S.B. in the Interest of A. J. N. and S. R. N.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-8

S.B. IN THE INTEREST OF

A.J.N. AND S.R.N.

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 2009-47
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

**********

Court composed of Sylvia R. Cooks, Chief Judge, Billy Howard Ezell, and D. Kent
Savoie, Judges.

AFFIRMED.

Kelvin G. Sanders
418 Desoto Street
P.O. Box 13922
Alexandria, LA 71315
(318) 487-0009
COUNSEL FOR APPELLANT:
S.B.

William B. Allen, Jr.
711 Washington Street
Alexandria, LA 71301
(318) 443-4900
COUNSEL FOR APPELLEE:
T.N.

SAVOIE, Judge.

S.B. appeals the juvenile court’s judgment that returns the custody of her

two minor grandchildren, A.J.N., born March 18, 2008, and S.R.N., born May 2,

2009, (collectively, “the children”), from S.B. to their father, T.N. For the

following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 2, 2009, S.B. filed a Petition for Transfer of Custody in juvenile

court (“the juvenile case”) seeking legal custody of the children. Therein, S.B.

alleged that the children were in her care, that the children’s natural mother was

unable to care for them, and that T.N. was also unable to care for the children

because he was attending college in Lafayette and a member of the Louisiana

National Guard who would be deployed with his unit in January 2010. S.B. is

T.N.’s mother. S.B. attached to her petition an affidavit signed by T.N., stating

that he desired for custody of the children to be given to his mother, S.B.

On October 22, 2009, the juvenile court signed a Judgment of Custody

awarding S.B. with “the legal care, custody and control of the minor children . . . ,

reserving all of their parental rights unto [the children’s mother] and [T.N.]” The

judgment did not set forth a visitation schedule or otherwise impose any

obligations on the part of the children’s parents. An essentially identical judgment

entitled “Amended Judgment” was signed November 6, 2009.

On December 29, 2016, the juvenile court signed a Consent Judgment

stating that T.N. had agreed to pay S.B. $500.00 per month for child support,

beginning January 1, 2017, and ordering T.N. to do the same in accordance with

the agreement.

On July 31, 2019, S.B. filed a Petition for Protection from Abuse in civil

court (“the civil case”) on behalf of the children. Therein, she alleged that T.N.

had failed to return the children to her after Father’s Day, and, as a result, T.N. was

arrested and put into police custody on July 25, 2019. The civil district court

granted temporary protective orders, and subsequent hearings were continued

several times at the request of counsel.

On September 5, 2019, T.N. filed a petition in the civil case seeking sole

custody of the children and a dismissal of the protective order. Therein, he alleged

that he was unaware of the juvenile case proceedings. Rather, according to T.N.,

he signed several military powers of attorney granting S.B. temporary custody of

the children. T.N. further alleged that, while S.B. had exercised temporary custody

of the children while he was on active military duty, completed school, and began

his civilian career, which required extensive travel for four years, he spent holidays,

weekends, and as much time as possible with the children during this time. He

further alleged that he had since obtained a new position with a schedule that

allows him to be home every night. T.N. also stated in his petition that, in addition

to the change in job and his personal circumstances, the following also supported

returning custody of the children to him: S.B. had him arrested on kidnapping

charges when it was S.B. who refused to come to Houston to pick up the children

following Father’s Day weekend; S.B. obtained a temporary protective order

without any evidence that the children were in immediate danger of harm or abuse;

and S.B. cut off contact between the children and T.N.

A hearing in the civil case was held on September 23, 2019. T.N. was

represented by counsel, and S.B. appeared pro se. The transcript from this hearing

indicates that the parties stipulated to dismiss the protective order and to give T.N.

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visitation with the children every other weekend. The transcript further reflects

that all parties were to be evaluated by Ms. Gay Coleman and that the matter

would be continued without date pending the completion of the evaluations.

Following another hearing in the civil case on December 16, 2019, the trial

court rendered a judgment on April 23, 2020, ordering the children to remain in

S.B.’s custody until the end of the 2019-2020 school year, after which T.N. was to

have sole custody subject to visitation by S.B. The judgment further ordered T.N.

to pay $250.00 in child support through May 2020, and it also set the matter for a

hearing to establish a visitation schedule in accordance with Ms. Coleman’s report.

On April 30, 2020, S.B. filed a Motion and Order for New Trial arguing that

the April 23, 2020 judgment was rendered without evidence. Following a May

2020 phone conference with the parties, the civil district court rendered a judgment

on June 9, 2020, granting S.B.’s motion and setting the matter for an evidentiary

hearing. In addition, the judgment granted T.N. with summer visitation with the

children from May 22, 2020, through June 21, 2020.

On June 22, 2020, S.B. filed a motion in the civil case seeking to transfer the

matter to the juvenile court under the juvenile case’s docket number. Therein, S.B.

suggested that, in accordance with the Louisiana Children’s Code, the juvenile

court had exclusive jurisdiction over the matter. A hearing on the motion was held

the same day, and the matter was set for hearing before the juvenile court.

Meanwhile, the court indicated that the children were to remain with T.N.

Also on June 22, 2020, T.N. filed a Petition for Ex-Parte Order of Custody

in the juvenile case, stating that the children have been living with him for the past

month, and that based on circumstances stated in the petition, including an incident

that was video-recorded by the children wherein S.B. could be heard excessively

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screaming, cussing and beating S.R.N., and a report from Ms. Coleman indicating

her concerns that S.B. would retaliate against the children if custody was to remain

with S.B., and the children are in immediate danger while in S.B.’s care. The

parties thereafter agreed to setting the matter for hearing, and the requested ex

parte relief was not granted.

An evidentiary hearing was held in the juvenile case on July 27, 2020. After

the evidentiary hearing, the juvenile court took the matter under advisement, but

stated on the record that the children were to remain with T.N. pending the court’s

decision. Thereafter, the trial court issued written reasons, which stated:

A Petition for Transfer of Custody was submitted by [S.B.]
with the judgment transferring custody signed on 22 October 2009.
An Amended Judgment of Custody was signed on 6 November 2009.
A Consent Judgment was signed on 29 December 2016. . . . No
hearing was conducted in connection with any of these judgments.
The initial transfer of custody [to S.B.] was a Consent Judgment, as
well as the judgment setting forth the support amount containing the
signature of [T.N.] [T.N.] denies signing any consent judgment or
petition. His testimony on the validity of his signature is not credible.

....

Initially, custody was voluntarily transferred to [S.B.] because
[T.N.], a member of the armed forces, was set to be deployed. Upon
returning from deployment, [T.N.] began attending school in
Lafayette and left his children with [S.B.] The girls lived with [S.B.]
for most of their life. In the past years, tension has risen in [T.N.’s]
and [S.B.’s] relationship and in [S.B.’s] relationship with the girls.
[T.N.] seeks to terminate the voluntary transfer and raise his children.
The law governing this matter is set forth below [in La.Ch.Code. art.
1523.]

....

[S.B.] has had custody for over ten years. She has been the sole
caretaker of these children. The children are doing well in school and
are active in their church.

[T.N.] is employed and living in Houston with his wife and her
three young children. Their home has adequate space for both [A.J.N.

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and S.R.N.] [T.N.] often works off [sic] but [his wife] owns a
business that allows her to work from home.

[T.N.’s] contact with his children has been lacking over the
entire time his children have been with [S.B.] Despite the deficiency
in his contact with his children, the children are bonded with their
father. In fact, the children clearly indicated a desire to live with their
father.

[T.N.] has made limited effort to exercise parental
responsibilities, including support, while the children have been in
[S.B.’s] care. He did not fully comply with the support order, but did
make some payments. He did not attend a majority of the events in
which his children participated. He contended he was busy with
school and work. However, his children are bonded to him. The
terms of the custody judgments only allow [S.B.] the authority to care
for the children. There are no custody provisions placing
responsibility on [T.N.], outside of the later support order.

Recently, events involving [S.B.] have occurred that raise
serious concerns about her role in the lives of these children. In June
2019, [T.N.] and [S.B.] got into a dispute about [T.N.] returning the
children who were with him in Texas. Instead of filing a rule for
contempt or seeking other relief from the [c]ourt, a warrant was issued
for two felony counts of kidnapping. [T.N.] was arrested in Texas and
stayed in jail thirteen days. The children were taken from his home
and returned to [S.B.] The custody judgment contained no visitation
parameters. Moreover, a protective order was issued against [T.N.]
The kidnapping charges and protective order were dismissed.

A second disturbing incident was documented on a video
recording of [S.B.] working with [S.R.N.] on a school assignment
involving math. In the incident, which is not disputed, [S.B.] can be
heard yelling, cussing, and striking [the child] in an effort to give [her]
an “appropriate” answer. Comments were heard such as “want to act
an ass, I’ll act an ass with you.” [S.B.] testified she struck [the child]
six times but the strikes were slaps on her arm. [S.B.] testified she
regrets the words, but added she “was in my own home, not around
anyone.” [S.B.’s] actions convince this [c]ourt that she will not
support the relationship of the children with their father.

The juvenile court then rendered a judgment on August 7, 2020, ordering

that the custody of the children is returned to T.N.

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S.B. appeals. She asserts as her sole assignment of error that “[t]he trial

court erred in granting a change of custody from appellant, S.B., to appellee, T.N.,

pursuant to La.Ch.C[ode] [a]rticle 1523[.]”

ANALYSIS

As noted by the trial court, S.B. was initially granted custody of the children

pursuant a petition for a voluntary transfer of custody contemplated by La.Ch.Code

art. 1510, et. seq. These articles “govern a voluntary transfer of custody of a child

by parents to other responsible adults for the purpose of enabling the child to

receive adequate care and treatment” and are “intended to promote mutual

understanding of the rights and responsibilities of the parents and custodians and of

any terms or conditions which may be set forth by agreement of the parties.”

La.Ch.Code art. 1510. “Voluntary transfer of custody” is defined as “a parent’s

knowing and voluntary relinquishment of legal custody to . . . an individual,

subject to residual parental rights retained by the parent[.]” La.Ch.Code art. 1511.

“‘Residual parental rights’ means those rights and responsibilities remaining with

the parents after the legal transfer of custody of their child, including but not

necessarily limited to right of visitation, consent to adoption, right to determine

religious affiliation, responsibility of support, and the right of inheritance from the

child.” La.Ch.Code art. 116(24).

Louisiana Children’s Code Article 1523 further contemplates a parent’s

revocation of a voluntary transfer of custody, stating:

A. Upon failure of a custodian to return a child after revocation
of the parent’s consent, the parent may move for dismissal of the
proceedings and for the return of the child to their custody.

B. The motion to dismiss shall be set for contradictory hearing
with the custodians.

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C. In making its determination of the best interests of the child,
the court shall consider the following:

(1) The length of the parent/child separation.

(2) The current fitness of the parent.

(3) The frequency of contact between the parent and child
during the separation.

(4) The efforts made by the parent to exercise parental
responsibilities during the separation, including support.

(5) The terms and conditions of the judgment.

In In Interest of CLS, 94-531, p. 9 (La.App. 3 Cir. 11/2/94), 649 So.2d 532,

538-39, this court addressed a parent’s requested revocation of a voluntary transfer

of custody pursuant to La.Ch.Code. art. 1523, stating:

After completing a voluntary transfer of custody, parents may
only regain custody of their child if the other party to the transfer
agrees to return the child, or upon successful motion to the court.
La.Ch.C. Art. 1522. Before a court may authorize the return of a child
to the natural parents after a voluntary transfer of custody, the court
must find that it is in the best interests of the child. La.Ch.C. Art.
1523. When deciding whether a child should be returned to his natural
parents after a voluntary transfer of custody, the court must consider:
(1) the length of the parent/child separation; (2) the current fitness of
the parents; (3) the frequency of contact between the parents and child
during the separation; (4) the efforts made by the parents to exercise
parental responsibilities during the separation, including support; and,
(5) the terms and conditions of the judgment. Id.

The trial judge is vested with great discretion when making a
determination of child custody[,] and his decision will only be
reversed upon a clear showing of abuse of discretion. See Thompson v.
Thompson, 532 So.2d 101 (La.1988). In a custody contest between
parents and non-parents, the parents enjoy a paramount right to
custody and may be deprived of that right only for compelling reasons.
Wood v. Beard, 290 So.2d 675 (La.1974). When possible[,] a child
should remain in the natural parents’ custody to maintain family unity
and help the child identify as part of the natural family unit. State in
the Interest of Sylvester, 525 So.2d 604 (La.App. 3d Cir.1988).

In the instant case, T.N. testified that, beginning in 2004, he was actively

engaged in military service. He indicated that in 2009, the children’s mother asked

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S.B. to keep the children because she could not and because T.N. was in college

and getting ready to deploy to Iraq in January of 2010. T.N. explained that, at that

time, the children’s mother had placed S.R.N. (who was an infant at the time) up

for adoption without T.N. knowing and T.N. was informed of this via a letter in the

mail. Thereafter, T.N. and S.B. were able to obtain S.R.N. because he had not

relinquished his parental rights.

According to T.N., he was not aware of, and did not participate in, any

juvenile court proceedings involving custody or child support pertaining to his

children, and he was not aware of any consent judgments; however, he did indicate

that he gave S.B. temporary custody of the children, completed a Family Care Plan

through the military, and signed a Power of Attorney.

T.N. testified that while he was deployed, he would write letters and attempt

to call home, but, given that A.J.N. was a year old at the time and S.R.N. was only

six-months old, he was not really able to communicate with them.

T.N. explained that after his first deployment ended, he was on active duty

with the National Guard and reenrolled in college at the University of Louisiana at

Lafayette. T.N. testified that during this time, the children stayed with S.B. in

Alexandria because he only had a one-bedroom apartment in Lafayette, was not

married, was attending college full time, and had to attend military training

exercises. He further testified that, during this time, he would visit the children

and S.B. at least once a month in Alexandria. The children were ages one and two

at the time. T.N. stated that he tried to visit them as much as he could, but he

would often have school projects on the weekends.

T.N.’s next deployment was in 2013. He testified that he completed his

spring semester of college and then deployed in August 2013. He indicated that

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summer training lasted three to four weeks in Pineville, and then, following a break

for several weeks, he went to Fort Bliss for mobilization training and deployed

from there. He testified that when he was not involved in military training and off

from school, he visited the children at least every other weekend.

T.N. returned from deployment in August of 2014. He testified that he left

the military and transitioned back to part-time service with the National Guard

because they were assisting him financially with college. From September through

December 2014, T.N. completed coursework online, and he moved from Louisiana

to Houston, Texas. He explained that there were more job opportunities for his

chosen field in Texas, and that there was a chance to provide more opportunities

for his children to have a more successful life. He further indicated that he

eventually withdrew from college permanently after moving to Texas.

Meanwhile, the children continued to live with S.B. T.N. testified that

during this time he had a good relationship with his children. He said that he tried

to call and see them as much as he could when he did not have field training, but

that he did not get many calls from them.

T.N. explained at trial that he has resided in the Houston area since 2014.

He has been employed consistently and currently works for Acuren Inspections in

La Porte. He has lived at three different residences during this time, including a

two-bedroom, two-bath house, a one-bedroom apartment, and his current residence,

which is a two-story, five-bedroom, 2.5-bathroom house in a neighborhood near

Sugarland. He stated that he has lived at this residence since July 2019 with his

current wife and her three children. All of the children have their own bedroom,

except S.R.N., who shares a room that has bunk beds with T.N.’s wife’s daughter,

at the children’s request. T.N. and his wife were married in March 2020.

9

T.N. testified that while living in Houston, he would attend some of his

children’s events in Alexandria, but that he worked during the week and was not

able to visit them. He explained that he worked in the oil and gas industry, had to

work outages and turnarounds, and had to travel out of state for work. T.N. also

explained that S.B. would update him regarding the children’s grades because he

was only able to go to the school once or twice.

T.N. further testified as to an incident involving he and S.B. beginning on

Father’s Day of 2019. He explained that he had met S.B. in Orange, Texas to pick

up the children and that they stayed with him for the weekend. However, on

Sunday, S.B. indicated to him that she was not feeling well and wanted him to

drive the children from Houston back to Alexandria. He stated that it was Father’s

Day, he had not gotten to spend a lot of time with them, and so he decided to keep

the children with him. He testified:

The kids stayed with me over the weekend, and Sunday came around
and I tried to get wit’ my Mom about what time would she wanta meet
up, and she . . . was telling me that she didn’t feel well . . . she wun’t
coming to meet me halfway. . . . And I’m like, well, you know, I
kinda planned to meet you halfway. . . . That’s, that’s how we’ve
always done it. . . . and then some things blew up about her telling me
that, me keeping ‘em and different stuff like that. If I don’t wanta
bring ‘em back, and I’m gonna need her, and, I mean. . . . I had my
oldest daughter contact her and ask her. And she responded to my
oldest daughter that I needed to send her a deposit. She wun’t
concerned about comin’ to get them [.]

When asked by counsel what the deposit was for, T.N. further testified:

I don’t know. . . . I was sending her money from time to time, at least
once a month, whatever I had, and . . . ‘cause I’m still buying them
stuff too. So, I mean, they have stuff at my house jus’ like stuff that
they have over at her house, I bought some of it, or I sent her money
and she bought it. So I don’t know what this deposit’s about. . . . And,
I talked to her about me possibly switching it up a little bit, because
for my own accountability purposes and record purposes, that I
wanted to start sending ‘er gift cards, and if the kids had something
they were participating in, . . . I’ll write the check and send it to ‘em

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because I was just startin’ to feel like that money I was sending wasn’t
being spent on them, because they never had anything new. . . . And
she never bought ‘em anything new.

T.N. further testified that after the disagreement with S.B., he contacted his

girlfriend (now wife), who was spending time with her family for Father’s Day,

and asked her to come back to help him with the children, “[a]nd she came back

after I told ‘er what happened with [S.B.], and from then on I kept ‘em, all up until

I got a surprise at my front door, and I was being arrested for two felony counts of

kidnapping, my own children.” T.N. explained that as he was walking out of his

garage, the police “swarm[ed]” his house, pulled guns on him, told him to get on

the ground, and handcuffed him. He testified that he was in jail approximately ten

business days, or thirteen days total, but ultimately the charges against him were

dismissed.

T.N. did not see his children again until September 2019. At that time, he

and S.B. appeared in court and stipulated to dismiss the protective order against

T.N. and give T.N. visitation with the children every other weekend. With respect

to the tentative visitation agreement in the civil case, T.N. stated:

that was a rough one. Ah, driving four and a half hours from Houston
to Alexandria and four and a half hours back, not being able to meet
up half way. And I was still sending her money . . . that’s the money
we agreed I would send. I send what I send, you know, it’s not court
ordered that I send you anything, because I haven’t been to court and
signed anything . . . . But I was sending her money, spending money
on gas, rental cars, food, hotels, all that different stuff to drive back
and forth. Because, yeah, she did offer for me to . . . stay at her house,
but I have a family, and I want my children to spend time with their
new Mom and their other siblings.

T.N. testified that, during this time, contact with his children while they

were with S.B. was minimized because A.J.N. was not allowed to use the cell

phone T.N. had bought for her, or she would otherwise get in trouble for talking to

11

him if it was too late when he would call after work. He testified that, according to

the children, when he would call S.B. to talk to them, S.B. would not answer the

phone or would not have them call him back. T.N. explained that the only time he

talked to his children was when he would call them, as S.B. never had them call

him. T.N. also testified that when he was given visitation with the children

following the September 2019 hearing, he discovered that his number had been

blocked on A.J.N.’s cell phone.

T.N. also testified at trial that the children have been with him since May

2020. He stated that his relationship with them is

great. . . . [T]hey’re happy they get to spend every day with their Dad,
and now have a Mom, which is somethin’ they never technically
had. . . . [T]hey like having other siblings there. That’s what really
shocked me, is that, how good they gelled together, ‘cause the other
siblings are only four, five and six, and they’re eleven and twelve.
But they all get along great. . . they like being in a bigger city with
more to do, and having . . . a whole . . . family under one roof.

T.N. further testified that, as a family, they have board game and movie

nights, bake cookies, play video games, swim in their pool, and play outside. He

also stated that his wife gets along with the children.

T.N. also said that he was not currently aware of how the children were

doing in school “because I haven’t talked to their Grandma about their grades this

year, especially with the [corona]virus [pandemic] and how they had to go to on

line school. I never found out from her how they was (sic) doing.”

T.N.’s wife, A.J., also testified at trial. She stated that she has three children,

ages six, five, and four, and that for the last two months, A.J.N. and S.R.N. had

also been living with her and T.N. She testified that she is an insurance specialist

who has her own L.L.C. and currently does work for a roofing company. She

explained that she works when she wants to and is also able to work from home.

12

She also testified that if neither she nor T.N. are able to be home, they leave the

children with a neighbor who is always available. She said there is always

someone with the children, even if A.J. and T.N. go out to dinner or grocery

shopping.

A.J. further testified that having A.J.N and S.R.N. has “been going

awesome.” She said that her children and T.N.’s children all get along well, and

that S.R.N. shares a room with her five-year-old and they have bunk beds. A.J.

stated that there are “great schools”, they have a lot of neighbors who have kids,

and they all get along.

T.N.’s children also testified at trial. A.J.N. was twelve years old and in the

seventh grade at the time. She testified that living in Texas with her dad has “been

great”, she is always “treated right and loved”, and she likes being in a big family.

A.J.N. also stated that if she could decide where she wanted to live, she would

choose her dad’s house in Texas.

A.J.N. also testified that while living with S.B., she was on the A/B honor

roll at school, she was active in her church, participated in the church choir and

praise dance, and was a cheerleader at her school. She agreed that she “had a

pretty good life” with her grandmother.

A.J.N. also testified as to a May 4, 2020 incident that occurred between her

sister, S.R.N., and S.B., which A.J.N. video-recorded on her cell phone and sent to

T.N. She stated that she recorded the incident because no one believed her “about

how our Grandmother was giving us whupping, and when I told Ms. Gaye [sic]

[Coleman] she didn’t believe me.” She testified that on May 4, 2020, she was

doing her homework in S.B.’s home, and S.R.N. was getting in trouble while doing

her math homework. In addition to the video, A.J.N. also sent a text message to

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T.N. stating: “Nana always be getting on her. If [S.R.N.] has done the problem

before, she would get mad if she doesn’t remember. [S.R.N.] sometimes forgets.

She can’t just yell at her like that, and then whup her for it.” She also indicated to

T.N. via text message that she was scared and shaking.

The video recording of the incident was played during the trial. While

neither S.R.N. nor S.B. can be seen in the video, S.B. can clearly be heard

continuously screaming and cursing angrily at a child while doing a math problem.

In addition, S.B. can be heard loudly striking a child multiple times and the child

screaming.

A.J.N. testified that S.B.’s behavior that was video-recorded was typical, and

that S.B. spanks them that hard all of the time and screams like that all of time.

She indicated that S.B. would use the same tone and language every day and would

get mad about everything. She also indicated that S.B. had previously given her “a

whupping” similar to that heard on the video of S.B. and S.R.N.

S.R.N. stated at trial that she was eleven years old and in the sixth grade.

With respect to the May 4, 2020, incident, she stated that the incident went on for a

long time, that S.B. was screaming and hollering at her, and that S.B. had hit her

with a belt. She stated that she was scared to go back to live with S.B. and that she

wanted to live with T.N. in Texas. S.R.N. also stated that neither she, nor A.J.N.

have been left home alone with A.J.’s kids, and that either her step-mother or their

friend is always with them.

S.B. also testified at trial. She stated that she has lived at her current address

in Alexandria for two years and that it is a three-bedroom, two-bathroom home

with a large backyard and garage. Prior to that, she lived at another address in

Alexandria for seventeen years.

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She explained that when she filed the initial petition for transfer of custody,

the process was through Volunteers of America, who referred her to an attorney.

S.B. testified that she never had to go to court “because I was under guidelines, and

they typed all of that up while I was sitting there.” She stated that T.N. personally

came to the attorney’s office and signed the affidavit in front of a notary. S.B. also

testified that T.N.’s signature was on the back of the December 29, 2016 consent

judgment agreeing to pay $500.00 per month for both of the children, approving

the judgment as to form.

S.B. also testified that she previously worked for the Alexandria City

Marshall’s office, where she worked in the courtroom, activated and deactivated

warrants, and handled bonds, tickets, and jail releases. However, as of the time of

trial, she had not worked since March 17, 2020.

According to S.B., A.J.N. was an A/B student. She also explained that while

S.R.N. had a D in math the third nine weeks of school, she started making all A’s

when, due to the coronavirus pandemic, she was at home with S.B. doing online

school. She said that A.J.N. was a cheerleader and S.R.N. was on the track team at

school. S.B. also said that they attended church regularly and that she was the

youth director at the church. S.B. further testified that her future goals and

aspirations for the children were for them to grow up and be “the brightest and

smartest little kids,” and that if

one of ‘em wanta dance and be a cheerleader . . . that’s her goal, and
the other one, yes, she wants to run track and do different things. And
I told ‘em whatever they wanta do. I’m, I’ve always been there. I
never miss anything they had, to push them to do and be their very
best. . . . So, jus’ growing up and being able to care for theyself (sic),
and not letting somebody dictate how they should look.

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With respect to T.N.’s involvement with the children, S.B. testified that T.N.

did not attend awards days or other events that the children were involved in and

he always had an excuse to be other places. She said that he went to “two tracks in

five years” but never went to any cheerleading events. S.B. also stated that after

T.N. left the military and moved to Houston, he participated in body building

competitions, and S.B. brought the children to three of those events. S.B. also said

that she would bring the children on family trips, but T.N. would never attend,

despite being told about them.

As far as financial support of the children, S.B. testified that she received

some measure of support from T.N. over the years, but not consistently. S.B.

testified that she and T.N. shared a bank account into which he had agreed to put

money, and that she was able to withdraw money from that account. According to

S.B., she received $790.00 from T.N. in 2016, $1,270.00 in 2017, $3,000.00 in

2018, and $1,600.00 in 2019.

S.B. testified that she would like to continue to have custody of the children.

When asked what concerns she had regarding the children living with their father

in Texas, she testified:

My son . . . has had a DWI before. My son, ah, treats them
differently. . . . [A.J.N.] got a phone, and he bought her another one at
ten. And when we had a party last year, the big bash with all the girls,
he bought [A.J.N.] another phone, and . . . she was excited. But
[S.R.N.] he gave her twenty dollars . . . . Even with the house they’re
in, [S.R.N.] told me she did not have a bed. [A.J.N.] had a bed. He
told her, well, you be good you might get one sooner or later . . . . He
testified in the room wit’ [Judge] Metyoer, well . . . she likes to sleep
on the floor. She’s never slept on the floor at our house, and never
have (sic) a problem with sleeping in her own room.

....

. . . [A.J.N.] told me that, when they go out, him and his new wife, and
two times at Christmas and one before Christmas, they go out at

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nighttime and they leave her at home to baby sit all those children.
She told me she had to cook noodles . . . and she had to cook hot dogs
for ‘em one time. And I say, what are you doing cooking on the
stove . . . . Ah, when he had ‘em before he punched them because
they stole two cookies and told them to drink the whole gallon of
apple juice, and eat the whole box of chocolate chip cookies until they
threw up.

S.B. also testified that she was concerned that T.N. and his wife allowed the

girls to wear makeup, false nails and eyelashes, long braids, and shorts that were

too short, and that, in her opinion, they looked like “little prostitutes.” S.B.

mentioned a video of the girls taken in July 2019 where, in her opinion, they were

dressed inappropriately, but she further indicated that she did not know if they

were just playing dress up, or otherwise what they were doing. S.B. also

mentioned that T.N. would punish the girls by making them lift fifteen-pound

weights or by making them hold rice in their hands.

With respect to the incident that occurred on Father’s Day weekend of 2019,

S.B. testified:

And the girls went with him, so that Sunday they was supposed to
come back, and he had [A.J.N.] to text me while I was in church that
Daddy say what time you coming to get us? And I said, ahm, well first
of all, I said, you need to ask your Daddy, ‘cause he hasn’t given me
any money for ya’ll, ah, for the month. And that’s when she must’ve
told ‘im, and he sent me a nasty text. Ain’t nobody worried about no
damn money, that, ah,

....

. . . . Again, I wasn’t arguing with ‘im, I said well, [T.N.], I’m not
feeling well. I have rheumatoid arthritis, and I was just had diagnosed
with rheumatoid arthritis, and I told ‘im that my ankle and leg was
hurtin’, I wasn’t coming all the way there, but I would meet him in
Kinder, like we used to some time, at the bridge.

Thereafter, according to S.B., she went to the bridge to meet him, but when

he was not there by six o’clock, they “had extra words after that,” and T.N. told her

he was going to start sending gift cards and track the money that is used for them.

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The following day, S.B. spoke to A.J.N. on the phone and she told her she was at

her dad’s house, her dad was at work, and that he would be home later in the day.

Then, after a week, S.B. informed a police officer about the circumstances and T.N.

was eventually arrested and the children were returned to her.

With respect to the May 4, 2020 incident with S.R.N., S.B. explained that

S.R.N. is the “type” that she has to “stay on top of” and “push.” According to S.B.,

S.R.N. woke up that day with an attitude and did not want to do anything. They

were sitting at the table doing schoolwork, and, according to S.B., S.R.N was

looking at it and know the answer, but she’s so stubborn she won’t tell
you the answer. So I had to keep going over wit’ her, and then. . . I
said, well, you know, that’s enough. So, if you don’t wanta do it, go
in your room, and I popped her; no belt was involved. . . . [S]he’s the
type, you could pop her a little, and she’s gonna scream like you kilt
‘er.

S.B. testified that she hit S.R.N. six times during the incident, and that was

typically how she would discipline if she had to use physical discipline. She

denied using a belt during the incident. However, she stated “I’m not gonna say in

the past . . . that they haven’t gotten a spanking with a belt.” S.B. also explained

that “the words that I use[d] are not normal words, not something I do every day,

but I was frustrated . . . . I was in my own home, it wasn’t around anyone.” S.B.

further explained that the video was started after the incident had been going on for

a while and the video did not show how she was initially going over the math with

S.R.N., but that S.R.N. was not attending to what she was being told to do; rather,

she was doing what she wanted to and not doing the math the correct way.

Two reports prepared by Lauren Gay Coleman, JD, LSCW, with Changes,

LLC, were also submitted into evidence. In her December 11, 2019 report, she

noted that she had met with T.N. on October 11, 2019, A.J.N. and with S.R.N. on

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October 25, 2019, and S.B. on November 25, 2019. Her recommendation stated as

follows:

The children have lived in a stable and happy environment for almost
10 years. [S.B.] has ensured that they received a quality
education . . . . She facilitated the girls’ participation in extra-
curricular activities and involved them in church activities. . . .
[E]xcept for his times of deployment, [T.N.] made the voluntary
decision to allow the girls to remain with his mother while he selfishly
pursued his own agenda. . . .

I was presented with no evidence to indicate that the children would
be in danger if they reside with [T.N.]. . . He currently resides in
Houston in a 5 bedroom home that provides appropriate shelter for the
girls. He is working and financially can care for the girls. . . . The
girls seem to have developed a close relationship with [T.N.]’s fiancé
and her children and they all participate in activities as a family. Both
girls expressed to me that they enjoy being with their father and feel
like they are part of a family.

Although concerns were addressed about T.N.’s PTSD, there was no
evidence it has negatively affected his ability to parent his children. . . .
[H]e is [] currently in counseling to address his PTSD.

In the event the court grants custody to [T.N.], I believe it would be in
the best interest of the children for [S.B.] to be granted specific
visitation rights. . . . The children expressed a preference for having
continuing contact with their family in Alexandria.

I am concerned about the parties’ criticism of each other in front of
the minor children. . . . I would caution both parties about speaking
negatively about the other party in the presence of the minor children.

Ms. Coleman met with A.J.N. and S.R.N. again in the summer of 2020. She

then issued a report, dated June 21, 2020, which stated the following:

. . . . The girls do not want to live with the grandmother and this point
they do not want to visit with her or their great-grandmother because
they do not feel loved by either of them. [A.J.N.] and [S.R.N.] both
told me that neither their grandmother nor their great grandmother
have called them since they have been with their father.

....

I am still of the opinion that it would be in the best interest of the girls
to reside with their father in Texas. They feel loved and accepted

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there. . . . Children do better when they feel safe and consistently
loved, which includes being treated with respect.

Based on my recent discussions with the girls and my review of the
[May 4, 2020] video, it is my opinion that S.B. is verbally abusing the
children. . . . I am also concerned that there is physical abuse
occurring as well. The video certainly would indicate extreme
corporal punishment was being administered.

. . . . The girls are no longer desirous of visiting with their
grandmother or great-grandmother because of the way they have been
treated. . . . The girls also told me the “abuse” has gotten worse since
the last court date and I am concerned [S.B.] will retaliate against the
girls if she is granted visitation at this time. I do believe she should
have uncensored telephone or Facetime contact with the girls . . . so
she and the girls have an opportunity to rebuild a positive and loving
relationship as I truly believe she loves the girls[.]
On appeal, S.B. argues that we should reverse the juvenile’s court’s ruling

and reinstate her with custody of the children because the children have been in her

continuous care for most of their lives and are thriving, while T.N. has been

inconsistent with contact or visitation despite having the time and means to do so,

suffers from PTSD, and has utilized bizarre disciplinary tactics. S.B. also notes

that she is a stern and loving grandmother, and that, while she has used corporal

punishment to discipline the children, reasonable corporal punishment is

permissible in Louisiana.

S.B. further argues on appeal that this case is analogous to George v. Dugas,

15-939 (La.App. 3 Cir. 3/16/16), 188 So.3d 376, writ denied as improvidently

granted, 16-710 (La. 11/07/16), wherein this court reversed the district court’s

judgment that returned custody of the children from non-parent custodians to the

biological parents, finding that the parents failed to show a material change in

circumstances since the initial custody judgment.

In George, the children were initially removed by the state from the custody

of their parents, adjudicated children in need of care, and placed in the non-parents’

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home. After the state filed a petition to terminate the biological parents’ parental

rights due to their failure to comply with their case plan, the non-parents filed a

petition for custody stating that the parents had consented to them being granted

custody. The state then dismissed its petition to terminate, and a judgment was

rendered granting the non-parents with custody. Approximately ten months later,

the parents filed a petition in juvenile court seeking custody of their children, and

then two months after that, they filed a similar petition in the civil district court

after the juvenile court had relinquished jurisdiction. The district court awarded

custody to the parents.

On appeal, this court found that the district court committed legal error in

requiring the non-parents to prove that the children would be substantially harmed

if they were returned to the parents and held that

the initial La.Civ.Code art. 133 judgment, whether consensual or
considered, is a determination of the unfitness of the biological parent,
thereby vitiating the parent’s paramount right to custody, and shifting
the burden of proof in any following modification proceedings to the
parent.

Accordingly, we . . . find that in a case where a non-custodial
biological parent seeks to modify custody granted a non-parent under
a consent decree, the burden of proof should be on the moving parent
to show a material change in circumstances of the custody with the
non-parent and that a change of custody would be in the best interests
of the child[.]

George, 188 So.3d at 383-84. This court then conducted a de novo review of the

record, and concluded:

The record contains ample evidence that the [parents] have
rehabilitated themselves in terms of their prior drug abuse. . . .
However, because they were found in the initial custody
determination to be unfit for custody of the children, their
rehabilitation alone is not enough to meet the burden of proof required
of them. . . . The record before this court does not show that the
adequate and stable environment in which the children were placed
with the [non-parents] has materially changed. . . . There is literally

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no evidence in the record of a change in the circumstances of the
children since the Dugases were awarded custody, let alone that a
change in custody would be in the best interests of the children.
Accordingly, the [parents] have not met the burden of proof required
of them[.]

We first note that the initial judgment in George that awarded custody to the

non-parents was rendered in accordance with La.Civ.Code arts. 133, et. seq.

following the initiation of the state’s proceedings to terminate parental rights. In

the instant case, however, the initial judgment was rendered by the juvenile court

following a parent’s voluntary transfer of custody filed in accordance with

La.Ch.Code. art. 1510, et. seq., due to his upcoming military deployment.

Therefore, the analysis provided in George is not necessarily controlling in this

case.

Nonetheless, unlike the trial court in George, the juvenile court in the instant

matter did express a concern that the children’s environment in the home in which

they were initially living (S.B.’s home) had in fact changed. The trial court noted

that the 2019 Father’s Day incident and the “disturbing” May 4, 2020 video-

recorded incident “raise serious concerns about [S.B.’s] role in the lives of these

children[,]” and that S.B.’s “actions convince this [c]ourt that she will not support

the relationship of the children with their father.” The juvenile court further noted

T.D.’s fitness to parent his children, as well as the bond that was present between

him and his children.

After reviewing the record, we conclude that the juvenile court in the instant

case adequately considered the factors set forth in La.Ch.Code art. 1523 when

determining whether returning the children to the custody of T.N. following his

initial voluntary transfer of custody to S.B. was in the children’s best interest. The

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record supports the juvenile court’s decision, and therefore we find no abuse of

discretion on the part of the juvenile court.

DECREE

For the reasons set forth above, the ruling of the juvenile court is affirmed.

Costs of this appeal are assessed to appellant, S.B.

AFFIRMED.

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