State in Interest of A.C.

• Decision Date: 27 January 1994
• Citation: 643 So.2d 719
• Parties: 93-1125 La
• Court: Louisiana Supreme Court

Page 719

643 So.2d 719

93-1125 La. 1/27/94

STATE of Louisiana in the Interest of A.C.

No. 93-CA-1125.

Supreme Court of Louisiana.

Jan. 27, 1994.

Dissenting and Concurring Opinion by Dennis, J., March 31, 1994.

Rehearing Granted May 12, 1994.

Ross P. LaDart, Gretna, Richard L. Ducote, New Orleans, for applicant.

Robin M. Shulman, Hon. John M. Mamoulides, Barron C. Burmaster, Joan S. Benge, Andrea P. Janzen, Gretna, Gina M. Puleio, Baton Rouge, Sherry Watters, Janice L. Kazmier, New Orleans, Hon. Randy P. Angelle, Breaux Bridge, Helen J. Popich, Lafayette, for respondent.

[93-1125 La. 1] HALL, Justice. ¹

This case calls into question the constitutionality of provisions of the Post-Separation Family Violence Relief Act, LSA-R.S. 9:361 et seq. Specifically, the provisions in question are:

-LSA-R.S. 9:364(D), which prohibits any visitation and contact between a child and a parent found to have sexually abused his or her child until such time, following a hearing, that the court finds that the abusive parent has successfully completed a treatment program for sexual abusers and finds that supervised visitation is in the child's best interest, and requires the court to give greater weight to the testimony of the child's therapist than to any other testimony before it on the issue of visitation; and

-LSA-R.S. 9:367, which assigns all court costs, evaluation fees, attorney fees, and expert witness fees, including all costs of medical and psychological care for the abused child to the "perpetrator" of the family violence.

The juvenile court held that these statutes were unconstitutional, in that LSA-R.S. 9:364(D) deprived the offending parent of parental rights without due process of law and unconstitutionally hindered the offending parent's access to the courts. The court also noted that the statute was a legislative encroachment upon the functions and responsibilities of the judicial branch. In addition, the juvenile court held that LSA-R.S. 9:367's taxing the "perpetrator" of the violence with all costs incurred was both unconstitutionally vague and overbroad. The case is before us on the mother of the abused child's direct appeal, challenging the juvenile court's ruling.

[93-1125 La. 2] Upon review, we reverse the juvenile court and hold that LSA-R.S. 9:364(D) does not violate the constitutional proscription against deprivations of fundamental liberty interests without due process of law. We also reverse the juvenile court's finding that LSA-R.S. 9:367 is vague and overbroad.

However, we affirm the juvenile court in its pronouncement that LSA-R.S. 9:364(D)'s requirement that a court give "greater weight" to the testimony of the child's treating therapist on issues relating to visitation threatens the separation of powers scheme as established in Article II, § 2 of the Louisiana Constitution of 1974, and is unconstitutional to the extent that it is anything more than a precatory direction to the court.

I.

The minor in the case at bar is one A.C., a female child four years of age, and is the issue of divorced parents Mrs. C and Mr. C. Divorced in 1989, the parents had joint custody over A.C., with her father having visitation rights and Mrs. C having domiciliary parent status.

In 1991, Mrs. C began noticing a pronounced redness of the skin around the child's vaginal area, which seemed to be immediately following a visit to her father. Later that year, the child began to describe incidences of what appeared to be sexual abuse by her father. On July 22, 1992, after the Office of Community Services (OCS) "validated" the allegation, the Jefferson Parish District Attorney's Office filed a "Petition-Child In Need of Care" in Juvenile Court for the Parish of Jefferson. The court found that videotaped testimony of the child, coupled with expert reports and testimony of lay witnesses as to the child's age-inappropriate sexual knowledge and behavior indicated the child's involvement in sexual observation or activity with her father. The juvenile court thus determined that A.C. was a Child In Need of Care as to her father, Mr. C, with written reasons for judgment being signed on December 3, 1992. Five days later, the dispositional hearing gave the mother, Mrs. C, legal and physical custody over the child, with OCS-supervised visitation between the child and her father.

On January 15, 1993, Mrs. C moved to modify the judgment of disposition, invoking LSA-R.S. 9:361-369 as support for prohibition of any visitation between A.C. and her father and as support for requiring Mr. C to pay all costs and fees. The court denied the mother's [93-1125 La. 3] Motion to Modify the Judgment of Disposition, but took the applicability and constitutionality of LSA-R.S. 9:361 et seq. under advisement. On February 24, Mr. C filed a Third Party Impleader, naming the Attorney-General for the State of Louisiana a third party defendant and alleging the unconstitutionality of LSA-R.S. 9:361 et seq. The juvenile court found that the aforementioned provisions of LSA-R.S. 9:361 et seq. unconstitutionally interfered with Mr. C's due process rights and were unconstitutional infringements on the power of the judiciary. The court further found that LSA-R.S. 9:367 gave no guidance or limit to the assessment of costs, making the statute unconstitutionally vague and overbroad. Finally, the court pointed out the potential "chilling effect" that LSA-R.S. 9:364(D) would have on courts making findings of sexual abuse. The court opined that courts would be reluctant to find abuse knowing that the court's hands would be thereafter statutorily tied, requiring the statute to be stricken.

From this judgment, the mother appealed directly to this court under La. Const. Art. 5, § 5(D). ² She is supported in this court by OCS and the state, through the Attorney-General.

II.

A.

The statute at issue, LSA-R.S. 9:364(D), was adopted in 1992 as part of a continuing legislative effort to address the growing problem of domestic violence and intra-family child molestation. When a child is sexually molested by a parent, the result is often long-term "devastating" psychological trauma, with the result being that "most children who were sexually abused will be abusive parents." Keating, Children In Incestuous Relationships: The Forgotten Victims, 34 Loyola L.Rev. 111, 122, citing Summit & Kryso, Sexual Abuse of Children: A Clinical Spectrum, 48 Am.J. Orthopsychiatry 237, 247-49 (1978). The effects can continue after termination of custody, as the "pressures (upon the child) will be great in themselves and would be substantially exacerbated by compelled visits." Beckham v. O'Brien, 176 Ga.App. 518, [93-1125 La. 4] 336 S.E.2d 375, 377 (1985).

The legislative intent to address this problem was set forth in LSA-R.S. 9:361:

The legislature ... finds that the problems of family violence do not necessarily cease when the victimized family is legally separated or divorced. In fact, the violence often escalates, and child custody and visitation become the new forum for the continuation of the abuse. Because current laws relative to child custody and visitation become the new forum for the continuation of the abuse. Because current laws relative to child custody and visitation are based on an assumption that even divorcing parents are in relatively equal positions of power and that such parents act in the child's best interest, these laws often work against the protection of the children and the abused spouse in families with a history of family violence. Consequently, laws designed to act in the children's best interest may actually effect a contrary result due to the unique dynamics of family violence.

Part of this body of law designed to protect the child's interest is LSA-R.S. 9:364(D). It provides, in pertinent part, that

(i)f any court finds that a parent has sexually abused his or her child or children, the court shall prohibit all visitation and contact between the abusive parent and the children, until such time, following a contradictory hearing, that the court finds that the abusive parent has successfully completed a treatment program designed for such sexual abusers, and that supervised visitation is in the child's best interest. Any testimony by a licensed mental health professional with training, experience, and expertise in treating sexual abuse victims, who is the therapist for the abused child, shall be given greater weight by the court than other testimony on issues of visitation.

It mandates that, after a finding that a parent has sexually abused his children, visitation shall be prohibited. This prohibition continues until a contradictory hearing is held on the issue of resumption of visitation. At this hearing, the court is required to find that, before visitation of any nature is allowed again, the offending parent has "successfully completed" a treatment program designed for sexual abusers, and that supervised visitation is in the child's best interest. The statute also provides that the testimony of the child's treating therapist must be given greater weight than any other testimony on issues of visitation.

The juvenile court recognized that the parent-child relationship is a fundamental liberty interest that is entitled to full protection under the Equal Protection and Due Process clauses of both the federal and Louisiana constitutions. The court then found that LSA-R.S. 9:364(D) threatened a parent's due process rights by its preventing a court from considering individual circumstances, creating an unacceptably high risk of erroneous deprivation. Further, it saw the [93-1125 La. 5] statute as infringing upon a parent's access to court by making a parent's access to court dependent upon expert opinion. Appellee further argues that the statute's effective termination of most visitation rights to the child occurs after a finding of abuse by only a preponderance of the evidence, a standard that, given the importance of the right at stake, is so lax...