FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-06137 C\W
2017-02261, DIVISION "D" Honorable Nakisha
D. WINSBERG JONATHAN D. GAMBLE ROBIN P. ARNOLD WINSBERG &
ARNOLD, LLCCOUNSEL FOR PLAINTIFF/APPELLEE
PHILLIP A. WITTMANN CARMELITE M. BERTAUT STONE PIGMAN WALTHER
WITTMANN L.L.C. COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Roland L. Belsome, Judge Joy Cossich
Lobrano, Judge Marion F. Edwards, Pro Tempore
F. Edwards, Pro Tempore, Judge
child custody case, the appellant, Alina England, seeks
reversal of the district court's March 30, 2017 judgment
awarding the appellee, James England, sole custody of the
couple's two young daughters, suspending Ms.
England's visitation for ninety days, and ordering her to
seek mental health counseling from a specific therapist. For
the reasons that follow, we reverse and amend the judgment in
part, and as amended, affirm the judgment.
is a history of contentious litigation between these parties,
including filings in this Court. Consequently, we will
limit our discussion of the facts and procedural history to
what is relevant to the issues raised by this appeal.
Ms. England were married in 2006 and divorced in 2015. They
have two minor children, S.E. and C.E. After the divorce,
several petitions for protection from abuse were filed by Ms.
England seeking protection from Mr. England. The first
petition for protection from abuse was dismissed with
prejudice after the parties agreed to a consent judgment, and
the second and third petitions for protection from abuse were
dismissed with prejudice by the district court after a trial.
Thereafter, the district court sanctioned Ms. England, and
awarded Mr. England attorney fees and costs attributable to
the frivolous filing of Ms. England's second and third
petitions for protection from abuse, finding that she failed
to present any competent evidence to support her allegations
of abuse and did not conduct a reasonable or diligent inquiry
into the truthfulness of the allegations prior to filing the
petitions. Throughout this litigation, Mr. England has denied
abusing the children, and maintained that Ms. England has
falsely accused him and has coached the children to do the
March 17-18, 2016, the district court heard a motion Ms.
England filed to determine history of family violence and
conducted a custody hearing. After the custody hearing, the
district court awarded Mr. and Ms. England joint custody and
named Mr. England as the domiciliary parent in a judgment
signed on March 31, 2016. The March 31, 2016 judgment ordered
both parents not to "say or do anything in the presence
or hearing of the child that would in any way diminish the
child's love or affection for the other
a year later, on March 13, 2017, Ms. England filed a fourth
petition for protection from abuse. This petition for
protection alleged that on March 5, 2017, Mr. England shoved
C.E. into her bed and kicked her legs for requesting food,
and that S.E. had witnessed the event. Ms. England's
petition further alleged that on January 22, 2017, Mr.
England pulled S.E.'s hair, kicked her, and called her an
idiot; and that on February 4, 2017, Mr. England kicked S.E.
in the legs. As a result, the district court issued an ex
parte order of protection awarding Ms. England temporary sole
custody of the children and prohibiting Mr. England from
having any contact with them. The district court set Ms.
England's fourth petition for protection from abuse for a
hearing on March 23, 2017 and appointed an attorney for the
next day, on March 14, 2017, Mr. England filed a petition for
emergency temporary custody and rule to show cause pursuant
to La. C.C.P. art. 3945. That petition requested that Ms.
England be limited to supervised visitation due to her
harmful and alienating false abuse allegations. As it had
issued an order granting Ms. England temporary custody of the
children the day before, the district court declined to issue
Mr. England an ex parte order of temporary custody under La.
C.C.P. art. 3945. The district court set Mr. England's
rule to show cause for March 23, 2017, the same day as the
hearing on Ms. England's fourth petition for protection
March 22, 2017, counsel for the children, LaKeisha Jefferson,
filed a motion requesting that the district court conduct an
in camera interview of the children pursuant to Watermeir
v. Watermier,  in light of their strong preferences
about visitation and the alleged physical abuse. The district
court set the motion for in camera interview for March 23,
2017. During a pretrial conference, counsel for Ms. England
argued that the district court should hear testimony from the
children. Because Mr. England's counsel did not object to
the in camera interview, the district court agreed to
interview the children.
England's counsel then informed the district court of the
existence of a video, which purportedly proved that the
allegations asserted in Ms. England's fourth petition for
protection from abuse were false. The video, taken on March
3, 2017, shows S.E. using headphones with her iPad on her
bed, and C.E. jumping on Mr. England's back, falling off,
and hitting her shin on S.E.'s bedframe. The video shows
that, seconds later, Mr. England brought C.E. some ice, and
his mother brought her a fold-up scooter. C.E. left the room
using the scooter as a crutch.
district court and all counsel reviewed the video prior to
the start of the in camera interviews. However, the district
court did not inform the children of the existence of the
video prior to interviewing them.
was interviewed first. She testified that her father shoved
her leg into her sister's bed. She further testified that
the "abuse" continued in the living room, where her
father kicked her shins three or four times while S.E. sat
next to her on the couch, and that both girls asked him to
"stop." When asked if she had ever jumped on her
father's back, she said that she had not. She was
specifically asked if she had ever jumped on her father's
back and hit her leg on her sister's bed. She denied that
happened. At this point, the district court showed C.E. the
recording. After she saw it, C.E. acknowledged that she hit
her leg on the bed, stating "I forgot about that."
However, she maintained that she remembered hurting her leg
because her father shoved her into the bed.
the district court interviewed S.E, who told the court that
her mother told her they were going to court because their
father abuses the children, and they have to stop it. S.E.
testified that her father hurts her and her sister when they
ask for food. She further testified that her father shoved
C.E.'s back, not her legs, causing her to hit the bed.
S.E. also testified that she did not sit next to C.E. on the
couch, but sat by herself at the dining room table. S.E. did
not mention her father kicking C.E. as she sat on the couch,
and stated that neither girl said anything to their father
while he was in the living room during the alleged incident.
When asked if she recalled C.E. jumping on Mr. England's
back, she answered that she did not. When asked if she ever
uses headphones with her iPad, S.E. stated that she only does
that at her mother's house, because she does not have any
headphones at her father's house. When the district court
showed S.E. the video, she had an emotional breakdown and
attempted to run out of the courtroom, screaming hysterically
that she wanted to see her mother. At this point, the
district court ended the Watermeier hearing.
England proceeded on her fourth petition for protection from
abuse. The district court heard testimony from Dr. Neha
Mehta, the medical director of the Audrey Hepburn CARE
Center, Officer Bionca De'Irish of the New Orleans Police
Department Child Abuse Unit, Ms. England, Dr. Kristen
Luscher, and Mr. England. Dr. Mehta testified that she
examined C.E. on March 6, 2017. She found a "fairly
large bruise" located on C.E.'s right upper shin
area, and stated that the bruise was consistent with being
kicked. However, on cross-examination, Dr. Mehta admitted
that the injury was "non-specific for abuse" and
that the injury, though consistent with being kicked, could
have occurred another way. Dr. Mehta also conceded that the
injury could have happened when C.E. hit her shin on the bed
rail, and that the bruise could still be present if the
incident that caused it took place three days prior to her
England testified that when she picked the children up from
school on March 6, 2017, she noticed a large bruise on
C.E.'s leg, and took her to the emergency room at
Children's Hospital. Ms. England further testified that
she filed a protective order and the fourth petition for
protection from abuse as a result of the injury.
Luscher, who provides therapy to the children, testified that
the children feel compelled to report mistreatment by their
father, and that she believes Ms. England orchestrated
certain situations in order to fabricate mistreatment by Mr.
England. Dr. Luscher opined that Ms. England's
"theatrics" have a detrimental effect on the
children, especially in their relationships with their
father, his family, and their peers. Specifically, Dr.
Luscher stated that the children told her that their mother
spoke to them about things that were "too adult, "
including telling them negative things about their father.
Following the testimony, the district court, noting that the
inconsistent allegations made by the children did not support
the allegations made by Ms. England, denied the fourth
petition for protection from abuse.
the fourth petition for protection from abuse was denied, the
district court heard Mr. England's petition. Both Mr. and
Ms. England testified, and the district court took judicial
notice of the other testimony given during the hearing on the
fourth petition for protection from abuse. Mr. England
testified that Ms. England puts immense amounts of pressure
on the children, and that the joint custody arrangement was
not improving the circumstances. Ms. England denied speaking
to the children about things that were "too adult,
" despite Dr. Luscher's statements. At the
conclusion of Ms. England's testimony, the parties
submitted the case to the district court, which deferred its
on March 30, 2017, after noting that the joint custody
arrangement was causing harm to the children, the district
court rendered judgment denying Ms. England's petition
for protection from abuse, awarding temporary sole custody of
the minor children to Mr. England, suspending Ms.
England's visitation for ninety days, and ordering that
following the suspension, Ms. England would be limited to
eight hours of supervised visitation per week until she
undergoes professional therapy with a specific therapist. Ms.
England filed a timely appeal from that judgment.
brief to this Court, Ms. England has assigned four errors for
our review. Initially, she argues that Mr. England did not
meet his burden of proof that a material change in
circumstances justified a change in custody.
C.C. art. 131 provides that; "(i)n a proceeding for
divorce or thereafter, the court shall award custody of a
child in accordance with the best interest of the
child." This article applies in actions to change
custody as well as those that initially set it. However, in
actions to change a custody decision rendered in a prior
considered decree, the proponent of change must show that a
change of circumstances has occurred such that "the
continuation of the present custody is so deleterious to the
child as to justify a modification of the custody decree, or
... that the harm likely to be caused by a change of
environment is substantially outweighed by its advantages to
the child." This burden of proof is imposed by the
jurisprudence as a means of implementing the best interest
standard in light of the special considerations present in
change of custody cases. The determination of the trial
court in child custody matters is entitled to great weight,
and its discretion will not be disturbed on review in the
absence of a clear showing of abuse.
the factors the trial court must consider in determining the
child's best interest is the willingness and ability of
each party to facilitate and encourage a close and continuing
relationship between the child and the other
party. There is ample evidence to support the
trial court's finding that Ms. England is unwilling or
unable to encourage a close and continuing relationship
between the children and Mr. England. Dr. Luscher testified
that the children feel compelled to report mistreatment by
their father. Dr. Luscher opined that Ms. England
orchestrated certain situations in order to fabricate
mistreatment by Mr. England. Additionally, the conflict
between the video and the children's statements, and
S.E.'s reaction to the video, support Mr. England's
assertion that the children's mother is fabricating abuse
allegations and encouraging the children to verify them.
England has subjected her children to several investigations
by the New Orleans Police Department (NOPD), including late
night "welfare checks" while her children were
visiting with their father. The trial court also considered
Ms. England's "long history of filing unverified
Petitions for Protection from Abuse, " including one
that resulted in sanctions against Ms. England in the amount
of $95, 450.19. The court further noted Ms.
England's lack of veracity that has traversed all of the
custody proceedings between these parties.
court expressed concern that, despite all the advantages
enjoyed by the children, they "internalize the belief
that they hate their father and verbalize that belief to
appease their mother." The court further found that Ms.
England "treats her children like pawns in a devious
game to prove Mr. England is a child abuser."
Ultimately, the trial court determined that Ms. England's
actions are "detrimental and deleterious to the
review, we find no abuse of discretion in the trial
court's award of temporary, sole custody to Mr. England,
or in the order of supervised visitation. This assignment is
England's second assignment of error questions the trial
court's decision to suspend her visitation rights for 90
days from April 3, 2017 to July 3, 2017. Mr. England counters