Aeb v. Jbe

752 So. 2d 756, 1999 WL 1072901
Supreme Court of Louisiana·Decided November 30, 1999·No. 99-C-2668·Published·Cited by 72 cases

Opinion

752 So.2d 756 (1999)

AEB
v.
JBE.

No. 99-C-2668.

Supreme Court of Louisiana.

November 30, 1999.

*757 Brian Clayton McRae, Counsel for Applicant.

Francis Marion Gowen, Jr., Shreveport, Counsel for Respondent.

MARCUS, Justice.[*]

In this proceeding to change child custody, we are called upon to determine whether domiciliary custody of the child, JE, should be changed from the mother, AEB, to the father, JBE.

FACTS

The parties were married in August of 1986. One child was born of the marriage, JE, on September 17, 1992. The parties separated in October of 1993, and JE remained in the family home with his mother and two half-brothers from her previous marriage. Both parties sought sole custody of JE. After an evidentiary hearing, the trial judge determined that either parent would be a fit and proper domiciliary parent. He awarded joint custody and designated the mother as domiciliary parent subject to visitation in favor of the father as set forth in a joint custody and visitation implementation plan. At the time the joint custody award was rendered on April 22, 1994, JE was twenty months old.

In the summer of 1996, JE's mother married DB who moved into her home with his two children, a son, BB (about *758 eight years old ), and a daughter, HB (about six years old). According to JE's father, during a visitation with him in September of 1996, JE began to make sucking motions with his mouth and reported to his father and his paternal grandmother that BB "had done that on his tee-tee." JE's father reported the incident to the sheriff and the Child Protection Services for DeSoto Parish. He also took JE to a medical doctor but the doctor could not find anything physically wrong. JE told his father of another incident of oral sexual contact by BB upon him in December. Around the time these incidents occurred, JE also complained to his father that his penis was burning, he would have the urge to urinate frequently and he would walk around holding his genitals. JE's father took him to a urologist because of an abrasion on his penis.

After the first incident, JE's father took him to Shelia Baxter, a counselor for the YMCA Rape and Family Crisis Clinic, and continued to do so every other week until about March or April of 1997. Ms. Baxter then referred JE to a psychologist, Dr. Samuel Webb Sentell, who met with JE on three or four occasions.

On May 20, 1997, JBE filed this petition to change custody to make him the domiciliary parent. He alleged that since the date of the original custody decree there had been a substantial change in circumstances and that a continuation of the present custody situation was so deleterious to the minor child that a modification of the existing decree was justified and in the best interest of the minor child. AEB filed an answer to the petition and thereafter asserted an exception of no cause of action. The father amended his petition to allege that his four year old child, JE, had been sexually molested by his step-brother, BB. The mother answered the amended petition denying the allegations.

A hearing was conducted on January 22 and January 25, 1999.[1] Dr. Sentell and another psychologist were called as experts on behalf of the father. Dr. Sentell testified that JE was referred to him by Ms. Baxter, a counselor, who had met with JE several times. Dr. Sentell met with JE on three or four occasions between May of 1997 and trial in January of 1999. He testified that during the initial session with JE, which lasted several hours, he administered tests, had JE do some drawings and conducted a clinical interview. At this session JE was very open about what happened with his step-brother and said that BB had sucked his tee-tee. Dr. Sentell testified that the first drawing JE did was phallic in nature and was described by JE as a fish at Wal-Mart. When Dr. Sentell asked JE to draw a picture of a person, he responded by drawing a very realistic person whom he named "BB." The information that JE supplied in the interview was consistent with information that Dr. Sentell had gathered from family members and other sources. By the second and third meetings, Dr. Sentell testified that JE became very reluctant to discuss the incidents with BB and he would quickly change the subject when questioned. The child told Dr. Sentell that the incidents do not happen anymore because he and BB do not take baths or showers together. Dr. Sentell was of the opinion that the child had been coached not to talk about this subject matter. He did not think the incidents of oral sexual contact with BB were fabricated because of the details the child described and because a child would not know of these things unless he had experienced them. Based on information from interviews with JE and paternal family members, Dr. Sentell *759 concluded that oral sexual contact had occurred on several occasions in the bathtub, in the shower and at least once outside. Dr. Sentell did not think that the incidents JE described fell into the realm of normal child play due to the age and size difference between the two children. Dr. Sentell indicated that denial that the acts occurred by the parent that should be protecting the child could cause harm to the child. While Dr. Sentell felt that JE did not display any psychological problems at the present time, except some sexual acting out behavior, this would not decrease the possibility that such problems could occur in the future. It was his recommendation that a safety plan should be implemented involving around-the-clock supervision of the perpetrator and that therapy should be obtained for both the victim and the perpetrator.

Dr. Bruce McCormick, a psychologist, interviewed JE and his father one time on August 6, 1998, at the request of Dr. Sentell. JE was five years old at the time. In response to some general questioning, JE responded that BB was mean to him. After being shown pictures of men and women and identifying body parts, JE told him that BB touched his privates in the bathtub or shower. Later in the interview when JE was asked if he told Dr. Sentell that BB had sucked his tee-tee, he responded "yes, that he [BB] did once and touched his tee-tee once, too." Dr. McCormick thought there was at least "a seventy-five percent likelihood" that inappropriate sexual contact had occurred.

JE's paternal grandmother testified that right before his fourth birthday, JE told her that "when we take our bath, BB puts his mouth on my tee-tee and does like that." The grandmother also noticed changes in JE's behavior around this time in that he used to like to take baths and now he did not want to take baths and he would try to put his head in her crotch instead of just laying his head on her lap and he would try to kiss and bite her on the butt. Around Christmas of 1997 while visiting his grandmother, JE drew a picture of a snowman or a Santa Claus with a penis on it. When she told him "that's not nice," he drew her a picture without the penis.

JE's father testified that JE told him of four instances of oral sexual contact by BB—in September and December of 1996 and February and September or October of 1997. He contacted Child Protection Services and the sheriff's office but the contacts did not result in the filing of a complaint. When he told JE's mother about the first incident of sexual contact, she replied to him "that we need to find out who has been doing that to BB."

JE's mother testified that after she remarried in July of 1996, her new husband and his two children moved into her three bedroom home previ

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Aeb v. Jbe, 752 So. 2d 756, 1999 WL 1072901 (La. 1999).

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