State in the Interest of S. S.(male) & S.S.(female)

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-877 consolidated with 13-878, 13-879

STATE IN THE INTEREST OF S.S. (MALE) & S. S. (FEMALE)1

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 22570 C/W NO. 24760 AND NO. 25015
HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery,
Judges.

REVERSED AND RENDERED.

Nicholas Pizzolatto, Jr.
Department of Social Services
Office of Community Services
2771 Paul White Road
Lake Charles, Louisiana 70611
(337) 475-3037
COUNSEL FOR APPELLANT:
State of Louisiana, Department of Children & Family Services

1
In the interests of privacy, we have used the initials of the parties involved in this matter.
See Uniform Rules–Courts of Appeal, Rules 5–1 and 5–2.

Stephen A. Berniard, Jr.
Raggio, Cappel, Chozen, etc.
Post Office Box 820
Lake Charles, Louisiana 70601
(337) 436-9481
COUNSEL FOR APPELLEE:
State of Louisiana, Office of Community Services

Ronald Augustin Rossitto
District Attorney
14th Judicial District Court
Post Office Box 3206
Lake Charles, Louisiana 70602
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Jack Wright, Jr.
Attorney at Law
1401 Hudson Lane
Monroe, Louisiana 71201
(318) 387-0993
COUNSEL FOR APPELLEE:
L. S. (mother)

Richard L. Fewell Jr.
Law Office of Richard Fewell
1315 Cypress Street
West Monroe, Louisiana 71291
(318) 388-3320
COUNSEL FOR APPELLEE:
L. S. (mother)

Stephanie Landry Cochran
Attorney at Law
1417 Gadwall Street
Lake Charles, Louisiana 70616
(337) 491-2111
COUNSEL FOR APPELLEE:
State of Louisiana

Robert Michael McHale Jr.
Attorney at Law
631 Kirby Street
Lake Charles, Louisiana 70601
(337) 990-0093
COUNSEL FOR APPELLEE:
R. S., Jr. (father)

Richard Scandrett
Children's Advocacy Program
1 Lakeshore Drive, Suite 1585
Lake Charles, Louisiana 70601
COUNSEL FOR APPELLEE:
S. S. (child)
S. S. (child)

CONERY, Judge.

The State of Louisiana Department of Children & Family Services

(“DCFS”), appeals the imposition of an expert witness fee ordered by the trial

court for the services of a psychologist who testified on behalf of R.S., Jr., the

father of the minors S.S. (male) and S.S (female). DCFS filed a motion and order

to vacate the December 5, 2012 order directing DCFS to pay the psychologist’s

witness fee, which was denied by the trial court. DCFS seeks reversal of the trial

court’s order on the basis that it is without authority to order DCFS, a State agency,

to pay court costs. DCFS filed a motion and order to vacate the judgment. The

order vacating judgment was denied without a hearing by the trial court on

December 13, 2012.2 DCFS timely appealed. For the following reasons we reverse

and render.

FACTS AND PROCEDUAL HISTORY

This matter involving S.S. (male) and S.S. (female) has a long and

complicated history, which includes child in need of care (CINC) petitions filed on

three separate occasions. The parents of the minors are L.S., the mother, and R.S.,

Jr., the father. The three CINC petitions are listed below as follows:

(1) Docket Number 22570-JUV, filed on July 14, 2009 and assigned to

Judge Ronald. F. Ware.

(2) Docket Number 24760-JUV, filed on April 10, 2010 and assigned to

Judge Robert L. Wyatt.

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None of the Appellees filed a response.

(3) Docket Number 25015-JUV, filed on August 14, 2012, and also assigned

to Judge Robert L. Wyatt.3

On April 5, 2012, Judge Guy Bradberry issued an oral Instanter Order and

then signed a written order on April 9, 2012, placing the two minor children in the

custody of the State of Louisiana based on allegations of neglect and sexual abuse

by the father, R.S., Jr. On April 12, 2012, a CINC petition resulting from the

Instanter Order was lodged in docket number 24760-JUV.

On July 19, 2012, there were two hearings set on Judge Wyatt’s docket

involving the minor children. The first was an adjudication hearing, held in the

morning, involving the continuing custody of the two minors in the care of the

State of Louisiana under docket number 24760-JUV based on the petition filed on

April 12, 2012 by DCFS. Mr. Stephen Berniard, Jr., representing DCFS, requested

that the CINC petition filed on April 12, 2012, in docket number 24760-JUV be

dismissed with prejudice. There being no objection, the trial court ordered the

dismissal with prejudice of docket number 24760-JUV. Once the trial court

granted DCFS’s dismissal of docket number 24760-JUV, the custody of the minor

children reverted from DCFS to L.S., the mother.

The second hearing, on the afternoon of July 19, 2012, was based on a

motion filed on behalf of R.S., Jr., the father, seeking to “Rescind Stay Away

Order And Reinstate Visitation,” lodged in docket number 22570-JUV, which was

the first CINC petition originally filed by DCFS on July 14, 2009. On December

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Although the three petitions were not formally consolidated at the trial court level, or
the appeal level, counsel for DCFS indicated in briefing to this court that “the fact that all of the
parties were exactly the same and the issues the same, resulted in them being consolidated by
confusion.”
So, “in an abundance of caution,” DCFS requested the three cases be consolidated on
appeal. However, only docket numbers 22570-JUV and 24760-JUV are before this court, as no
order involving court costs was issued in 25015-JUV, and that case should not have been part of
the consolidation for appeal.

2

16, 2009, Judge Ware had previously released DCFS from any further involvement

in docket number 22570-JUV, when custody was granted to L.S, the mother and

R.S., Jr.’s visitation rights were terminated based on earlier child sexual abuse

allegations against R.S., Jr. in 2009.

The hearing on July 19, 2012, in docket number 22570-SUV, proceeded

before the trial court. DCFS’s attorney, Mr. Berniard, as well as counsel for R.S.,

Jr. and L.S., participated in the hearing. Dr. Jerry Whiteman was subpoenaed by

counsel for R.S., Jr., and was qualified as an expert in the field of psychology. He

testified on behalf of R.S., Jr. As of March 17, 2005, Dr. Whiteman was R.S., Jr.’s

treating psychologist. In a prior proceeding in 2011, Dr. Whiteman had been

ordered by Judge Wyatt to conduct an updated psychological evaluation of R.S., Jr.

and had rendered his updated report to the trial court on August 12, 2011. The

mother of R.S., Jr. was also a patient of Dr. Whiteman’s as demonstrated by Dr.

Whiteman’s letter dated June 23, 2010. Dr. Whiteman rendered his expert opinion,

over the objection of counsel for L.S. and Mr. Berniard.

At the end of the hearing, the trial court was inclined to establish some

visitation between R.S., Jr. and his minor children, unless “something was

presented to the Court that suggested otherwise.” This statement was in reference

to the possible additional allegations of sexual improprieties involving the minor

children and R.S., Jr. As previously indicated, allegations of this nature resulted in

R.S., Jr.’s loss of his visitation privileges in prior proceedings before Judge Ware

in 2009.

The July 19, 2012 hearing was recessed and continued until August 7, 2012.

The trial court issued an interim order allowing R.S., Jr. to have supervised

visitation at Well Springs, in Monroe, Louisiana. L.S. objected to the supervised

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visitation and DCFS joined in that objection, but the trial court overruled their

objections and ordered supervised visitation. Further, the supervised visitation

allowed more time for any further allegations against R.S., Jr., should any arise, to

be brought to the court’s attention.

Mr. Berniard was present representing DCFS at the August 7, 2012 hearing.

Mr. Berniard continued to lodge an objection to the supervised visitation, and on

his motion, the trial court ordered in the interim that R.S., Jr.’s visits with the

minor children be monitored and notes made by an observer. During both the July

19, 2012 and August 7, 2012 hearings, L.S. had custody of the two minor children,

not DCFS. Technically speaking, DCFS was no longer a party.

At the November 27, 2012 hearing, involving R.S., Jr.’s request to reinstate

visitation in docket number 22570-JUV, the case was mistakenly captioned under

the previously dismissed docket number 24760-JUV. The trial court granted R.S.,

Jr.’s motion to have his visitation rights restored. Mr. Berniard was present at the

hearing on behalf of DCFS, as was Mr. Tom Sanders, Jr., who is also listed as

counsel for DCFS. There was a previous civil divorce and custody suit between

L.S. and R.S., Jr. in the Fourth Judicial District Court, Parish of Ouachita, docket

number 08-3874. The “Joint Custody Plan” filed in that case on November 13,

2008, set forth the visitation rights for R.S., Jr. with his minor children. Judge

Wyatt restored R.S., Jr.’s full visitation rights at the November 27, 2012 hearing

and, in effect, adopted the “Joint Custody Plan” in that case. No appeal was taken

by anyone from this ruling, and the issue of custody and visitation is not properly

before this Court.

The issue of the payment of the court costs associated with Dr. Whiteman’s

expert testimony in the July 19, 2012 hearing was discussed on the record with the

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trial court at the November 27, 2012 hearing, and resulted in the assessment of Dr.

Whiteman’s $750 expert fee to DCFS. The following colloquy between the trial

court, Mr. McHale, counsel for R.S., Jr., and Mr. Berniard ensued:

MR. MCHALE:
Your honor, one other matter that Dr. Whiteman asked me to address
for the Court.
Previously, we didn’t subpoena him, but the Court wanted him here to
testify. And I don’t think the Court has ever ordered anything
regarding his fees.

THE COURT:
That fee is $750 to be paid by the agency.

MR. MCHALE:
Yes, sir. Thank you, Your Honor.

THE COURT:
That was in the last hearing – he appeared when y’all refused to --

MR. BERNIARD:
We didn’t call Dr. Whiteman, did we?

THE COURT:
Y’all were the ones disputing the change of custody. Agency will take care
of it.

The discussion with the trial court does not end there. Mr. Sanders, counsel

for DCFS, also attempted to clarify the procedural posture of the cases at the

November 27, 2012 hearing and the following colloquy takes place on the record:

MR. SANDERS:
Your Honor, with respect with the – I know I’m not at the
microphone. Can we find out who issued the subpoena to
appear?

THE COURT:
Mr. McHale issued the subpoena.

MR. SANDERS:
Shouldn’t he bear the expense of having Dr. Whiteman?

THE COURT:
No. Y’all were the ones that were contesting it.

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MR. SANDERS:
We dismissed the case, Your Honor.

THE COURT:
No, no. I’m talking about the other case. I’m not talking about
the new case. I talked [sic] about the other case.

MR. SANDERS:
All right.

THE COURT:
You’re the ones who contested the return of custody. You
wanted to argue. Good, you pay for it.

MR. BERNIARD:
We didn’t contest the return to custody, Judge. The mother
already had custody.

THE COURT:
We didn’t have a hearing?

MR. BERNIARD:
No. There was an allegation, though, that they had been abused.
That’s what we were involved with.

THE COURT:
Right.

MR. MCHALE:
We had—

THE COURT:
I have issued my ruling. What don’t you understand?

On November 29, 2012, the trial court signed its written judgment

memorializing its judgment reinstating R.S., Jr.’s visitation rights rendered in open

court on November 27, 2012. However, the trial court made no mention in the

written judgment of the assessment of the expert fee of Dr. Whiteman against

DCFS. On December 5, 2012, the trial court issued an order, again erroneously

filed in previously dismissed docket number 24760-JUV, requiring DCFS to pay

an expert witness fee of $750 to Dr. Jerry Whiteman for his July 19, 2012

appearance in court.

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On December 13, 2012, DCFS filed its “MOTION AND ORDER TO

VACATE THE ORDER RENDERED IN OPEN COURT ON NOVEMBER 27,

2012,” in docket number 24760-JUV. The motion requested the trial court rescind

its oral order regarding the expert witness fee on November 27, 2012, as well as

the written judgment dated December 5, 2012, and requested that the court set a

contradictory hearing to decide the issue. DCFS’s motion was denied ex parte

without a hearing by the trial court on December 13, 2012. It is from this denial

that DCFS appeals, arguing that all cases, save and except for the civil suit in

Ouachita Parish, have now been consolidated by confusion. 4

ASSIGNMENT OF ERROR

DCFS maintains, “[t]he trial court committed manifest error when it

ordered the Appellant, Louisiana Department of Children & Family Services to

pay the $750.00 fee of Dr. Jerry Whiteman for his testimony on July 19, 2012.”

LAW AND DISCUSSION

Statutory interpretations are a question of law. Shell v. Wal-Mart Stores,

Inc., 00-997 (La.App. 3 Cir. 3/21/01), 782 So.2d 1155, writ denied, 01-1149 (La.

6/15/01), 793 So.2d 1244. Although a reviewing court defers to a trial court’s

reasonable decision on a question or matter properly within the trial court’s

discretion, if the trial court’s decision is based on an erroneous interpretation or

application of the law, such an incorrect decision is not entitled to deference. Kem

Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

4
Although DCFS appealed docket number 25015-JUV “in an abundance of caution,” as
previously stated, no order involving court costs was issued in 25015-JUV and that case should
not have been part of the consolidated cases on appeal.

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DCFS argues that La.Ch.Code art. 405(A) applies and that the assessment by

the trial court of the $750 witness fee to Dr. Whiteman should be reversed. The

Article states:

Except as otherwise provided by law, no court or witness fees
shall be allowed against any party to a petition, and no salaried officer
of the state or of any parish or municipality therein shall be entitled to
receive any fee for the service or for attendance in court in any such
proceedings. All other persons acting under orders of the court may be
paid in the same manner as in the district court for services or service
of process and attendance or serving as witnesses, the fees provided
by law for like services in cases before the district court. (Emphasis
added.)

DCFS further argues that La.R.S. 13:4521(A)(1) also applies to this case, as

that statute does not allow the imposition of court costs, including expert witness

fees, against the State and its subdivisions, which would include DCFS. Louisiana

Revised Statutes 13:4521(A)(1) states in pertinent part:

Except as provided in R.S. 13:5112, R.S. 19:15 and 116, and
R.S. 48:451.3, and as hereinafter provided, neither the state, nor any
parish, municipality, nor other political subdivision, public board, or
commission, nor any officer or employee of any such governmental
entity when acting within the scope and authority of such employment
or when discharging his official duties shall be required to pay court
costs in any judicial proceeding instituted or prosecuted by or against
the state, or any such parish, municipality, or other political
subdivision, board, or commission, in any court of this state or any
municipality of this state[.] (Emphasis added.)

However, La.R.S. 13:5112(A), provides an exception to La.R.S.

13:4521(A)(1) and states in pertinent part:

In any suit against the state or any department, board,
commission, agency, or political subdivision thereof, the trial or
appellate court, after taking into account any equitable considerations
as it would under Article 1920 or Article 2164 of the Code of Civil
Procedure, as applicable, may grant in favor of the successful party
and against the state, department, board, commission, agency, or

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political subdivision against which judgment is rendered, an award of
such successful party's court costs under R.S. 13:4533 and other
applicable law as the court deems proper but, if awarded, shall express
such costs in a dollar amount in a judgment of the trial court or decree
of the appellate court.

In C.R.W. v. State, Dep’t of Social Services, 05-1044 (La.App. 1 Cir. 9/1/06),

943 So.2d 471, writ denied, 2006-2386 (La. 12/21/06), 944 So.2d 1289, the court

applied the exception in La.R.S. 13:5112(A) and affirmed the trial court’s award of

costs against the Office of Community Services, State of Louisiana (“OCS”). The

trial court found the unique circumstances of that case, which included a finding of

gross negligence in the handling of the investigation by the OCS worker, warranted

the award of equitable costs against the State.

The record in this case reflects that DCFS had been formally dismissed from

docket number 22570-JUV at the time of the hearing on July 19, 2012. However

Mr. Berniard participated in the hearing on behalf of DCFS and questioned Dr.

Whiteman, attempting to elicit testimony to support the status quo, with custody of

the two minor children remaining with the mother and no visitation by the father.

DCFS opposed R.S., Jr.’s request for reinstatement of his visitation rights and were

still involved in the case due to the recent allegations of sexual improprieties by

R.S., Jr., as alleged in the CINC petition filed by DCFS on April 12, 2012, in

docket number 24760-JUV. As previously discussed, docket number 24760-JUV,

was dismissed with prejudice on the motion of DCFS, in a separate hearing before

Judge Wyatt, also held on July 19, 2012.

DCFS is correct that Dr. Whiteman was called as a witness by R.S., Jr. and

was subpoenaed by R.S., Jr.’s counsel, Mr. McHale, albeit at the request of the trial

court. However, the record reflects that Mr. Berniard, on behalf of DCFS, attended

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and participated in all three hearings held on July 19, 2012, August 7, 2012, and

November 27, 2012. Mr. Tom Sanders, Jr. is also listed as counsel for DCFS at the

November 27, 2012 hearing.5

In C.R.W., our supreme court affirmed the appellate court’s award of court

costs against the State based on the particular facts and circumstances of that case

involving gross negligence of an OCS worker. We find that La.Ch.Code art.

405(A) and La.R.S. 13:4521(A)(1) are applicable, and the exception under La.R.S.

13: 5112(A) is not applicable in this case. The actions of DCFS in participating in

a case from which they were previously dismissed in order to maintain the status

quo of custody with the mother, L.S., and to contest the reinstatement of visitation

rights to the father, R.S., Jr., does not meet the bad faith standard discussed in

C.R.W.

This court does not find that DCFS was in bad faith in contesting the

reinstatement of visitation by the father, R.S., Jr., especially in light of the serious

nature of the child sex abuse allegations lodged against him. There is no

“equitable basis” to apportion expert witness fess to DCFS in this case. Therefore,

the costs of the expert witness fee in the amount of $750 may not be assessed

against DCFS, a State entity. Dr. Whiteman was subpoenaed by Mr. McHale,

counsel for R.S., Jr. Since he was the party requesting that his visitation be re-

instated and he had the burden of proof, R.S., Jr. will be cast for the expert fee of

Dr. Whiteman.

5
The representation of DCFS by Mr. Berniard is referenced in the trial court’s minutes
for the hearings held on July 19, 2012, August 7, 2012, and November 27, 2012.

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DISPOSITION

We find the trial court committed legal error by ordering the State of

Louisiana Department of Children & Family Services to pay the court costs in the

amount of $750 to Dr. Jerry Whiteman for his expert witness fee for his

appearance in court on July 19, 2012. We reverse and render ordering that the

expert fee in the amount of $750 is to be paid by R.S., Jr. All costs of this appeal

are assessed to R.S., Jr. We hereby dismiss the appeal of docket number 13-879,

trial court docket number 25015-JUV.

REVERSED AND RENDERED.

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