Kimberly Corianne Black, Etc. v. Kimberly Renae Simms

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 08-1465

KIMBERLEE CORIANNE BLACK

VERSUS

KIMBERLY RENAE SIMMS

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2007-3090
HONORABLE GUY ERNEST BRADBERRY, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

Cooks, J., concurs with written reasons.

AFFIRMED.

Joseph L. McReynolds
Deutsch, Kerrigan & Stiles
755 Magazine Street
New Orleans, LA 70130-3672
(504) 581-5141
Counsel for Plaintiff/Appellant:
Kimberlee Corianne Black

Walter Marshall Sanchez
Sanchez Law Firm
901 Lakeshore Drive, Suite 1050
Lake Charles, LA 70601
(337) 433-4405
Counsel for Defendant/Appellee:
Kimberly Renae Simms

Michelle D. Bradley
1505 Common Street
Lake Charles, LA 70601
(337) 990-0046
Counsel for Plaintiff/Appellant:
Kimberlee Corianne Black

EZELL, JUDGE.

Kimberlee Black filed a petition seeking sole custody, or in the alternative,

joint custody with reasonable visitation of Braelyn Simms. Braelyn is the biological

daughter of Kimberly Simms. Ms. Black appeals the granting by the trial court of a

involuntary dismissal of her case finding that she failed to meet her burden of proof

under La.Civ.Code art. 133.

FACTS

Ms. Black and Ms. Simms were an unmarried, same-sex couple living in

Shreveport. After artificial insemination, Ms. Simms gave birth to Braelyn on

January 29, 2000. Subsequently, using the same sperm donor, Ms. Black gave birth

to Eli Black on May 1, 2002.

The couple began experiencing problems, and in 2004, Ms. Simms moved out.

Initially, she moved in with her brother in Texas. However, she realized she could

not be around her family due to issues she had with her father when she was young,

so she moved in with Ms. Black and her parents, Sheri and Robert. Ms. Black’s

parents were very active in helping with the children. During that time, Ms. Simms

and Braelyn lived upstairs at the Black home until she left again in February 2006.

Ms. Simms became involved with another woman and moved to Lake Charles to be

with her.

Initially, there were some weekends in which the Blacks would meet Ms.

Simms halfway and take Braelyn for the weekend. However, it appears that emotions

continued to run high, and in May 2006, there was a confrontation between all parties

when Ms. Simms went to Shreveport to pick up Braelyn at the Blacks’ home. After

that incident, Ms. Black did not see Braelyn again.

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On June 1, 2007, Ms. Black filed an ex parte petition for custody of Braelyn.

Affidavits referring to the events in May 2006 were attached but failed to include the

year. Braelyn was taken from Ms. Simms’ home by Calcasieu Parish deputies. A

stipulation was entered at a hearing on June 19, 2007, in which custody of Braelyn

was returned to Ms. Simms. Ms. Simms was also ordered to let Braelyn call Ms.

Black on Wednesday nights and talk to her for fifteen minutes. A mental health

evaluation was also ordered to determine if it was in Braelyn’s best interest to be

allowed access to the Blacks and Eli.

A hearing on the custody petition was held on July 9 and 10, 2008. At the

close of Ms. Black’s presentation of evidence, Ms. Simms moved for an involuntary

dismissal. Finding that Ms. Black failed to proved that substantial harm would come

to Braelyn if she continued in the current custody situation with Ms. Simms, the trial

court granted the involuntary dismissal. It is from this ruling that Ms. Black appeals.

LOUISIANA CIVIL CODE ARTICLE 133

Ms. Black first argues that the trial court erred by holding her to a higher

burden of proof under Article 133, i.e. that sole custody of the legal parent would

cause substantial harm to the child when this court has held that joint custody awards

between parent and non-parents are governed by La.Civ.Code arts. 131 and 134. Ms.

Black cites the cases of Matter of Landrum, 97-826 (La.App. 3 Cir. 12/10/97), 704

So.2d 872, and Williams v. Boone, 99-106 (La.App. Cir. 5/19/99), 733 So.2d 1257,

which held that the “substantial harm” burden of proof of Article 133 does not apply

when joint custody is awarded to a parent and non-parent. For the following reasons,

we respectfully disagree with those panels of this court.

Louisiana Civil Code Article 133 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

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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.

Landrum, 704 So.2d 872, relied heavily on the first circuit cases of Rupert v.

Swinford, 95-395 (La.App. 1 Cir. 10/6/95), 671 So.2d 502, and Robert v. Gaudet, 96-

2506 (La.App. 1 Cir. 3/27/97), 691 So.2d 780. Specifically, in Rupert, 671 So.2d at

504, the first circuit determined that an award of joint custody to the father and a

grandparent would first require the court to find “that joint custody to the mother and

father would result in substantial harm to [the child], that sole custody to the mother

would result in substantial harm to [the child], and that sole custody to the father

would result in substantial harm to [the child].” The first circuit then went on to hold

that under Article 133, “a finding that an award of sole custody to a parent would

result in substantial harm to the child does not preclude that parent from being

considered in a joint custody award with a non-parent.” Id. at 505.

In Landrum, 704 So.2d 872, this court jumped to the conclusion that the

language of Article 133 is inapplicable when a parent is awarded joint custody with

a non-parent. This is not what Rupert, 671 So.2d 502, held. It must first be

determined that an award of sole custody to the parent would result in substantial

harm to the child. Comment (b) to Article 133 explains that the heavier burden is “an

efficient means of giving effect to a parent’s paramount right to custody of his child

as against any non-parent.” Otherwise, non-parents are placed on the same footing

as parents when seeking joint custody if we were simply to apply the “best interests”

standard set forth in Articles 131 and 134.

As further explained by the first circuit, even though a court may determine that

an award of sole custody to a parent would result in substantial harm, the parent is not

precluded from being considered in a joint custody award with a non-parent. Rupert,

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671 So.2d 502. Rupert relied on Comment (c) to Article 133 and Schloegel v.

Schloegel, 584 So.2d 344 (La.App. 4 Cir. 1991), which awarded joint custody to a

father and maternal grandmother after it was determined that an award of sole custody

to the father was detrimental to the child’s welfare.1 See also Smith v. Tierney, 04-

2482 (La.App. 1 Cir. 2/16/05), 906 So.2d 586, where the first circuit held that the trial

court erred in awarding sole custody to the paternal grandparents when there was no

evidence that the mother should be divested of all of her custody rights of the child.

The first circuit did find that substantial harm would result to the child if the mother

had sole custody and awarded joint custody between the mother and the paternal

grandparents.

This finding is further supported by Comment (a) to Article 133 which

provides that the redundant dual test for divesting a parent of custody of his or her

child is still applicable. The redundant dual test is a dual-pronged test. Lions v.

Lions, 488 So.2d 445 (La.App. 3 Cir. 1986). First, before a trial court deprives a

parent of the custody of his or her child, the trial court must first determine that an

award of custody would cause substantial harm to the child. If so, then the courts

look at the best interest of the child factors in Article 134 to determine if an award of

custody to a non-parent is required to serve the best interest of the child. Wilson v.

Paul, 08-382 (La.App. 3 Cir. 10/1/08), 997 So.2d 572 (citing Tennessee v. Campbell,

28,823 (La.App. 2 Cir. 10/30/96), 682 So.2d 1274).

Ms. Black has also argued that the legislature has been silent on the issue of

children of gay and lesbian relationships, so this court must act in equity to protect

the rights of these children. While we agree that there are no laws governing these

1
Acts 1993, No. 261, § 1, effective January 1, 1994, amended former La.Civ.Code art.
131(B) and reenacted it as Article 133. The substance of Article 133 was formerly found in
La.Civ.Code art. 146(B), which was in effect from January 1, 1983, until December 31, 1990.
Former Article 146 provided that a non-parent had to prove that parental custody be shown to be
“deterimental” to the child.

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type of relationships, we also observe that there are no laws governing heterosexual

relationships in which only one of the parties is the biological parent. Any non-parent

who has a relationship with a biological parent and develops a relationship with the

child has to meet the same standard in establishing a basis for custody of the child.

This includes grandparents and step parents.

Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000), recognized the special

liberty interest of parents in the care, custody, and control of their children as one of

the oldest of the fundamental liberty interests protected by the Due Process Clause

of the Fourteenth Amendment. The Supreme Court held that:

[S]o long as a parent adequately cares for his or her children (i.e., is fit),
there will normally be no reason for the State to inject itself into the
private realm of the family to further question the ability of that parent
to make the best decisions concerning the rearing of that parent’s
children.

Id. at 2061; 68.

Over the years, there has been litigation between “psychological parents” and

parents regarding custody and visitation of children. Most often the cases involved

grandparents of children seeking custody or visitation with the children with whom

they bonded. The Louisiana Legislature has addressed some of these concerns

providing for visitation rights under certain circumstances. See La. Civ.Code art. 136

and La.R.S. 9:344. Recognizing the paramount right of a parent in the care, custody,

and control of his or child, the legislature has provided that an award of custody to

a non-parent as opposed to a parent can only occur in rare circumstances.

For these reasons, we find that before a court can award joint custody to a

parent and a non-parent, Article 133 first requires a finding that an award of sole

custody to the parent would cause substantial harm to the child. It is only after this

finding that the best interest of the child comes into play. Therefore, we find that the

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trial court applied the proper legal standard.

SUBSTANTIAL HARM

Ms. Black argues that even if Article 133 does apply, the trial court erred when

it found that the harm caused by separating a child from a functional parent cannot

be sufficient to establish substantial harm. She claims that granting sole custody to

Ms. Simms would cause Braelyn substantial harm because it would sever her

relationship with Ms. Black, her brother, and her remaining grandparent, Robert

Black.2

Comment (b) of Article 133 states that the use of the language “substantial

harm,” while a change in terminology, was not entirely new to Louisiana

jurisprudence. The comment refers to the cases of In the Matter of Stewart, 602

So.2d 212 (La.App. 3 Cir. 1992), and Pittman v. Jones, 559 So.2d 990 (La.App. 4 Cir.

writ denied, 565 So.2d 451 (La. 1990), which uses the language “substantial harm”

to describe the term “detrimental to the child” which was the standard found in former

Article 146. Reviewing the cases cited by both of these cases, one case is cited by

both, Merritt v. Merritt, 550 So.2d 882 (La.App. 2 Cir. 1989). Merritt, 550 So.2d at

889, held that the term “detrimental to the child” broadened “the former

jurisprudential rule to include, in addition to parental unfitness, inability to provide

a home, and abandonment of parental rights, other circumstances that would cause

the child to suffer positive and substantial harm.”

“The words ‘substantial harm’ carry no magical connotation. ‘Detrimental’ and

‘substantial harm’ have been used interchangeably in the jurisprudence.” Robert, 691

So.2d at 783. In Mills v. Wilkerson, 34,694, p. 6 (La.App. 2 Cir. 3/26/01), 785 So.2d

69, 74, the court held that substantial harm “includes parental unfitness, neglect,

2
At the time of the trial, Sheri Black was receiving treatment for cancer. She passed
away on December 1, 2008.

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abuse, abandonment of rights, and is broad enough to include ‘any other

circumstances, such as prolonged separation of the child from its natural parents, that

would cause the child to suffer substantial harm.’”

In an initial custody dispute between a parent and non-parent, the non-parent

bears the burden of first proving that granting custody to the parent would cause

substantial harm to the child; if the non-parent meets that burden of proof, the non-

parent must then prove that joint or sole custody in the non-parent is in the best

interest of the child in order to prevail. Wilson v. Paul, 997 So.2d 572. The judgment

of the trial court regarding custody is subject to the manifest error standard of review.

Id.

Ms. Black argues that she shares a parent-child bond with Braelyn and severing

that bond would cause substantial harm to Braelyn. She claims that she and Ms.

Simms made a joint decision to have a child. Ms. Black testified that she helped pay

for part of the assisted reproduction procedures, went with Ms. Simms to the

appointments, and was present at the birth of Braelyn. Ms. Black claims that she and

Ms. Simms raised Braelyn and her brother together as a family unit and that Ms.

Black’s parents acted as grandparents toward Braelyn. Ms. Black’s parents both

testified to the love that they have for Braelyn and about how involved they were in

her life, school, and activities. Ms. Black and her parents all testified at trial to the

love, devotion, and time they had spent raising Braelyn for the approximately first six

years of her life when she lived with them.

Cindy Nassar, a licensed professional counselor, became involved in the case

pursuant to a mental health order issued on June 19, 2007. Ms. Nassar testified that

Braelyn has an emotional connection to the Black family. During her interviews with

Braelyn she became concerned that Ms. Simms was making alienating comments to

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Braelyn about the Blacks. It was Ms. Nassar’s opinion that the judgments Ms. Simms

made regarding her daughter had been harmful. Ms. Nassar testified that it was really

important that Braelyn have contact with both women. She testified that when

Braelyn initially came to her office, she believed she had two mothers. Ms. Nassar

indicated that Braelyn’s view of dependability and predictability would be threatened

if she did not reestablish her relationship with her psychological family. Ms. Nassar

did admit that a parent is not unfit because they decide that a child can no longer

associate with a family friend that has been close to the family for years.

Robbie Dowden, a social worker working with Ms. Simms, also involved

Braelyn in a couple of the sessions. Braelyn told her that she did miss the Blacks

when she first moved to Lake Charles. Ms. Dowden opined that the Blacks’ behavior

was more alienating than Ms. Simms’ behavior and thought that Braelyn would be

served best by denial of access to the Black family.

There is no dispute that these women had a “toxic” relationship as described

by Ms. Nassar. Both have made bad decisions. Ms. Black got in trouble with her

nursing job for drug use in 2004, around the same time that Ms. Simms left

Shreveport. Eventually, Ms. Simms cut off all communication between Braelyn and

the Blacks, people that have nurtured and cared for Braelyn since she was young. It

was not until after approximately a year of no contact with Braelyn, that Ms. Black

initiated this custody proceeding. While Ms. Simms’ actions have deprived Braelyn

of the love the Blacks have for her, we cannot say that this amounts to substantial

harm to the child. Plain and simple, Ms. Simms is the mother of Braelyn and has the

right to direct how Braelyn is raised. Troxel, 530 U.S. 57. While we may find that

her actions are harsh and inconsiderate of Braelyn’s and the Blacks’ obvious affection

and attachment to each other, we cannot say that this amounts to substantial harm in

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which the courts should interfere with Ms. Simms’ fundamental right to the custody,

care, and control of Braelyn.

For these reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to Kimberlee Black.

AFFIRMED.

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COURT OF APPEAL

THIRD CIRCUIT

STATE OF LOUISIANA

08-1465

KIMBERLEE CORAINE BLACK

VERSUS

KIMBERLY RENAE SIMMS

COOKS, J. CONCURS IN THE RESULT.

Even if we look beyond the substantial harm to the child issue, in this case, at

this time, the record indicates Ms. Black’s acrimonious relationship with the mother

suggests the child’s best interest would not be served by an award of custody.