State ex rel. C.H. v. S.P.H.

14 So. 3d 601, 2009 La. App. LEXIS 961, 2009 WL 1393762
CourtLouisiana Court of Appeal
DecidedMay 20, 2009
DocketNo. 44,401-JAC
StatusPublished
Cited by1 cases

This text of 14 So. 3d 601 (State ex rel. C.H. v. S.P.H.) 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
State ex rel. C.H. v. S.P.H., 14 So. 3d 601, 2009 La. App. LEXIS 961, 2009 WL 1393762 (La. Ct. App. 2009).

Opinion

MOORE, J.

11 This is an appeal of a Child in Need of Care (CINC) adjudication from the First Juvenile District Court, Caddo Parish, the Honorable Paul Young presiding. The court adjudicated the minor female child, C.H., as a child in need of care based on its finding that the father committed sexual abuse by touching the four-year-old child inappropriately. He appeals this finding and the judgment based upon it. The mother answers the appeal, demanding that the couple’s son, S.H., also be declared a child in need of care despite no allegations or findings of abuse. For the reasons that follow, we reverse the judgment adjudicating C.H. a “child in need of care” and vacate the judgment of disposition; the mother’s answer to the appeal is dismissed, and the case is remanded to the juvenile court with instructions.

Facts and Procedural History

This CINC proceeding was initiated by the child’s mother while in the middle of a custody dispute incidental to a divorce proceeding filed in the First Judicial District Court filed on November 28, 2007. The mother moved out of the matrimonial domicile in early November of 2007, and the father remained in the home.

There are two children born of the marriage, C.H. (the alleged victim), age four, and S.H., age three. Pursuant to an interim custody and support judgment in district court, the parents shared joint custody with the mother designated as the domiciliary parent. The father had physical custody of the children every other weekend from Thursday evening to Monday morning. Because the parties could not agree on custody and visitation, the district court ordered the parties to mediate the custody 12issues.

Mediation did not proceed smoothly and was apparently breaking down by early May of 2008. We are able to glean from the record that the mother and the father had disagreed over the extent to which the father could have physical custody of the children.1 The mother did not want a 50-[603]*60350 physical custody agreement because she wanted to move back to Arkansas with the children, while the father wanted to share physical custody of the children on an equal basis. In a facsimile sent on May 2, 2008 to the father’s attorney, the mother’s attorney stated that “mediation is not working,” and he asked, “how about Shelly Booker to be appointed?”. The mother’s counsel was referring to a proposal to engage a local social worker for a child custody evaluation. Shortly after this faxed letter, the allegations of sexual abuse surfaced and proceedings in the juvenile court commenced.

The mother testified that on May 6, 2008, she observed C.H. “touching herself a lot” (in the genital area) and asked the child what she was doing. She said that the child told her she was “tickling it.” She questioned the child further, she said, and that C.H. told her that her father tickles her in the bedroom and other places. The mother said she called her mother and several counselors who advised her to contact the Office of Community Services.

The mother contacted the Caddo Parish Office of Community Services (“OCS”) on May 6 or May 7, 2008. David Ersoff, an employee of |3OCS at that time, was assigned to investigate the mother’s allegations. After interviewing the mother on May 7, Mr. Ersoff scheduled a Gingerbread House interview and CARA Center examination. He also reported the allegation to the Shreveport police sex crimes unit. Detective Anthony Rei was assigned to the case.

The Gingerbread House interview took place on May 18, 2007. Mr. Ersoff and Det. Rei observed the interview from an adjoining room, but were connected via an intercom device to the interviewer, Crystal Clark, enabling them to communicate with Ms. Clark during the interview. During the interview, which was videotaped and reviewed by this court, C.H. appeared to be relaxed and responsive to Ms. Clark’s questions. As will be discussed in more detail below, C.H. stated that her father “did not” and then later indicated that he “did” tickle her on her “booty” as well as her knees, belly, ribs, etc. She was equally equivocal as to whether the alleged tickling occurred outside or inside her clothing. C.H. said her father did not, as stated by the mother, kiss her “booty,” the term she used for her genital area, nor was she afraid when her father tickled her.

The mother testified that, after the interview, Mr. Ersoff and Det. Rei told her that they were going to continue with the investigation and felt like “there is enough,” saying that C.H. did say that the father touched her under her clothes.

Mr. Ersoff accompanied the mother and C.H. to the CARA Center to have a medical exam of C.H. performed by Dr. Jennifer Rodriguez. According to Mr. Ersoff, the medical report indicated that C.H. had a labial adhesion of unknown origin. Mr. Ersoff testified that he understood Dr. | .Rodriguez to conclude that the labial adhesion “may or may not have come from sexual abuse.” C.H.’s hymen was intact. C.H. was prescribed an ointment which subsequently cleared up the adhesion.

Mr. Ersoff then assisted the mother in writing a protective order to keep the father from having his upcoming visitation with C.H. after he advised her that she had two choices: either she had to get a protective order or the state could obtain an instanter order and take C.H. into state custody. Athough represented by counsel in the pending divorce proceeding, the [604]*604mother apparently filed a pro se petition for a protective order the following day, May 14, 2008.

On the other hand, Det. Rei, who witnessed the interview, testified that the interview was a “poor interview.” He said that Mr. Ersoff reported to him that the medical examination showed no evidence of sexual abuse. He interviewed the father on May 15, 2008 regarding the allegations. Detective Rei said he was also subsequently informed by Mr. Ersoff of an email from the mother on May 21, a week after the Gingerbread House interview. The mother reported that C.H. disclosed to her that her father tickled her “front booty” with a “bumblebee” massager.2 However, Det. Rei did not investigate this new allegation because, in his view, it was “tainted” because the mother had shown the child pictures of the massager. He discussed the case with his supervisor and they decided to close the case and it would not be referred to the D.A. for further action.

|flThe mother sent the email in question to Mr. Ersoff on May 21, 2008. In it she reported that while she was applying medicine to C.H.’s labia with a Q-tip, C.H. said that it tickled, and that “Daddy does it without medicine.” She wrote also that C.H. further said that sometimes it tickles and sometimes it hurts “When he does the bumblebee on my front booty.” She said she then recalled that she and the father had a bumblebee massager that vibrates. The mother then looked for pictures of a bumblebee massager online, and after finding it, showed it to C.H., who identified the bumblebee and pointed to her vagina and said, “It hurts. Don’t tell Daddy it hurts.” The mother also stated in concluding the email to Mr. Ersoff that she was not sure if she had mentioned to him that the father was addicted to pornography.

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Bluebook (online)
14 So. 3d 601, 2009 La. App. LEXIS 961, 2009 WL 1393762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ch-v-sph-lactapp-2009.