State in the Interest of V.B., A.B., P.B.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-653

STATE IN THE INTEREST OF V.B., A.B., P.B.

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 2462
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John D. Saunders, Judges.

AFFIRMED.

Hon. Don M. Burkett
District Attorney
Anna L. Garcie - Assistant District Attorney
P. O. Box 1557
Many, LA 71449
(318) 256-6246
Counsel for Appellee:
State of Louisiana

William Daniel Dyess
Dyess Law Firm, LLC
P. O. Drawer 420
Many, LA 71449
(318) 256-5667
Counsel for Appellant:
M. B.

Brian Clayton McRae
Attorney at Law
111 N. Washington Ave.
Mansfield, LA 71052
(318) 872-6250
Counsel for Appellee:
V. B.
P. B.
A. B.

D. Scott Kendrick
Attorney at Law
1762 Texas St.
Natchitoches, LA 71457
(318) 354-9146
Counsel for Appellee:
R. B.

SAUNDERS, Judge.

This is a juvenile proceeding where the sole issue is custody of the couple’s

three children. After the children were adjudicated as children in need of care in

accordance with La.Ch.Code art. 666, following the subsequent permanency hearing,

the father was granted sole custody, with supervised visitation given to the mother.

The mother appealed this decision, alleging one assignment of error. We find

no error by the trial court, and therefore, affirm.

FACTS AND PROCEDURAL HISTORY:

M.B. (Appellant) was married to R.B., and the couple had three children: V.B.,

A.B., and P.B. This case originated as a result of a filing by the Department of Social

Services, Office of Community Services (OCS) due to a complaint that the children

were being neglected and an allegation that Appellant was mentally unstable and

using crack cocaine. The couple had a history of marital problems, including

allegations of domestic violence perpetrated by both Appellant and R.B. The

children were adjudicated as children in need of care and were taken into protective

custody by the OCS on March 7, 2008.

Appellant was committed into the behavioral unit at Willis Knighton Hospital

in Shreveport on March 11, 2008. She was released seventy-two hours later. R.B.

denied any domestic violence towards Appellant, claiming that any physical action

against her was in self-defense. R.B. then completed two counseling stints, one to

deal with anger management, and another to improve his parenting skills.

At the permanency hearing on March 7, 2009, after hearing reports regarding

the couple’s progress, and, inter alia, testimony from the parties and two of their three

children, the trial court granted sole custody to R.B. with visitation to Appellant to

be supervised by Appellant’s mother.

Appellant has appealed this judgment by the trial court, alleging the following

single assignment of error:

ASSIGNMENT OF ERROR:

1. The trial court erred in awarding sole care and custody of the minor children
to R.B. with supervised visitation to Appellant.

DISCUSSION OF THE MERITS:

Appellant argues that the trial court erred in awarding sole care and custody of

the minor children to R.B. with supervised visitation to her. We find no merit in this

argument.

The court’s determination in custody cases is entitled to great
weight. Its decision is accorded much discretion and will not be reversed
on appeal except in the clearest case of abuse of such discretion. In
determining custody, the best interest of the child is paramount. The
juvenile court must weigh the evidence to make its determination.

In Interest of Weaver, 430 So.2d 324, 326 (La.App. 3 Cir. 1983).

Appellant contends that the trial court erred in failing to abide by the

established presumption of La.Civ.Code arts. 132 and 134 and La.R.S. 9:335(A)(2)(b)

that joint custody is the preferred method of resolving custody disputes, as it is

necessary that there be clear and convincing evidence that must be produced to award

sole custody to one parent. This argument is misguided.

The children in the case before us were already adjudicated as children in need

of care in accordance with La.Ch.Code art. 666. As such, when the trial court

awarded sole custody to R.B., it did so at the conclusion of a permanence hearing

under La.Ch.Code art. 681(A)(1), which reads as follows:

A. In a case in which a child has been adjudicated to be in need of care,
the child’s health and safety shall be the paramount concern, and the
court may:

(1) Place the child in the custody of a parent or such other suitable

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person on such terms and conditions as deemed in the best
interest of the child including but not limited to the issuance of a
protective order pursuant to [Louisiana Children’s Code] Article
618.

Therefore, in the case before us no presumption exists that joint custody was

the preferred placement of the children. Rather, we must merely find that the trial

court did not abuse its vast discretion in resolving these matters, as “the trier of fact

. . . is not disadvantaged by the review of a cold record and . . . is in a superior

position to observe the nuances of demeanor evidence not revealed in a record.”

Adkins v. Huckabay, 99-3605, p. 15 (La. 2/25/00), 755 So.2d 206, 215.

The record before us indicates that Appellant had a history of both prescription

and illegal drug use. Although Appellant may have possessed prescriptions for the

drugs she continued to test positive for, the level of those drugs appearing in her

system suggested that Appellant continued abuse those prescription drugs.

Further, the record evidences that R.B. was suitable for effective parenting of

the couple’s children. Ms. Marie Loftin, the foster care worker assigned to the case

for Natchitoches OCS, provided evidence of the suitability of Appellant and R.B.

when she stated at the permanency hearing:

As [Appellant] began to comply [with an intensive substance abuse
treatment], she was not consistent with her attendance and she continued
to test positive for prescription drugs in her system that based on what
her doctor - - the information that the doctor had given us, she should
not have tested positive for those drugs had she been taking them as they
were prescribed.

....

[R.B.] completed parenting and anger management classes with merit
. . . [W]e re-referred [R.B] to Carol Jannick for judgment and insight
counseling . . . . [R.B.’s] final report from Dr. Jannick said that he could
effectively parent his children and use good judgment in dealing with
[Appellant]. It has been this agency’s recommendation that [R.B.]
receive custody of his children as a permanent plan for the children and

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that [Appellant] has visitation.

Josie Hamilton, a licenced addiction counselor and supervisor for the

Natchitoches Center for Addictive Disorders, treated Appellant. She corroborated

Ms. Loftin’s report regarding Appellant by testifying to the following:

Q In your opinion, would [Appellant] be a good candidate to
maintain her sobriety?

A She’s not maintaining her sobriety as far as our agency is
concerned because she’s continued to test positive for medicine
which we don’t know what doctors are prescribing to her because
she refuses to sign a release. Also there was a time when she
never could tell me where the medicine came from. She . . . gave
me the medicine she was taking, not the bottles, but she couldn’t
tell me who prescribed them or where she got them back in
August.

Dr. Carol Jannick, a licenced professional counselor with a PhD in counseling

psychology also corroborated Ms. Loftin’s testimony. Dr. Jannick stated:

Q Do you believe that [R.B.] has the parenting skills and abilities
necessary to have these children come in his life and be a good
custodial parent?

A Yes, he does. He does have . . . a very calm nature and that is a
good thing with children. We . . . watched two videos on
parenting and I recommended two books to him and he got the
books and we processed one together as far as parenting
strategies, how to teach children responsibility and those types of
things.

Q Do you believe that he was eager to learn and improve his
parenting skills?

A Yes. He went over . . . and above, let me tell you, most of my
patients in his counseling. He was very cooperative. He didn’t
miss his appointments. He called in-between. He was very
conscientious.

Q Over all [sic] he seemed to be very stable?

A Yes.

Q He has a stable employment history, good home, kept his

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appointments, neat appearance?

A Yes.

Further, even from a cold record, this court can surmise that Appellant had a

tendency to fail to answer the questions asked of her while testifying and generally

rambled in portions of her testimony in nearly an incoherent fashion. Meanwhile,

R.B.’s testimony, from the perspective of the record, was clear and concise.

Finally, it is clear that the trial court concluded that Appellant was the party

whose actions were the “catalyst” of most of the trouble the family endured. In its

reasons for judgment, the trial court, after apologizing to R.B. for ever granting a

protective order against him, stated:

I think that [Appellant] was out of control everything from crack
to you name it and putting these kids at risk. [Appellant is] the catalyst
behind all this. In my opinion, [Appellant is] the one that caused so
many problems in this case. [Appellant has] been out of control. And
I’m not relieving [R.B.] of some responsibility because it always takes
two.

Accordingly, given the standard of review and the evidence in the record, we

find no abuse of the vast discretion afforded to the trial court. These excerpts of

testimony, coupled with the reasons for judgment given by the trial court, provide an

overabundance of that which would be necessary for this court to find that the trial

court did not abuse its discretion.

CONCLUSION:

Appellant raised one assignment of error. We found no abuse of discretion by

the trial court. All costs of these proceedings are to be paid by Appellant.

AFFIRMED.

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