Sherry Stewart v. Malrick Batts

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-322

SHERRY STEWART

VERSUS

MALRICK BATTS

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 251,440
HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
Candyce G. Perret, Judges.

AFFIRMED.

R. Greg Fowler
3918 B Independence Drive
Alexandria, LA 71303
Telephone: (318) 487-9200
COUNSEL FOR:
Plaintiff/Appellee - Sherry Stewart

David Cleveland Hesser
Leo J. “Trey” Flynn, III
Hesser & Flynn, A Limited Liability Partnership
2820 Jackson Street
Alexandria, LA 71301
Telephone: (318) 542-4102
COUNSEL FOR:
Defendant/Appellant - Malrick Batts

THIBODEAUX, Chief Judge.

The defendant/appellant, Malrick Batts, appeals the trial court’s

judgment granting custody of his teenaged son to the son’s maternal grandmother,

plaintiff/appellee, Sherry Stewart.1 Finding no abuse of discretion on the part of

the trial court, we affirm the judgment awarding custody to Sherry Stewart.

I.

ISSUES

We must decide:

(1) whether the trial court committed reversible error
by applying the wrong legal standard; and

(2) whether the trial court abused its discretion in
using documents not entered into evidence to assist
in determining the custody issue.

II.

FACTS AND PROCEDURAL HISTORY

Because thirteen-year-old C.R.2 got in trouble at school, he was beaten

by his father, Malrick Batts, leaving the child with bruises and whelps on his

wrists, arms, shoulder, back, and buttocks, such that he was unable to sit. C.R.

wrote a letter to his imprisoned mother, Brandi Rutter, telling her about the

beating, the pain and bruises, and stating that the father whipped him too hard and

for reasons “not called for.” C.R. said in the letter that his father “put his foot on

my neck and said he would break it.” C.R. asked his mother to please help him to
1
Mrs. Stewart requested permanent custody and child support after being granted
temporary custody.
2
Initials are used to ensure the confidentiality of the minor and to protect his or her
identity, in accordance with Uniform Rules—Courts of Appeal, Rule 5-2.

go live with his grandmother or his uncle. Mr. Batts intercepted the letter and

wrote at the bottom of it, “I sure did whip his ass and I will do it again & break his

neck.” He then sent the letter on to the child’s mother. The Office of Child

Services (OCS) met with C.R., and a doctor confirmed the bruising which

remained for some time after the whipping event. On November 3, 2014, the

maternal grandmother, Sherry Stewart, filed for immediate, ex parte, temporary

custody and for a protective order, attaching the letter written by C.R. with the

comments of the father written at the bottom. Temporary custody was granted to

Mrs. Stewart, along with the protective order. The trial judge ordered only a four-

hour, supervised visitation for Mr. Batts on Sundays at the home of Mrs. Stewart,

pending a hearing.

Mrs. Stewart subsequently filed a rule for custody and child support.

An interim custody arrangement was agreed to in open court, giving Mr. Batts

visitation for three weekends per month. At the time of the trial on permanent

custody, C.R. was fifteen and had been living with his grandmother and her

husband for almost two years. The issue at trial was whether the custody of the

minor child should be returned to the father or should remain with the

grandmother, Mrs. Stewart. Mrs. Stewart was awarded custody, and Mr. Batts

filed this appeal.

III.

STANDARD OF REVIEW

The standard of review for the appellate court in
child custody cases has been well-established by this
court, as stated in Hawthorne v. Hawthorne, 96-89, p. 12
(La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ
denied, 96-1650 (La. 10/25/96), 681 So.2d 365, “The
trial court is in a better position to evaluate the best

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interest of the child from its observances of the parties
and witnesses; thus, a trial court’s determination in a
child custody case is entitled to great weight on appeal
and will not be disturbed unless there is a clear abuse of
discretion.” Further, “[e]ach child custody case must be
viewed in light of its own particular set of facts and
circumstances with the paramount goal of reaching a
decision that is in the best interest of the child.”
Bergeron v. Clark, 02-493, p. 5 (La.App. 3 Cir.
10/16/02), 832 So.2d 327, 330, writ denied, 03-134 (La.
1/29/03), 836 So.2d 54. See also Evans v. Lungrin, 97-
541 (La. 2/6/98), 708 So.2d 731.

Prather v. McLaughlin, 16-604, pp. 3-4 (La.App. 3 Cir. 11/2/16), 207 So.3d 581,

584.

IV.

LAW AND DISCUSSION

The Appellate Legal Standard

Mr. Batts contends that the trial court committed reversible error by

applying the wrong legal standard when it granted permanent custody of the minor

child to the child’s grandmother, Mrs. Stewart. He asserts that the trial court used

the standard of “best interest of the child” instead of “substantial harm” as required

by La.Civ.Code art. 133. The record reveals that the trial court properly applied

both standards, citing Article 133 and articulating the two-pronged, redundant dual

test from Black v. Simms, 08-1465 (La.App. 3 Cir. 6/10/09), 12 So.3d 1140.

Under La.Civ.Code art. 133 (emphasis added):

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 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.

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The 1993 revision comments to Article 133 trace the origins of the

redundant dual test for divesting a parent of custody of his or her child back to

1982 and clarify that it is still applicable. Originally, the two-part statutory test

required that “parental custody be shown to be ‘detrimental’ to the child and that

divestiture be ‘required to serve the best interest of the child.’” La.Civ.Code art.

133, Revision Comment (b). Comment (b) further states that “it is clear that the

heart of the parental primacy concept, the rule that a nonparent always bears the

burden of proof in a custody contest with a parent, was not disturbed by the prior

statutory enactment, and likewise has not been affected by this revision.” Id.

Thus, it is the grandmother, Mrs. Stewart, as the nonparent, who bears the burden

of proving the two prongs under the current law. In Black v. Simms, relied upon by

the trial court, a panel of this court stated:

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.

Id. at 1143.

This is exactly what the trial court did, following a full trial that

included testimony from Mr. Batts; his girlfriend, Jennifer Glorioso; the biological

mother, Brandi Rutter; the grandmother; Sherry Stewart, and the attorney

appointed for C.R., Todd Farrar. Subsequently, in her extensive written reasons

for judgment, after quoting Article 133 and the above excerpt from Black v. Simms,

the trial judge first addressed substantial harm and then fully discussed the twelve

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criteria from La.Civ.Code art. 134 for determining the best interest of the child.

The court stated as follows:

In considering the first prong, the history of this
case reveals that when the child was placed with Mrs.
Stewart there was a substantial risk of harm thus the
issuance of the protective order. This prong has been
satisfied based upon review of the record from the
protective order along with the findings of the OCS
investigation. The concern for the court today is what
has changed since that event to reduce the potential for
that level of harm to the child from occurring again along
with the current status of the child.

....

The trial testimony did not reveal if Mr. Batts
sought any treatment or parenting courses as a result of
the OCS incident. What was revealed is that Mr. Batts
believed that he was correct in his disciplinary actions
and threaten[ed] to beat the child again if the child
disobeyed. Mr. Batts is a strict disciplinarian such that
the child reported to his attorney that “he feared his
father” and often times is indifferent to his father. [C.R.]
wants a relationship with his father but states that his
father is often working. Mr. Batts believes that this is a
situation in which the child is guiding the process and
only “cried for mama” when he was disciplined.

Of concern to this court is the relative[] lightness
given for the event that occurred. The child was beaten
by his father and then wrote a letter to his mother who
was in prison asking for help. Mr. Batts intercepted that
letter and inserted language bragging about what he did
to the child then intentionally sent the letter to Ms.
Rutter. As a result of that letter, OCS, days later, did an
investigation and found significant marks and bruises on
the child. OCS documented the child’s fear of his father,
arranged for a safety plan and the grandmother filed the
protective order which awarded her custody.

The testimony provided by the father is that he
wants a relationship with his child but also expects the
child to meet the father’s expectations. Mr. Batts reports
that the grandmother is not always making the child
available and that visitations are often complicated.

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Key to the success of [C.R.], as he quickly matures
to adulthood, is the second prong which evaluates what is
in the best interest of the child. These factors are
significant in examining the long term development of a
child. As stated in Black v. Simms, a discussion of the
twelve “best interest of the child factors” is nevertheless
warranted in deciding the best custody arrangement that
the child could benefit and flourish. The court shall
consider all relevant factors in determining the best
interest of the child which specifies 12 factors, but not
necessarily limited to those twelve. A discussion of the
relevant facts follows each of these factors[.]

The trial court then fully discussed all twelve factors under

La.Civ.Code art. 134, which provides as follows:

The court shall consider all relevant factors in
determining the best interest of the child. Such factors
may include:

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

(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.

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

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

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

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

(7) The mental and physical health of each party.

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

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(9) The reasonable preference of the child, if the
court deems the child to be of sufficient age to express a
preference.

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

(11) The distance between the respective
residences of the parties.

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

The trial court found that factors one through three, and factor eleven,

were evenly applicable to Mr. Batts and Mrs. Stewart. As to factor four, the court

acknowledged that C.R. had lived with his father and stepmother after his

biological mother went to prison; then Mr. Batts’s marriage to the stepmother

ended; and C.R. was living with Mr. Batts and a cousin. The court stated that the

biological parents appeared to have worked through the challenges until the OCS

event; i.e., the beating, occurred. In discussing factor five, the court recounted the

challenges that C.R. had endured early on in non-traditional family environments.

Mr. Batts and the biological mother were never married; nor did they ever reside

together. The family environment was better after Mr. Batts married but worsened

after his divorce. The biological mother’s boyfriend, with whom she has a child,

has not welcomed C.R., and she has had her visits with C.R. at Mrs. Stewart’s

home. The court found in favor of Mrs. Stewart under factor five regarding

permanence as a family unit, stating as follows:

When the OCS event occurred, the mother was in prison
and not able to take custody of [C.R.]. The court
awarded Mrs. Stewart custody and she was in a better
position to financially and emotionally care for the child
and has done so since November, 2014. Today, Brandi
(child’s mother), is living with her boyfriend with whom
she has a child; Mr. Batts (child’s father) lives alone, but

7

has frequent overnight visits with his girlfriend [with]
whom he has a minor child; and Mrs. Stewart (child’s
grandmother) lives with her husband.

The trial testimony also reflects that Mr. Batts, who is now single, has

a total of seven children with five different mothers. The ages of the children at

the time of trial ranged from age nineteen to age two. Mr. Batts also testified that

he works two jobs for a total of sixty to sixty-five hours per week.

In discussing factor six, the moral fitness of the parties, the trial court

recounted the challenges of the biological parents. The mother struggles with

addiction, while Mr. Batts is “a hard-working man challenged with practicing

appropriate discipline and often is not available due to his work schedule.” Mrs.

Stewart, on the other hand, had been providing C.R. with a loving and stable

environment since she was granted temporary custody in 2014.

Under factor seven, the trial court pointed to the mother’s addiction

and the father’s limited parenting skills. The court again found the grandmother,

Mrs. Stewart, to be physically and mentally capable of caring for C.R. with no

evidence of any challenges. As to factor eight, regarding home, school, and

community, the trial court found:

In the life of a teenager, home, school and community is
all important. [C.R.] presented as a typical teenager with
hopes of the future and current enjoyment of his present
school. There were conversations about his wanting to
attend school with his sibling however he reported to his
attorney that he was also happy in his current school
environment. The 2015/2016 yearbook recognized
[C.R.] as freshman of the year; evidence that he has
acclimated and has been well accepted into his school.
His grandmother reported that [he is] engaged in his
church and in activities around the home. Since
November 2014 [C.R.] has established himself and is
comfortable.

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Under the reasonable preference of the child factor, number nine, the

trial court found that C.R. feared his father and always had, and she found his

preference for his maternal grandmother, Mrs. Stewart, reasonable. The court also

mentioned that C.R.’s current school had four-day weeks which allowed him to

spend long weekends with his siblings. We further note that Todd Farrar, attorney

for C.R., testified that C.R. was afraid of his father before and after the custody

event, always had been, and nothing had changed since the event.

Under factor ten, each party’s ability and willingness to foster the

child’s relationship with the other party, the court found that visits with the father

had continued while C.R. was in the custody of his grandmother, even though the

parties’ relationships with each other had become strained. Finally, under factor

twelve, the court found that after the OCS event, it was the grandmother who had

made the efforts to provide C.R. with a loving and stable environment.

The record also reveals that the father did not provide C.R. with vision

or dental care, as C.R. had numerous cavities, and his glasses were too small and

had the wrong prescription when C.R. first went to live with his grandmother.

Further, while with his grandmother, C.R. received very little in the way of

clothing, food, and cash from his father. The grandmother provided all of these

things, including medical, dental, and vision care, and she encouraged C.R.’s

church, drama, and sports activities, providing transportation to all events and

practices. While in her care, C.R. was elected freshman favorite and voted onto

the student council. In weighing all of the factors of La.Civ.Code art. 134, the trial

court found, under the second prong of the dual prong test, that it was in C.R.’s

best interest to remain with his grandmother, Sherry Stewart.

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Mr. Batts argues that the trial court did not evaluate “substantial

harm” at the time of trial but rather discussed it only in terms of the event that had

occurred two years before trial. We disagree. As seen above, the trial court

repeatedly discussed the ongoing challenges that Mr. Batts had with limited

parenting skills, with no indication of change, and it discussed C.R.’s ongoing fear

of his father. The trial court also articulated:

Parenting is no easy task and further, not a task
that can be taught overnight. Parenting is an ongoing
practice refined through trial and error. Often times we
look to our individual customs, family, and our parents as
a blueprint for the approach taken with our children. The
Court has now considered the development of the child
pre and post the OCS event, current stability of the minor
child in school while with Mrs. Stewart (his maternal
grandmother); the minor child’s current relationship with
his siblings; and weighing all these factors the court is of
the opinion that the current custody arrangement is the
correct one.

An award of custody to a non-parent is certainly
one that should not be taken lightly, however the
situation that brought about the change in custody is
significant and cannot be ignored. Mr. Batts continues to
be a father who works multiple jobs to support his
children which is commendable, however learning how
to appropriately parent children, even as they reach[] the
challenging teenage years, is critical for the young person
to reach their full potential and is a key part of parenting.
The concern as noted is that Mr. Batts appeared to be
proud of his disciplinary action and threatened further
harm to his child. A healthy fear of a parent is certainly
something that is required but the level of fear that [C.R.]
had of his father is, by far, not the healthy image a child
should have of a parent.

Ms. Stewart has provided [C.R. with] becoming
fully engaged in his physical home, in a church home and
thriving in his school home. There have been no reports
of behavioral incidents in his school and the grandmother
has kept visitation going with both the mother and father.
The visits with the father need to improve and be more
consistent with little interference by the grandmother or
mother. The uniqueness of the current school setting (4

10

day school week) offers a benefit to this situation, in that
[C.R.] can have extended weekends with his father and
siblings. This court sees that it is in the best interest of
this child to have that contact so that a healthier
relationship between [C.R.] and his father can develop.

The Court also encourages Mr. Batts to seek out
information on parenting of teenagers and younger
children because he is not only a father to [C.R.] but to
the younger child with Jennifer Glorioso. Mr. Batts has
many more years ahead of him as a father and one day a
grandfather. The OCS event needs to be a one-time
event and not something to repeat with [C.R.] or with any
other child.

Consistent with the above, the trial court’s judgment ordered that Mr.

Batts have visitation with C.R., at a minimum, every other weekend, from Friday

at 5:00 p.m. through Monday at 5:00 p.m., as long as C.R. had a four-day school

schedule. The court also ordered that the parties submit a visitation plan to

conform with the needs of the child and those of both parents. The trial court made

it clear that Mr. Batts still needed to work on parenting, implicitly finding that it

would be harmful to grant him custody, and that it was in C.R.’s best interest to

reside with his grandmother and to obtain an improved relationship with his father

through generous visitation. It is now well-settled that the best interest of the child

is the overriding test and the primary consideration for all child custody

determinations. See Tracie F. v. Francisco D., 15-1812 (La. 3/15/16), 188 So.3d

231. We find no merit in Mr. Batts’s argument that the trial court used the wrong

legal standard in determining the custody issue in this case.

Reference to Documents Not Entered Into Evidence

Mr. Batts further assigns as error the trial court’s references to the

OCS examination, stating that no such evidence was ever entered into the record.

The trial transcript reveals that the OCS file was requested in open court and that

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the trial judge obtained the original file during trial and made its receipt a part of

the record when the OCS representative hand-delivered it to her in the courtroom

for an in-camera inspection. As counsel for Mrs. Stewart points out, the record

was used and discussed in the trial court’s chambers, and it was used and discussed

in open court by the trial judge, without objection. In fact, the record reveals that

the trial court read from the OCS report in open court without objection.

More specifically, the court called the parties and counsel into

chambers. When they returned to the courtroom and went back on the record, the

trial judge stated as follows:

BY THE COURT:

Well, we all had a little pretrial, I might as well
make a record of it. As there was no one not there. All
right. I did receive the record from OCS and I’m keeping
it tonight. They allow in-camera inspections . . . . The
lawyers at a pretrial told me they thought it was a
nonfinding, that’s why I asked for the record and I
received it. And so there was - yes, there was a finding.
And what they do with teenagers typically is they feel
like teenagers are old enough to call the police on their
own so they leave them there. Philosophically I totally
disagree as do a lot of people as [to] that. So what they
did was create a safety plan. What I could not tell was
the date of the letter that was sent to Ms. Rutter. So that
the letter then went to Ms. Rutter who then contacted her
mother who then triggered it to the school system to say
please call an investigation. And the point to all that is
by the time he saw a doctor - so it looks like they
received the report on October the 16th. So they took
him to the doctor - what did I tell you that date was a
while ago?

BY MR. FOWLER:

October 21st.

BY THE COURT:

21st. So here it was even five more days later that
the doctor indicated he had bruising on – I’ve got to find

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it again. And that’s what has triggered the say-so is
because he still had significant bruising.

BY MR. FOWLER:

Bruising on wrist, shoulder and buttocks . . . .

BY THE COURT:

Yeah. Wrist, shoulder and buttocks. There it is.
There’s the - and that’s dated October the 21st. He still
had resolving bruises is what the doctor indicates. He
saw Doctor Mitchell. And had linear arm abrasions upon
his shoulder and he also had bruising to his buttocks. So
this was days and days later. So this was not a whipping.
This would have been at the level of a beating. And so
OCS put a safety plan in place with a cousin who
supposedly lived at the house at that time with the cousin
swearing she would contact if something else should
happen. And in the meantime this other stuff got
triggered. And it also said the child was fearful. That’s
how it rose to a level - and also on the investigation it
rose to a higher level because the child had bruising and -
so they rate their cases too. And it rose to a higher level
because the child stated he was fearful and had those
bruising[s]. So it wasn’t a priority one case, it was a
priority two, so that’s why it took them a couple of days
to get him to the doctor.

Thus, the trial court read from the OCS report, and Mr. Flynn, counsel

for Mr. Batts, did not object to the court’s use of the OCS report, or the court’s

finding based upon the report. It is well-settled under La.Code Civ.P. art. 1635,

that such failure to contemporaneously object to the trial court’s action constitutes

a waiver of the right to complain on appeal. Broussard v. West-Cal Const. Co.,

Inc., 96-18 (La.App. 3 Cir. 6/12/96), 676 So.2d 743. Accordingly, Mr. Batts’s

contention regarding the erroneous use of the OCS documents that were not

entered into evidence is without merit.

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V.

CONCLUSION

Based upon the foregoing, we find no abuse of discretion in the trial

court’s award of custody to Mrs. Stewart. The judgment of the trial court is

affirmed. All costs of this appeal are assessed to Malrick Batts.

AFFIRMED.

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