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Continuing Tutorship of J.R.

Court of Appeals of Louisiana, Fifth Circuit

January 3, 2018

CONTINUING TUTORSHIP OF J.R., A MENTALLY RETARDED PERSON

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 671-574, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, JEFFREY A. RAINES Jennifer C. deBlanc.

          COUNSEL FOR DEFENDANT/APPELLANT, LANA L'ENFANT Don M. Richard Michael A. McNulty, Jr.

          Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst

          ROBERT M. MURPHY, JUDGE

         In this tutorship proceeding, appellant appeals the trial court's ruling on the portion of a motion for new trial which required that she consult with a court-appointed mental health professional prior to any change in tutorship and supervised visitation. For the reasons that follow, we affirm the ruling of the district court in part, and reverse in part.

         PROCEDURAL HISTORY

         This matter arises in the context of a tutorship proceeding for J.R., [1] an adult with a permanent diagnosis of Down syndrome, who will require continuing tutorship throughout his life. The parties to the action are J.R.'s divorced parents, consisting of his mother, L.L., and his father, J.R., Sr. The record shows that on April 3, 2009, J.R.'s parents were appointed as his co-tutors, and his sister, J.A.R., was appointed to be his undertutor. On November 5, 2014, J.R., Sr. filed a motion to remove L.L. as a co-tutor, citing concerns over J.R.'s developing behavioral issues and L.L.'s decision-making regarding J.R. when he was in her care. After several continuances and, following a hearing held on January 21, 2015, the trial court issued judgment on February 3, 2015, granting J.R. Sr.'s motion, making him the sole tutor, and ordered that L.L. have supervised visitation with J.R. once per week at the "discretion" of J.R., Sr. The trial court further ordered that "neither the tutorship ruling or the supervised visitation shall be changed or modified unless [L.L] seeks mental assessment/treatment with Dr. Daphne Glindmeyer."

         On August 26, 2015, L.L. filed a timely motion for a new trial, which was ultimately continued without date by consent of all parties on January 6, 2016. On October 21, 2016, L.L. moved to set her motion for new trial for hearing. Following a hearing on November 16, 2016, on March 17, 2017, the trial court granted L.L.'s motion "on the limited issue of the 'supervised visitation once a week at the discretion of [J.R., Sr.], '" and a hearing date was set on April 10, 2017, "for re-argument and further evidence on that issue alone."[2] On April 7, 2017, L.L. filed a motion for appeal, which was granted on April 10, 2017.

         LAW AND ANALYSIS

         In her sole assignment of error, L.L. asserts that the trial court erred in denying the motion for a new trial as it relates to the mandatory order contained in the judgment of February 3, 2015, requiring appellant to seek "mental assessment/treatment" from Dr. Daphne Glindmeyer. Specifically, L.L. argues that, "[t]he condition that appellant must seek mental assessment/treatment with Dr. Glindmeyer or she is prohibited from availing herself of attempting to modify this harsh treatment is a clear abuse of discretion."

         To evaluate whether a modification of custody[3] is in the child's best interests, the court must be guided by La. C.C. art. 134. In particular, La. C.C. art. 134(7) provides that one consideration is "[t]he mental and physical health of each party." Further, La. R.S. 9:331, provides:

A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.
B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross examination by a party.

         At the hearing on January 21, 2015, following the testimony of several witnesses and the introduction of evidence, the trial court made observations on the record about L.L.'s mental state and its ...


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