C.E.B. STATE OF LOUISIANA THROUGH THE DEPARTMENT OF CHILDREN AND FAMILY SERVICE, CHILD SUPPORT ENFORCEMENT IN THE INTEREST OF D.B. AND J.B. MINOR CHILD(REN) OF S.B.
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-10320 C\W
2015-11856, 2016-08619, DIVISION "DIV. K-02"
Honorable Bernadette D'Souza, Judge.
Bennett Wolff WOLFF & WOLFF COUNSEL FOR
G. Walker, III REASONOVER & BERG, LLC COUNSEL FOR
composed of Judge Daniel L. Dysart, Judge Regina
Bartholomew-Woods, Judge Dale N. Atkins
L. Dysart, Judge.
an appeal of a trial court judgment granting an Order of
Protection ("Order"), effective through March 19,
2019, issued to protect two minor children, J.B. and D.B.,
from acts of abuse by their mother, appellant, S.L.B. For the
reasons that follow, we find no abuse of the trial
court's discretion in issuing the Order and we affirm
AND PROCEDURAL BACKGROUND
protracted and contentious family matter commenced with the
filing, on October 31, 2013, of a Petition for Divorce
Pursuant to Louisiana Civil Code Article 102 ("Divorce
Petition") by S.L.B. According to the Divorce Petition,
appellant, S.L.B., and appellee, C.E.B., were married on
September 3, 2000 and established their matrimonial domicile
in Orleans Parish. D.E.B. subsequently moved to Mobile,
Alabama, for a medical residency program. J.B. and D.B. were
born during the marriage. At the time of the Divorce
Petition's filing, the children were ages eight and ten,
the ensuing several years, various pleadings were filed and
hearings held in the matter, resulting in trial court rulings
not pertinent to this appeal.
and by consent of the parties, the case was consolidated with
two cases pending in other divisions and filed subsequent to
the instant suit. The first of these suits, filed in 2015 and
entitled "State of Louisiana, et al. v. [C.E.B.].,"
sought to establish C.E.B.'s child support obligations
and to require C.E.B. to maintain health insurance for the
children. The second suit, filed in 2016 and entitled
"[S.L.B.] v. [C.E.B.]," was a divorce proceeding
(with incidental matters) based on the parties' living
separate and apart pursuant to La. C.C. art. 103.1.
than the consolidation of the cases in 2016, nothing of
record took place in the cases between September 8, 2014, and
March 2, 2017, when C.E.B. filed a Petition for Protection
From Abuse ("Petition"). A temporary restraining
order ("TRO") was issued in connection with the
Petition, effective through March 16, 2017, the date on which
a hearing was set. C.E.B. then filed, on March 7, 2017, a
motion to terminate child support on the basis that custody
of the children should remain with C.E.B. and therefore,
there would be "no further need or requirement for child
court on March 16, 2017, the parties agreed to continue the
hearing on the Petition and the TRO was extended. The hearing
was continued on several other occasions by consent of the
parties and ultimately took place on September 7 and 19,
2017. At the conclusion of the hearing, the trial court found
that C.E.B. "has met his burden of proof by a
preponderance of the evidence that [J.B.] was physically
abused by his mother . . . and that the abuse occurred in the
presence of [D.B.]." The trial court placed both
children in the temporary custody of C.E.B. subject to
supervised visitation with S.L.B. The court also ordered
S.L.B. to attend anger management and parenting classes. The
trial court denied the request for attorney's fees and
ordered the parties to bear their own respective costs.
written Order, memorializing the trial court's oral
judgment, was then issued on September 19, 2017, finding that
S.L.B. "represents a credible threat to the physical
safety of a family member" and issuing an injunction (an
Order of Protection in the form of a "P.O./Preliminary
or Permanent Injunction"), effective until March 19,
2019. The trial court also issued a judgment assessing costs
against S.L.B. in the amount of $258.00.
has devolutively appealed the September 19, 2017
case arises under the Domestic Abuse Assistance Act, La. R.S.
46:2131, et seq. (sometimes hereafter referred to as
"the Act"), a law enacted for the purpose of
"provid[ing] relief to victims of domestic violence by
establishing a civil remedy for domestic violence that
affords the victim(s) immediate and easily accessible
protection." Dvilansky v. Correu, 16-0279, p. 6
(La.App. 4 Cir. 10/26/16), 204 So.3d 686, 689, writ
denied, 16-2081 (La. 1/9/17), 214 So.3d 871, citing
Alfonso v. Cooper, 14-0145, p. 13 (La.App. 4 Cir.
7/16/14), 146 So.3d 796, 805.
the Act, a parent "may seek relief on behalf of any
minor child . . . by filing a petition with the court
alleging abuse by the defendant." La. R.S. 46:2133 D.
The court may then "grant any protective order . . . to
bring about a cessation of domestic abuse as defined in R.S.
46:2132, or the threat or danger thereof, to . . . any minor
children." La. R.S. 46:2136 A. Domestic abuse, as
incorporated within this statute," includes but is not
limited to physical or sexual abuse and any offense against
the person, physical or non-physical, as defined in the
Criminal Code of Louisiana, except negligent injury and
defamation, committed by one family member, household member,
or dating partner against another . . . ." La. R.S.
that, as pertains to a TRO, the statute indicates that
"[u]pon good cause shown in an ex parte proceeding, the
court may enter a temporary restraining order, without bond,
as it deems necessary to protect from abuse . . . any minor
children . . . ." La R.S. 46: 2135 A. Our jurisprudence
has interpreted the "good cause shown" requirement
to apply to both TROs and to other protective orders. See
Dvilansky, 16-0279, p. 6, 204 So.3d at 689 ("La.
R.S. 46:2135 and 46:2136 require that there be 'good
cause shown' for the issuance of a protective
order."); See also D.M.S., 14-0364, p. 15, 225
So.3d at 1137.
specifically indicates that "[a]ny person who shows
immediate and present danger of abuse shall constitute good
cause." La. R.S. 46:2135 A; See also Dvilansky,
16-0279, p. 6, 204 So.3d at 689; D.M.S., 14-0364, p.
15, 225 So.3d at 1137. La. R.S. 46:2135 A also indicates that
"[t]he court shall consider any and all past history of
abuse, or threats thereof, in determining the existence of an
immediate and present danger of abuse. There is no
requirement that the abuse itself be recent, immediate, or
instant matter, the trial court found that C.E.B. "met
his burden of proof by a preponderance of the evidence that
[J.B.] was physically abused by his mother, S.L.B., and that
the abuse occurred in the presence of the minor child,
[D.B.]" On that basis, the trial court "placed both
children in the temporary care and custody of C.E.B. subject
to supervised visitation with the mother at the Harmony House
program and Kingsley House every other Saturday for a period
for two to four hours depending on the availability of the
abuse of discretion standard of review by an appellate court
of a trial court domestic protective order is clear. As this
Court indicated in Rodriguez v. Claassen,
16-0610, pp. 3-4 (La.App. 4 Cir. 12/21/16), 207 So.3d 490,
493, quoting D.M.S., 14-0364, p. 16, 225 So.3d at
An appellate court reviews domestic protective orders for
abuse of discretion. Alfonso v. Cooper, 14-0145, p.
13 (La.App. 4 Cir. 7/16/14), 146 So.3d 796, 805.
Moreover, the standard of review applicable to fact findings
of the trial court has been clearly enunciated by our Supreme
Court in Rabalais v. Nash, 06-0999, p. 4 (La.
3/9/07), 952 So.2d 653, 657:
It is well-settled that a court of appeal may not set aside a
trial court's or a jury's finding of fact in the
absence of manifest error or unless it is clearly wrong ....
To reverse a fact-finder's determination, the appellate
court must find from the record that a reasonable factual
basis does not exist for the finding of the trial court, and
that the record establishes that the finding is clearly
wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.
1987). Where the [fact-finder's] findings are reasonable,
in light of the record reviewed in its entirety, the court of
appeal may not reverse. Even where the court of appeal is
convinced that it would have weighed the evidence differently
to reach a different result, reversal of the trial court is
improper unless the trial court's ruling is manifestly
erroneous, or clearly wrong.
this standard of review in mind, we now address S.L.B.'s
assignments of error.
first assignment of error, S.L.B. maintains that the trial
court erred in granting the Petition and issuing the
Order. While S.L.B. concedes that an altercation
took place on February 20, 2017, she contends that the
discipline she administered was "reasonable and was
within the ambit of C.C. art. 228." She argues that
"[p]arents under Louisiana law may administer corporal
punishment" and that "Louisiana law permits
corporal punishment when used in a reasonable manner for
the recently enacted article 228 of the Louisiana Civil Code,
which became effective on January 1, 2016:
A child shall obey his parents in all matters not contrary to
law or good morals. Parents have the right and obligation to
correct and discipline the child in a reasonable
Revised Official Comments (a) and (b), respectively note that
a "child's obligation of obedience serves as the
foundation for the parental right of correction," while
the article "bestows upon parents the right to correct
their child in a reasonable manner." There are no cases
interpreting this article or defining what is considered to
be a reasonable manner of discipline. However, it is clear that
the right of correction in a "reasonable manner"
does not include what are the grounds for a protective order
under the Act - "domestic abuse" which is defined,
in part, as "physical . . . abuse . . . committed by one
family member . . . against another." La. R.S. 46:2132
(4). We, therefore, look to the Act for guidance as to what
constitutes "physical abuse."
are few cases under the Act addressing the issue of domestic
abuse by a parent of a child. In Vital v. Francois,
12-1279 (La.App. 3 Cir. 5/1/13), 2013 WL 1846626, for
example, the court found no error in the trial court's
issuance of a protective order based on the limited record
before it. Noting that the trial court's judgment was
based on evidence that the father had "whipp[ed] [the
child] several times with a belt which caused her to fall to
the floor and caused bruises on her leg" and had
"grabb[ed] [the child] by her neck, throwing her to the
ground, and continuing to whip her," the court found
that the discipline was not reasonable but was
"something beyond discipline and more in the nature of
excessive [and] abusive," which was "beyond the
bounds of what the law would expect a parent to do to a child
during the disciplinary action." Id., at *2.
cites the case of Mason v. Hadnot, 08-2015, p. 9
(La.App. 1 Cir. 2/13/09), 6 So.3d 256, which involved motions
for contempt in a child custody dispute. While the case did
not address the Act specifically (and the issue did not
concern domestic abuse allegations), the court, "mindful
that corporal punishment, when reasonable in degree, used by
a parent of a minor child for disciplinary reasons is
permitted in Louisiana," found that the father's
admission to striking a child "10 to 15 times with a
belt . . . did not constitute reasonable discipline so as to
be considered corporal punishment." Id., pp.
9-10, 6 So.3d at 261.
also cites State in Interest of BS v. PS, 542 So.2d
1163, 1166 (La.App. 3 Cir. 1989) for the position that a
mother's making a "linear mark on her four (4) year
old daughter's face," as a "single occurrence
of corporal punishment . . . was insufficient to prove a
child is in need of care." Our review of this case
reflects that the court was focused on whether the child was
in need of custody by the State. Whether the mark on the
child's face was caused by the mother was not definitive
and the court's finding was based on a concession that
the mark was, in fact, caused by the mother.
S.L.B. relies on Griffith v. Latiolais, 10-0754 (La.
10/19/10), 48 So.3d 1058, a child custody case, again for the
principle that "[i]n Louisiana, a parent is permitted to
use corporal punishment to discipline a child provided it is
done in a reasonable manner." Id., p. 21, 48
So.3d at 1072. In Griffith, the mother admitted to
spanking the child with a wooden spoon on a few occasions,
but had been counseled on using "time outs" and
agreed to do so; there were no further instances thereafter.
Thus, the Court found that "it was unnecessary for the
trial court to prohibit corporal punishment in this
case" and commented that "if any party uses
corporal punishment in an unreasonable manner, that issue
will have to be addressed at that time." Id.
The Court made no express finding as to whether the use of a
wooden spoon to spank the child was unreasonable.
cases decided under the Act are also instructive. In
McCann v. McCann, 09-1341 (La.App. 3 Cir. 3/10/10),
33 So.3d 389, 394, during an altercation between separated
spouses, the husband grabbed keys from the wife, who demanded
them back. He then slung his arm at her, causing a cut on her
arm by the keys, which was identified by a photograph showing
"her right arm with a deep scratch and bruise."
Id., p. 3, 33 So.3d at 392. Affirming the trial
court's issuance of a protective order under the Act, the
Third Circuit found that "[the] act of striking [the
wife] on the arm with her keys amounted to domestic
abuse." Id., p. 7, 33 So.3d at 395.
Paschal v. Hazlinsky, 35, 513 (La.App. 2 Cir.
12/19/01), 803 So.2d 413, the court found no error in the
granting of a protective order from abuse where the testimony
was that, during an altercation with her daughters, a mother
was hit in the chest which resulted in a large bruise. The
court found that there was no abuse of discretion by the
hearing officer who "weighed the credibility of the
witnesses and concluded that the evidence showed that the
daughters had caused the bruise on Eva's chest (of which
there was photographic evidence) and that they had physically
restrained her at some point during the dispute."
Id., p. 9. 803 So.2d at 419.
concedes that an altercation occurred between her and J.B. on
February 20, 2017. She argues, however, that, when J.B.
argued with her about who should have to clean the dishes,
she started taking away points from him which escalated the
situation. J.B. then used profane language towards
her, after which she "swatted [him] in the mouth with
the tip of her fingers" and she "inadvertently hit
his nose causing it to bleed." She contends that J.B.
then "balled up his fists and . . . perceiv[ing] that he
was going to attack her . . . she plac[ed] him on the ground
with her on top of him." When he "continued to
curse and scream" at her, and "said that he was
going to kill her," she "tapped him on the
mouth" with each use of "the 'f'
cross-examination, S.L.B. was questioned further about the
manner by which she struck J.B., as evidenced by the
Q. According to El Charrita Craig, of DCFS, you admitted
hitting him in the mouth. Is that what you told El Charrita
A. I sure did.
Q. Okay. So, you didn't swat him in the mouth, you hit
him in the mouth.
A. And so, by hitting and swatting, help me understand the
difference between the two.
Q. I'll leave that to the Court to decide. When you hit
him, so you hit him in the mouth but it caused a nosebleed.
Articles 223, 226 and 228, S.L.B. contends that the
disciplinary measures she used were not only appropriate, but
also that under Article 228, there was an
"obligation to correct and
discipline" J.B. because he used
"totally inappropriate language towards
her and . . . she feared that he might take aggressive
actions against her." (Emphasis supplied). She also
points to other testimony in the record from C.E.B. and
Rochelle Gauthier, a counselor at J.B.'s school, that
J.B. has a history of behavioral issues.
argues that the nature of J.B.'s nose bleed "was
minor and transitory." In support, she notes that, when
C.E.B. brought J.B. to the emergency room on February 22,
2017, there were no signs of physical injury. He likewise,
had no sign of injury ...