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In re L. M. M.

Court of Appeals of Louisiana, Fifth Circuit

October 25, 2017

IN RE: L. M. M., JR., A MINOR

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 748-178, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, L. M. M., LEGAL GUARDIAN David I. Courcelle Scott C. Stansbury.

          COUNSEL FOR PLAINTIFF/APPELLEE, K. L. M. S., MOTHER Terri M. Miles.

          Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg

          HANS J. LILJEBERG JUDGE.

         In this case involving guardianship and custody, the minor child's great aunt seeks review of the trial court's judgment terminating her guardianship of the child and awarding her and the child's mother joint custody, with the mother designated as the domiciliary custodian. For the following reasons, we reverse the trial court's judgment, reinstate the guardianship order, and remand to the trial court to set a schedule of visitation for the mother.

         FACTS AND PROCEDURAL HISTORY

         On November 16, 2011, the minor child, L.L.M., was born. The child's biological mother is Kodie Servat ("Kodie"), and his biological father is Lane Mouney, Sr. ("Lane"). Lisa Mouney ("Lisa") is Lane's aunt and the great aunt of L.L.M. When L.L.M. was born, Kodie was 18 years old and Lane was 19 years old, and they needed assistance caring for L.L.M. During the first year of his life, L.L.M. lived on an alternating weekly basis at Lisa's home and Kodie's mother's home.

         According to the testimony at trial, Kodie and Lane used drugs, including synthetic marijuana, on a regular basis after L.L.M. was born. According to Lisa, she asked Kodie and Lane to leave her house because she believed they were stealing from her, so they left the baby with Lisa and moved to Mississippi. Kodie's mother, Denise Roques ("Denise"), and Lisa continued to care for L.L.M. on an alternating weekly basis. According to Denise, after approximately nine months, she brought L.L.M. to Kodie in Mississippi.

         On or about February 19, 2013, Lane and Kodie were arrested and the Mississippi Department of Human Services ("DHS") took custody of L.L.M., after Lane and Kodie were found with drugs during a surprise home visit by a DHS case worker. L.L.M. was placed in foster care.[1]

         On March 20, 2013, Lisa filed a Petition for Appointment of Guardian in the Chancery Court of Jackson County, Mississippi, and she included "Consent to Guardianship" documents signed by Kodie and Lane with her filing. That same date, Lisa was granted guardianship of L.M.M. via a Decree Appointing Guardian.

         On March 30, 2015, Kodie filed a Petition to Make Foreign Judgment Executory in the 24th Judicial District Court, seeking to have the Decree Appointing Guardian made executory in Jefferson Parish. In her petition, Kodie stated that L.L.M. has continued to reside in Jefferson Parish with Lisa since the guardianship order was signed on March 20, 2013, and thus, Louisiana is the child's "home state." On March 31, 2015, the trial judge signed an Order declaring that the Decree Appointing Guardian "is hereby made the Judgment of this Court."

         On August 24, 2015, Kodie filed a Petition to Modify Custody and to Terminate Guardianship of Minor. In her petition, Kodie asserted that circumstances have changed since the guardian was appointed which warrant a change in custody of the minor child, returning him to his mother. Kodie asserted that it was in L.L.M.'s best interest for the guardianship to be terminated and for her to be awarded custody, because: 1) she has remained drug free for over a year; 2) she has steady employment; 3) she is now married and living in a stable environment; 4) she is no longer in contact with the child's father, Lane, who remains incarcerated; 5) Lisa has refused to foster a good relationship between Kodie and L.L.M., and has restricted Kodie's contact with L.L.M.; 6) she has a stable lifestyle and is well capable of parenting her child and providing a wholesome environment for him; and 7) any harm likely to be caused from a change in the guardianship is substantially outweighed by the advantages to the child of the modification sought.

         On December 9, 2015, the trial court appointed Dr. Karen Van Beyer as a mental health expert to perform a custody evaluation. After Dr. Van Beyer completed the evaluation and her report, recommending joint custody for Kodie and Lisa with Kodie designated as the domiciliary custodian, her recommendations were made an interim judgment of the court. Lisa and Kodie objected to the interim order and requested a de novo hearing by the trial judge.

         At Lisa's request, a second custody evaluator, Dr. James Klein, was appointed to perform a custody evaluation. Kodie filed a First Supplemental and Amending Petition to Modify Custody and to Terminate Guardianship, seeking an order vacating and annulling the order of guardianship for fraud and ill practices, pursuant to La. C.C.P. art. 2004.

         Trial in this matter was held on October 5, 2016, October 20, 2016, and November 7, 2016. At trial, Lisa Mouney testified that she was 48 years old, divorced, and had no children. She stated that she has known Kodie since she was about 13 years old and that Kodie was regarded as a family member. After L.L.M. was born, Kodie, Lane, and L.L.M. stayed at Lisa's house week-to-week, but she had to ask them to leave due to theft. Kodie and Lane moved to Mississippi and initially left L.L.M. with her and Denise. After Denise took L.L.M. to Kodie in Mississippi, Kodie and Lane were arrested and L.L.M. was put in foster care. At some point, his foster parents could not take care of him because he was sick, so Lisa contacted a Mississippi attorney and had guardianship papers prepared. Kodie and Lane each signed a document consenting to the guardianship. Lisa stated that she decided to seek guardianship, because she was told that L.L.M. was "retarded" and needed medical attention, and no one else would take him. She was awarded guardianship in March of 2013.

         When Lisa obtained guardianship of L.L.M., he had several problems, including not being able to walk, only being able to "army crawl, " and recurring ear infections. On the advice of his doctor, Lisa arranged for L.L.M. to get tubes in his ears and to have his adenoids removed. She also re-established L.L.M.'s therapy and was advised by a physical therapist to take him to see Dr. Aaron Karlin, a pediatrician who specializes in physical medicine and rehabilitation. Lisa testified that Dr. Karlin diagnosed L.L.M. with right side cerebral palsy and developmental delay. Dr. Karlin informed her that cerebral palsy is a lifelong condition requiring ongoing therapy and treatment.

         Lisa denied ever telling Kodie that she had to sign the guardianship papers or she would not see her child again. It was Lisa's understanding that guardianship meant that she would take L.L.M., protect him, and do everything she could to make him better and try to get him back to a normal life. Lisa testified that there was never a time that she told Kodie she could not visit with L.L.M. She admitted she told Kodie's family that L.L.M. could not spend the night with them if Kodie was present, because she took her role as guardian very seriously and she believed it would be her fault if anything happened to him. Lisa testified that she did not allow Kodie unsupervised visitation, because she was concerned that Kodie could potentially put L.L.M. at risk.

         Lisa testified that Kodie initially visited with L.L.M. once a week and later increased to two times per week, until Dr. Van Beyer's recommendations were made an interim judgment of the court. Lisa stated that she did not have a problem allowing Kodie to visit with L.L.M., but Kodie was "in and out of his life" and she sometimes did not hear much from Kodie. She testified that there were times when L.L.M. would visit with Kodie's family and Kodie did not go to see him.

         Lisa testified that L.L.M.'s right side is "tremendously" weaker than his left, so he tends to hold up his right arm. She stated that he walks with a limp and his foot drags, so he wears a "boot" to try to correct the problem. Lisa testified that she has told Kodie several times that Dr. Karlin diagnosed L.L.M. with hemiparesis, or cerebral palsy, but Kodie does not believe that L.L.M. has cerebral palsy or any disability. According to Lisa, L.L.M.'s cerebral palsy has to be controlled with ongoing therapy and treatments, and she believes he will be able to have a stable life as a grown man if he receives the treatment he needs.

         Lisa has consistently taken L.L.M. to physical therapy, and medical and dental appointments. She admitted that she informed his doctors that Kodie may have been on drugs when L.L.M. was born, because it was a possibility and they needed to know all of the facts. Lisa has enrolled L.L.M. in gymnastics to help with his physical limitations, and she stated that Kodie has done nothing to assist her in helping L.L.M. with his disability. She stated that L.L.M. calls her home his home, and she is more than willing to continue helping with his medical needs. She has always been in his life and, even before she was granted guardianship, Lisa helped to care for him and financially support him. In Lisa's ...


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