D.M.S. v. I.D.S.

225 So. 3d 1127, 2015 WL 926777
CourtLouisiana Court of Appeal
DecidedMarch 4, 2015
DocketNo. 2014-CA-0364
StatusPublished
Cited by17 cases

This text of 225 So. 3d 1127 (D.M.S. v. I.D.S.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.M.S. v. I.D.S., 225 So. 3d 1127, 2015 WL 926777 (La. Ct. App. 2015).

Opinion

MAX N. TOBIAS, JR. Judge.

| iThis case arises out of a petition for protection brought pursuant to La. R.S. 46:2131, the Domestic Abuse Assistance Act. The trial court rendered judgment on 3 October 2013, granting a protective , order on behalf of I.D.S.3 and her two minor children, D.S. and M.S., against D.M.S. From that judgment, D.M.S. appeals.4 After a thorough review of the record on appeal and finding no abuse of discretion or legal error, we affirm.

FACTUAL.AND PROCEDURAL BACKGROUND

On 6 February 2013, D.S., the then 12-year-old son of the petitioner, I.D.S., and her ex-husband/appellant, D.M.S., presented on his own accord to the school counselors at St. Christopher’s School with complaints that he and his younger |2brother, M.S., were being physically and verbally abused by their father.5 D.S. recounted several incidences of recent abuse and expressed that he was “tired” of it happening.: D.S. also complained that D.M.S. had made verbal threats to .him about inflicting physical harm upon his mother. That same day, D.S.’s allegations of abuse and verbal threats were corroborated by M.S., then 10 years old, who made similar complaints to the counselors of physical and verbal abuse against himself by D.M.S.6 Specifically, the boys shared that their father hit them.in the stomach, pulled their hair, called them derogatory names, required them to. fend for themselves when it came to meals, and often threatened them. Both boys expressed their fear of their father. ■- '

After listening to their particular allegations of abuse, the counselors directed the [1131]*1131boys to memorialize their complaints in writing. D.S.’s written statement, dated 6 February 2013, which was introduced into evidence, contained the following:

My dad hit us alot [sic] and yells at us and he is mean. He hurts us for little things. He hits and hurts - us[,] pulls hair[,] hits with fist and hand baek[,] stomach[,] arms mess us up he hurts us. He said he would. [A]bout a month ago he said he would kill her.... He said he hurt us and would teh [sic] us to lie. We were afraid to tell the truth. I don’t want he [sic] to know ... tell [sic] next week. He came to the game and yelled at my coach and was. mean and would not calm down. My dad is getting medical procedure. We do not ever eat food when we are with my dad. He makes us write notes forces us.

M.S.’s written statement, also dated 6 February 2013, states:

He hit us in. like the stomach and kicked us. He kicks us[,] yells[,] he throws his phone[,] hits us with his fist when we get in troble [sic][.] He said he would get a gun | ¡¡or a bat and kill her [their mother] in her house[.] My step mom is aware that he hits us[.] She got hit once[.]

•The boys’ mother, I.D.S., was. summoned to the school and, at the direction of the school counselors, they relayed to her the repeated abuses upon them by their father. Thereafter, a legally mandated report was made to the Louisiana Department of Children and Family Services (“DCFS”) by the school counselors. Two days later, on the morning of 8 February 2013, the boys advised the school counselors of additional abuse having occurred the previous evening while in the care and custody of D.M.S. According to the boys, after failing to retrieve coins stuck in the gear shift of their father’s car in a timely manner, D.M.S. slapped M.S., pulled his hair hard, and slammed his head on the armrest. In an effort to stop the abuse, M.S. scratched his father, at which time his father threatened to “punch him in the face like a man and knock him out” if M.S. ever touched him again. M.S. also complained that, on that same evening, his father shoved him across the. floor. Upon hearing these new allegations, the school counselor initiated a second report of abuse to DCFS. After -the complaints of abuse by the minor children were authenticated by DCFS, DCFS ordered the boys’ mother to seek a temporary restraining order (“TRO”) on behalf of herself and her children against D.M.S.

On 8 February 2013, at the direction of DCFS and pursuant to La.'R.S. 46:2131 et seq., I.D.S. filed a petition for protection from abuse (“the Petition”) on behalf of herself and her minor children, D.S. and M.S., alleging that D.M.S. regularly “slapped, scratched, kicked,” punched, shoved, and threatened each of the boys “when they are in [his] custody,” and that D.M.S. had threatened her life. Additionally, the Petition averred that the most recent incident of abuse [ .precipitating the filing of the Petition occurred on 7 February 2013, when D.M.S. “hit [M.S.] in the head and pulled the children’s hair” when M.S. failed to quickly remove coins from the stick shift of their father’s vehicle. Upon the filing of the Petition, a TRO was issued that' day awarding I.D.S. temporary sole custody of the minor children and enjoining D.M.S. from abusing, harassing, stalking, threatening, et cetera, I.D.S. and the children, and prohibiting D.M.S. from being within 100 yards of them. Following the issuance óf the TRO, the children were returned to the custody of I.D.S., where they have since remained.

Upon gaining custody of the minor children and learning of the alleged repeated abuses upon both of them by their father, I.D.S. took the boys to be evaluated, at Children’s Hospital in New Orleans on 11 [1132]*1132February 2013. At that time, the boys were each examined and interviewed separately by Dr. Neha Mehta, a forensic physician, regarding the alleged abuse. Dr. Mehta is the medical director of Child Abuse Pediatrics at the Audrey Hepburn CARE Center located at Children’s Hospital. The boys, individually, reiterated in detail the events they had previously shared with their mother and school counselors. While no objective physical findings were noted on D.S.’s examination, M.S.’s evaluation indicated “slight residual scalp swelling with reported tenderness to palpation.”

Due to several delays and continuances, many of which were at the behest of D.M.S., it was not until six months after the TRO had been issued that the trial of the order of protection commenced. A week before the start of trial, on 12 September 2013, the trial judge conducted a Watermeier hearing in chambers, meeting with each of the minor children separately in order to assess their competency. See Watermeier v. Watermeier, 462 So.2d 1272 (La.App. 5th Cir.1985). Prior to the Wat-ermeier hearing, counsel for I.D.S. and D.M.S. were each | .-¡provided the opportunity to present suggested questions to assist the trial judge in her questioning of the children. Additionally, each party was allowed to have counsel present in chambers to observe the judge’s questioning and the minor children’s respective responses.

The trial judge first met with D.S., who expressed that his father hits him daily “for no reason.” D.S. proceeded to recount numerous specific occasions of recent physical abuse at the hands of his father, as well as verbal abuse, which included being called pejorative names, being slapped in the face, having his hair pulled and sustaining a cut near the corner of his eye when D.M.S. threw a remote game controller at him after having defeated D.M.S. in a video game. D.S. stated that the abuse by his father started approximately five years earlier when he was about six or seven years old. He told the judge that he was afraid to tell anyone about it for fear that his father would hurt him even more badly or possibly even kill him.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Angelle Fulton v. Antoine Fulton, Sr.
Louisiana Court of Appeal, 2025
Cory Wayne Darby v. Jordan St. Julien Martinez
Louisiana Court of Appeal, 2025
State of Louisiana v. Anthony Jones
Louisiana Court of Appeal, 2024
Sydney Petite v. John L. Hinds, III
Louisiana Court of Appeal, 2023
Brianna Carrie v. Willie Jones
Louisiana Court of Appeal, 2022
State of Louisiana v. D. D.
Louisiana Court of Appeal, 2019
David Michael Craig v. Shari Renee Bishop
Louisiana Court of Appeal, 2019
Keshawn Patterson v. Tacarra Charles
Louisiana Court of Appeal, 2019
S.L.B. v. C.E.B.
252 So. 3d 950 (Louisiana Court of Appeal, 2018)
Lepine v. Lepine
223 So. 3d 666 (Louisiana Court of Appeal, 2017)
Rodriguez v. Claassen
207 So. 3d 490 (Louisiana Court of Appeal, 2016)
Shaw v. Young
199 So. 3d 1180 (Louisiana Court of Appeal, 2016)
In re Interdiction of Benson
216 So. 3d 950 (Louisiana Court of Appeal, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
225 So. 3d 1127, 2015 WL 926777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dms-v-ids-lactapp-2015.