In re M.S.E.

113 So. 3d 327, 2013 WL 950814, 2013 La. App. LEXIS 468
CourtLouisiana Court of Appeal
DecidedMarch 13, 2013
DocketNo. 12-CA-553
StatusPublished
Cited by3 cases

This text of 113 So. 3d 327 (In re M.S.E.) 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
In re M.S.E., 113 So. 3d 327, 2013 WL 950814, 2013 La. App. LEXIS 468 (La. Ct. App. 2013).

Opinion

JUDE G. GRAVOIS, Judge.

|2This appeal involves the custody of an orphaned child, M.S.E.1 His maternal grandfather petitioned the court for custody. His paternal uncle and aunt also jointly petitioned the court for custody. After much discovery and a two-day trial, custody was awarded to the paternal uncle and aunt. For the reasons that follow, we affirm.

PROCEDURAL BACKGROUND AND FACTS

Michael Evans, II (“Mikey”) and Melissa Hebert (“Missy”) were married on July 6, 2004. At that time, Mikey was on active duty with the Louisiana National Guard. [329]*329Missy became pregnant shortly before Mi-key was deployed to Iraq. Tragically, Mi-key was killed in Iraq on January 28, 2005. Their son, M.S.E., was born on June 7, 2005. On February 20, 2011, Missy took her own life.

Dennis Hebert (“Mr. Hebert”), Missy’s father, filed a petition seeking custody of M.S.E. and was granted temporary custody of M.S.E. pending a | .-¡determination of permanent custody. Davin Evans, Mi-key’s older brother, and his wife, Heather (“the Evanses”), also filed a petition seeking custody of M.S.E.2 An attorney was appointed to represent the minor child, and a custody evaluation was ordered to be performed by James Klein, Ph.D. Dr. Klein eventually issued a report recommending that M.S.E. remain in the custody of Mr. Hebert. After several delays, the matter finally proceeded to trial on May 7-8, 2012.

At trial, thirty-six year old Davin Evans testified that he and his thirty-two year old wife Heather had been married for thirteen years and had two sons, ages 5 and 10. Both Davin and Heather are employed by the U.S. Department of Defense as information security specialists, having a combined annual income of approximately $155,000. In connection with their jobs, the Evanses have been granted high level security clearances. The Evans family resides in Chesapeake, Virginia, in a two-story house surrounded by neighbors with young children. Pictures of their home introduced into evidence show it to be comfortably furnished with a fenced-in yard containing play equipment. Other family members, with whom they enjoy outings, including camping, boating, fishing, and swimming, live nearby. The Ev-anses’ oldest child attends public school, which is reportedly part of one of the best public school systems in the nation.3 Mr. Evans testified, however, that although he and his wife are not Catholic, they would be willing to send M.S.E. to Catholic schools, since he was enrolled in a local Catholic school at the time of trial. In the event they would receive custody of M.S.E. and send him to a Catholic school, they had looked into possibly sending their two sons to the same school. If custody of M.S.E. were granted to them, they would strive to maintain and continue the relationship M.S.E. has had with his grandfather, Mr. Hebert.

|4Mr. Evans testified that he did not meet Missy until Mikejfs funeral. He remained in close contact with her until the time of her death. She and M.S.E. stayed with him and his wife in Virginia after Hurricane Katrina. Further, Missy and M.S.E. had visited them several times in Virginia. He and Missy even discussed the possibility of her and M.S.E. moving to Virginia. While Mr. Evans admitted that he did not see or talk to M.S.E. on a daily or weekly basis, M.S.E. did spend ten days with his family during the summer of 2011. M.S.E. got along well with his sons and they all enjoyed family visits to a nearby lake. Pictures of these visits to the lake were also introduced into evidence. Mr. Evans stated that he sold his boat to help finance the cost of this custody proceeding. All of his vacation days and sick leave days had been used for trips related to the custody evaluation and proceedings.

Heather Evans’ testimony corroborated that of her husband. Although she did not have as close of a relationship with Missy as her husband did, she did speak to her at times regarding child-rearing practices. [330]*330She had not been able to visit with M.S.E. on a regular basis, mainly because of her family and employment responsibilities. She called to speak to M.S.E. on several occasions, but he did not want to talk on the phone; rather, he would not respond or other times would just “scream.” She occasionally spoke to Mr. Hebert regarding M.S.E.’s well-being, and he would always tell her that M.S.E. was doing “fine.” Once the custody proceeding was initiated, the interaction between her and her husband and Mr. Hebert was “fairly uncomfortable,” it being apparent to her and her husband that Mr. Hebert was angry at them. If she and her husband were to obtain custody of M.S.E., they would place pictures of Mr. Hebert around their home, and would look into using Skype, an Internet communications network, for communicating with Mr. Hebert. She has a friend whose father is a Catholic deacon and she has | sspoken to him about the Catholic faith and what would be required to raise M.S.E. in the Catholic faith. If she and her husband were to obtain custody of M.S.E., he would share a bedroom with their younger son. They have looked into purchasing a four-bedroom home, but have yet not found “the right one.” She testified as to their family routines, such as eating dinner together every night and the rules for watching television and using the computer. She testified that she had reviewed all of the documents that had been presented to them as part of this proceeding concerning M.S.E., including his school records. She was aware that there were some behavior issues regarding M.S.E. She and her husband had spoken to a friend who is a child psychologist regarding these issues and what would be required to help M.S.E. deal with them.

Mrs. Evans testified that they had picked up M.S.E. the night before the trial began and took him to a children’s-themed restaurant and to view airplanes at the local National Guard airbase. M.S.E. exhibited no anxiety whatsoever being with them and was anxious to leave with them when they arrived to pick him up.

Mr. Hebert testified that he was born in June of 1950. He worked for the U.S. Postal Service for approximately thirty years. Twenty-eight of those years were spent working the night shift. He was married to Missy’s mother, Debra, from 1981 until 1990. When he married Debra, she had a young daughter, Shawn, whom Mr. Hebert adopted when she was ten. Missy, who was born in 1982, was their only child together.

Mr. Hebert testified that in 1985, Shawn told a school counselor that she had been sexually molested by an uncle. Mr. Hebert and his wife did not believe Shawn. She ran away from home several times. The Office of Family Services (“OCS”) received a report from a neighbor that Shawn was being physically abused. OCS began an investigation and ultimately Shawn was removed from the | (¡Hebert home. In due course, the He-berts relinquished custody of Shawn and she remained in foster care until she was emancipated at the age of seventeen. Mr. Hebert denied knowledge that his wife was physically abusing Shawn. He testified that this was a very traumatic time for the family and he did not recall many of the specifics surrounding Shawn’s removal from the home or his contact with Shawn after her removal. Mr. Hebert denied knowledge that his wife had told OCS that their lives were much calmer with Shawn out of the home and they did not want to work to have her return to their home.

It was evident at the time of trial that Mr. Hebert and Shawn resumed their relationship at some point. Shawn lives in the [331]

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Bluebook (online)
113 So. 3d 327, 2013 WL 950814, 2013 La. App. LEXIS 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mse-lactapp-2013.