ENROLLED
2022 Regular Session
HOUSE BILL NO. 360
BY REPRESENTATIVE HILFERTY
(On Recommendation of the Louisiana State Law Institute)
1 AN ACT
2 To amend and reenact Children's Code Articles 320(B), (C), and (D), 335(D) and (E),
3 502(1)(introductory paragraph) and (5), 575, 601, 603(2)(introductory paragraph),
4 (18), (20), (25), (26), and (27), 607(A) and (C), 608(A)(introductory paragraph), (3),
5 and (4), (B), and (C), 612(A)(2) and (4), 615(B)(1), 619(A)(1), (B), and (C), 620(A),
6 (B), and (C), 621(A) and (B), 622(B)(introductory paragraph), (1), (2), and (3),
7 623(A) and (B), 624(A), (C)(1), (F), and (H), 625(D)(1), 626, 627(C), 635.1, 638,
8 639, 640(A) and (C), 646.1(B)(2) and (D), 672.1(B), 673, 675(A) and (B)(1), (2), (3),
9 (6)(a), and (8), 677(B) and (C), 681(A)(introductory paragraph) and (1), 682(A) and
10 (B)(introductory paragraph), (4), and (5), 683(A), (B), and (D), 684(B) and (C),
11 700(A)(introductory paragraph) and (1), 702(C)(1) and (4), (E), (G), and (J), 710(A)
12 and (D), 716, 722(A)(2) and (4) and (B), 724.1(C)(2) and (4), 1003(1)(introductory
13 paragraph) and (10), 1016(A) and (B), 1021, and 1404(13) and to enact Children's
14 Code Articles 335(F) and (G), 603(28) through (32), 1019.1, and 1019.2, relative to
15 the continuous revision of the Children's Code; to provide for the determination of
16 indigency; to provide for the appointment of counsel; to provide for the preparation
17 of the record; to provide for definitions; to provide authorization to the Indigent
18 Parents' Representation Program; to provide for Child in Need of Care proceedings;
19 to provide for the safety of a child; to provide for reasonable efforts of the
20 Department of Children and Family Services; to provide for the welfare of a child;
21 to provide for the removal of a child; to remove outdated language; to provide for a
22 continued safety plan hearing; to provide for notice of court orders; to provide for
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1 service made on a child; to authorize service by commercial courier; to provide for
2 the confirmation of electronic delivery; to provide for a child to remain in the
3 custody of a parent; to require written reasons for removal; to provide for return of
4 the child; to provide for modification of judgments; to provide a cross reference; and
5 to provide for related matters.
6 Be it enacted by the Legislature of Louisiana:
7 Section 1. Children's Code Articles 320(B), (C), and (D), 335(D) and (E),
8 502(1)(introductory paragraph) and (5), 575, 601, 603(2)(introductory paragraph), (18), (20),
9 (25), (26), and (27), 607(A) and (C), 608(A)(introductory paragraph), (3), and (4), (B), and
10 (C), 612(A)(2) and (4), 615(B)(1), 619(A)(1), (B), and (C), 620(A), (B), and (C), 621(A) and
11 (B), 622(B)(introductory paragraph), (1), (2), and (3), 623(A) and (B), 624(A), (C)(1), (F),
12 and (H), 625(D)(1), 626, 627(C), 635.1, 638, 639, 640(A) and (C), 646.1(B)(2) and (D),
13 672.1(B), 673, 675(A) and (B)(1), (2), (3), (6)(a), and (8), 677(B) and (C),
14 681(A)(introductory paragraph) and (1), 682(A) and (B)(introductory paragraph), (4), and
15 (5), 683(A), (B), and (D), 684(B) and (C), 700(A)(introductory paragraph) and (1),
16 702(C)(1) and (4), (E), (G), and (J), 710(A) and (D), 716, 722(A)(2) and (4) and (B),
17 724.1(C)(2) and (4), 1003(1)(introductory paragraph) and (10), 1016(A) and (B), 1021, and
18 1404(13) are hereby amended and reenacted and Children's Code Articles 335(F) and (G),
19 603(28) through (32), 1019.1, and 1019.2 are hereby enacted to read as follows:
20 Art. 320. Indigency determination
21 * * *
22 B. The Except as provided in Article 608, the determination of the indigency
23 of any person entitled to counsel under in accordance with this Code may be made
24 by the court at any stage of the proceedings. If necessary, he the person shall be
25 allowed to summon witnesses to testify before the court concerning his the person's
26 financial ability to employ counsel.
27 C.(1) In determining whether a person is indigent and entitled to the
28 appointment of counsel, the court shall consider whether he the person is a needy
29 person and the extent of his the person's ability to pay.
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1 (1)(2) The court shall consider such factors as income, property owned,
2 outstanding obligations, and the number and ages of dependents.
3 (2)(3) Release on bail shall not alone disqualify either an adult or child for
4 appointment of counsel.
5 D. In each case, subject to the penalty of perjury, the person shall certify in
6 writing such the material factors relating to his the person's ability to pay as the court
7 prescribes.
8 * * *
9 Art. 335. Preparation of record; costs
10 * * *
11 D. If a child desires a transcript for appeal, he or his or for supervisory writ,
12 the child or the parents of the child shall pay not be assessed the cost of transcription
13 of the record unless the court determines that the child and his parents lack means
14 to pay such cost or any other costs associated with the preparation of the record.
15 E. If a parent, in a proceeding brought pursuant to Title V, VI, VII, X, or XI
16 of this Code, desires a transcript for appeal or for supervisory writ, the parent shall
17 pay the cost of transcription of the record unless the court determines that the parent
18 is unable to pay due to poverty or lack of means. The appointment of counsel for the
19 parent in a proceeding shall create a rebuttable presumption that the parent is unable
20 to pay the costs associated with the preparation of the appellate record or the costs
21 for the transcription of the contested proceedings for inclusion in the appeal or
22 supervisory writ. If the court finds that the presumption has been rebutted, the court
23 shall provide written reasons for its finding.
24 F. If the court finds that the interests of justice so require, the court may
25 waive the costs of transcription of the record or for supervisory writ for any other
26 party with a right to an appeal who is unable to pay due to poverty or lack of means.
27 E. G. Failure of the clerk to prepare and lodge the record on appeal either
28 timely or correctly shall not prejudice the appeal.
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1 Comments - 2022
2 Paragraph G of this Article places a burden on the clerk of court to prepare
3 and lodge the record. If the exclusive responsibility for preparing and lodging the
4 record is on the clerk, the clerk's negligence should not affect the appeal. Therefore,
5 an appeal shall not be dismissed solely upon the failure of the clerk to prepare and
6 lodge the record timely or correctly.
7 * * *
8 Art. 502. Definitions
9 For the purposes of this Title, the following terms have the following
10 meanings, unless the context clearly indicates otherwise:
11 (1) "Abuse" means any one of the following acts which that seriously
12 endanger the physical, mental, or emotional health, welfare, and safety of the child:
13 * * *
14 (5) "Neglect" means the unreasonable refusal or failure of a parent or
15 caretaker to supply the child with necessary food, clothing, shelter, care, treatment,
16 or counseling for any injury, illness, or condition of the child, as a result of which the
17 child's physical, mental, or emotional health, welfare, and safety is substantially
18 threatened or impaired. Consistent with Children's Code Article 606(B), the inability
19 of a parent or caretaker to provide for a child's basic support, supervision, treatment,
20 or services due to inadequate financial resources shall not, for that reason alone, be
21 considered neglect. Whenever, in lieu of medical care, a child is being provided
22 treatment in accordance with the tenets of a well-recognized religious method of
23 healing which that has a reasonable, proven record of success, the child shall not, for
24 that reason alone, be considered to be neglected or maltreated. However, nothing
25 herein in this Subparagraph shall prohibit the court from ordering medical services
26 for the child when there is substantial risk of harm to the child's health, or welfare,
27 or safety.
28 * * *
29 Art. 575. Duties of the program; qualifications of counsel
30 A. The program shall provide qualified legal counsel, which shall include
31 curatorship curator ad hoc appointments, to indigent or absent parents in child abuse
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1 and neglect cases in accordance with the provisions of R.S. 15:185.1 Articles 608
2 and 1016 and R.S. 15:141 through 183 and 185.1 through 185.9.
3 B. Legal representation, which shall include curatorship curator ad hoc
4 appointments, of indigent or absent parents in child abuse and neglect cases shall
5 comply with standards promulgated by the Louisiana Public Defender Board, or any
6 successor to that board in accordance with R.S. 15:185.1 R.S. 15:141 through 183
7 and 185.1 through 185.9 to ensure competent and fair representation.
8 C. The Indigent Parents' Representation Program, through its governing
9 authority, may adopt policies to provide representation to indigent parents prior to
10 the commencement of court proceedings.
11 * * *
12 Art. 601. Purpose
13 The purpose of this Title is to protect children whose physical or mental
14 health and, welfare, and safety is substantially at risk of harm by physical abuse,
15 neglect, or exploitation and who may be further threatened by the conduct of others,
16 by providing for the reporting of suspected cases of abuse, exploitation, or neglect
17 of children; by providing for the investigation of such complaints; and by providing,
18 if necessary, for the resolution of child in need of care proceedings in the courts. The
19 proceedings shall be conducted expeditiously to avoid delays in achieving
20 permanency for children. This Title is intended to provide the greatest possible
21 protection as promptly as possible for such children. The health, welfare, safety, and
22 best interest of the child shall be the paramount concern in all proceedings under
23 pursuant to this Title. This Title shall be construed in accordance with Article 102.
24 This Title shall be administered and interpreted to avoid unnecessary interference
25 with family privacy and trauma to the child, and yet, at the same time, authorize the
26 protective and preventive intervention needed for the health, welfare, safety, and
27 well-being of children.
28 * * *
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1 Art. 603. Definitions
2 As used in this Title:
3 * * *
4 (2) "Abuse" means any one of the following acts which that seriously
5 endanger the physical, mental, or emotional health, welfare, and safety of the child:
6 * * *
7 (18) "Neglect" means the refusal or unreasonable failure of a parent or
8 caretaker to supply the child with necessary food, clothing, shelter, care, treatment,
9 or counseling for any injury, illness, or condition of the child, as a result of which the
10 child's physical, mental, or emotional health, welfare, and safety is substantially
11 threatened or impaired. Neglect includes prenatal neglect. Consistent with Article
12 606(B), the inability of a parent or caretaker to provide for a child due to inadequate
13 financial resources shall not, for that reason alone, be considered neglect. Whenever,
14 in lieu of medical care, a child is being provided treatment in accordance with the
15 tenets of a well-recognized religious method of healing which that has a reasonable,
16 proven record of success, the child shall not, for that reason alone, be considered to
17 be neglected or maltreated. However, nothing herein in this Subparagraph shall
18 prohibit the court from ordering medical services for the child when there is
19 substantial risk of harm to the child's health, or welfare, or safety.
20 * * *
21 (20) "Other suitable individual" means a person with whom the child enjoys
22 a close, established, significant relationship, yet not a blood relative, including a
23 neighbor, godparent, teacher, and or close friend of the parent. "Relative" for the
24 purpose of this Title means an individual with whom the child has established a
25 significant relationship by blood, adoption, or affinity.
26 * * *
27 (25) "Protective capacity" means the cognitive, behavioral, and emotional
28 knowledge, abilities, and practices that prevent or control threats of danger to
29 children.
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1 (26) "Reasonable efforts" means the exercise of ordinary diligence and care
2 by the department caseworkers and supervisors and shall assume the availability of
3 a reasonable program of services to children and their families throughout the
4 pendency of a case pursuant to the obligations imposed on the state by federal and
5 state law to provide services and supports designed and intended to prevent or
6 eliminate the need for removing a child from the child's home, to reunite families
7 after separation, and to achieve safe permanency for children. Reasonable efforts
8 shall be determined by the particular facts and circumstances of each case, including
9 the individualized needs of each child and the family, the imminence and potential
10 severity of the threat of danger, the strengths of each child and the family, and the
11 community of support available to the family. In making reasonable efforts, the
12 health, welfare, and safety of the child shall be the paramount concern.
13 (27) "Relative" means an individual with whom the child has established a
14 significant relationship by blood, adoption, or affinity.
15 (26) (28) "Removal" means placing a child in the custody of the state or with
16 someone other than the parent or caretaker during or after the course of an
17 investigation of abuse and neglect to secure the child's protection and safeguard the
18 child's health, welfare, and safety.
19 (29) "Safe" and "safety" mean the condition of not being unsafe. Whether
20 a child is unsafe shall be determined by the particular facts and circumstances of
21 each case, including consideration of the threat of danger to the child, whether the
22 child is vulnerable to the threat, and the parent's or caretaker's protective capacity to
23 manage or control the threat.
24 (27) (30) "Safety plan" means a plan for the purpose of assuring a child's
25 health, welfare, and safety by imposing conditions for the child to safely remain in
26 the home, or, after a child has been removed from the home, for the continued
27 placement of the child with a custodian and terms for contact between the child and
28 his the child's parents or other persons.
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1 (31) "Threat of danger" exists when the behavior of a parent or caretaker or
2 the family situation indicates serious harm, in the near future, to the child’s physical,
3 mental, or emotional health, welfare, and safety.
4 (32) "Vulnerable" means the inability to protect oneself from identified
5 threats of danger.
6 * * *
7 Art. 607. Child's right to appointed counsel; payment
8 A. The court shall appoint the program entity designated for the jurisdiction
9 by the Louisiana Supreme Court to provide qualified, independent counsel for the
10 child in any order issued in accordance with Article 619(C) or 620 or at the time the
11 order setting the first court hearing is signed. Neither the child nor anyone
12 purporting to act on his behalf of the child may be permitted to waive this right.
13 * * *
14 C. If the court finds that the parents of the child are financially able, it the
15 court may order the parents to pay some or all of the costs of the child's
16 representation in accordance with Children's Code Articles 320 and 321.
17 * * *
18 Art. 608. Parents' right to counsel; payment
19 A. The parents of a child who is the subject of a child in need of care
20 proceeding shall be entitled to qualified, independent counsel at the continued
21 custody hearing after the court issues any order in accordance with Article 619(C)
22 or 620 or at the filing of a petition and at all stages of the proceedings thereafter. If
23 the court does not issue an order in accordance with Article 619(C) or 620, the right
24 to counsel shall attach upon the filing of a petition. At all proceedings governed by
25 Chapter 6 of this Title, the parents shall be presumed to be indigent. Thereafter,
26 indigence shall be determined in accordance with Article 320. This right The right
27 to counsel may be waived by a parent if the court determines that the parent choosing
28 to waive his the right to representation has been instructed by the court about his the
29 rights and the possible consequences of waiver. Before accepting a waiver of
30 counsel, the court shall ensure each of the following:
31 * * *
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1 (3) The parent has been informed by the court that a proceeding brought
2 under in accordance with this Title may ultimately result in a termination of parental
3 rights and a complete and permanent separation of the parent from the child.
4 (4) The parent has been informed by the court that if he the parent is unable
5 to afford an attorney, one will be provided by the Indigent Parents' Representation
6 Program.
7 * * *
8 B. If a parent of a child is financially unable to afford counsel or is presumed
9 indigent in accordance with Paragraph A of this Article, the court shall refer the
10 parent for representation by the Indigent Parents' Representation Program
11 administered by the Louisiana Public Defender Board district public defender office
12 shall provide for representation, unless the Louisiana Public Defender Board has
13 contracted to provide for representation in accordance with R.S. 15:185.3(B)(12) or
14 any other provision of law.
15 C. If a parent of the child is entitled to representation by the Indigent Parents'
16 Representation Program, the The unavailability of counsel to represent the parent
17 shall be good cause for a continuance of the continued custody hearing for up to
18 three days, and the hearing shall not proceed until a qualified, independent attorney
19 is provided to the parent.
20 * * *
21 Art. 612. Assignment of reports for investigation and assessment
22 A.
23 * * *
24 (2) Reports of high and intermediate levels of risk shall be investigated
25 promptly. This investigation shall include a preliminary investigation as to the
26 nature, extent, and cause of the abuse or neglect and the identity of the person
27 actually responsible for the child's condition. This preliminary investigation shall
28 include an inquiry as to whether there is reason to know that the child is an Indian
29 child. This preliminary investigation shall also include an interview with the child
30 and his parent or the child's parents or other caretaker and shall include consideration
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1 of all available medical information provided to the department pertaining to the
2 child's condition. This preliminary investigation shall also include an immediate
3 assessment of any existing visitation or custody order or agreement involving the
4 alleged perpetrator and the child. The department shall request a temporary
5 restraining order pursuant to Article 617, a protective order pursuant to Article 618,
6 or an instanter safety plan order pursuant to Article 619 or Article 620 if the
7 department determines that any such previously ordered visitation or custody would
8 put the child's health, welfare, and safety at risk. Admission of the investigator on
9 school premises or access to the child in school shall not be denied by school
10 personnel. However, the request for a temporary restraining order or a protective
11 order in accordance with this Article shall not independently confer exclusive
12 jurisdiction on the juvenile court in accordance with Article 303.
13 * * *
14 (4) During the investigation of a report from a treating health care
15 practitioner of physical abuse of a child who is not in custody of the state, at the
16 request and expense of the child's parent or caregiver, the department shall provide
17 copies of all medical information pertaining to the child's condition or treatment
18 obtained during the investigation to a board certified child abuse pediatrician for
19 purposes of conducting an independent review of the information. Any resulting
20 report shall be provided to the department and to the child's parent or caretaker and
21 shall be utilized in the department's on-going ongoing assessment of risk and to
22 determine what action may be necessary to protect the health, welfare, and safety of
23 the child. Nothing in this Subparagraph shall be construed to prohibit granting an
24 instanter removal order pursuant to Article 615(B).
25 * * *
26 Art. 615. Disposition of reports
27 * * *
28 B. After investigation, the local child protection unit shall make one of the
29 following determinations:
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1 (1) The child appears to be a child in need of care and his the child's
2 immediate removal is necessary for his protection from further abuse or neglect, in
3 which case, whenever such extraordinary justification arises, it the local child
4 protection unit shall apply for an instanter removal order to place the child in the
5 custody of a suitable relative or other suitable individual capable of protecting the
6 health, welfare, and safety of the child or the state as authorized under by Articles
7 619 and 620 and shall notify the district attorney as soon as possible.
8 * * *
9 Art. 619. Instanter custody orders; instanter safety plan orders
10 A.(1) A peace officer, district attorney, or employee of the local child
11 protection unit of the department may file a verified complaint alleging facts
12 showing that there are reasonable grounds to believe that the child is in need of care
13 and that emergency removal or the implementation of a safety plan is necessary to
14 secure the child's protection health, welfare, and safety.
15 * * *
16 B.(1) If removal of the child is requested, the court shall immediately
17 determine whether reasonable efforts, as defined by Article 603, have been made by
18 the department to prevent or eliminate the need for the child's removal, including.
19 In making the determination, the court shall consider all of the following:
20 (a) whether Whether the department has requested a temporary restraining
21 order pursuant to Article 617,.
22 (b) Whether the department has requested a protective order pursuant to
23 Article 618, or a.
24 (c) Whether the department has requested an instanter safety plan order
25 pursuant to this article Article.
26 (d) Any services or support offered or attempted prior to the request for an
27 instanter order to control the threat of danger or substitute for diminished or absent
28 caretaker protective capacity.
29 (2) In making and determining reasonable efforts, the child's health, welfare,
30 and safety shall be the paramount concern.
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1 (3) However, the court may authorize the removal of the child even Even if
2 the department's efforts have not been reasonable, the court may authorize the
3 removal of the child if the court determines that removal is necessary to secure the
4 safety of the child and that additional efforts would not keep the child safe from
5 identified threats of danger.
6 C.(1) Upon presentation of the verified complaint, the court shall
7 immediately determine whether emergency removal or the issuance of a an instanter
8 safety plan order is necessary to secure the child's protection health, welfare, and
9 safety.
10 (2) If the court determines finds that the child's welfare cannot be
11 safeguarded without removal, continuation in the home would be contrary to the
12 health, welfare, and safety of the child, the court shall immediately issue a written
13 instanter order directing that the child be placed in the provisional custody of a
14 suitable relative or other suitable individual capable of protecting the health, welfare,
15 and safety of the child or that the child be taken into the custody of the state. The
16 order shall contain written findings of fact supporting the necessity for the child's
17 removal in order to safeguard his welfare. If the child has been ordered into the
18 custody is given to of a suitable relative or other suitable individual, a safety plan
19 shall be made an order of the court and shall direct the provisional custodian to
20 adhere to the conditions of the safety plan. The safety plan shall set forth conditions
21 of contact with parents or other third parties suitable individuals.
22 (3) If, upon request by the state, the court determines that with the issuance
23 of a safety plan order, that the child's health, welfare, and safety can be safeguarded
24 secured without removal, the court shall immediately issue a written instanter safety
25 plan order directing compliance with the terms of the safety plan. The order shall
26 contain written findings of fact supporting the necessity for the safety plan to
27 safeguard his welfare. The safety plan shall set forth conditions as determined by or
28 agreed upon by the state as necessary for the protection of the child's health, welfare,
29 and safety while remaining in the home.
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1 (4) If the court determines that emergency removal or the issuance of a
2 safety plan order is not necessary to secure the child's protection health, welfare, and
3 safety, the court shall issue a written order denying the request for custody or for the
4 implementation of a safety plan.
5 * * *
6 Art. 620. Oral instanter orders
7 A. In exceptional circumstances, the facts supporting the issuance of an
8 instanter order and the exceptional circumstances may be relayed orally, including
9 telephonically, to the judge and his the order directing that a child be taken into
10 custody or, upon request by the state, that a an instanter safety plan order be
11 implemented may be issued orally.
12 B. In such cases, an An affidavit containing the information previously
13 relayed orally, including telephonically, shall be filed with the clerk of the court
14 within twenty-four hours and a written order shall be issued. The written order shall
15 include the court's findings of fact supporting the necessity for the child's removal
16 or the implementation of a an instanter safety plan order in order to safeguard his
17 welfare and, if the child has been removed, shall determine the child's custodian in
18 accordance with Article 619.
19 C. The affidavit filed after the child has been placed shall indicate whether
20 the child was released to his the child's parents or remains removed.
21 * * *
22 Art. 621. Taking child into custody without a court order
23 A. A peace officer or probation officer of the court may take a child into
24 custody without a court order if he has there are reasonable grounds to believe that
25 the child's surroundings are such as to endanger his welfare the child's health,
26 welfare, and safety and immediate removal appears to be necessary for his
27 protection. The peace officer shall have the responsibility to promptly notify and
28 release the child to the department.
29 B. Employees of the department must shall secure an instanter order before
30 taking a child into custody.
31 * * *
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1 Art. 622. Placement pending a continued custody hearing
2 * * *
3 B. Unless the best interest of the child requires a different placement, a child
4 who appears to be a child in need of care and whose immediate removal is necessary
5 for his protection from further abuse or neglect shall be placed, pending a continued
6 custody hearing, in accordance with this priority the following priorities of
7 placement:
8 (1) In the home of a suitable relative who is of the age of majority and with
9 whom the child has been living in a wholesome and stable and safe environment if
10 the relative is willing and able to continue to offer such environment for the child
11 pending an adjudication hearing and if he the relative agrees to the safety plan.
12 (2) In the home of a suitable relative who is of the age of majority if the
13 relative is willing and able to offer a wholesome and stable and safe environment for
14 the child pending an adjudication hearing and if he the relative agrees to the safety
15 plan.
16 (3) In the home of a suitable individual who is of the age of majority if he
17 the individual is willing and able to offer a wholesome and stable and safe
18 environment for the child pending an adjudication hearing and if he the individual
19 agrees to the safety plan.
20 * * *
21 Art. 623. Notice; right to be heard
22 A. The department shall give notice of any court hearing order regarding the
23 child issued in accordance with Article 619(C) or 620 to his the child's parents, the
24 district defender or other entity designated for the jurisdiction by the Indigent
25 Parents' Representation Program for representing parents, the entity designated for
26 the jurisdiction by the Louisiana Supreme Court to provide qualified, independent
27 counsel for the child, and other parties. It The department shall also give such notice
28 regarding any child in foster care to any foster parent, pre-adoptive parent, and
29 relative providing care. The department shall notify the court of each party's address
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1 and shall have a continuing duty to provide current information to the court about
2 each party's whereabouts.
3 B. The notice shall state the date, time, and place of the any scheduled
4 hearing and inform the recipient of his the right to attend and be heard. The notice
5 to the district defender and the entity designated for the jurisdiction by the Louisiana
6 Supreme Court to provide qualified, independent counsel for the child shall also
7 include a copy of the verified complaint, the affidavit required in Article 620(B), and
8 any order issued by the court.
9 * * *
10 Art. 624. Continued custody hearing; continued safety plan hearing; federal Indian
11 Child Welfare Act
12 A. If a child is not released to the care of his parents the court issues an order
13 pursuant to Article 619 or 620, a hearing shall be held by the court within three days
14 after the child’s removal or entry into custody the issuance of the order. An order
15 setting the hearing shall provide for appointment of counsel for the child and notice
16 to the program entity approved to represent children. If a an instanter safety plan
17 order has been ordered a hearing shall be held by the court within three days from
18 the issuance of the safety plan order, unless the parents are in agreement with the
19 safety plan. The parents' signature on the safety plan shall constitute evidence of
20 their agreement with the plan. The continued safety plan hearing shall be conducted
21 in accordance with the procedural and evidentiary rules applicable to continued
22 custody hearings.
23 * * *
24 C.(1) If it appears from the record that, after diligent efforts by the
25 department, the parent cannot be found or has been served a summons or notified by
26 the department to appear at the continued custody or continued safety plan hearing
27 and fails to appear at the hearing, then the hearing may be held in the parent's
28 absence.
29 * * *
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1 F. The child and his the child's parents may introduce evidence, call
2 witnesses, be heard on their own behalf, and cross-examine witnesses called by the
3 state.
4 * * *
5 H. A suitable relative or other suitable individual who seeks to become the
6 custodian of the child shall provide evidence of a willingness and ability to provide
7 a wholesome and stable and safe environment for the child and to protect the health,
8 welfare, and safety of the child pending an adjudication hearing. He The suitable
9 relative or other suitable individual shall affirm a continued acceptance of the terms
10 of the safety plan.
11 * * *
12 Art. 625. Advice of rights and responsibilities of parents, counsel, and department;
13 absent parents
14 * * *
15 D.(1) The court shall direct all persons before the court to identify the name,
16 address, and whereabouts of each parent and any suitable relative or other suitable
17 individual willing and able to offer a wholesome and stable and safe home for the
18 child.
19 * * *
20 Art. 626. Grounds for continued custody; reasonable efforts; grounds for continued
21 safety plan
22 A. The court may authorize continued custody of a child prior to
23 adjudication if there are reasonable grounds to believe the child is in need of care and
24 that continued custody is necessary for his safety and protection the health, welfare,
25 and safety of the child.
26 B. Except as otherwise provided in Article 672.1, the court shall determine
27 whether the department has made reasonable efforts as defined in Article 603 to
28 prevent or eliminate the need for removal of the child from his the home and, after
29 removal, to make it possible for the child to safely return home. The child's health,
30 welfare, and safety of the child shall be the paramount concern. These
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1 determinations must shall be supported by findings of fact contained in the continued
2 custody order issued pursuant to Article 627.
3 C. If the department's first contact with the family occurred during an
4 emergency in which the child could not safely remain at home even with reasonable
5 in-home services provided to the family, the department shall be deemed to have
6 made reasonable efforts to prevent or eliminate the need for removal. The court may
7 deem the department to have made reasonable efforts to prevent or eliminate the
8 need for removal if the department’s first contact with the family occurred during an
9 emergency which precluded those efforts.
10 D. The court may authorize the removal of the child even if the department's
11 efforts have not been reasonable, and if the court determines that removal is
12 necessary to secure the health, welfare, and safety of the child and that additional
13 efforts would not keep the child safe from identified threats of danger. The court
14 may impose such any sanctions it deems appropriate pursuant to Article 712.
15 E. The court may authorize, with the consent of the state, continued
16 implementation of a safety plan prior to the adjudication if there are reasonable
17 grounds to believe that the child is in need of care and that the continued
18 implementation of the safety plan is necessary for his safety and protection the
19 health, welfare, and safety of the child. The safety plan shall continue to set forth
20 conditions as determined or agreed upon by the state as necessary for the protection
21 of the child's health and safety health, welfare, and safety of the child while
22 remaining in the home.
23 Art. 627. Continued custody order; special provisions; appointments; continued
24 safety plan order
25 * * *
26 C. If the court finds that the child can be safely returned home under a
27 protective order pending adjudication, the court may order return of the child and
28 issue such protective orders as are deemed necessary for the protection and health,
29 welfare, and safety of the child.
30 * * *
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1 Art. 635.1. Notice to counsel
2 Upon the filing of the petition, the court shall provide notice and a copy of
3 the petition to the program entity designated for the jurisdiction to provide counsel
4 for the child in accordance with Children's Code Article 607, and to the program
5 entity representing indigent parents in accordance with Children's Code Article 608.
6 * * *
7 Art. 638. Service of petition; parent; child
8 A copy of the petition and the notice of the nature of the hearing and the
9 rights of the parent, as provided for in Article 639, shall be served, in a sealed
10 envelope, upon every parent of the child. A copy of the petition and the notice of the
11 nature of the hearing shall be served on the child through the entity designated for
12 the jurisdiction to provide counsel for the child.
13 Art. 639. Notice of nature of proceedings; parental rights; form
14 The following notice shall be served with a petition and summons on every
15 parent whose child is the subject of a child in need of care proceeding:
16 "NOTICE
17 Louisiana law provides that the health, welfare, and safety of your child or
18 children are of paramount importance and you can lose some or all of your parental
19 rights regarding your children under certain circumstances.
20 The state has filed a petition which that claims that your child is abused or
21 neglected or is otherwise in need of care and asks the court to hold a hearing to
22 determine whether these circumstances exist. If the court rules that your child is
23 being abused or neglected or is otherwise in need of care, as defined by Louisiana
24 law, your rights to have custody of your child, to visit your child, or to make
25 decisions affecting your child will be seriously affected. You may also become
26 liable for paying the costs of your child's care if custody is awarded to some other
27 individual or to the state. If your child cannot be safely returned home and the court
28 grants custody to some other suitable individual or to the state, a petition to terminate
29 your parental rights may be filed.
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1 You have the right to hire an attorney and are encouraged to do so. When
2 you come to court, if you cannot afford to hire an attorney, you may qualify to have
3 the court appoint one for you at state expense.
4 Whether or not you decide to hire an attorney, you have the right to attend all
5 hearings of your case and must attend as summoned, and the right to call witnesses
6 on your behalf, and to question those witnesses brought against you."
7 Art. 640. Service and return; child; resident parent; counsel
8 A. If For a child, through counsel, and for a parent who resides within the
9 state, service of the petition, summons, and notice shall be made as soon as possible,
10 and not less than fifteen days prior to commencement of the adjudication hearing on
11 the matter, by any of the following means:
12 (1) Personal service.
13 (2) Domiciliary service.
14 (3) Certified mail.
15 (4) Electronic mail to the electronic mail address provided by counsel for the
16 child or expressly designated by the parent in a pleading, at the continued custody
17 or continued safety plan hearing, or at any other hearing at which the parent
18 personally appeared before the court.
19 (5) Actual delivery by a commercial courier.
20 * * *
21 C. Service by electronic mail is complete upon transmission, but is not
22 effective if the serving party learns the transmission did not reach the party to be
23 served provided that the sender receives an electronic confirmation of delivery.
24 * * *
25 Art. 646.1. Prehearing conference
26 * * *
27 B. The prehearing conference may be conducted either in person or by
28 telephone to consider any of the following:
29 * * *
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1 (2) Efforts to identify and locate an absent parent, and suitable relatives or
2 other suitable individuals willing and able to offer a wholesome and stable and safe
3 home for the child.
4 * * *
5 D. If any party's counsel for any party fails to obey a prehearing order, or to
6 appear at the prehearing and scheduling conference, or is substantially unprepared
7 to participate in the conference, or fails to participate in good faith, the court, upon
8 its own motion or on the motion of a party, after hearing, may make such orders as
9 are just, including orders provided in Code of Civil Procedure Article 1471(A)(2),
10 (3), and (4). In lieu of or in addition to any other sanction, the court may require the
11 party or his counsel for the party, or both, to pay the reasonable expenses incurred
12 by noncompliance with this Paragraph, including attorney fees.
13 * * *
14 Art. 672.1. Reunification efforts determination
15 * * *
16 B. The department shall have the burden of demonstrating by clear and
17 convincing evidence that reunification efforts are not required, considering the
18 health, welfare, and safety of the child and the child's need for permanency.
19 * * *
20 Art. 673. Case plan
21 Within sixty days after a child enters the custody of a child care agency, the
22 custodian shall develop a case plan detailing the custodian's efforts toward achieving
23 a permanent placement for the child. The health, welfare, and safety of the child
24 shall be the paramount concern in the development of the case plan.
25 * * *
26 Art. 675. Case plan purpose; contents
27 A. The case plan shall be designed to achieve placement in the least
28 restrictive, most family-like, and most appropriate setting available, and in close
29 proximity to the parents' homes, consistent with the best interest and special needs
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1 of the child. The health, welfare, and safety of the child shall be the paramount
2 concern in the development of the case plan.
3 B. The case plan shall at least include all of the following:
4 (1) A description of the type of home or institution in which the child is
5 placed, including a discussion of the child's health, welfare, and safety, the
6 appropriateness of the placement, and the reasons why the placement, if a substantial
7 distance from the home of the parents or in a different state, is in the best interests
8 interest of the child.
9 (2) A plan for assuring that the child receives safe and proper care and that
10 services are provided to the parents, child, and foster parents in order to improve the
11 conditions in the parents' home, facilitate the safe return of the child to his the child's
12 own home or other permanent placement of the child, or both, and address the needs
13 of the child while in foster care, including a plan for visitation and a discussion of
14 the appropriateness of the services that have been provided to the child under in
15 accordance with the plan.
16 (3) A plan for assuring that the child is afforded the greatest opportunity for
17 normalcy through engagement in age- or developmentally appropriate activities on
18 a regular basis. The child shall be consulted in an age-appropriate manner about his
19 the child's interests and the available opportunities available to him. Recognizing the
20 greatest opportunity for normalcy lies in the day-to-day decisions affecting the
21 child's activities, the child's caretaker should be supported in making those decisions
22 through the use of the reasonable and prudent parent standard as set forth in R.S.
23 46:283.
24 * * *
25 (6)(a) For a child fourteen years of age or older, the plan shall include a
26 written, individualized, and thorough transitional plan, developed in collaboration
27 with the child and any agency, department, or individual assuming his custody, care,
28 or responsibility of the child.
29 * * *
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1 (8) Assessment of the child's relationships with his between the child and the
2 parents, grandparents, and siblings, including a plan for assuring that continuing
3 contact with any suitable relative by blood, adoption, or affinity with whom the child
4 has an established and significant relationship is preserved while the child is in foster
5 care. The preservation of such these relationships shall be considered when the
6 child's permanent plan is adopted.
7 * * *
8 Art. 677. Case plan review
9 * * *
10 B. If no party files a written response objecting to the case plan and the court
11 finds that the plan protects the health, welfare, and safety of the child and is in the
12 best interest of the child, the court shall render an order approving the plan.
13 C. If the court does not approve the case plan, it the court shall enter specific
14 written reasons for finding that the plan does not protect the health, welfare, and
15 safety of the child or is otherwise not in the best interest of the child.
16 * * *
17 Art. 681. Dispositional alternatives
18 A. In a case in which a child has been adjudicated to be in need of care, the
19 child's health and safety health, welfare, and safety of the child shall be the
20 paramount concern,. If the child can safely remain in or return to the custody of the
21 parent, the court shall place the child in the custody of the parent under terms and
22 conditions deemed to be in the best interest of the child, including but not limited to
23 the issuance of a protective order pursuant to Article 618 or a safety plan order. If
24 the child cannot safely remain in or return to the custody of the parent, and the court
25 may do any of the following:
26 (1) Place Order the child in the into the legal custody of a parent or such
27 suitable relative or other suitable person individual on such terms and conditions as
28 deemed to be in the best interest of the child, including but not limited to the
29 issuance of a protective order pursuant to Article 618.
30 * * *
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1 Art. 682. Removal of a child from parental custody or control
2 A. The court shall not remove a child from the custody of his parents the
3 parent unless his continuation in the home would be contrary to the health, welfare,
4 and safety of the child and the health, welfare, and safety of the child cannot, in the
5 opinion of the court, be adequately safeguarded secured without such removal.
6 Except as otherwise provided in Article 672.1, in support of any such disposition
7 removing a child from the parental home, the court shall determine whether the
8 department has made reasonable efforts to prevent or eliminate the need for removal
9 of the child from his home and, after removal, to reunify the parent and child or to
10 finalize the child's placement in an alternative safe and permanent home in
11 accordance with the child's permanent plan including, if appropriate, through an
12 interstate placement. The child's health and safety health, welfare, and safety of the
13 child shall be the paramount concern in the court's consideration of removal. The
14 department shall have the burden of demonstrating reasonable efforts.
15 B. If the court concludes that the child is to be removed from his parents'
16 custody the custody of the parent, it the court shall do all of the following:
17 * * *
18 (4) Inform the parties and all persons before the court that it is their
19 continuing responsibility to notify the department and the court in writing regarding
20 the whereabouts, including address, cellular number, telephone number, and any
21 other contact information, of an absent parent and the identity and whereabouts,
22 including address, cellular number, telephone number, and any other contact
23 information, of any suitable relative or other suitable individual willing and able to
24 offer a wholesome and stable and safe home for the child.
25 (5) Inform the parties and all persons before the court of their continuing
26 responsibility to support the achievement of timely permanency for the child and
27 further direct such all individuals to advise the department and the court in writing
28 of the whereabouts, including the address, cellular number, telephone number, and
29 any other contact information, of all grandparents, all parents of a sibling where such
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1 the parent has legal custody of such the sibling, and all other adult relatives of the
2 child.
3 * * *
4 Art. 683. Disposition; generally
5 A. The court shall impose the least restrictive disposition of the alternatives
6 enumerated in Article 681 which that the court finds is consistent with the
7 circumstances of the case, and the health, welfare, and safety of the child, and the
8 best interest of society.
9 B. The If the court determines that the child cannot safely remain in or return
10 to the custody of the parent, the court shall place the child in the custody of a suitable
11 relative unless the court has made a specific finding that such the placement is not
12 in the best interest of the child. The court shall give specific written reasons for its
13 findings, which shall be made a part of the record of the proceeding.
14 * * *
15 D. In committing a child to the custody of an another suitable individual or
16 a private agency or institution, the court shall, whenever practicable, select a person
17 an individual, agency, or institution of the same religious affiliation as the child or
18 his the parents.
19 * * *
20 Art. 684. Judgment of disposition
21 * * *
22 B. The court shall enter a written order approving the case plan or specific
23 written reasons why it the court finds the plan does not protect the health, welfare,
24 and safety of the child or is otherwise not in the best interest of the child.
25 C. When the child is to be removed from the custody of the parent, the court
26 shall enter findings that continuation in the home would be contrary to the health,
27 welfare, and safety of the child. Except as otherwise provided in Article 672.1, when
28 the child is to be removed from his parents' custody the custody of the parent, in
29 support of its determination of whether reasonable efforts, as defined in Article 603,
30 have been made to prevent removal, the court shall enter findings, including a brief
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1 description of what preventive and reunification efforts, or both, were made and why
2 further additional efforts could or could not have prevented or shortened the
3 separation of the family would not keep the child safe from identified threats of
4 danger. If a child is to be or has been placed out-of-state, the court shall determine
5 and enter findings on whether the placement is safe, appropriate, and in the best
6 interest of the child.
7 * * *
8 Art. 700. Order; appeal
9 A. At the conclusion of the case review hearing, the court shall make a
10 finding as to whether the child can safely return to the custody of the parent and shall
11 order return of custody to the parent if it is safe to do so. The court order shall give
12 specific written reasons for the findings. If the court finds that the child cannot be
13 safely returned to the parent under terms and conditions deemed to be in the best
14 interest of the child, the court may take one of the following actions:
15 (1) Approve the plan as consistent with the health, welfare, and safety of the
16 child and order compliance by all parties.
17 * * *
18 Art. 702. Permanency hearing
19 * * *
20 C. The court shall determine the permanent plan for the child that is most
21 appropriate and in the best interest of the child in accordance with the following
22 priorities of placement:
23 (1) Return the child to the legal custody of the parents within a specified
24 time period consistent with the child's age and need for a safe and permanent home.
25 In order for reunification to remain as the permanent plan for the child, the parent
26 must be complying shall be in compliance with the case plan and making significant
27 measurable progress toward achieving its goals and correcting the conditions
28 requiring the child to be in care.
29 * * *
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1 (4) Placement in the legal custody of a suitable relative who is willing and
2 able to offer a safe, wholesome, and stable and safe home for the child.
3 * * *
4 E. Except as otherwise provided in Article 672.1, the court shall determine
5 whether the department has made reasonable efforts, as defined in Article 603, to
6 reunify the parent and child or to finalize the child's placement in an alternative safe
7 and permanent home in accordance with the child's permanent plan. The child's
8 health and safety will health, welfare, and safety of the child shall be the paramount
9 concern in the court's determination of the permanent plan.
10 * * *
11 G. When reunification is determined to be the permanent plan for the child,
12 the court shall advise the parents that it is their obligation to achieve the case plan
13 goals and correct the conditions that require the child to be in care within the time
14 period specified by the court. Otherwise, an alternative permanent plan for the child
15 will shall be selected and a petition to terminate parental rights may be filed. When
16 adoption is the permanent plan for the child, the court will shall advise the parent of
17 his the authority to voluntarily surrender the child and to consent to the adoption
18 prior to the filing of a petition to terminate parental rights.
19 * * *
20 J. In the case of a child fourteen years of age or older, the hearing shall
21 include a review of the transitional plan developed with the child and the agency
22 department in accordance with Subparagraph (B)(6) of Article 675(B)(6).
23 * * *
24 Art. 710. Order; appeal
25 A. In a written judgment, the court shall make findings of fact regarding:
26 (1) Whether the child can safely return to the custody of the parent, and
27 shall order return of custody to the parent if it is safe to do so.
28 (1) (2) The permanent plan that is most appropriate and in the best interest
29 of the child in accordance with the priorities of Article 702(D). (C).
30 (2) (3) Except as otherwise provided in Article 672.1, whether the
31 department has made reasonable efforts, as defined in Article 603, to reunify the
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1 parent and child or to finalize the child's placement in an alternative safe and
2 permanent home in accordance with the child's permanent plan.
3 (3) (4) Whether an out-of-state placement is safe, appropriate, and otherwise
4 in the best interest of the child.
5 (4) (5) For children whose permanent plan is placement in the least
6 restrictive, most family-like alternative permanent living arrangement, why, as of the
7 date of the hearing, the plan is the best permanency plan for the child and provide
8 compelling reasons why it continues to not be in the best interests interest of the
9 child to return home, be placed for adoption, be placed with a legal guardian, or be
10 placed with a fit and willing suitable relative.
11 * * *
12 D. Any person directly affected may appeal the findings or orders of the
13 court rendered pursuant to this Article or Article 716.
14 * * *
15 Art. 716. Modification of judgment of disposition
16 A judgment of disposition may be modified if the court finds that the
17 conditions and circumstances justify the modification. A judgment of disposition
18 shall be modified to return custody of the child to the parent, under terms and
19 conditions the court deems to be in the best interest of the child, if the court finds
20 that the child can be safely returned to the parent.
21 * * *
22 Art. 722. Grounds; hearing; order
23 A. The mover shall have the burden of proving all of the following by clear
24 and convincing evidence:
25 * * *
26 (2) Neither adoption nor reunification with a parent is in the best interest of
27 the child. Adoption is not in the best interest of the child and the child cannot be
28 safely reunified with the parent within a reasonable time.
29 * * *
30 (4) The proposed guardian is able to provide a safe, stable, and wholesome
31 stable and safe home for the child for the duration of minority.
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1 B. If the child is twelve years of age or older, the court shall solicit and
2 consider his wishes the wishes of the child in the matter.
3 * * *
4 Art. 724.1. Temporary guardianship; designated successor guardian; construction
5 * * *
6 C. An ex parte order of temporary guardianship of the child may be granted
7 to the named successor only if all of the following conditions are satisfied:
8 * * *
9 (2) It clearly appears from specific facts shown by a verified motion or by
10 supporting affidavit that the individual is able to provide a safe, stable, and
11 wholesome stable and safe home for the child pending the hearing.
12 * * *
13 (4) The mover certifies to the court in writing the efforts he has undertaken
14 to give notice to the child's parents parent of the child, the department, and the child's
15 attorney for the child of the request for the ex parte order granting temporary
16 guardianship or the reasons supporting his the claim that notice should not be
17 required.
18 * * *
19 Art. 1003. Definitions
20 As used in this Title:
21 (1) "Abuse" means any of the following acts which that seriously endanger
22 the physical, mental, or emotional health, welfare, and safety of the child:
23 * * *
24 (10) "Neglect" means the refusal or failure of a parent or caretaker to supply
25 the child with necessary food, clothing, shelter, care, treatment, or counseling for any
26 injury, illness, or condition of the child, as a result of which the child's physical,
27 mental, or emotional health, welfare, and safety is substantially threatened or
28 impaired. Whenever, in lieu of medical care, a child is being provided treatment in
29 accordance with the tenets of a well-recognized religious method of healing which
30 that has a reasonable, proven record of success, the child shall not, for that reason
31 alone, be considered to be neglected or abused. Disagreement by the parent
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1 regarding the need for medical care shall not, by itself, be grounds for termination
2 of parental rights. However, nothing herein in this Subparagraph shall prohibit the
3 court from ordering medical services for the child when there is substantial risk of
4 harm to the child's health, or welfare, or safety.
5 * * *
6 Art. 1016. Right to counsel
7 A. The child and the identified parent shall each have the right to be
8 represented by separate counsel in a termination proceeding brought under in
9 accordance with this Title. Neither the child nor anyone purporting to act on his
10 behalf of the child may be permitted to waive the child's right to counsel.
11 B. The court shall appoint the program entity designated for the jurisdiction
12 by the Louisiana Supreme Court to provide qualified, independent counsel for the
13 child in such a proceeding.
14 * * *
15 Art. 1019.1. Notice to counsel
16 Upon the filing of the petition, the court shall provide notice and a copy of
17 the petition to the entity designated for the jurisdiction to provide counsel for the
18 child in accordance with Article 607, and to the entity representing indigent parents
19 in accordance with Article 608.
20 Art. 1019.2. Service of petition; parent; child
21 A copy of the petition and the notice of the nature of the hearing and the
22 rights of the parent, as provided for in Article 1020, shall be served, in a sealed
23 envelope, upon every parent of the child. A copy of the petition and the notice of the
24 nature of the hearing shall be served on the child through the entity designated for
25 the jurisdiction to provide counsel for the child.
26 * * *
27 Art. 1021. Service and return; child; resident parent; counsel
28 If a parent against whom a proceeding is instituted resides within the state,
29 service of citation shall be made either personally or by domiciliary service not less
30 than five days prior to commencement of the hearing on the matter.
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1 A. For a child, through counsel, and for a parent who resides within the state,
2 service of the petition, summons, and notice shall be made as soon as possible, and
3 not less than fifteen days prior to commencement of the adjudication hearing on the
4 matter, by any of the following means:
5 (1) Personal service.
6 (2) Domiciliary service.
7 (3) Certified mail.
8 (4) Electronic mail to the electronic mail address provided by counsel for the
9 child or expressly designated by the parent in a pleading, at the continued custody
10 or continued safety plan hearing, or at any other hearing at which the parent
11 personally appeared before the court.
12 (5) Actual delivery by a commercial courier.
13 B. The person effecting service shall execute a return and, if service was
14 made by certified mail, the return receipt shall be attached thereto.
15 C. Service by electronic mail is complete upon transmission, provided that
16 the sender receives an electronic confirmation of delivery.
17 * * *
18 Art. 1404. Definitions
19 As used in this Title:
20 * * *
21 (13) "MHAS" means Mental Health Advocacy Service, as established by
22 R.S. 28:64 and Article 1405.
23 * * *
SPEAKER OF THE HOUSE OF REPRESENTATIVES
PRESIDENT OF THE SENATE
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED:
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