Tracie F. v. Francisco D.

• Decision Date: 21 September 2015
• Docket Number: NO. 15-CA-224,15-CA-224
• Parties: TRACIE F. v. FRANCISCO D.
• Court: Court of Appeal of Louisiana (US)

TRACIE F.
v.
FRANCISCO D.

NO. 15-CA-224

FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

September 21, 2015

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 638-908, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

FREDERICKS HOMBERG WICKER JUDGE

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, Hans J. Liljeberg, Robert M. Murphy and Stephen J. Windhorst

LILJEBERG , J., CONCURS IN PART AND DISSENTS IN PART WITH REASONS.

WINDHORST , J., CONCURS IN PART AND DISSENTS IN PART FOR THE REASONS ASSIGNED BY LILJEBERG, J., AND ASSIGNS REASONS.

TRACIE F.
IN PROPER PERSON/APPELLEE-2ND APPELLANT

NANCY K. DURANT
ATTORNEY AT LAW
2955 Ridgelake Drive
Suite 207
Metairie, Louisiana 70002
COUNSEL FOR DEFENDANT/APPELLEE

LAURA J. TODARO
ATTORNEY AT LAW
909 West Esplanade Avenue
Suite 203
Kenner, Louisiana 70065
COUNSEL FOR INTERVENOR/APPELLANT

JUDGMENT VACATED; REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION

Page 2

Appellants, mother and maternal grandmother, complain of a trial court judgment awarding sole custody to the father, which is silent as to the mother and grandmother's visitation rights beyond a transition period. While this appeal has been pending, the mother and maternal grandmother filed applications for supervisory writs complaining of subsequent trial court judgments addressing visitation. We have referred those writ applications to the merits of this appeal and address those issues herein.

In this case, the child's father filed an action to modify a final, stipulated judgment awarding joint custody of the child to the maternal grandmother and the father, with the grandmother designated domiciliary, and granting visitation to the mother and father, the mother's specific and limited, the father's "reasonable." Following a trial, the trial court granted the father's petition, awarding the father sole custody of the child. The court's judgment was silent on the issue of mother and grandmother visitation upon execution of the judgment.¹ The trial court

Page 3

subsequently denied the maternal grandmother visitation and awarded the mother limited, supervised visitation.

For the reasons fully discussed below, we find that the trial court committed two errors of law which materially affected the outcome of this case and implicated the substantive rights of the child, the grandmother, and the mother. First, the trial court committed an error of law when it placed the burden of proof upon the non-moving grandparent to show that substantial harm would result if sole custody of the child was granted to the moving parent.² Second, the trial court committed an error of law in awarding limited, supervised visitation to Tracie when it failed to make a "best interest" analysis or finding as required by La. C.C. art. 136.

As a matter of first impression, we adopt the standard enunciated by the Louisiana Second Circuit in Jones v. Coleman.³ We find that the burden of proof in this modification action is upon the father, the parent seeking modification. First, we find the parent must prove, pursuant to the dual tests articulated in La. C.C. art. 133, that he has been rehabilitated of the parental unfitness or abandonment by reason of which he relinquished some part of his child's custody to a nonparent, thereby eliminating the "substantial harm" threat to the child which existed when the stipulated judgment was signed. Second, if the parent proves that he has been rehabilitated, then the parent must prove that the adequate and stable environment in which the child has lived with the nonparent as a result of the stipulated judgment has materially changed. In the absence of such a change, the parent's claim to modify the nonparent's custody of the child shall fail. Jones v. Coleman, 44,543 (La. App. 2 Cir.7/15/09); 18 So.3d 153. If the parent bears the initial burden of proof and passes the dual test articulated in La. C. C. art. 133, the

Page 4

parent must then prove that the child's best interest is in the custody of the parent. In any custody proceeding, the child's best interest is predominant.

Having found that the trial court committed two errors of law which affected the outcome in this case and implicated the substantive rights of the parties and the child, we vacate the trial court's January 27, 2015 judgment awarding sole custody to the father and reinstate the July 14, 2013 stipulated judgment awarding joint custody to the father and grandmother, with the grandmother designated as the domiciliary parent as well as the subsequent judgment concerning the parents' child support obligations and the father's visitation schedule. Further, we vacate the trial court's July 8, 2015 visitation judgment. We remand this matter to the district court.

Procedural History

Francisco ("Francisco") and Tracie ("Tracie") are the biological parents of David, who was born on May 29, 2006.⁴ On November 17, 2006, Tracie petitioned the court for sole custody of David. Thereafter, on January 7, 2007, the parents consented to joint custody with Tracie being domiciliary parent. Reasonable visitation was reserved to Francisco. Francisco also agreed to pay Tracie $400.00 per month in child support and to maintain David's health insurance.

On May 28, 2013, the maternal grandmother, Kathy B., and biological father, Francisco, filed a petition seeking a change of custody to joint temporary custody of David, with Kathy being designated as domiciliary parent, reserving to the mother, Tracie, reasonable visitation in Kathy's home and visitation outside Kathy's home only upon compliance with specific conditions. The petition also prayed that Francisco's child support obligation cease upon the custody change.

Page 5

In this petition, Kathy and Francisco alleged, pertinently:

-David lives with Kathy and his maternal grandfather, Michael B., who are his primary care givers, attending to all of his rearing, emotional, academic, religious and life needs.

-Kathy and Michael B. take care of all of David's food, clothing, school, extracurricular and medical expenses without support from Tracie who does not give them the $400.00 per month child support Francisco gives her.

-Francisco is not and has not been involved in David's care, education, or upbringing and has visited with David infrequently, approximately once a year.

-Trade's day to day involvement with David is limited to picking him up after school for a couple of hours.

-Tracie has a long history of drug and alcohol abuse including inpatient rehabilitation in 2006. Tracie works as a bartender and stays out socializing after work. Tracie left containers containing alprazolam, carisprodol, clonazepam, and diazepam at the B's home. Tracie has been seen under the influence of alcohol or drugs when picking David up from school.

-Tracie has resumed her violent, chaotic relationship with Tim F. The relationship involves substance abuse, fights, cursing, yelling, threats against David, a hit and run accident, and a battery complaint.

-Tim F. has been charged with battering Tracie, has been involved in two hit and run accidents, one in which he rammed Tracie's car while extremely drunk, and a DWI. Tim F. has also threatened any man or little boy who interferes with his relationship with Tracie.

-Tracie has no residence and basically lives out of her car, staying with friends or Tim F. When she picks David up from school, she cannot seat belt him in because her car is filled with her belongings.

-David has returned home from time with Tracie with cigarette burns on his forearm and back.

-In October, 2012, David's school recommended that he undergo a neurobehavioral evaluation because of his problems with attention, concentration, emotional issues and impulsivity. Tracie failed to arrange the evaluation, which Kathy eventually handled. David has been diagnosed with ADHD, with recommendations for home and school, including structure, scheduling, positive reinforcement and communication.

Page 6

-In order to meet David's needs and follow through with the evaluation recommendations, David needs a stable home life as Kathy and Michael B. have provided without disruption from Tracie.

-Custody to either parent would result in substantial harm to David, therefore the court is authorized pursuant to C.C. art. 133 to award custody to another person with whom David has been living in a wholesome and stable environment.

-Continued custody by Tracie would result in immediate and irreparable harm to David.

-It is in David's best interest to award joint custody to Kathy and Francisco with David to continue residing with Kathy since Kathy has been his primary caregiver and Tracie has had little interaction with him and fails to take care of either his life or his financial needs, in spite of receiving child support.

In July, 2013, Kathy, Tracie, and Francisco agreed to a stipulated judgment awarding custody of David to Kathy, jointly with Francisco, with Kathy designated as the domiciliary parent.⁵ The judgment granted Tracie specific visitation, unless otherwise agreed by the parties, conditioned upon certain terms,...