Smith v. Harmon
| Docket Number | 23-90 |
| Decision Date | 02 November 2023 |
| Parties | ANDREW TAYLOR SMITH v. ANGELICA HARMON |
| Court | Court of Appeal of Louisiana — District of US |
Daniel M. Landry, III
Christian B. Landry
The Landry Law Firm
COUNSEL FOR PLAINTIFF-APPELLANT:
Angelica Harmon
Kay Karre Gautreaux
COUNSEL FOR INTERVENOR - APPELLEE:
Tammy Lyons
Andrew Taylor Smith
Court composed of Gary J. Ortego, Ledricka J. Thierry, and Guy E. Bradberry, Judges.
The appellant, Angelica Harmon, appeals the judgment of the trial court which named Tammy Lyons, the paternal grandmother, the domiciliary parent of the minor child, A.L.S.[1] Ms. Harmon also asserts the trial court erred in not finding Ms. Lyons in contempt of court for an alleged violation of the Custody Implementation Plan. For the following reasons, we affirm the trial court's judgment in its entirety.
On May 10, 2016, Angelica Harmon gave birth to A.L.S. The father of the child was Andrew Taylor Smith. Ms. Harmon and Mr. Smith have a tumultuous history involving numerous court orders and proceedings, even prior to the birth of the child.
In August of 2015, Mr. Smith filed a "Petition for Protection from Abuse" against Ms. Harmon, which was later dismissed on Mr. Smith's motion. On December 1 2016, Mr. Smith filed another "Petition for Protection from Abuse" against Ms. Harmon, alleging she had slapped him and burned him with a curling iron. On December 13, 2016, Ms. Harmon filed a "Petition for Protection from Abuse" against Mr. Smith, claiming he attempted to strangle her on three occasions and nearly burned down their house by passing out drunk while leaving a pan full of grease on the stove. Ms. Harmon claimed after the last incident of strangling, she had a breakdown leading her to ingest a bottle of Xanax pills. An ambulance was called by Mr. Smith and Ms. Harmon was transported to Lafayette General Hospital for treatment. She then was brought to Vermilion Behavioral Center and diagnosed with major depressive disorder, generalized anxiety disorder, mild Xanax use disorder and mild THC use disorder. After discharge she was instructed to seek follow-up care at Tyler Behavioral Health Clinic Center in Lafayette.
After a hearing on December 21, 2016, the trial court dismissed both petitions finding the parties failed to prove the allegations. Based on the testimony as to Mr. Smith's excessive drinking and Ms. Harmon's admission records from Vermilion Behavioral Center that she had ingested marijuana laced brownies and smoked marijuana, the trial court ordered that both parties undergo a drug screen and that Mr. Smith undergo an alcohol blood test. If the parties had a positive screen, they were to be assessed for substance abuse disorder. The trial court ordered temporary custody of the child to Ms. Harmon and Mr. Smith, who were to be supervised by Tammy Lyons, Mr. Smith's mother and the child's grandmother, or alternatively to be supervised by Avec Les Enfants Visitation Center.
Mr. Smith's drug screen results from January 3, 2017, tested positive for cocaine. His alcohol blood test revealed he was engaging in binge drinking on a regular basis. Ms. Harmon's hair and urine drug screens dated December 28, 2016, were negative, though she had acknowledged regular marijuana use upon her admission to Vermilion Behavioral Center. The trial court issued an "Order of Supervision and Setting Hearing" on January 12, 2017. The Order provided that Mr. Smith maintain temporary custody of the child under the supervision of Ms. Lyons. Ms. Harmon was granted supervised visitation at Avec Les Enfants Visitation Center.
On January 19, 2017, the parties entered into a "Consent Judgment" which provided temporary joint custody on a 3-2-2 pattern. Mr. Smith was to be supervised by Ms. Lyons and Ms. Harmon was to be supervised by her roommate, Elizabeth Aguilar.
On March 8, 2017, Ms. Lyons filed a "Petition to Intervene and Petition for Custody by a Non-Parent, Pursuant to [La.Civ.Code] Art. 133" against Mr. Smith and Ms. Harmon. In that filing, Ms. Lyons alleged she had been the primary caregiver for the child since November 28, 2016, noted the alleged abuse allegations made by the parties against each other, the drug and alcohol abuse, and that the parties do not have steady employment or housing and, thus, do not have sufficient resources to provide for the child.
A hearing was held on May 15, 2017, to address the recommendations made in the report by the family court's drug program provider, Clearstart. As to Ms. Harmon, Clearstart recommended that she follow through with her individual therapy and medication management at Tyler Behavioral. She was also to enter the family court's random drug screen monitoring program until she submitted a certificate of completion of therapy. The recommendation for Mr. Smith was for him to abstain from all non-prescribed mood-altering chemicals, including alcohol. It was also recommended that he complete an intensive outpatient program and follow all recommendations of that program.
At a hearing on May 18, 2017, the trial court appointed Dr. Lynn Aurich to conduct a full psychological assessment of Ms. Harmon and prepare a report for the court. The trial court set a review hearing on August 21, 2017, to determine the parties' progress on the recommendations made by Clearstart. A Judgment of Temporary Custody was made by the trial court maintaining temporary custody with Ms. Lyons and providing for supervised visitation for both Mr. Smith and Ms. Harmon.
On July 3, 2017, Mr. Smith again filed a "Petition for Protection from Abuse" against Ms. Harmon. That same day, Ms. Harmon filed a "Petition for Protection from Abuse" against Mr. Smith. On July 27, 2017, after a hearing, the trial court denied both petitions for failure to prove their allegations. However, the trial court did issue a "Court Approved Consent Agreement" in favor of Mr. Smith restraining Ms. Harmon from following and contacting Mr. Smith.
At a hearing on August 21, 2017, the trial court reviewed the parties' progress in the monitoring program and their treatment. Ms. Smith was found to have positive screens for alcohol and his participation in the outpatient program at Tyler Behavioral was unverified. Ms. Harmon was found to have missed a drug screen and had a positive screen for alcohol. Her participation in mental health treatment at Tyler Behavioral was also unverified. The hearing was re-set to allow the parties to obtain records from Tyler Behavioral. Ms. Harmon was also granted supervised visitation once per week to be supervised by Leslie Mathes, a paid supervisor.
At the re-set hearing on September 18, 2017, the court noted Ms. Harmon was compliant with her mental health treatment at Tyler Behavioral, but she had missed two drug screens. The court found Mr. Smith's drug screens were negative, but his participation in the outpatient program at Tyler Behavioral was unverified. Mr. Smith was ordered to obtain his records and provide them to the trial court.
At a hearing on October 12, 2017, temporary custody of the child was maintained with Ms. Lyons. It was found Mr. Smith successfully completed the outpatient program. The trial court granted periods of unsupervised visitation to both parents, but maintained the order that neither party should utilize illegal substances or consume alcohol. Mr. Smith was ordered to continue in the monitoring program through Clearstart and Ms. Harmon was to continue treatment at Tyler Behavioral. Both parents were ordered to enroll in the Better Options ten-week course at Donna Aucoin &Associates to improve their parenting and communication.
On November 15, 2017, the trial court received a report from Clearstart with recommendations that Mr. Smith undergo an additional ninety days of monitoring due to positive drug screens for marijuana and alcohol. If Mr. Smith were found to have any positive screens during this period, Clearstart recommended he be reassessed for an intensive outpatient program. After a court hearing to discuss the recommendations, Mr. Smith signed an agreement to the recommendations.
On January 9, 2018, the trial court filed a "Rule for Contempt" against Ms. Harmon for her failure to meet her financial obligations to Clearstart for the monitoring program. The trial court did not find her in contempt, but ordered she resume the monitoring program and submit to a drug screen the following day.
On February 15, 2018, Ms. Lyons filed a "Rule for Contempt, Motion to Modify Order of Temporary Custody and Request for Immediate Custody and Request for Immediate Order for Supervised Visitation." The rule for contempt, temporary custody and supervised visitation was set for February 26, 2018. The rule for permanent custody was fixed for hearing during the week of July 2, 2018.
At the hearing on February 26, 2018, noting it had received a report from Clearstart that Mr. Smith had two positive drug screens for marijuana and alcohol, the trial court found Mr. Smith had not complied with the Clearstart recommendations. The trial court maintained Mr. Smith's visitation as supervised. The trial court also, on its own motion, filed a Rule for Contempt against Mr. Smith for the drug screens and failing to pay the monitoring fee to Clearstart. The trial court found Ms. Harmon's drug screen was positive for marijuana, ordered another drug test and stated Ms Harmon's visitation was to be supervised at Avec Les Enfants Visitation Center pending a hearing on March 26, 2018. The trial court also ordered that Ms. Harmon provide all her records from Tyler Behavioral...
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