E. R. v. T. S.

256 So. 3d 551
CourtLouisiana Court of Appeal
DecidedOctober 11, 2018
DocketNO. 18-CA-286
StatusPublished
Cited by6 cases

This text of 256 So. 3d 551 (E. R. v. T. 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
E. R. v. T. S., 256 So. 3d 551 (La. Ct. App. 2018).

Opinion

CHEHARDY, C.J.

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 *554the 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

*555and 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 *556felt 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.

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Bluebook (online)
256 So. 3d 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/e-r-v-t-s-lactapp-2018.