Ramirez v. Ramirez

124 So. 3d 8, 13 La.App. 5 Cir. 166, 2013 WL 4525701, 2013 La. App. LEXIS 1716
CourtLouisiana Court of Appeal
DecidedAugust 27, 2013
DocketNo. 13-CA-166
StatusPublished
Cited by7 cases

This text of 124 So. 3d 8 (Ramirez v. Ramirez) 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
Ramirez v. Ramirez, 124 So. 3d 8, 13 La.App. 5 Cir. 166, 2013 WL 4525701, 2013 La. App. LEXIS 1716 (La. Ct. App. 2013).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

| ?Elba Esperanza Ramirez (“Elba”), appeals the trial court’s November 26, 2012 judgment granting her sister, Reyna Ramirez (“Reyna”), the sole custody, care, and control of Elba’s minor child, Carlos Enrique Ramirez (“Carlos”). Elba argues the trial court erred in this judgment because: it did not consider whether the custody award to Reyna would result in substantial harm to the minor child; it did not evaluate all of La. C.C. art. 134’s factors to determine the best interest of the child; and it did not determine whether appellee would provide the minor child a wholesome and stable' environment. For the following reasons we find appellant’s assignments to be without merit and affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

The instant litigation commenced on April 24, 2012, when Elba filed an “Application for Writ of Habeas Corpus and Emergency Motion for Return of Child” which sought to force her sister, Reyna, to return Elba’s biological son, Carlos. On April 27, 2012, the trial court ordered Reyna to appear with Carlos. On May 16, 2012, a hearing on this matter was continued because Reyna, had not |¿yet been served. Reyna was allegedly served with this application and motion on May 31, 2012.

On June 22, 2012, Reyna failed to appear at a hearing on this matter. The trial court entered an interim judgment ordering the physical custody of Carlos be returned to Elba. Pursuant to this order, Elba and a Jefferson Parish Sheriffs Officer went to Reyna’s home to attempt to [10]*10remove Carlos. After the officer met and listened to Reyna however, Carlos was not removed from her home.

On July 2, 2012, Reyna filed an expedited motion to vacate the June 22, 2012 judgment and for sole custody of Carlos. Reyna alleged that she had failed to appear in court because she had not been served with the original petition and was not given notice of the June 22, 2012 hearing date. Reyna’s counsel alleged that the May 31, 2012 service was made on the wrong address and that therefore, the trial court’s June 22, 2012 order should be vacated. On July 3, 2012, the trial court denied Reyna’s motion to vacate and set Reyna’s motion for sole custody for July 23, 2012.

After a hearing on July 23, 2012, the trial court vacated its June 22, 2012 order and awarded Reyna temporary custody of Carlos with supervised visitation by Elba; it also issued a temporary restraining order preventing either party from removing the child from Louisiana. The court also ordered that this matter be revisited on September 5, 2012. That hearing date was continued to November 2, 2012.

On November 2, 2012 and November 20, 2012, trial was held on Reyna’s petition for sole custody.1 At trial, Reyna called three witnesses: herself, her friend, Brhinia Vivas, and her daughter, Yesenei Dubon. They testified as follows:

|4Reyna Ramirez testified that her ten year old nephew, Carlos, has lived with her from the time he was born in Texas on January 27, 2003, and she has been his caregiver and acted as his mother since he was three months old. Reyna became Carlos’ caregiver in May, 2003 after his mother, Elba was arrested for shoplifting at J.C. Penney in Conroe, Texas and deported to Honduras. Although Elba has been back in the United States since 2009, Reyna continues to pay for nearly all of Carlos’ needs including food, clothing and shelter, medical care and school needs.

Reyna testified that she came to the U.S. the first time in 1998, living first in Conroe, Texas. In 1998 when she came to the U.S., her three children, Yesenei, Lis-ette and Danny, remained in Honduras for a year. They lived there with and were cared for by her adult daughter, Yesenei, and Yesenei’s husband. Her three children followed her to Texas in 1999. In 1998, when Reyna left for the U.S., she was also caring for Elba’s son, who she and her family called Luiz,2 then about eight months old. Reyna continued to live in Conroe, Texas until Hurricane Katrina struck. In 2006, after Hurricane Katrina, Reyna and her family moved to New Orleans because of the job market. She lived at first in New Orleans with Carlos, her friend, Brhinia Vivas, and Lisette, and thereafter moved to Gretna. Recently she purchased a four bedroom home in New Orleans where she lives with her partner, Hilberto; Carlos; her daughter, Lisette; Lisette’s partner, Marvin Mendoza; and their three children.

While Reyna first entered the United States illegally, in 1998 she achieved legal status through Temporary Protective Status, a work permit, through which she has remained in the United States.

In 2003, while Reyna was living in Con-roe, Texas, her sister, Elba, came to the United States from Honduras illegally. [11]*11Elba was pregnant. Upon her arrival, |sElba lived with Reyna and her family. Elba did not work while she was pregnant or thereafter before her arrest. Reyna supported Elba throughout her pregnancy and after Elba’s child, Carlos, was born. Reyna also took Elba to her pre-natal doctor’s appointments and saw to her care.

On May 21, 2003, after Elba had been with Reyna for a few months, Reyna received a call from the police telling her that Elba had been arrested for shoplifting in a J.C. Penney store. At the time Elba was arrested, she had three-month-old Carlos with her. The security people at J.C. Penney turned the baby over to Reyna. Elba was held for about a month and a half, before being deported back to Honduras. When Elba was being deported, Reyna told her she would take care of Carlos until Elba returned to the U.S.

Between 2003, when Elba was deported, and 2009, when Elba returned to the United States, she provided no financial support for Carlos, was not in contact with Reyna, and sent no cards, gifts, or correspondence to Carlos. While Elba has stated that she could not contact Reyna because she did not have Reyna’s phone number or know where Reyna lived, Reyna indicated that she has only changed her phone number one time in the last ten years and she gave that information to her mother and asked her mother to give it to Elba. Reyna stated she has maintained her same cell phone number throughout the years. Reyna has moved two times in the last five years but knows the person who lives at her former residence in Con-roe, Texas, who has maintained the same phone number Elba knew in 2003. While Elba was living outside the United States, Reyna asked her mother about Elba because she wanted Elba to have a relationship with Carlos.

In 2009'Reyna took Carlos to Honduras to meet his mother, Elba, and his grandmother. They stayed with Reyna’s mother in Honduras for twenty-two days. During their first ten days in Honduras, Elba was with them for three days, leaving | ^thereafter for Mexico while Reyna and Carlos remained in Honduras for the balance of their trip. Reyna covered Carlos’ expenses for the trip.

In November 2009, Elba returned illegally to the United States. After her arrival, Elba lived for about a month and a half in Gretna with Reyna; her partner, Gabriel; Carlos; Reyna’s daughter, Lis-ette; Lisette’s husband, Marvin; and their three children. Reyna allowed Elba to live in her house so that Elba could be close to Carlos. During this time, Elba did not help with Carlos’ needs. She neither helped financially nor with his school-related necessities. According to Reyna, after she helped Elba get a job in the Carrollton neighborhood of New Orleans, Elba left Reyna’s home to live in the Carrollton neighborhood to be closer to work.

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Cite This Page — Counsel Stack

Bluebook (online)
124 So. 3d 8, 13 La.App. 5 Cir. 166, 2013 WL 4525701, 2013 La. App. LEXIS 1716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramirez-v-ramirez-lactapp-2013.