necessity and then with due respect for the rights of the parents, the children, and the institution of the family.”

I would reverse the trial court judgment and order the children returned to their mother.  