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In re L.M.M.

Supreme Court of Louisiana

June 27, 2018

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

          ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON

          WEIMER, JUSTICE

         In this action, the biological mother of a child placed under guardianship with the child's paternal great-aunt filed a petition to terminate that guardianship and to regain custody of the child. Following a trial conducted over three days, the district court rendered judgment terminating the guardianship and awarding joint custody of the child to the guardian and the biological mother, with the mother designated as the domiciliary custodian. On appeal, the court of appeal reversed the district court judgment, reinstated the guardianship, and remanded the case to the district court for purposes of establishing a visitation schedule for the mother. At the mother's behest, we granted certiorari to assess whether the correct legal standards were applied by the courts below and to review the correctness of the district court's determination that the guardianship should be terminated.

         Finding that this case highlights the distinction that exists between custody determinations under the Civil Code and the guardianship provisions of the Children's Code, we hold that the proper standard for determining whether an order of guardianship should be modified or terminated is statutorily prescribed by Article 724 of the Children's Code, which, in this case, requires proof by the movant/mother by "clear and convincing evidence" of "a substantial and material change in the circumstances of the guardian or child" because either "[c]ontinuation of the guardianship is so deleterious to the child as to justify a modification or termination of the relationship" or "the harm likely to be caused from a change in the guardianship is substantially outweighed by the advantages to the child of the modification." La. Ch.C. art. 724(D). Weighing the evidence in light of that evidentiary burden, we agree with the court of appeal's assessment that the district court erred in determining that the mother met her burden of proving the guardianship should be terminated. Therefore, we affirm the judgment of the court of appeal reinstating the guardianship order.

         FACTS AND PROCEDURAL HISTORY

         L.M.M. was born prematurely[1] on November 16, 2011, to 18-year-old Kodie Servat ("Kodie") and 19-year-old Lane Mouney, Sr. ("Lane"). The biological parents were unmarried and needed assistance caring for the child. As a result, upon his release from the hospital, the child lived on an alternating weekly basis at the homes of his maternal grandmother, Denise Roques ("Denise"), and his paternal great-aunt, Lisa Mouney ("Lisa"). While Lane lived primarily with Lisa, Kodie would alternate between homes, depending on which home the child was living in at the time.

         As both Kodie and Lane candidly acknowledged, the couple routinely used illicit drugs, including synthetic marijuana, after L.M.M. was born. Denise confirmed that the couple "started messing up," getting high on synthetic drugs. According to Denise, all Kodie was worried about at the time was Lane. She and Lisa cared for L.M.M. while Kodie and Lane were "out doing their thing." Lisa testified that their shared living arrangement became untenable when she suspected Kodie and Lane were stealing from her, so she asked them to leave. Kodie and Lane moved to Mississippi to live with Kodie's father, leaving the child in Louisiana. Denise and Lisa continued to care for the child on an alternating weekly basis for approximately nine months, until Denise brought L.M.M. to Kodie in Mississippi.

         During their tenure in Mississippi, the couple came to the attention of the Mississippi Department of Human Services ("DHS"). At a surprise home visit on or about February 19, 2013, a DHS case worker observed Lane in open possession of a container of synthetic marijuana. Kodie and Lane were subsequently arrested for possession of synthetic cannabinoids, and L.M.M. was taken into the custody of the DHS and placed in foster care.

         While in foster care, L.M.M. became ill, requiring hospitalization. The foster mother, who had expressed concerns that L.M.M. was developmentally delayed, indicated that she could no longer care for him. Lisa stepped in and, on March 20, 2013, filed a Petition for Appointment of Guardian in the Chancery Court of Jackson County, Mississippi. Attached to the petition were "Consent to Guardianship" documents executed by both Kodie and Lane. That same day, a Decree Appointing Guardian was signed by the court, appointing Lisa as guardian of L.M.M. on a finding that the guardianship was necessary because the child had been removed from the custody of his natural parents and that Lisa is a fit and proper person to serve as guardian. Legal and physical custody of the child was released by the DHS.

         When Lisa assumed guardianship of then 15-month-old L.M.M., he had several problems, including recurring ear infections and the inability to walk. He was only able to "army crawl." On the advice of his doctor, Lisa arranged for L.M.M. to have tubes inserted in his ears and his adenoids removed. She re-established his enrollment in Early Steps, a therapy program for premature infants who might be expected to experience developmental delays. Through Early Steps, Lisa was referred to Dr. Aaron Karlin, a pediatrician who specializes in physical medicine and rehabilitation. Dr. Karlin diagnosed L.M.M. with developmental delays and spastic hemiparetic cerebral palsy, [2] which is a lifelong condition requiring ongoing therapy. By the time of trial, through Lisa's efforts, L.M.M. had made significant progress. He was regularly attending physical and speech therapy, had been fitted with a boot to correct his dragging right foot, and was enrolled in gymnastics to help with his balance.

         By all accounts, Kodie also made remarkable progress. After struggling with synthetic marijuana abuse for a brief period of time, Kodie ceased her drug use. While Lane drifted in and out of jail, Kodie obtained employment, married, and established a stable home with a supportive family and religious community.

         In light of these developments, on March 30, 2015, Kodie filed a Petition to Make Foreign Judgment Executory in the 24th Judicial District Court, seeking to have the Mississippi Decree Appointing Guardian made executory in Jefferson Parish. On March 31, 2015, the district court signed an order making the Mississippi decree "the Judgment of this Court."

         Thereafter, on August 24, 2015, Kodie filed a Petition to Modify Custody and to Terminate Guardianship of Minor. In her petition, Kodie represented that circumstances have changed since Lisa was granted guardianship, warranting a change in custody and the return of L.M.M. to his mother. Specifically, Kodie alleged that she has remained drug-free for over a year, has maintained steady employment, is now married and living in a stable environment, has no contact with L.M.M.'s father, who remains incarcerated, and has generally established a stable lifestyle, making her capable of parenting L.M.M and providing a wholesome environment for him. She averred that Lisa has refused to foster a good relationship between L.M.M. and herself and has restricted her contact with L.M.M. Furthermore, Kodie contended that 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.

         Lisa answered the petition, generally denying the allegations of a change in circumstances and asserting that she should remain as sole guardian of the child. On December 9, 2015, the district court signed an order appointing Dr. Karen Van Beyer as a mental health expert to perform a custody evaluation. After Dr. Van Beyer completed her evaluation and issued her report, which recommended that joint custody be awarded to Kodie and Lisa with Kodie as domiciliary parent, the recommendation was made an interim order of the court. Both Kodie and Lisa objected to the interim order and requested a de novo hearing before the district court.

         At Lisa's request, a second custody evaluator, Dr. A. James Klein, was appointed by the court. In the interim, Kodie filed a First Supplemental and Amending Petition to Modify Custody and to Terminate Guardianship, seeking, in the alternative, an order annulling the Decree Appointing Guardian for fraud and ill practices pursuant to La. C.C.P. art. 2004. Lisa answered the amended petition, denying the allegations and again asserting that she should remain as sole guardian of L.M.M.

         Trial of this matter was conducted over three days in October and November, 2016. In addition to offering testimony from extended family members, [3] Kodie testified. She explained that after L.M.M.'s birth, he was moved to the neonatal intensive care unit of the hospital, where he remained for approximately two months. She testified that she visited L.M.M. at the hospital daily and that when he was released, L.M.M. was a healthy baby. Kodie denied using drugs while pregnant, although she admitted to smoking cigarettes. She confirmed that on his release from the hospital, L.M.M. spent alternating weeks at her mother's house and at Lisa's home, and that she would stay at Lisa's when L.M.M. was there. As a result of his prematurity, L.M.M. was enrolled in the Early Steps therapy program, but Kodie testified that she terminated L.M.M.'s participation in the program in July of 2012 because he was "caught up" and developing normally, "doing all that he should."

         Kodie admitted that L.M.M. was removed from her custody and placed in state custody in Mississippi after drugs were found in the apartment she shared with Lane and L.M.M., and they were arrested. She testified that after L.M.M. was taken into state custody, she met with Child Services in Mississippi and understood that she could work towards regaining custody by submitting to drug tests, going to rehab, and taking parenting classes. She was never told by Mississippi authorities that her parental rights were about to be terminated.

         Kodie acknowledged that L.M.M. became sick and was hospitalized while in foster care, but maintained that he was healthy and doing well when removed from her custody. She explained that she moved back to Louisiana in March of 2013. She admitted signing a "Consent to Guardianship" document on March 20, 2013, consenting to Lisa's appointment as guardian of L.M.M.; however, she maintained that nothing was read to her and she was just told where to sign. According to Kodie, it was her understanding that, if she agreed to the guardianship, she would be able to see L.M.M. whenever she wanted and that she would be involved in any medical decision-making concerning the child. She stated that she believed the guardianship was just a temporary situation until she and Lane could obtain stable employment and stay off of drugs. Nonetheless, she agreed that the guardianship order does not grant her visitation. She acknowledged that if Lisa had not been granted guardianship, L.M.M. would have remained in state custody until she and/or Lane complied with Mississippi's requirements to regain custody.

         Kodie testified that after Lisa was granted guardianship of L.M.M., she was only allowed to see him four or five times from March 2013 through December 2013, although she asked to see him more often. In 2014, she was allowed to visit with L.M.M. for two hours every Monday.

         Kodie complained that her suggestions for L.M.M.'s medical treatment would be ignored, and that she would be notified of his medical appointments too late to enable her to participate. She acknowledged that L.M.M. has some medical issues, but testified that she does not believe he has cerebral palsy. She explained that L.M.M. has some stiffness in the muscles of his right leg, but claims that this is the result of physical therapists being told he has right-side weakness and giving him exercises to strengthen his right side, which caused the muscles to tighten. She admitted L.M.M. speaks with a lisp and that she cannot always understand what he is saying, but she does not believe this is a problem for a child who gets excited and tries to talk too fast. Kodie acknowledged that one of L.M.M.'s foster parents in Mississippi expressed concern that L.M.M. was showing signs of developmental delays, and that Dr. Karlin's records reflect a diagnosis of developmental delays and spastic hemiparetic cerebral palsy. However, she testified that she would like to obtain a second opinion because she believes Dr. Karlin's diagnosis was colored by the history reported by Lisa.

         Ultimately, Kodie testified that she believes Lisa's care of L.M.M. benefitted her son at a time when she was not in a position to do what was best for him. However, she explained that since that time, she has remained drug-free and has found a good job, a good home, a family with her husband, Ben, a church family, good in-laws, and a strong support team who remind her that she is not the person she was three to four years ago. She testified that she believes that Lisa has played a very important role in L.M.M.'s life and that cutting Lisa out of L.M.M.'s life would not be in his best interest. She believes Lisa should remain in L.M.M.'s life, but as a great-aunt, and not as a mother-figure. Finally, she expressed concern about her ability to co-parent with Lisa, noting that when Lisa has control, she has a tendency to cut Kodie out.

         Lisa also testified at trial. She explained that she has known Kodie since Kodie was about 13 years old and considered her a member of the family. Lisa confirmed that after L.M.M. was born, Kodie, Lane and L.M.M. lived at her house on alternating weeks, but that she eventually asked them to leave because she suspected they were stealing from her. Kodie and Lane moved to Mississippi and initially left L.M.M. with her and Denise. Shortly after Denise took L.M.M. to live with Kodie and Lane in Mississippi, the couple was arrested, and L.M.M. was placed in foster care. Lisa testified that while in foster care, L.M.M. fell ill and was hospitalized. The foster parents could not take care of him because he was so sick and he was about to be moved to another foster placement, so she contacted a Mississippi attorney. The attorney prepared guardianship papers. Kodie and Lane each signed a document consenting to the guardianship. When asked "why guardianship," Lisa explained that she was being told that L.M.M. was "severely retarded" and needed medical attention, but that no one else would take him. She believed time was of the essence in getting L.M.M. the medical attention he required. Lisa denied speaking to Kodie about the guardianship, testifying that Kodie discussed it with Denise, Kodie's sister Alisha, and Lane. According to Lisa, her understanding of the guardianship was that she was to take L.M.M., protect him, and do everything she could to make him better and get him back to a normal life.

         Lisa disputed Kodie's claim that she denied Kodie visitation with her son. Lisa testified that, to the contrary, there was never a time when she told Kodie she could not visit with L.M.M. Lisa did acknowledge that she told Kodie's family that L.M.M. could not spend the night with them if Kodie was present, but explained that this was because she took her responsibilities as guardian seriously and did not want harm to come to the child. She was concerned that, if anything should happen to L.M.M., it would be her fault. For that reason also she insisted that visitation be supervised, as she was concerned that Kodie could potentially put L.M.M. at risk.

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

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

         Lisa confirmed that she has consistently taken L.M.M. to physical therapy and to medical and dental appointments. She acknowledged that she informed L.M.M.'s doctors that Kodie may have been on drugs when L.M.M. was born, but explained that she did so because she believed it was a possibility and that the doctors needed to know all of the facts. Lisa enrolled L.M.M. in private daycare where the director reported that L.M.M. has developed and progressed physically, mentally and emotionally. She also enrolled him in gymnastics to help with his physical limitations. Lisa testified that Kodie has done nothing to assist her in helping L.M.M. with his disability. She explained that, except for a period of four to five months when L.M.M. was in Mississippi, he lived in her home and calls her home his home. Lisa testified that she has been a constant presence in L.M.M.'s life, helping to care for and financially support him even before she was granted guardianship. She testified that she would like to continue that guardianship and is more than willing to continue to help with L.M.M.'s medical needs. Lisa explained that she has provided L.M.M. with a stable environment in which he has thrived. She stated that she believes it is important for L.M.M. to have Kodie in his life and that having time with Kodie is not the problem. Her primary concern is with Kodie's willingness to keep up with L.M.M.'s medical care. She fears that Kodie will not follow through and, thus, believes it is in L.M.M.'s best interest that she remain as guardian.

         The two experts in child custody evaluations who were appointed by the court, Drs. Van Beyer and Klein, also testified. Dr. Van Beyer testified that, after Lisa assumed guardianship of L.M.M., it took Kodie a couple of months to get clean, but that by the time the child was about 18 months old, she had stopped using drugs. Dr. Van Beyer stated that she did not know of any reason why Kodie should not have been allowed to see L.M.M. She opined that Kodie appears to have very adequate parenting skills and an appropriate attitude insofar as setting consequences for the child. After meeting with Kodie and her husband, Ben, Dr. Van Beyer did not have any reservations about L.M.M. transitioning into Kodie's home.

         Dr. Van Beyer testified that she interviewed Lisa during the evaluation process and did not feel that Lisa had overstated any of L.M.M.'s medical needs. She noted that L.M.M. was born prematurely and that Lisa was determined and avid in her pursuit of the medical attention he needed; so much so that by the time she saw L.M.M., he was no longer really behind. It was Dr. Van Beyer's understanding that Kodie was not notified and did not attend any medical or therapy appointments. Dr. Van Beyer felt that Lisa should have made every effort to include Kodie in L.M.M.'s everyday life, medical treatment, and psychotherapy. She recommended that Kodie and Lisa share joint custody of L.M.M. for a year with Kodie having domiciliary custody and that thereafter, if Lane proved unable to stay out of jail and drug free, Kodie should have sole custody.

         Dr. Klein testified that he interviewed L.M.M. and that, while the child did not appear to be significantly disabled from a lay perspective, he did demonstrate a mild preference for one side and his language was not very clear. Dr. Klein stated that it was very evident that L.M.M. has a positive, bonded attachment to both Lisa and Kodie. It was his clinical judgment that Kodie has turned her life around. He could find no negative markers in Kodie's ability to parent, and he ultimately recommended that Kodie and Lisa be granted joint custody of L.M.M. with Kodie as the domiciliary parent.

         After hearing testimony from Lane, the district court took the matter under advisement.[4] On December 8, 2016, the court rendered judgment terminating the guardianship and awarding joint custody of L.M.M. to Kodie and Lisa, with Kodie designated as the domiciliary custodian.[5] In written reasons, the district court explained:

The petition for appointment of guardian did not comply with La. Ch.C. art. 720(B) Motion for guardianship. The petition did not include a description of the mental and physical health of the child, addresses of the parents of the child and, most importantly, a plain and concise statement of the facts on which the motion for guardianship was sought and why neither adoption nor reunification with a parent is in the best interest of the child. In addition, it appears that the requirements of La. Ch.C. arts. 722(A)(2) and (C) were not met.
Furthermore, according to testimony, the guardianship papers were provided to Kodie Servat and she was told to sign the papers or give up her child, [L.M.M.] for good. Kodie Servat testified that she thought she would have visitation and eventually have her child returned to her.
After review of the custody evaluation reports prepared by Dr. Karen Van Beyer and Dr. Alan James Klein, considering the best interest of the minor child, and considering that Kodie Servat has developed a stable lifestyle and is quite capable of caring for [L.M.M.], this Court is of the ...

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