Opinion
2012 CU 1460
02-13-2013
JONATHAN HEATH CARPENTER v. ERIN MAXINE MCDONALD
Jim Norris April L. Martin West Monroe, Louisiana Counsel for Intervenor-Appellee Angie Biscomb Jeffrey S. Wittenbrink Anita D. McKeithen Baton Rouge, Louisiana Counsel for Defendant-Appellant Erin Maxine McDonald
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE TWENTIETH JUDICIAL DISTRICT COURT
NUMBER 41308, DIVISION B, PARISH OF EAST FELICIANA
STATE OF LOUISIANA
HONORABLE WILLIAM G. CARMICHAEL, JUDGE
Jim Norris
April L. Martin
West Monroe, Louisiana
Counsel for Intervenor-Appellee
Angie Biscomb
Jeffrey S. Wittenbrink
Anita D. McKeithen
Baton Rouge, Louisiana
Counsel for Defendant-Appellant
Erin Maxine McDonald
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
Disposition: AFFIRMED.
KUHN, J.,
In this custody case, the biological mother of two minor children appeals a trial court judgment awarding sole custody of the children to their paternal grandmother. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Of the marriage between Jonathan H. Carpenter and Erin M. McDonald two children were born, namely, Attalaya Thatcher Carpenter, born on December 19, 2006, and Jasper Wallace Carpenter, born on April 24, 2009. After divorce proceedings were instituted, each of the parents eventually sought sole custody of the children.
A custody hearing was held on September 12 and 26, 2011, during which there was evidence that the family lived in a yurt without electricity or indoor plumbing prior to the couple's separation. There was also evidence that both parents used drugs in the children's presence, as well as evidence of neglect and/or poor supervision of the children by Ms. McDonald. At the time of the hearing, Mr. Carpenter continued to live on the farm. Ms. McDonald was staying temporarily with a friend in Baton Rouge during the custody proceedings, but intended to return to Conroe, Texas, to live with her father thereafter. At the conclusion of the hearing, the trial court awarded joint custody to the parents, with Ms. McDonald designated as the domiciliary parent, although the trial court indicated it would have preferred to award custody to a third party if there had been one seeking custody.
Subsequently, Mr. Carpenter's mother, Angie Biscomb, filed a petition of intervention in which she requested sole custody of her two grandchildren. Following a hearing on November 28, 2011, the trial court rendered judgment awarding Ms. Biscomb sole custody of the children, with each parent to have reasonable visitation, which was to take place during daylight hours in Lincoln Parish where Ms. Biscomb resided. Ms. McDonald now appeals, contending the trial court committed legal error in disregarding the requirements of La. C.C. art. 133 and in failing to accord special weight to her paramount right as a parent to the custody of her children.
DISCUSSION
Custody disputes between a parent and nonparent are governed by La. C.C. art. 133, which provides:
If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.
The best interest of the child is the guiding principle in all custody proceedings. La. C.C. art. 131; Smith v. Tierney , 04-2482 (La. App. 1st Cir. 2/16/05), 906 So.2d 586, 590. In a conflict between a parent and a nonparent, the parent enjoys the paramount right to custody of a child and may be divested of that right only for compelling reasons. Smith , 906 So.2d at 590. Thus, in an initial custody contest between a parent and a nonparent, the burden of proof is on the nonparent to show by clear and convincing evidence that granting custody to the parent would result in "substantial harm" to the child, thus necessitating an award of custody to a nonparent under Article 133. Smith , 906 So.2d at 590. When divestiture of parental custody is warranted, custody is awarded in the best interest of the child in the following order of preference: to "another person with whom the child has been living in a wholesome and stable environment, or otherwise to any person able to provide an adequate and stable environment." La. C.C. art. 133; Smith , 906 So.2d at 590.
In custody proceedings, the trial court is in the best position to ascertain the best interest of the child given each unique set of circumstances. Thus, the trial court is vested with vast discretion in matters of child custody because of its superior opportunity to observe the parties and the witnesses. Smith , 906 So.2d at 590-91. On appellate review, the determination of the trial court regarding custody is entitled to great weight and should be overturned only when there is a clear abuse of discretion. Smith , 906 So.2d at 591.
In the instant case, Ms. McDonald contends the trial court committed legal error in disregarding the requirement of Article 133 that custody be granted to a nonparent only when an award of joint or sole custody to either parent would result in substantial harm to the child. Her argument is based on the fact that the trial court stated at one point that it was convinced that the children may be in danger if custody was awarded to either parent, as well as indicating at another point that it believed the parents' lifestyles were potentially harmful to the children. Based on its use of the words "may" and "potentially," Ms. McDonald argues the trial court failed to make a specific finding, as required by Article 133, that substantial harm would result to the children if she was granted custody.
However, our thorough review of the record indicates that, contrary to Ms. McDonald's contentions, the trial court clearly found that an award of joint or sole custody to either parent would result in substantial harm to the children as required by Article 133. While the trial court did not specifically utilize the term "substantial harm," there is nothing sacrosanct about the use of that exact terminology. See Rupert v. Swinford , 95-0395 (La. App. 1st Cir. 10/6/95), 671 So.2d 502, 505. This Court has previously explained that the words "substantial harm" carry no magical connotation. Smith , 906 So.2d at 590; Robert v. Gaudet , 96-2506 (La. App. 1st Cir. 3/27/97), 691 So.2d 780, 783. If the record supports a determination that an award of sole custody to a parent would cause substantial harm to a child, the trial court's failure to articulate such a finding is not legal error. Rupert , 671 So.2d at 505.
The trial court's comments throughout these proceedings indicate it believed the safety and welfare of the children was at risk if custody was awarded to Ms. McDonald. As previously noted, the court stated during the proceedings that it believed the children may be in danger if custody was awarded to either parent and that the parents' lifestyles were potentially harmful to the children. Additionally, in awarding custody to Ms. Biscomb, the trial court explained that the evidence "heard previously and today leads me to believe that I can't trust either one of [the parents] alone with those kids."
The concept of substantial harm under Article 133 includes parental unfitness, neglect, abuse, abandonment of rights, and is broad enough to include any other circumstances that would cause the child to suffer substantial harm. Mills v. Wilkerson , 34,694 (La. App. 2d Cir. 3/26/01), 785 So.2d 69, 73-74; see also Smith, 906 So.2d at 592 n.4. In this case, it is obvious from the trial court's comments, as well as its award of custody to Ms. Biscomb and the limitations it placed on Ms. McDonald's visitation, that the court concluded substantial harm within the contemplation of Article 133 would result to the children if custody was awarded to Ms. McDonald.
Furthermore, the record supports this determination. Conflicting evidence was presented to the trial court regarding Ms. McDonald's parental fitness. According to the testimony of her stepmother, Ms. McDonald was an "awesome" mother who was attentive to her children's needs, did arts and crafts with them, and read to them twice a day. However, an entirely different picture was presented by other witnesses who testified that Ms. McDonald was neglectful of the children, often failed to change their diapers, ignored them when they were crying hysterically, and failed to properly supervise them. Mr. Carpenter testified that he returned home several times when the family lived on the farm to find the children were gone and Ms. McDonald had no idea where they were, not having seen them for twenty minutes or so. Moreover, he testified that she was unconcerned about the children on these occasions and did not assist in searching for them. Joseph Schwedic, an intern on the farm, testified that he discovered Jasper, who was a toddler at the time, alone on a path well into the woods on one occasion. Sharon Vincent, who lived several blocks from Mr. Carpenter and Ms. McDonald in Baton Rouge before they moved to the farm, testified that Ms. McDonald would leave the children alone while she came over to Ms. Vincent's house to visit and smoke marijuana.
Mr. Carpenter also gave testimony about an incident when Jasper was crawling on Ms. McDonald while she was attempting to take a nap. Ms. McDonald kicked the child in the chest, knocking him off the bed. When he hit his head on the floor and began crying, she failed to get up and check on him. On another occasion, Mr. Schwedic saw Jasper standing near Ms. McDonald's bed chewing on an extension cord that was plugged into the wall. In response to his shout to remove the cord from Jasper's mouth, Ms. McDonald kicked the child and knocked him down. She then remained in bed and did not attend to Jasper when he started crying.
Finally, there was testimony from multiple witnesses that, not only did Ms. McDonald frequently smoke marijuana; she smoked it in front of the children. According to the testimony of Mr. Carpenter and Mr. Schwedic, she even attempted to grow marijuana plants on the farm while the children were living there. Although Ms. McDonald denied having smoked marijuana since the children were born, the trial court obviously did not find her testimony credible since it specifically concluded that both parents used marijuana.
In the instant case, as in most custody cases, the trial court's determination was based heavily on factual findings. As an appellate court, we cannot set aside the trial court's factual findings unless we determine that there is no reasonable factual basis for the findings and that the findings are clearly wrong or manifestly erroneous. Stobart v. State, Department of Transportation and Development , 617 So.2d 880, 882 (La. 1993). Furthermore, when factual findings are based on the credibility of witnesses, the factfinder's decision to credit a witness's testimony must be given "great deference" by the appellate court. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel its own evaluations and inferences are as reasonable. Rosell , 549 So.2d at 844.
Based on its consideration of conflicting evidence and credibility determinations, the trial court concluded that an award of custody to Ms. McDonald would result in substantial harm to her two children. Our review of the record reveals no manifest error or abuse of the trial court's vast discretion in this determination. The record, particularly the evidence of Ms. McDonald's drug use in front of the children, her refusal to admit that drug use, her neglect and inattentiveness to the children's needs, and her failure to properly supervise them, establishes that an award of custody to Ms. McDonald would result in substantial harm to the two minor children.
We also find no merit in Ms. McDonald's contention that the record does not support the trial court's implicit finding that Ms. Biscomb can provide the children with an adequate and stable environment as required by Article 133. It is undisputed that Ms. Biscomb has frequently cared for the children in her home since they were very young. At times, she took care of them for prolonged periods of up to two and one-half weeks. The children's familiarity with Ms. Biscomb and her home undoubtedly will aid them in forming a sense of continuity and stability. Moreover, the trial court, which is in the best position to make such judgments, was able to personally evaluate Ms. Biscomb's suitability and demeanor as she testified before the court at the September hearing. Since it is presumed that a trial court properly applies the law, it is implicit in the trial court's judgment that it concluded Ms. Biscomb was able to provide the children with an adequate and stable environment. See Motion v. Travelers Insurance Company , 484 So.2d 816, 819-20 (La. App. 1st Cir. 1986). Considering the trial court's vast discretion in custody matters, we cannot say that the trial court abused its discretion in awarding sole custody of the children to Ms. Biscomb under the circumstances.
CONCLUSION
For the reasons assigned, the judgment of the trial court is affirmed. Ms. McDonald is to pay all costs of this appeal.
AFFIRMED.