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Mercer v. Lowe

Court of Appeals of Louisiana, Second Circuit

April 5, 2017

JAMIE MERCER, INDIVIDUALLY AND ON BEHALF OF HER DECEASED DAUGHTER, ANNA CELESTE LOWE Plaintiff-Appellee
v.
WESLEY LOWE, CATHERINE "CAT" LOWE, STATE OF LOUISIANA DEPARTMENT OF CHILDREN AND FAMILY SERVICES (FORMERLY LOUISIANA DEPARTMENT OF SOCIAL SERVICES), TAMEIKA MONDAY, LARRY C. DEAN, BOSSIER PARISH SHERIFF, BUDDY CALDWELL, ATTORNEY GENERAL AND LOUISIANA OFFICE OF RISK MANAGMENT Defendants-Appellants

         Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Lower Court Case No. 137907 Honorable Edward Charles Jacobs, Judge

          HUDSON, POTTS & BERNSTEIN Counsel for Defendants-By: Jay P. Adams Appellants, State of Sara G. White Louisiana DCFS, and Tameika Monday

          GREGORIO, CHAFIN & JOHNSON By: Scott J. Chafin, Jr. NICKELSON LAW By: John C. Nickelson Counsel for Plaintiff- Appellee, Jamie Mercer, individually, and on behalf of her deceased daughter, Anna Celeste Lowe

          LANGLEY, PARKS, HORTON & MAXWELL By: Glen Louis Langley COLVIN, SMITH & MCKAY By: Jennifer Pool McKay Counsel for Defendants- Appellees, Larry Dean, Sheriff, and Debra McKay

          WESLEY LOWE Defendant-Appellee, In Proper Person

          CATHERINE LOWE Defendant-Appellee, In Proper Person

          Before LOLLEY, PITMAN, and GARRETT, JJ.

          LOLLEY, J.

         This appeal arises from the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, which granted summary judgment in favor of the Bossier Parish Sherriff's Office and Detective Debra McKay, finding that discretionary immunity provided by La. R.S. 9:2798.1 applied under these circumstances. The State of Louisiana through the Department of Children and Family Services now appeals that judgment. For the following reasons, we affirm the judgment of the trial court.

         FACTS

         This matter stems from the tragic death of five-year-old Anna Celeste Lowe, born June 13, 2005, to biological father, Wesley Lowe, and biological mother, Jamie Mercer. At the end of 2010, Anna was living in Bossier Parish, Louisiana, with Wesley and her stepmother, Catherine Lowe, due to a pending investigation in Ouachita Parish against Jamie for the alleged physical and sexual abuse of Anna.

         Around September 24, 2010, Wesley took Anna to a doctor for a bruise on her forehead. Wesley informed the doctor that Jamie punched Anna in the head, and also reported suspected sexual abuse. Subsequently, Anna was evaluated at the Center for Children and Families in Monroe, Louisiana. On September 29, Wesley filed in Bossier Parish District Court for a protective order against Jamie on Anna's behalf. According to the protective order, Jamie was allowed only supervised visits with Anna while the investigation was ongoing. The last visit Jamie had with Anna was on October 30, 2010, at the Louisiana State Fair in Shreveport.

         On December 9, 2010, a teacher at Elm Grove Elementary School in Bossier Parish reported suspected physical abuse of Anna to the Bossier Parish Sherriff's Office ("BPSO"). Specifically, the teacher reported a bruise on Anna's neck, which Anna claimed had been caused by her mother. An investigation was opened and assigned to Bossier Parish Detective Debra McKay, who contacted Wesley to inquire about Anna's bruise. Detective McKay had knowledge of the pending investigation in Ouachita Parish involving Jamie. After learning from Wesley that Anna had not returned to Jamie's custody since October 2010, Det. McKay closed the investigation in Bossier Parish concerning the December 2010 bruise on Anna's neck.

         About a month later, on January 13, 2011, at around 9:30 in the morning, Anna was brought to the Willis-Knighton Pierremont Emergency Room in Shreveport where she was pronounced dead. At the time, Wesley and Catherine claimed that Anna had a stomach virus, but the coroner's report revealed Anna's stomach was severed from her intestines-the recorded cause of death was internal injuries and bleeding due to blunt force trauma. Subsequently, it was learned that Catherine was physically abusing Anna. Catherine was indicted ...


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