J. A. D. v. K. B. F.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-257

J.A.D.

VERSUS

K.B.F.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20140237
HONORABLE CHARLES G. FITZGERALD, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar,
Judges.

AFFIRMED.

Richard Ducote
Attorney at Law
318 East Boston St., 2nd Floor
Covington, LA 70433
(985) 898-2755
COUNSEL FOR DEFENDANT-APPELLANT:
KBF

Michael V. Matt
Attorney at Law
P. O. Drawer 191
Eunice, LA 70535
(337) 457-8260
COUNSEL FOR DEFENDANT-APPELLANT:
KBF

George R. Knox, L.L.C.
Attorney at Law
117 W. Convent St.
Lafayette, LA 70501
(337) 264-9083
COUNSEL FOR PLAINTIFF-APPELLEE:
JAD

Shane M. Mouton
District Attorney’s Office-Non-Support Division.
P. O. Box 2609
Lafayette, LA 70502
(337) 235-0751
COUNSEL FOR INTERVENOR-APPELLEE:
State of Louisiana

PICKETT, Judge.

The mother of twin daughters filed numerous complaints, alleging that their

father sexually abused them. The local police department and a state agency

investigated the complaints, and two child abuse centers assisted with some of the

investigations. None of the investigations substantiated sexual abuse. The trial

court conducted hearings for temporary and permanent custody that spanned more

than eleven months and ultimately awarded the father sole custody and the mother

visitation rights. The mother appeals. Finding no manifest error in the trial court’s

awards, we affirm.

FACTS

On August 10, 2012, twin daughters (J1 and J2)1 were born to KF and JD.

Before their daughters were born, the parents lived together but had issues in their

relationship. After the birth of their daughters, the parents’ issues escalated, and

they ceased living together. Beginning in June 2013, KF began bringing the

children to physicians, asserting that JD was sexually abusing them. Her

allegations resulted in nine formal investigations being conducted to determine the

validity of the allegations. 2 The investigating agencies did not find sufficient

evidence to substantiate the complaints.

From January 2014 until the conclusion of the trial that resulted in the

judgment appealed, the parties filed at least ten competing petitions regarding

1
We are not required to use initials to protect and maintain the privacy of the minor
children involved in a custody case. See Uniform Rules, Courts of Appeal, Rule 5-1 and Rule
5-2. However, we choose to use the initials of the minor children herein due to the nature of the
allegations at issue. See Rodock v. Pommier, 16-809 (La.App. 3 Cir. 2/1/17), 225 So.3d 512,
writ denied, 17-631 (La. 5/1/2017), 221 So.3d 70; Clarke v. Clarke, 16-669 (La.App. 5 Cir.
4/4/17), 219 So.3d 1228.
2
The mother and mandatory reporters reported allegations of sexual abuse to the
Lafayette Police Department (LPD) and the Louisiana Department of Child and Family Services
(DCFS) in March and June 2013; July 2014; and March, July, and November 2016.

alleged abuse, custody, contempt, and visitation. They entered into two consent

judgments regarding custody and visitation during that time. The first judgment

dated January 27, 2014, granted the parents joint custody on an alternating

schedule of two days/two days/three days with neither parent being domiciliary

parent and KF’s custody being exercised with her mother present. On November

6, 2014, the second consent judgment granted JD custody Monday through Friday

and granted KF custody Friday afternoon after the children’s school day ended

through Monday morning when their new school week began. KF was also given

the option of exercising two Wednesday overnight visitations per month. Again,

neither parent was designated domiciliary parent. The parties operated under that

agreement apparently without conflict until July 2016, when KF refused to return

the children to JD in accordance with the consent judgment.

On September 26, 2016, based on KF’s allegations of sexual abuse by JD, a

hearing officer issued a temporary restraining order (TRO) granting KF custody of

the children and prohibiting JD from having contact with them. Thereafter, on

October 10, the trial court issued an order maintaining the TRO and KF’s custody

of the children. On that date, the trial court also appointed clinical child

psychologist, Amy Cavanaugh, PhD, to conduct a mental-health/custody

evaluation, and authorized JD to resume visitation with the children only as

recommended by Dr. Cavanaugh. In a letter to the trial court dated November 2,

2016, Dr. Cavanaugh recommended that: (1) JD resume supervised visitation with

the children, so that she could conduct a parent-child interaction assessment; (2)

JD’s sister be appointed visitation supervisor; (3) the children resume attending

2

school;3 and (4) the children’s counseling sessions cease. The following day, the

trial court issued an order formally implementing the recommendations and

granted JD supervised visitation with the children beginning November 6, 2016, to

be exercised on Sundays and Wednesday evenings.

KF brought the children to the emergency room of a Lafayette hospital on

November 11 and to a physician’s office on November 14, alleging that they had

been sexually abused by JD. After conducting examinations of the children, both

physicians reported to DCFS that they suspected the children had been sexually

abused by JD. DCFS began investigating the allegations. On November 17, 2016,

pursuant to a recommendation by DCFS, a juvenile court issued an order that

removed the children from KF’s custody and placed them with their paternal aunt,

where they remained for approximately two and one-half months. That order also

divested the trial court of jurisdiction in family court. In early February 2017, the

juvenile proceeding was dismissed after the investigations by the Lafayette Police

Department (LPD) and the Louisiana Department of Child and Family Services

concluded with the finding that JD had not sexually abused the children. The

investigation of the allegations against JD was ongoing from July 14, 2016, until

the juvenile proceeding was dismissed.

On February 7, 2017, JD filed an ex parte motion for temporary and sole

custody of the children with KF having supervised visitation. That date, the trial

court granted JD temporary custody of the children, with his sister serving as a

safety monitor, and granted KF supervised visitation with the children. The trial

court then conducted a temporary custody hearing over the course of four days,

3
From July 2016 through November 3, Mother had sole custody of the children, and she
did not bring them to school regularly. They were four years of age at the time and had been
attending the school since they were two years of age.
3

February 22, and March 6, 8, 10, 2017, after which it issued a temporary custody

order granting JD sole custody of the children and KF supervised visitation for

designated periods on Saturdays, Sundays, and Tuesday and Thursday evenings.

Thereafter, over the course of six days in August, October, and November 2017,

the trial court conducted a permanent custody hearing. On November 21, the trial

court issued extensive oral reasons for ruling in which it granted sole custody to JD

and granted KF regular visitation with the children.

KF filed a motion for expedited appeal and sought approval to proceed as a

pauper. Initially, the trial court denied her request to proceed as a pauper. JD then

filed a motion to dismiss KF’s appeal due to her failure to pay costs. KF filed a

writ application with this court to have the trial court’s denial of her pauper request

reversed, which this court granted. JD v. KF, 18-328 (La.App. 3 Cir. 4/25/18)

(unpublished writ decision). JD then filed a motion, seeking to traverse KF’s

authority to proceed as a pauper, which was denied. The appeal record was lodged

April 3, 2019.

ASSIGNMENTS OF ERROR

KF assigns three errors with the trial court’s judgment:

1) The trial court clearly erred as a matter of law and manifestly
abused its discretion in granting JD sole custody of the two children.

2) The trial court clearly erred and manifestly abused its
discretion in using the C.C. art. 134(10) best interest factor as
trumping all other art. 134 factors under the particular circumstances
of this case, where there was objectively substantial evidence that JD
was abusing the children.

3) The trial court clearly erred and manifestly abused its
discretion in assessing the court costs and Dr. Cavanaugh’s fees
against KF.

4

DISCUSSION

Sole Custody

In Griffith v. Latiolais, 10-754 (La. 10/19/10), 48 So.3d 1058, 1070, our

supreme court set forth the burden of proof in a proceeding for sole custody:

A trial court’s factual findings may only be overturned if
manifestly erroneous. Pursuant to the 1993 Revisions to the child
custody provisions, joint custody is no longer presumed to be in the
best interest of the child; however, it is mandated unless (1) there is an
agreement between the parents to the contrary which is in the best
interest of the child, or (2) one parent shows by clear and convincing
evidence that sole custody to that parent would serve the best interest
of the child. La.C.C. art. 132. . . . “The clear and convincing standard
requires a party to prove the existence of a contested fact is highly
probable, or much more probable than its non-existence.” [Talbot v.
Talbot, 03-814 (La. 12/12/03), 864 So.2d 590, 598 (citing Succession
of Lyons, 452 So.2d 1161, 1165 (La.1984) and McCormick on
Evidence, § 340(b), p.798 (2d ed.1972))].

Manifest error exists only when review of the entire record shows that there

is no reasonable factual basis for the factual finding at issue and that the fact finder

is clearly wrong. Stobart v. State, Dep’t of Trans. & Dev., 617 So.2d 880

(La.1993). The supreme court explained the manifest error standard in Rosell v.

ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted):

When findings are based on determinations regarding the credibility
of witnesses, the manifest error—clearly wrong standard demands
great deference to the trier of fact’s findings; for only the factfinder
can be aware of the variations in demeanor and tone of voice that bear
so heavily on the listener’s understanding and belief in what is said.
Where documents or objective evidence so contradict the witness’s
story, or the story itself is so internally inconsistent or implausible on
its face, that a reasonable fact finder would not credit the witness’s
story, the court of appeal may well find manifest error or clear
wrongness even in a finding purportedly based upon a credibility
determination. But where such factors are not present, and a
factfinder’s finding is based on its decision to credit the testimony of
one of two or more witnesses, that finding can virtually never be
manifestly erroneous or clearly wrong.

5

Accordingly, appellate courts must be cautious not to reweigh the evidence or to

substitute their own factual findings just because they would have decided the case

differently.

The primary factor in child custody determinations is the best interest of the

child. La.Civ.Code art. 131. Louisiana Civil Code Article 134 enumerates twelve

factors that a trial court should consider when making the best interest of the child

determination. The trial court is not limited to considering these twelve factors,

and it should consider the totality of the facts and circumstances in the particular

situation. Starks v. Starks, 17-1139 (La.App. 3 Cir. 6/27/18), 250 So.3d 1025.

In her first two assignments of error, KF contends the trial court clearly

erred as a matter of law and manifestly abused its discretion in granting JD sole

custody of the children. She argues the trial court based its decision primarily on

Article 134’s tenth factor which addresses the facilitation of a relationship with the

other parent and considered that factor “as trumping all other art. 134 factors under

the particular circumstances of this case, where there was objectively substantial

evidence that [JD] was abusing the children.” She asserts that the trial court’s

“blind adherence” to the tenth factor put her in a “damned if I do, and damned if I

don’t” position with regard to protecting the children from sexual abuse. KF urges

that while she did not prove JD sexually abused the children, substantial evidence

supports her belief that the children were sexually abused; therefore, JD should not

have sole custody. In furtherance of this argument, she asserts, without citing legal

support, that when reviewing the trial court’s judgment, this court should consider

two 2018 revisions to Article 134 that provide:

6

(1) The potential for the child to be abused, as defined by Children’s
Code Article 603,4 which shall be the primary consideration.

....

(12) The willingness and ability of each party to facilitate and
encourage a close and continuing relationship between the child and
the other party, except when objectively substantial evidence of
specific abusive, reckless, or illegal conduct has caused one party to
have reasonable concerns for the child’s safety or well-being while in
the care of the other party.

The parties presented their testimony; the testimony of a court-appointed

child psychologist; an LPD police officer and DCFS employee involved in the

investigation of the allegations at issue; DCFS employees who supervised KF’s

visitation with the children in the spring of 2017; a provisional licensed

professional counselor who conducted therapy sessions with the children; the

director of the children’s school; an expert child-play therapist; KF’s psychiatrist; a

nursery supervisor at the church KF and the children attended who also served as a

visitation supervisor for a period of time; two physicians who examined the

children for sexual abuse; a board certified pediatrician who is also a certified child

abuse pediatrician employed at the Audrey Hepburn Center (AHC), a child abuse

center; and a social worker who is highly–educated and trained in the assessment

4
Louisiana Children’s Code Article 603 provides, in pertinent part:

(2) “Abuse” means any one of the following acts which seriously
endanger the physical, mental, or emotional health and safety of the child:

....

(c) The involvement of the child in any sexual act with a parent or any
other person, or the aiding or toleration by the parent, caretaker, or any other
person of the child’s involvement in any of the following:

(i) Any sexual act with any other person.
(ii) Pornographic displays.
(iii) Any sexual activity constituting a crime under the laws of this state.

7

and evaluation of child sexual abuse. The parties also introduced records

associated with these witnesses’ testimony; additional medical records of the

children; the records of Hearts of Hope (HOH), another child abuse center; pictures

of the children; and videos of the children’s therapy sessions, of them playing and

interacting with others, and some interviews conducted during the investigations of

KF’s allegations.

The trial court made the following findings when issuing its ruling which

show that the trial court considered the ten factors of Article 134 that are relevant

herein:

(1) The love, affection, and other emotional ties between each party and the child:

The parties are equal.

(2) The capacity and disposition of each party to give the child love, affection, and
spiritual guidance and to continue the education and rearing of the child:

KF’s taking the children to church and fostering religious instruction
favors KF, as does her teaching the children sign language; however,
her agreement to the November 6, 2014 consent judgment giving JD
custody Monday through Friday when the children attended school
negated a finding in her favor with regard to this factor.

(3) The capacity and disposition of each party to provide the child with food,
clothing, medical care, and other material needs:

KF always properly cared for the children (properly clothed, hair done
and immaculate); nonetheless, this factor did not weigh equally
between the parents and favored JD because he provided all financial
support for the children, and it was not clear that KF could make ends
meet with out assistance of others. This fact is a big part of finding
that KF’s visitation with the children would no longer be supervised.

(4) The length of time the child has lived in a stable, adequate environment, and
the desirability of maintaining continuity of that environment:

The children’s lives have been utter chaos due to various temporary
and ex parte orders that are the result of KF’s determination to prove
JD sexually abused the children.

8

(5) The permanence, as a family unit, of the existing or proposed custodial home
or homes:

JD favored due to KF’s changes in jobs and reliance on others for
financial support throughout the children’s lives.

(6) The moral fitness of each party, insofar as it affects the welfare of children;

The trial court explained:

The moral fitness of each party as it affects the welfare of the children
. . . this cases [sic] hinges on factor number ten. You can bleed it into
moral fitness, I don’t think it’s a moral issue. I think it’s more of a
mental health issue coupled with an inability, a lack of capacity, a lack
of ability and willingness to facilitate any relationship. A failure to
encourage any close and continuing relationship between the child
and the other party being dad. When you have these ongoing,
reoccurring allegations that are wholly unfounded it’s impossible,
impossible for me to make a finding on the totality of the evidence
here some of the joint custody is in the best interest of the children.

(7) The mental and physical health issues of each party:

Concerned as to whether something is going on with KF because she
is convinced of abuse and is on an unending quest to prove it and
believes her treating physician does not have “the complete picture”
of her situation because she does not provide him accurate
information about what is going on with her and her personal
situation.

(8) The home, school, and community history of the child:

While in JD’s custody, the children regularly attended school, got
along well with classmates, and were well behaved with no
indications of trouble at home or personally; the children did not
attend school regularly when in KF’s custody.

(10) The willingness and ability of each party to facilitate and encourage a close
and continuing relationship between the child and the other party:

See factors (6) and (7) above.

(12) The responsibility for the care and rearing of the trial previously exercised by
each party:

No evidence supports KF’s claim of being primary caregiver because
JD had custody of children Monday through Friday beginning
November 6, 2014, until the summer of 2016, when KF’s allegations
of abuse escalated.
9

The trial court did use the phrase “this case hinges on factor 10” when

ruling. However, it is abundantly clear from our review of the record that the trial

court’s in-depth assessment of these pertinent factors5 and factual conclusions are

reasonable and substantiated by the record. KF argues the trial court’s finding that

her continued allegations of sexual abuse are unfounded is contradicted by the

medical evidence, urging that the physical findings of the physicians who

examined the children in 2016 evidence a real concern that JD abused the children

and should not have sole custody.

Dr. Carolyn Green works in the pediatric emergency room of a Lafayette

hospital; she is board certified in pediatrics and neonatology. She saw the children

on two occasions: July 24, 2014, and November 11, 2016. On the first visit, the

children were not quite two years of age. KF reported that she suspected sexual

abuse by JD after she observed J1’s bottom and J1 answered “dada” to her

question, “what happened.” Dr. Green testified that she observed redness of J1’s

external genitalia, a contusion, anal scar, and mildly decreased rectal tone. As to

whether the examination evidenced sexual abuse, Dr. Green related that other

explanations existed for her findings, e.g., redness is quite common in toddlers of

that age as diaper irritation can cause such redness and that contusions can be

caused by a child’s activities. As to the findings of the scar and lax rectal tone, she

explained that the former could simply be the child’s anatomy, while lax rectal

tone could result from passing a hard stool. J2’s examination at that visit revealed

what appeared to be a slight bruise of her external genitalia which Dr. Green

5
The two factors not considered, the preferences of the children and the distance
between the parties’ residences, have no bearing herein due to the children’s ages and lack of
evidence.
10

testified could have been caused by riding toys and possibly a fall. Dr. Green

opined that her physical findings on that visit were suggestive of sexual abuse but

not definitive.

On November 11, 2016, KF returned to the same emergency room with

more allegations of sexual abuse. She reported that J2 told her JD touched her

genitals. When Dr. Green asked J2 what happened, she talked about other things.

Dr. Green testified that she could only confirm with J2 that JD touched her

“privates” with his fingers. On examination, Dr. Green noted mild redness of

external genitalia but no abrasions. Her differential diagnosis was alleged sexual

abuse and contusions. KF reported that J1 told her JD touched her private area.

Dr. Green noted that after a long time of questioning, J1 stated that JD put his

finger and a stick in her “tee tee” and bottom. Dr. Green’s examination revealed

no significant external redness, but she noted what appeared to be a healed

hymenal scar; no contusions or abrasions were noted. Dr. Green explained that the

hymenal scar could be a variant of normal being and just formed that way. She

acknowledged that she had not noted the scar two years earlier and explained it

could have been present but not observed due to the nature of examining a two-

year-old child. Dr. Green testified that her examinations raised concerns of sexual

abuse, but did not confirm such abuse, and that her findings were consistent with

what the children told her. She acknowledged that physicians who are board

certified in child sexual abuse are in the best position to determine whether child

sexual abuse occurred.

Dr. Lauren Fletcher Luke examined the children on November 14, 2016.

She was recognized as an expert in family medicine with an emphasis on women.

She treats children in her practice and has some formal training in pediatrics,
11

including child sexual abuse; she is not certified in either field. Dr. Green saw KF

first, who reported suspecting sexual abuse by JD for a while. She examined J2

alone. Dr. Green testified that during her examination, she blew up a glove to

entertain the child and testified that J2 pointed to and grabbed the pointer finger of

the glove and stated “my daddy puts his pointer in my tee tee and his thumb in my

bum,” then “she started crying he did it two times, he did it three times I told him

to stop and he wouldn’t stop.” Dr. Luke further testified that J2 was crying and

“kept saying it hurt really bad and he would not stop” and reported that her “tee

tee” hurt. According to Dr. Luke, J2 further stated that she wanted to be in a safe

place and that she was safe with KF. Dr. Luke testified that the encounter and J2’s

revelations made her very concerned.

Dr. Luke next testified that as soon as she entered the examination room

with J1 and asked her how she was feeling, J1 stated that “it burns down there,”

“mean” father touches her on the bottom, and she was scared; J1 then started

shaking. J1 did not relate exactly what occurred, but Dr. Luke explained that she

seemed to be reliving whatever she experienced. Like J2, J1 started saying that she

wanted to be in a safe place. J1 asked Dr. Luke if she could protect her because

she did not want to go back, and stated, it “hurted.” She then began crying.

On examination, J1’s genitalia had redness and inflammation and was tender

to her touch. Dr. Luke noted her hymen was partially torn. She explained that

sexual abuse, riding a bike, and gymnastics could cause such a tear. She diagnosed

vaginitis with a yeast infection. J2’s exam was similar with inflammation and

hymenal tear. Dr. Luke also noted, however, laxity of her vaginal canal, which she

testified was unusual for a child of J2’s age and could be the result of sexual abuse.

12

Dr. Luke reported suspected sexual abuse to DCFS. She also acknowledged that

AHC experts were more qualified to make determinations of sexual abuse.

Standing alone, Dr. Green and Dr. Luke’s findings seem to support KF’s

position. That changes, however, when their findings are considered in the context

of when they occurred, other evidence produced at trial, and a child abuse expert’s

testimony. Beginning in July 2016, KF had temporary sole custody of the

children, and JD had no visitation with them until November 6, 2016. On that

date, he began having supervised visitation on Sundays and Wednesdays.

Accordingly, he only had supervised visitation with the children on November 6

and 9 before Dr. Green saw them on November 11 and 13, and Dr. Luke saw them

on November 14. On November 14, 2016, in a petition to terminate supervised

visitation and for sole custody and a temporary restraining order, KF alleged that

JD was left unsupervised with the children during his visitations on November 6

and 9, which she testified was based on reports by the children to her.

Dr. Green’s findings as to hymenal scarring and Dr. Luke’s findings as to a

partially torn hymen and vaginal laxity were controverted by Dr. Ellie Wetsman, a

board certified general pediatrician and child abuse pediatrician, who works at

AHC. Dr. Wetsman reviewed the medical evidence of the children’s prior physical

examinations in light of the two examinations performed at AHC in March and

December 2016, as well as the forensic interviews of the children conducted by

others at AHC, and concluded that the evidence did not substantiate that the

children had been sexually abused. She personally examined the children in

December 2016 and was questioned in detail with regard to her findings and the

findings made by Drs. Green and Luke in November. Dr. Wetsman disagreed with

specific findings made by each physician and explained that as to the finding of a
13

hymenal tear: if a hymenal tear existed at the time of the November exams, it

would have remained visible at the time she examined the children in December,

and she did not observe such a tear. She further explained that she had no

knowledge of the term “vaginal laxity” with regard to children.

Psychiatrist Edgardo Concepcion is KF’s treating physician. He was

qualified as an expert in child, adolescent, adult, and geriatric psychiatry. Dr.

Concepcion testified that KF has been diagnosed with ADHD, depression, anxiety,

and bipolar disorder and explained that different stressors can cause such a

patient’s coping skills to diminish, such that they can no longer handle certain

situations. Dr. Concepcion believed that KF was very truthful with him as to what

was going on in her life. However, KF never told him that she had been arrested

twice for domestic violence, and a comparison revealed discrepancies between her

reports to him with regard to JD and the children and what was actually going on

in her life. For example, she told him she was going to be the domiciliary parent

when she had agreed for JD to have physical custody of the children more often

than her. At her October 26, 2016 appointment, KF reported that she was very

anxious about the children being removed from her custody and that it was very

hard for her to do anything else. Just over two weeks later, she brought the

children to Drs. Green and Luke, alleging abuse after they had supervised

visitation with JD.

With regard to the children’s reports of abuse to Drs. Green and Luke,

investigators documented that the children stated to the effect that “mommy says

daddy touches my privates,” but he does not. Additionally, visitation supervisors

for KF’s visits with the children during the spring of 2017 documented that KF

frequently tried to whisper to the children and also exhibited aberrant behavior in
14

public and toward the supervisors that led DCFS personnel and Dr. Cavanaugh to

conclude that KF was coaching the children to report sexual abuse. The trial court

rejected this finding. Nonetheless, based on the trial court’s observations as to

KF’s mental health and its affect on her behavior, it is reasonable to discount the

children’s reports to Drs. Luke and Green, finding that KF influenced their reports

to the physicians.

An important component of investigating sexual abuse in children involves

behavioral indicators of such abuse, which include: fear, shame, guilt, anger, or

physical aggression, as well as precocious sexual knowledge, sexual acting out,

sexual behaviors that are out of balance with other aspects of the child’s life, and

sexual behaviors that continue even after the child has been told to stop. No

persons involved in the investigation of the alleged abuse documented such

behavior, and none was observed in videos of the children. Two witnesses

addressed the children’s behavior. Susan Arceneaux, the director of the school

they attended from 2014 through 2017, testified that she never personally

witnessed any signs of abuse, and no employees who worked in the children’s

classes reported such abuse. She explained that the children never appeared

distressed or withdrawn and that she never observed them discussing their private

areas, intruding in other students’ personal boundaries, showing regression, or

engaging in aggressive behavior. In her view, the girls’ demeanor was typical of

children going through some changes, but nothing out of the ordinary. She also

observed that when the children returned to school after the long absence in 2016,

they got back in the routine within the first day. In her opinion, they were “right

on par” for their age, had no social issues, were very verbal, and could ask for what

they needed.
15

Sally Creed, PhD, a licensed professional counselor who deals with children

and was recognized as an expert in play therapy with children, testified that she

was hired by DCFS as part of its investigation of KF’s sexual abuse allegations.

She testified that her role is to observe children as they play, what they play with,

and how they interact with each other. J1 and J2 attended ten sessions with her.

During one session in May 2017, J2 told her that KF wanted her to say dad touched

my “pirates.” At that point, the two children laughed together, then J2 corrected

herself and said “privates.” Later, J1 told Dr. Creed she had a bad secret. When

asked what, J1 told Dr. Creed that she did not know how to tell KF that JD does

not touch her privates. Dr. Creed opined that J1 was upset about being told to say

this about JD when it was not true. She testified that during the ten sessions she

had with the girls, she did not observe anything that concerned her. She described

their play as interactive, creative, completely benign, showing no stress at all in

terms of their life with JD and stated that the children rarely talked about KF. She

also testified that the children were very close to JD, jumped on him, and were

very connected with him.

KF relies on the testimony of her expert witness Dr. Viola Vaughn-Eden to

support her arguments. Dr. Vaughn-Eden is a highly educated, experienced, and

accomplished social worker in the fields of child sexual abuse and allegations of

such abuse. She testified that she has evaluated more than 1,000 children for

sexual abuse, primarily at a child advocacy center but also in her private practice.

The trial court recognized Dr. Vaughn-Eden as an expert in (1) the assessment,

evaluation, and investigation of cases involving child sexual abuse; (2) the

assessment, evaluation, and treatment of sexually-abused children when the mother

16

is the non-offending parent; (3) interviewing of sexually-abused children; and (4)

the dynamics of child sexual abuse.

Dr. Vaughn-Eden testified that she examined the same records Drs.

Cavanaugh and Wetsman reviewed. She had personal contact only with KF in a

telephone conversation; she did not conduct an evaluation of the children. She

disagreed with Drs. Cavanaugh’s and Wetsman’s conclusions that the evidence did

not support the conclusion that the children had been sexually abuse and explained

in detail what led her to conclude otherwise. In connection with her opinion that

the children were abused, Dr. Vaughn-Eden noted that one physician’s records and

the records of HOH were powerful because the children described all of the

sensory pieces in their disclosure of sexual abuse, e.g., the emotions of being sad

and fearful. She also opined that in all the videos she reviewed, the children’s

disclosures were consistent and supported the fact that they were abused. Dr.

Vaughn-Eden testified that she would have liked to have information regarding the

children’s social behavior and whether any changes occurred but was not provided

such evidence.

The trial court considered extensive evidence on the issue of what custody

arrangement would be in the best interest of the children and concluded JD having

sole custody was best. Our review of all the evidence reveals no manifest error

with the trial court’s factual findings and judgment. Applying La.Civ.Code art.

134’s 2018 amendments would not result in a different conclusion because our

review does not reveal any “objectively substantial evidence of specific abusive”

conduct by JD that establishes “the potential” of the children being abused by him.

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Court Costs

In her last assignment, KF argues the trial court erred in assessing one-half

of Dr. Cavanaugh’s charges and all court costs to her. The trial court also assessed

JD with one-half of Dr. Cavanaugh’s fees.

The trial court has the authority to assess costs as it deems equitable.

La.Code Civ.P. art. 1920. Having found no error with the trial court’s awards of

custody and visitation, we find no error with its assessment of only one-half of Dr.

Cavanaugh’s fees and all court costs to KF.

DISPOSITION

The trial court’s judgment awarding JD sole custody of the children and KF

visitation with the children is affirmed. All court costs are assessed to KF.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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