Opinion
2016 CJ 0305
09-01-2016
STATE OF LOUISIANA IN THE INTEREST OF C.K.
Richard Ducote Covington, Louisiana Attorney for Appellant Father, D.K. Victor L. Papai, Jr. New Orleans, Louisiana Attorney for Appellees, Maternal Grandparents T.G. and A.G. Betsy H. Smith Mandeville, Louisiana Attorney for child, C.K. Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Twenty-Second Judicial District Covington, Louisiana Attorneys for State of Louisiana
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF WASHINGTON STATE OF LOUISIANA
DOCKET NUMBER J-09-139 HONORABLE WILLIAM J. KNIGHT, JUDGE Richard Ducote
Covington, Louisiana Attorney for Appellant
Father, D.K. Victor L. Papai, Jr.
New Orleans, Louisiana Attorney for Appellees,
Maternal Grandparents
T.G. and A.G. Betsy H. Smith
Mandeville, Louisiana Attorney for child, C.K. Warren L. Montgomery
District Attorney
Matthew Caplan
Assistant District Attorney
Twenty-Second Judicial District
Covington, Louisiana Attorneys for
State of Louisiana BEFORE: McDONALD, McCLENDON, AND THERIOT, JJ. McDONALD, J.
This is an appeal from a dispositional judgment maintaining joint custody of the minor child, C.K., between C.K.'s father, D.K., and C.K.'s maternal grandparents, A.G. and T.G., with C.K.'s mother, M.G., having supervised visitation, dismissing D.K's action for nullity, and providing for other matters. After a thorough review of the record, we find that the judgment was supported by the evidence, and we affirm the judgment.
To ensure the confidentiality of the child, all parties shall be referred to by their initials. See Uniform Rules - Courts of Appeal, Rules 5-1 and 5-2.
FACTS AND PROCEDURAL HISTORY
On December 11, 2009, the District Attorney's Office for Washington Parish filed a child in need of care (CINC) petition, asserting that two-week-old C.K. was a victim of abuse and neglect by his parents. The petition alleged that M.G. abused illegal substances and tested positive for cocaine at C.K.'s birth. The petition alleged that D.K. also had a history of substance abuse and that D.K. knew of M.G.'s illegal substance use during the pregnancy and did nothing about it. The petition alleged that both parents had inadequately cared for the child and had placed the child in a situation beyond his ability to cope. On February 2, 2010, C.K. was adjudicated a child in need of care and C.K. was placed in the custody of the Department of Child and Family Services (DCFS). While in DCFS custody, C.K. was placed in the care of A.G. and T.G.
On March 31, 2010, a judgment of disposition continued custody with DCFS and decreed that: M.G. would remain enrolled in the Reality House rehabilitation program; that M.G. would have physical custody of C.K. at Reality House on Mondays at noon until Thursdays at 5:30 p.m.; that D.K. would retrieve C.K. from M.G. at 5:30 on Thursdays and deliver C.K. to A.G. and T.G.; that A.G. and T.G. would have physical custody of C.K. until Monday morning; that D.K. would have unsupervised visitation with C.K. from Fridays at 8:00 a.m. until 6:00 p.m., Saturdays from 8:00 a.m. until 12:00 noon, and Sundays from 2:00 p.m. until 6:00 p.m.; that D.K. would retrieve C.K. from A.G. and T.G. on Monday mornings and deliver child to M.G. by Monday noon at Reality House; and that D.K. would wear a alcohol monitoring device at all times, among other conditions.
After a case review hearing on August 25, 2010, DCFS custody of C.K. was terminated and custody of C.K. was assigned to M.G. and D.K. The judgment was signed on October 14, 2010. After a rule to modify disposition was filed by M.G., the court rendered a judgment on September 26, 2011, granting M.G. and D.K. alternating weeks of custody and alternating holidays with C.K. The parties were required to communicate through the Our Family Wizard website, and both parties were required to participate in a rehabilitation program, with M.G. undergoing regular drug screens and D.K. having random alcohol tests.
Thereafter, A.G. and T.G. filed a rule for sole legal custody and a temporary restraining order. On June 7, 2013, a stipulated judgment was signed by the trial court, stating that temporary sole custody of C.K. would remain with A.G. and T.G., and granting supervised visitation to M.G. and D.K. each for two hours a week. The stipulated judgment further ordered that an evaluation of C.K. be performed by Alicia Pellegrin, P.h.D., and that weekly drug screens be conducted on M.G. and D.K. Temporary mutual restraining orders were issued against all parties, prohibiting them from harassing, abusing, or contacting the other party, and the parties were ordered to communicate only through Our Family Wizard. Further, the stipulated judgment ordered D.K. to pay past due child support to A.G. and T.G., to thereafter pay child support on the first of every month to A.G. and T.G., and provided for other matters.
This filing is not found in the record but is not contested by the parties.
On January 9, 2014, there was a hearing pursuant to a rule for custody, a rule for contempt, and a rule to terminate visitation filed by A.G. and T.G., and a rule for sole custody filed by D.K. The matter was reset for February 20, 2014, and interim orders were agreed upon providing: that the parties would communicate through Our Family Wizard; that D.K. would not consume alcoholic beverages and would obtain and use a SoberLink device; and that once D.K. utilized the SoberLink device, he would be granted visitation with C.K. on Saturdays and on Wednesdays after school. Further, the interim order provided that all exchanges of C.K. would take place at the Bogalusa Police Department, and that neither party was to use corporal punishment upon C.K.
The matter came before the trial court again on July 1, 2014, pursuant to a rule to terminate visitation and two rules for contempt filed by A.G. and T.G. and a rule for contempt filed by D.K. After consideration of the law, the pleadings, and agreement of the parties, the trial court ordered, in part: that D.K. and A.G. and T.G. continue shared custody of C.K. on a week-to-week basis, with the parties picking C.K. up at school, and non-school days exchanges taking place at the Bogalusa Police Department; a detailed holiday schedule; that M.G. would have once weekly supervised visitation with C.K. when she was no longer incarcerated; that D.K., A.G. and T.G. attend parenting classes; that D.K. not drink any alcoholic beverages and continue use of the SoberLink device; that D.K. had one year to reimburse A.G. and T.G. for his percentage of C.K.'s 2013-2014 school year tuition; that medical expense reimbursement requests be made through Our Family Wizard; that all pending rules be dismissed without prejudice; and that a review hearing regarding custody and the other matters set out in the judgment be set for January 29, 2015. The judgment was signed on July 31, 2014.
The details of M.G.'s incarceration are not found in the record. --------
On February 9, 2015, D.K. filed a motion to modify disposition, alleging that his sobriety had been well-established and that it was in C.K.'s best interest for him to have sole custody of C.K.
After the hearing, a dispositional judgment, signed on September 25, 2015, provided: that the action for nullity filed by D.K. be dismissed; that joint custody continue between D.K. and A.G. and T.G. under the previously ordered schedule; that M.G. be granted supervised visitation while C.K. was in the custody of A.G. and T.G.; that D.K. no longer be required to participate in SoberLink; that communication between the parties continue through Our Family Wizard; and that the motion for contempt filed by A.G. and T.G. be dismissed. D.K. appealed that judgment.
ASSIGNMENT OF ERROR
In his assignment of error, D.K. asserts that the trial court erred as a matter of law and abused its discretion in denying his motion for sole custody of C.K. because he was found to be a fine, competent parent fully capable of caring for C.K., and there was no evidence that C.K.'s safety or welfare required that A.G. and T.G. be granted joint custody causing the child to have weekly alternate custody between the two homes.
STANDARD OF REVIEW
In cases involving the custody of children, the trial court is vested with a vast amount of discretion. State ex rel AR, 99-0813 (La. App. 1 Cir. 9/24/99), 754 So.2d 1073, 1077. The trial court is in a better position to evaluate the best interest of a child because of its superior opportunity to observe the parties and the witnesses who testified at the trial. As an appellate court, we must afford great deference to the trial court's decision, not only because of that court's better capacity to evaluate witnesses, but also because of the proper allocation of trial and appellate functions between the respective courts. Thus, the trial court's decision will not be disturbed on review except in the clearest case of abuse of the trial court's great discretion. State ex rel AR, 754 So.2d at 1078.
ANALYSIS
The court shall determine the placement plan that is most appropriate and in the best interest of the child. La. Ch.C. art. 702C. The court shall consider a child's need for continuing contact with any relative by blood, adoption, or affinity with whom the child has an established and significant relationship. La. Ch.C. art. 702D.
In its extensive oral reasons for judgment, the trial court noted that the joint custody arrangement between D.K. and A.G. and T.G. has provided stability and security to C.K. The trial court found that all the parties had strong, loving bonds with C.K., and had the capacity to raise and nurture him, but that the parties were not fostering or encouraging bonds with each other. All of the parties had the capacity to provide food, clothing, medical care and other material needs to C.K., the trial court noted, each family unit had stability, and all parties had adequate mental and physical fitness.
The trial court noted that it was C.K.'s preference that the custody arrangement stay the way it has been, and that C.K. was satisfied with the arrangement where he spent some time with his father and some time with his maternal grandparents. He also stated that while C.K. was with A.G. and T.G., they could provide the supervision necessary for M.G.'s visitation with C.K.
We note that if D.K. were to have sole custody of C.K., it is likely, given the contentious nature of the relationship between D.K. and A.G. and T.G., C.K.'s contact with A.G. and T.G. would be minimized and possibly eventually terminated altogether. A.G. and T.G. have given C.K. the stability he has needed throughout his young life when both his parents struggled with addiction issues, they have a close and loving relationship with C.K, and have provided supervision for C.K.'s visitation with M.G. If C.K. were to lose his long-standing relationship with A.G. and T.G., it would be detrimental to C.K.
After a thorough review of this case, we find no abuse of the vast discretion of the trial court in its determination that it is in the best interest of C.K. that the joint custody arrangement continue between D.K. and A.G. and T.G., with supervised visitation with M.G.
DECREE
For the foregoing reasons, the judgment signed on September 25, 2015, granting continued joint custody between D.K. and A.G. and T.G., along with other provisions, is affirmed. The costs of this appeal are assessed against the appellant, D.K.
AFFIRMED. THERIOT, J., dissenting in part, and concurring in part, with reasons.
While I fully agree with the substantive outcome, I respectfully dissent with respect to the procedural posture of this case. This case has become procedurally convoluted when a civil custody suit was filed and gradually merged into the existing Child in Need of Care (CINC) case. The case before us on appeal is a CINC case, therefore, it is procedurally proper for the mother and the father to remain as the parties. The maternal grandparents, while vital to C.K.'s well-being, are procedurally improper parties to a CINC case since the parents retain their parental rights. Also since this is a CINC case, the Bergeron standards do not directly apply.
Pleadings from docket no. 105447 have been filed into this record, therefore, I assume a civil suit was filed during the pendency of the instant CINC case over essentially the same issues. While the two cases are very interrelated, we only have the CINC case before us to review. The State has stated in its brief that it has no role in what appears to be "a purely private dispute between [D.K.] and [M.G.'s parents]," however, the trial court retains juvenile jurisdiction over the CINC case and the State remains a party in the CINC case until C.K.'s eighteenth birthday. La.Ch.C. art. 686; See State in the Interest of M.A., 2013-0267 (La. App. 1 Cir. 6/7/13), 2013WL2485029, writ denied, 123 So.3d 1228 (La. 10/11/13).
The stipulated judgment of June 7, 2013 pertaining to the civil rule filed by A.G. and T.G. in docket no. 105447 states that temporary sole custody would remain with A.G. and T.G., while supervised visitation would be granted to M.G. and D.K. The record provides no evidence of when A.G. and T.G. first received temporary sole custody of C.K. In fact, the last custody ruling prior to June 7, 2013 came on September 26, 2011 under the CINC docket number, which granted M.G. and D.K. joint custody. Prior to that ruling, on May 25, 2010, custody of C.K. was returned to the parents, and DCFS custody was terminated. Nowhere in the record before us were the parental rights of M.G. or D.K. ever terminated.
While the trial court based its dispositional judgment on the factors of Bergeron and La.C.C. art. 134, doing so is not procedurally proper in a CINC case. CINC is governed strictly by the Louisiana Children's Code, the purpose of which is to provide protective and preventive intervention needed for the health, safety, and well-being of children. La.Ch.C. art. 601. What Bergeron and the Children's Code have in common, however, is the promotion of the child's best interest. La.Ch.C. art. 702(C); Bergeron, 492 So.2d at 1201. In rendering a judgment pursuant to Bergeron and La.C.C. art. 134, the trial court indirectly rendered a proper dispositional judgment pursuant to La.Ch.C. art. 702, because in evaluating the Bergeron factors, the trial court considered C.K.'s need to remain in contact with both his parents and his maternal grandparents, with whom he had a very close and loving relationship.
Based on the facts before us, I would amend the dispositional judgment in two respects. First, the judgment of September 26, 2011 had granted joint custody of C.K. to the mother, M.G., and the father, D.K. It is the parents, not the maternal grandparents, who are proper parties in the CINC case. Therefore, while I agree with the substance of the March 25, 2015 dispositional judgment, it must be amended to state that D.K. and M.G. are granted joint custody with sole temporary custody remaining with AG and TG. Second, the judgment should not be designated as a Bergeron considered decree, since a CINC hearing must follow the guidelines of La.Ch.C. art. 702. The judgment should remain the same in all other respects.
Aside from the aforementioned amendments, which are strictly procedural, I agree with the outcome of the dispositional judgment and find it is in the best interest of C.K. that the current temporary custody arrangement remain in place.