State of Louisiana in the Interest of Treyson Garon Thedy.

• Court: Louisiana Court of Appeal
• Decided: December 4, 2019
• Docket: 2019-CA-0719
• Status: Published

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA IN * NO. 2019-CA-0719 THE INTEREST OF TREYSON GARON THEDY * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. J-2018-060, DIVISION “B” Honorable Michael D. Clement, ****** Judge Terri F. Love ****** (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Tiffany G. Chase)

Terri M. Miles TERRI M. MILES, L.L.C. 830 3rd Street Gretna, LA 70053

COURT APPOINTED COUNSEL FOR MINOR CHILD, A.N.R.

Brian A. Pena ANDERSON PENA, LLC 4833 Conti Street, Suite 107 New Orleans, LA 70119

COUNSEL FOR MOTHER/APPELLEE, C.R.

Russell Barksdale PLAQUEMINES PARISH PUBLIC DEFENDER 301 Main Street Belle Chase, LA 70037

COUNSEL FOR DEFENDANT/APPELLANT, TREYSON THEDY

AFFIRMED DECEMBER 4, 2019 This appeal arises from the father’s involuntary termination of parental

rights. The minor child was conceived as a result of a sexual offense. The mother

of the minor child petitioned to terminate the father’s parental rights, which the

trial court granted.

The father appeals contending that the trial court’s reasons for granting the

termination constitute manifest error and that the trial court erred by denying his

motion to recuse.

We find no manifest error in the trial court’s determination that the best

interest of the minor child was served by terminating the father’s parental rights,

given the unique facts and circumstances of the case. Also, no basis requiring

recusal was established by the father. The judgment of the trial court is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

C.R.1 was thirteen years old when Treyson Garon Thedy, who was roughly

ten years older, initiated an online relationship with her through Facebook. When

C.R. first met with Mr. Thedy, at the age of thirteen, she said he masturbated in her

presence. Once C.R. reached the age of fifteen, the two began engaging in sexual

1 Initials are used in accordance with Uniform Rules-Courts of Appeal, Rule 5-2 to protect the juvenile’s identity.

1 intercourse, and the minor child was conceived.2 The minor child was born when

C.R. was sixteen and Mr. Thedy was twenty-six. As a direct result of Mr. Thedy’s

interactions with C.R., Mr. Thedy was convicted of carnal knowledge of a juvenile

and pornography involving juveniles. Mr. Thedy currently remains incarcerated.

C.R. filed a Petition for Termination of Parental Rights or Alternatively for

Full Custody pursuant to La. Ch. C. art 1004. Mr. Thedy filed a Motion for

Recusal because the trial court judge presided over preliminary matters in his

criminal proceeding, which was resolved without a trial. Mr. Thedy also filed

exceptions of no right of action, alleging the mother was not the proper party, and

no cause of action, alleging the process was only proper with a pending adoption.

Both the recusal and the exceptions were denied. Following a trial, the trial court

granted C.R.’s petition to terminate Mr. Thedy’s parental rights, finding that the

minor child was conceived during a sexual offense and that the best interests of the

child supported termination. Mr. Thedy’s suspensive appeal followed.

On appeal, Mr. Thedy contends that the trial court: 1) committed manifest

error by finding that it was in the best interest of the child to terminate his parental

rights, 2) erred as a matter of law because no cause of action exists without a

pending adoption, 3) committed manifest error by denying the motion to recuse,

and 4) erred as a matter of law by allegedly rendering the judgment in thirty-one

days as opposed to thirty.

STANDARD OF REVIEW

“ʻA trial court’s findings on factually-intense termination of parental rights

issues are governed by the manifest error standard of review.’” State in Interest of

J.S., 17-0908, p. 4 (La. App. 4 Cir. 2/7/18), 238 So. 3d 600, 603 (quoting State in

2 Paternity was established with DNA testing.

2 Interest of C.A.C., 11-1315, p. 7 (La. App. 4 Cir. 2/1/12), 85 So. 3d 142, 146).

However, the interpretation and application of a statute presents a question of law,

“which requires de novo review.” State in Interest of K.C.C., 15-1429, p. 4 (La.

1/27/16), 188 So. 3d 144, 146.

TERMINATION OF PARENTAL RIGHTS

While the current matter presents a question of termination of parental rights

and not a question of child custody, we are guided by the same overarching

principles regarding the best interest of the child. See La. C.C. art. 131, La. Ch.C.

art. 1037(B). See also C.A.C., 11-1315, p. 8, 85 So. 3d at 146. “In an involuntarily

termination of parental rights case, courts must balance the often competing

interests of the natural parent and the child.” C.A.C., 11-1315, p. 7, 85 So. 3d at

146. “Congruent with the parent’s interest, the State has an interest in terminating

parental rights under certain circumstances.” Id.

The involuntary termination of parental rights requires two findings. First,

clear and convincing evidence must be presented of the statutory ground for

termination. C.A.C., 11-1315, p. 8, 85 So. 3d at 147. La. Ch.C. art. 1015(3)

provides that the “[c]onviction of a sex offense as defined in R.S. 15:541 by the

natural parent which resulted in the conception of the child” may constitute

grounds for the termination of parental rights. Mr. Thedy was convicted of carnal

knowledge of a juvenile and pornography involving juveniles. Both crimes are

contained in La. R.S. 15:541(24)(a) as listed sex offenses. La. Ch.C. art. 1004

outlines who may bring a petition for termination of parental rights. Section I

provides that: “[w]hen a child is conceived as the result of a sex offense as defined

in R.S. 15:541, the victim of the sex offense may petition to terminate the rights of

the perpetrator of the sex offense.” This first requirement was undisputed.

3 Second, and once the grounds are proven by clear and convincing evidence,

the trial court must decide whether termination of parental rights is in the best

interest of the child. C.A.C., 11-1315, p. 8, 85 So. 3d at 147. La. C.C. art. 134(A)

provides factors to be considered by the trial court when determining a child’s best

interest. These non-exclusive factors include the following:

(1) The potential for the child to be abused, as defined by Children’s Code Article 603, which shall be the primary consideration.

(2) The love, affection, and other emotional ties between each party and the child.

(3) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.

(4) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.

(5) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.

(6) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(7) The moral fitness of each party, insofar as it affects the welfare of the child.

(8) The history of substance abuse, violence, or criminal activity of any party.

(9) The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.

(10) The home, school, and community history of the child.

(11) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.

4 (12) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child’s safety or well-being while in the care of the other party.

(13) The distance between the respective residences of the parties.

(14) The responsibility for the care and rearing of the child previously exercised by each party.

We are “not bound to make a mechanical evaluation of all of the statutory factors

listed in Article 134, but should decide each case on its own facts in light of those

factors.” Lannes v. Lannes, 07-0345, p. 5 (La. App. 4 Cir. 2/13/08), 977 So. 2d

1119, 1122.

Mr. Thedy contends that the trial court committed manifest error by finding

that it was in the minor child’s best interest to terminate his parental rights.

Specifically, Mr. Thedy alleges the trial court’s statement that he was convicted

“of other sex offenses against another juvenile” in the reasons for judgment,

invalidates the trial court’s judgment. Mr. Thedy also avers that the trial court

erred by finding there was a cause of action when no adoption of the minor child

was pending. Mr. Thedy lastly maintains that the trial court erred by not rendering

a judgment within thirty days.

Best Interest of the Child

The first prong of the inquiry was proven, as it was undisputed that the

minor child was conceived during the commission of a sexual offense, as outlined

in La. R.S. 15:541. Accordingly, we must examine whether the trial court

committed manifest error by finding that the minor child’s best interests were

5 served by terminating Mr. Thedy’s parental rights.

C.R. testified that Mr. Thedy first messaged her on Facebook when she was

thirteen years old. She stated that the two exchanged messages for approximately

two weeks prior to meeting for the first time. C.R. stated that the first time she

met Mr. Thedy, at the age of thirteen, he put his arm around her, “was just very

touchy,” was kissing her, and “shoved his tongue in [her] mouth.” She said that

she “kept pushing him away because [she] kind of felt uncomfortable.” C.R. stated

that Mr. Thedy then masturbated in front of her. They did not begin engaging in

sexual intercourse until she turned fifteen. She became pregnant with the minor

child when she was fifteen. The minor child was born when she was sixteen and

Mr. Thedy was twenty-six. C.R. testified that the minor child’s birth certificate did

not list a father because her father had a restraining order against Mr. Thedy.

Therefore, he was prevented from coming to the hospital to sign the birth

certificate.

C.R. stated that Mr. Thedy was around the minor child for visitation after the

restraining order “was broken.” Other than that, C.R. testified that Mr. Thedy

visited with the minor child during jail visitation. The minor child does not ask

about Mr. Thedy, ask about a father, or mention the past visits with Mr. Thedy.

C.R. stated that she “just [does not] feel comfortable” with the minor child having

a relationship with Mr. Thedy. She further testified that she did not know if Mr.

Thedy would possibly harm the minor child, but that she feared he would.

C.R. wrote a letter to the governor seeking a pardon for Mr. Thedy, but

stated that it was not her idea. When questioned about the affidavit she previously

authored stating that Mr. Thedy was a loving and great man, C.R. testified that she

felt she was forced to write them. C.R. stated that she wrote several versions of an

6 affidavit that were corrected and/or approved by Mr. Thedy. She further stated that

Mr. Thedy “did tell me that he would send some people to hurt me in his family if I

didn’t write it.” When asked why she continually answered Mr. Thedy’s telephone

calls from jail, C.R. testified:

Sometimes I didn’t want to answer it, but I did anyway. Sometimes I was aggravated, and I didn’t want to pick up; but I did. And I wasn’t really sure - - if I didn’t complete this affidavit and send it, I didn’t - - I wasn’t sure if anything would happen or would happen. Because I didn’t know if he would - - if he had - - if his cellmates knew other people out of the jail that would possibly come hurt me. I didn’t know; so, I just did anything that he said to do. * * * Yes, sir. Over the phone. He told me - - he told me that he would send people to come and hurt me, in his family. * * * If I didn’t do what he told me to do.

A voicemail from Mr. Thedy to C.R. was then played for the trial court, wherein he

said the following:

You’re the true definition of a f***ing whore and a piece of s**t. Just because I don’t like you does not mean you get to have the right to take my f***ing kid away from me. You’re lucky I’m not in that f***ing street where - - because I’ll beat the f**k out of your stupid f***ing ass. You’re a f***ing piece of s**t, and I hope you f***ing die.

Mr. Thedy’s family assisted C.R. by giving her money “[a] few times” and

by letting her live with Mr. Thedy’s mother for five months. C.R. testified that Mr.

Thedy informed her that he had a previous sexual relationship with a fourteen year

old when he was around twenty and he would sneak into the girl’s house.

Mr. Thedy called a family friend to testify as to his character. She testified

that she witnessed Mr. Thedy around young children when he was thirteen or

fourteen, between 2002 and 2005. She stated that Mr. Thedy “would help around

7 the house, like normal kids.” Mr. Thedy did not threaten kids in her presence and

he helped her with her children. She also stated that she and her children attended

First Pentecostal Church with Mr. Thedy in Chalmette, Louisiana.

Mr. Thedy’s mother also testified. Ms. Thedy stated that her son was “great

with children” and had a “great relationship” with his sister’s four boys prior to his

incarceration. She testified that Mr. Thedy babysat his nephews, took them on

outings, and went on out-of-town trips with them. Ms. Thedy stated that her son

attended First Pentecostal Church regularly “[e]very Sunday, Wednesday, Friday

night. And I think a Bible study was on a Tuesday.” She believed Mr. Thedy took

education very seriously, and provided C.R. with access to approximately $8,200

when he went to jail. In regards to supporting the minor child, Ms. Thedy testified

that Mr. Thedy could provide support and that he owns a property with her and

another property on his own.

Lastly, Mr. Thedy’s former professor and faculty advisor from Nunez

Community College testified that Mr. Thedy was an excellent student who was

conscientious, helpful, and not afraid to speak in class. She also described him as

loyal, dependable, and a hard worker. The professor taught Mr. Thedy in nine

sociology classes, including the sociology of sexual behavior and the sociology of

deviant behavior.

The testimony reflected that the minor child had not developed a deep,

emotional tie with Mr. Thedy. Mr. Thedy’s ability to provide for the minor child

was questionable. His mother stated that he could provide well and owned two

properties. However, he is represented by a Plaquemines Parish Public Defender

and is proceeding as an indigent. The minor child has remained with C.R. since

birth and never spent the night or stayed with Mr. Thedy.

8 The potential of child abuse, moral fitness, and history of criminal activity of

Mr. Thedy, as reflected by the testimony, was troubling. While the trial court

stated in its reasons for judgment “that it is in the best interest of the child that

Thedy’s parental right be terminated considering his convictions of other sex

offenses against another juvenile,” the record lacks evidence of a conviction

relative to another juvenile. The trial court judge may have mistakenly written

conviction, even though the testimony adduced was that Mr. Thedy told C.R. he

had a previous sexual relationship with a fourteen-year-old girl when he was

around twenty. We note that an appeal is taken from a trial court’s judgment and

not from the reasons for judgment. Succession of Barrois, 17-0560, p. 8 (La. App.

4 Cir. 4/6/18), 243 So. 3d 122, 128 n.3. C.R. testified about Mr. Thedy’s previous

sexual relationship with another female juvenile. Therefore, regardless of the trial

court’s mistake, the sentiment remains unchanged as to Mr. Thedy’s past sexual

interactions with juveniles. Based on these reasons and the testimony presented,

we do not find that the trial court manifestly erred by finding that terminating Mr.

Thedy’s parental rights was in the best interest of the minor child.

Cause of Action

We find no merit to Mr. Thedy’s assertion that no cause of action exists for a

termination of parental rights without an adoption pending. “The exception of no

cause of action ‘tests the legal sufficiency of a petition by examining whether,

based upon the facts alleged in the pleading, the law affords the plaintiff a

remedy.’” Koch v. Covenant House New Orleans, 12-0965, p. 3 (La. App. 4 Cir.

2/6/13), 109 So. 3d 971, 972 (quoting Meckstroth v. Louisiana Dept. of Transp. &

Dev., 07-0236, p. 2 (La. App. 4 Cir. 6/27/07), 962 So. 2d 490, 492). La. Ch.C. art.

1004 outlines who may bring an action for the termination of parental rights and

9 when. Subsection I specifically provides that “[w]hen a child is conceived as the

result of a sex offense as defined in R.S. 15:541, the victim may petition to

terminate the rights of the perpetrator of the sex offense.” The statute does not

include a requirement that an adoption be pending.

Judgment Within Thirty Days

We likewise find no merit to Mr. Thedy’s contention that the trial court’s

judgment should be reversed because it was rendered thirty-one days after

submission. La. Ch.C. art. 1037(A) mandates that the trial “court shall render its

judgment within thirty days.” The trial court deemed the matter submitted on May

28, 3019, and the judgment was rendered on June 28, 2019. While the trial court’s

judgment was issued on the thirty-first day, the law does not provide reversal of the

judgment as a remedy. In fact, no remedies are explicitly provided.

RECUSAL

Mr. Thedy asserts that the trial court erred by denying his motion to recuse,

as the trial court judge previously presided over preliminary matters regarding his

criminal convictions. Specifically, Mr. Thedy contends that La. C.C.P. art.

151(A)(4) and (B)(3) warranted recusal. Subsection (A)(4) mandates recusal when

the judge “[i]s biased, prejudiced, or interested in the cause or its outcome or

biased or prejudiced toward or against the parties or the parties’ attorneys or any

witness to such an extent that he would be unable to conduct fair and impartial

proceedings.” Subsection (B)(3) states that recusal is discretionary when the trial

court judge “[h]as performed a judicial act in the cause in another court.”

The record does not reveal that Mr. Thedy sought supervisory review of the

denial of his Motion to Recuse. However, “[a]n appellant is entitled to seek review

of all adverse interlocutory judgments prejudicial to them, in addition to the review

10 of the final judgment when an unrestricted appeal is taken.” Orleans Par. Sch. Bd.

v. Lexington Ins. Co., 11-1720, p. 10 (La. App. 4 Cir. 8/22/12), 99 So. 3d 723, 729.

Mr. Thedy sought to appeal “all errors to be assigned concerning the termination of

[his] parental rights.” As such, we will address his Motion to Recuse.

According to the court minutes, a separate trial court judge presided over the

recusal hearing. While the record does not contain the recusal judgment, reasons

for judgment, or transcript of the hearing, Mr. Thedy’s trial court judge stated on

the record at a pre-trial hearing that he was the presiding judge over Mr. Thedy’s

criminal prosecution, but the criminal matter resolved prior to trial. Therefore, the

trial court judge did not view or hear the State’s evidence against Mr. Thedy.

Presiding over Mr. Thedy’s preliminary criminal proceedings prior to trial

was a “separate and distinct ‘cause’ from the” Petition for Termination of Parental

Rights. Ray v. Bird & Son, Inc., 323 So. 2d 904, 907-08 (La. App. 2nd Cir. 1975)

(“the fact that the trial judge heard a traffic violation matter arising out of the same

accident does not constitute the performance of a judicial act ‘in the cause’ in

another court. The traffic violation matter is a separate and distinct ‘cause’ from

the civil damage suit”). See also McNeill v. Cont’l Cas. Co., 244 So. 2d 693, 697-

98 (La. App. 4th Cir. 1971) (trial court did not have to recuse when it “tried a

previous case involving a determination of injury arising out of this same accident

and found in favor of the plaintiff”). Thus, we do not find error based on this

ground.

Further, judges are “ʻpresumed to be impartial.’” In re Eleanor Pierce

(Marshall) Stevens Living Tr., 17-111, p. 13 (La. App. 3 Cir. 10/4/17), 229 So. 3d

36, 47 (quoting Slaughter v. Board of Sup’rs of Southern Univ., 10-1114, p. 8 (La.

App. 1 Cir. 8/2/11), 76 So. 3d 465, 471). “In interpreting La.Code Civ. P. art. 151,

11 the jurisprudence has held the article ‘requires a finding of actual bias or

prejudice,’ which ‘must be of a substantial nature and based on more than

conclusory allegations.’” Covington v. McNeese State Univ., 10-0250, pp. 2-3 (La.

4/5/10), 32 So. 3d 223, 224-25 (quoting Southern Casing of Louisiana, Inc. v.

Houma Avionics, Inc., 00-1930, 00-1931, p. 15 (La. App. 1 Cir. 9/28/01), 809 So.

2d 1040, 1050). Mr. Thedy provided nothing more than conclusory allegations

that the trial court judge was biased or prejudiced based on his functions performed

in the criminal prosecution. As such, we do not find that Section (A)(4) mandated

the trial court’s recusal. Mr. Thedy’s assignment of error lacks merit.

DECREE

For the above-mentioned reasons, we find that the trial court did not err by

finding that the best interest of the minor child was served by involuntarily

terminating the parental rights of Mr. Thedy. It was undisputed that the minor

child was conceived during the commission of a sexual offense for which Mr.

Thedy remains incarcerated. Further, Mr. Thedy did not establish facts that

warranted the recusal of the trial court judge. The trial court’s judgment is

affirmed.

AFFIRMED