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E. R. v. T. S.

Court of Appeals of Louisiana, Fifth Circuit

October 11, 2018

E. R.
v.
T. S.

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 747-141, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

          PLAINTIFF/APPELLEE, E. R. In Proper Person

          COUNSEL FOR DEFENDANT/APPELLANT, T. S. Kernan A. Hand, Myles B. Steib, Benjamin B. Perkins

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg

          SUSAN M. CHEHARDY CHIEF JUDGE.

         Mr. S, the father, appeals the district court's October 25, 2017 judgment overruling his objection to the domestic commissioner's May 24, 2017 order maintaining a joint custody arrangement with Ms. R, the mother of their two minor children. For the reasons that follow, we affirm the district court's October 25, 2017 judgment.

         FACTUAL AND PROCEDURAL HISTORY

         Mr. S and Ms. R, who were never married, have two minor children together.[1] Their daughter, KS, was born on August 31, 2009, and their son, AS, was born on December 17, 2013. AS is diagnosed with spina bifida.

         Mr. S claimed that on or about February 1, 2015, Ms. R told him that she had used her tongue and mouth to clean AS's penis while bathing him. Mr. S asked Ms. R to leave the house that day. Ms. R responded by calling the police and reporting that Mr. S had been physically and verbally abusive to her.

         On February 26, 2015, Ms. R moved out of the house and filed a petition for protection from abuse, in which she alleged physical and verbal abuse at the hands of Mr. S. In conjunction therewith, Ms. R obtained a temporary restraining order against Mr. S, prohibiting contact with her and placing the children in the temporary custody of Ms. R. This order was effective through March 18, 2015, at which time the matter would be heard. The next day, February 27, 2015, Ms. R filed a petition for custody of the two children. This petition was also set for hearing on March 18, 2015. On March 5, 2015, Mr. S answered and filed a reconventional demand to establish custody.

         Following the hearing on Ms. R's petition for custody and the petition for protection from abuse, the parties entered into an interim consent judgment on April 20, 2015, wherein they agreed to joint custody and a visitation schedule. In this judgment, the domestic commissioner also dismissed with prejudice Ms. R's petition for protection from abuse. The judgment also ordered the parties to undergo a custody evaluation to determine the domiciliary parent, custody, visitation, and instructed them to participate in parenting classes. This judgment further ordered Mr. S to pay child support to Ms. R in the amount of $350.00 per month.

         On May 25, 2015, nearly four months after Mr. S learned of the alleged oral sexual abuse of his son, he lodged a complaint with the Louisiana Department of Children and Family Services ("DCFS"). It is not entirely clear from this designated record, but it appears that when speaking with the DCFS case agent, Ms. R somehow inculpated herself which led the agent to validate the oral sexual abuse complaint. At the hearing on September 25, 2017, however, Ms. R denied this and explained that her "confession" stemmed from a misunderstanding of the documents she was signing. She described the incident that was misconstrued as oral sex:

I ran out of wipes…and so he was crying because he didn't want to be on his back, and so I got nervous, and the first thing I thought of is- and I spat on my knuckle to wipe part of the rim of his penis, and that's exactly what happened.

         Mr. S spoke with JPSO detectives about the allegation the next day that resulted in a police report. The record does not reflect that criminal charges were filed against Ms. R. On May 27, 2015, Mr. S filed a petition for protection from abuse, in which he alleged the oral sexual abuse, among several other concerns.

         That same day, the domestic commissioner issued a protective order granting temporary custody of the children to Mr. S and set the matter for a show cause hearing. Meanwhile, in accordance with the parties' April 20, 2015 consent judgment, on May 29, 2015, the parties agreed to the appointment of a custody evaluator pursuant to La. R.S. 9:331.

         Over the next several months, the show cause hearing was continued several times, during which time the conditions of the May 27, 2015 protective order remained in effect. On November 30, 2015, the custody evaluator issued his report, in which he recommended joint custody.

         On December 2, 2015, Ms. R obtained her own protective order from the domestic commissioner which granted her temporary custody of the children, and set the matter for a show cause hearing.

         With the custody evaluator's report issued, on January 5, 2016, Mr. S moved to set a hearing on his previously-filed reconventional demand to establish custody. Trial on the matter was set for February 3, 2016.

         On January 28, 2016, Mr. S moved to voluntarily dismiss his petition for protection from abuse and requested the parties proceed to the merits of the custody issue. The full custody trial was held before the domestic commissioner on May 4, 2016.

         Thirteen days later, in a letter dated May 17, 2016, DCFS notified Mr. S that his allegation that Ms. R had sexually abused AS was found to have been valid and that DCFS was notifying the district attorney, as required by law. The letter specifically stated: "We have determined…that the facts show, by the agency standard, the report is justified (valid) for Oral Sex of your child by [ER]." The record does not reflect that criminal charges were filed against Ms. R.

         The domestic commissioner issued his judgment on July 25, 2016. Adopting the recommendations of the custody evaluator, the commissioner awarded Mr. S and Ms. R joint custody and did not designate either as the domiciliary parent.

         On February 21, 2017, Mr. S filed another petition for protection from abuse, in which he raised additional allegations of child neglect/abuse against Ms. R. He alleged that on or about November 27, 2016, while KS was in the care of Ms. R, a thirteen-year-old boy was permitted to play in KS's bedroom, where he touched KS's vagina and forced KS to touch his penis. KS complained to her mother, who ultimately called the police, resulting in a JPSO police report. The record indicates that the teenager was later adjudicated in juvenile court.

         Mr. S also alleged that AS sustained a burn on the bottom of his foot while in Ms. R's care on October 6, 2015, and that Ms. R attempted to conceal it from him. Mr. S stated that he did not learn of this injury until October 8, 2015, when he picked up his son from daycare. Due to AS's spina bifida, he attends a daycare that caters to special needs children where all of the employees have medical training. The notes of Danielle Corso, a registered nurse at the daycare, reflect that when Ms. R dropped off AS on October 7, 2015, she notified the daycare of the burn. Nurse Corso's notes also state: "[Ms. R] then asked if there was anything we could apply to it that might make it heal faster because she did not want [AS's] father to see it." Similarly, the notes dated October 8, 2015 reflect that when Ms. R dropped off AS that morning, she asked, "Can we keep his socks on to keep it covered so his dad won't see it?" The notes further reflect that the daycare notified AS's pediatrician, Dr. Reita Lawrence, who instructed the daycare to notify DCFS. In her deposition, however, Dr. Lawrence did not recall instructing the daycare to notify DCFS. She explained that she advised the nurse if she felt it needed to be reported, then report it.

         Mr. S followed this petition for protection from abuse with an ex parte motion for change of custody on March 17, 2017. In this motion, Mr. S detailed the allegations against Ms. R of sexual abuse, neglect, and child endangerment. This matter was heard on May 24, 2017, following which the domestic commissioner denied relief on Mr. S's motion for change of custody, continued the joint custody arrangement, and named Mr. S as the domiciliary parent.

         On May 30, 2017, Mr. S filed an objection to the May 24, 2017 order, specifically objecting to the continued arrangement of joint custody.[2] This objection was heard before the district court on September 25, 2017, in which extensive testimony and evidence was adduced.[3]

         On the oral sex allegation, both Mr. S and Ms. R testified. She denied touching her son's penis with her tongue or mouth, but explained that she spit on her fingers to clean her son's penis. The police report investigating this incident was introduced, as was the May 27, 2016 letter from DCFS that found the allegation to be valid.

         Regarding the incident involving KS and the teenaged boy, Ms. R did not deny it occurred and explained that she called the police.

         Other testimony established that when Dr. Lawrence prescribed KS Vyvanse for attention deficit disorder, Ms. R asked if she could try the medicine for herself. Dr. Lawrence advised her against it, but, according to Mr. S, Ms. R nonetheless tried some of the medicine. Ms. R denied this.

         Ms. R offered the testimony of Dr. Roy Salgado, a licensed therapist who supervised KS's therapy treatment for attention deficit disorder and was qualified as an expert in child psychology and family counseling. Dr. Salgado testified that he was aware of the allegations of sexual abuse of both children, but nonetheless believed that KS would benefit from the joint custody arrangement. He was unaware that DCFS had validated the abuse of AS, and opined, "I would never say that someone who has sexually abused a child should have access to children." But he added: "Abandonment impacts children more so than molestation."

         Mr. S offered the testimony of Dr. Kathryn Lawing, a licensed developmental psychologist who was qualified as an expert in child and developmental psychology. Dr. Lawing, who did not personally interview either of the parties or the children, was presented with "hypothetical" scenarios based on the facts in this case and testified that "she would have some very serious clinical concerns about the children's safety within the presence of [Ms. R]."

         At the conclusion of the hearing, the court took the matter under advisement and issued its judgment without reasons on October 25, 2017, wherein the court overruled defendant's objection to the domestic commissioner's order entered on May 24, 2017. The court further ordered that, in accordance with the domestic commissioner's ruling of May 24, 2017, the custody judgment of July 25, 2016 was to remain in effect and Mr. S shall be the domiciliary parent.

         In accordance with Twenty-Fourth Judicial District Court Rule 35.5(E), [4] Mr. S moved for and was granted an appeal from this ruling on November 21, 2017.

         Upon review of the designated record in this case, this Court requested two per curiams from the district court to gain further insight into the district court's October 25, 2017 ruling. The record was ...


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