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
PLAINTIFF/APPELLEE, E. R. In Proper Person
COUNSEL FOR DEFENDANT/APPELLANT, T. S. Kernan A. Hand, Myles
B. Steib, Benjamin B. Perkins
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Hans J. Liljeberg
M. CHEHARDY CHIEF JUDGE.
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.
AND PROCEDURAL HISTORY
and Ms. R, who were never married, have two minor children
together. 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.
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.
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
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.
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
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
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.
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.
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
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.
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,
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.
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.
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.
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.
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.
30, 2017, Mr. S filed an objection to the May 24, 2017 order,
specifically objecting to the continued arrangement of joint
custody. This objection was heard before the
district court on September 25, 2017, in which extensive
testimony and evidence was adduced.
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.
the incident involving KS and the teenaged boy, Ms. R did not
deny it occurred and explained that she called the police.
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.
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."
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]."
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.
accordance with Twenty-Fourth Judicial District Court Rule
35.5(E),  Mr. S moved for and was granted an appeal
from this ruling on November 21, 2017.
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 ...