Mark and Margaret Shaw VS Tonya Renee Shaw Dupuy

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CU 0546 MARK AND MARGARET SHAW VERSUS TONY A RENEE SHAW DUPUY DATE OF JUDGMENT 1 February 9 2007 ON APPEAL FROM THE TWENTY FIRST JUDICIAL DISTRICT PARISH OF LIVINGSTON NUMBER DIVISION H 176 105 STATE OF LOUISIANA HONORABLE ZORRAINE M WAGUESPACK JUDGE Counsel for Michelle Alt Hazlett Springs Plaintiffs LA Cl BEFORE Appellant Tonya Renee Shaw Dupuy o CCi J J eA1 o m Defendant LA lLS wtlif7 vCiqY P Springs Margaret Shaw Counsel for Leslie A Bums Denhan1 Appellees Mark and Denham cates Cr j s AJ D IttJn ss I CiM S QAJ 5 QS d SO 5 Red50v WHIPPLE I UHN GAIDRY MCCLENDON AND WELCH JJ RE wP129 Re 4 KUHN J Tonya court Renee Shaw Dupuy the mother of the the maternal judgment granting minor children grandparents specific visitation privileges with the children We Mark and appeals trial a Margaret Shaw reverse FACTUAL AND PROCEDURAL HISTORY Tonya Dupuy and B D L A A S are Dupuy is bon1 January 7 1999 now The Mark and divorced minor children Margaret Shaw After a be awarded hearing a m during specified until Sunday unti16 00 p the n1 certain 6 00 p week m restrictions and parties s maternal was signed for visitation to one and weekend their summer judgment awarding per month fron1 additional one and Easter Sunday and refrain from one judgment Dupuy appeals Saturday per month from day and one night children n1aking negative A the The trial court also holidays requirements for the and Ms against specific visitation with their daughter s party in the presence of the children rulings petition a during the Christmas Thanksgiving trial court s court s at one visitation and ordered all any other from whom Ms the children are the trial court rendered Shaws visitation with A A S and B D L 9 00 and whereabouts of the father of identity August 30 2004 the Shaws filed n1 1989 1 daughter requesting that they at 4 00 p born March 30 The father of B D L is James Lacon1be unknown grandparents On is the mother of two children A A S in during their comn1ents about confonnity with the challenging the trial award of visitation DISCUSSION The trial court is vested with vast discretion in matters of child visitation and its determination Margaret regarding Shaw is Ms Dupuy she reached the age of majority s same is entitled to great weight and will mother adopted biological Mark Shaw See La RS 9 461 and La C C mi 214 2 Ms not be Dupuy once disturbed on appeal unless Babin 02 0396 p 7 La 2003 2460 1421 La App 9 24 03 158 L Ed 2d 86 Rosell wrong reasonable in reverse those ESCO court cam10t set appellate an findings In their 1182 549 So 2d 840 even 844 though convinced aside a 124 S Ct trial court s unless those findings La elTor or If the 1989 light of the record reviewed in its entirety fact it would have v 2004 in the absence of manifest v denied 540 U S cert Babin clearly shown 854 So 2d 403 408 writ denied 1st Cir 7 30 03 854 So 2d 338 It is well settled that findings of fact abuse of discretion is an an clearly findings are court may not appellate that had it been are sitting as the trier of weighed the evidence differently Id petition for visitation the Shaws with the children in accordance with La C C trial court elTed in art requested 136 2 finding the requisite extraordinary La C C art l36B existed Dupuy asserts that the circumstances required by pertinent part extraordinary circumstances affinity or a custody of the award of visitation 3 La C C art l36B states in Under Ms an by blood or former stepparent or step grandparent not granted child may be granted reasonable visitation rights if the a relative court finds that it is in the best interest of the child 2 The Shaws But La R S petition also applies 9 344 visitation has died interdicted 3 Initially the minor or we or an incarcerated La RS 9 344 is note that in this Thus from their award of visitation under La RS in those instances in which the child of the been interdicted or incarcerated children grandchildren asserts entitlement to own case they child grandparents seeking Dupuy has not died or been inapplicable the Shaws are Because Ms 9 344 the parents of the mother who has custody of grandparents attempting to gain visitation of their In Huber are v Midkiff 02 0664 La 7 2 03 838 S02d 771 the supreme court reversed the trial court s declaration that Article 136B was an unconstitutional due process violation of the custodian s rights to parent the children as applied 775 to the situation before the court their grandchild constitutionality this case from their had not been the issue of whether In Huber the own child grandparents attempted to gain the visitation of reasoning that the challenge to the statute s the trial comi or specifically pleaded Likewise in questioned in application of Article 136B to the Shaws claim for visitation of grandchildren from their own child unconstitutionally infringes upon Ms Dupuy s right to concerning the care custody and control ofher children see Stanley v Illinois 405 US 645 651 92 S Ct 1208 31 LEd 2d 551 1972 has not been properly postured for this comi Thus for purposes ofthis appeal we assume without passing judgment disposition by their make decisions application ofArticle 136B to the Shaws claim for visitation of their grandchildren their daughter is constitutional See Huber 02 0664 at p 6 838 2d So at 775 76 that the 3 from Louisiana Civil Code article 136 B of extraordinary circumstances the jurisprudence requires Although the commonly associated with 1st Cir 3 28 01 So 2d at 778 term has extraordinary circumstances sufficient visitation should be those that constitute La threshold a 795 So 2d 350 Weimer J or v concurring quoting Galjour Midkiff award of an of set court defined in the to warrant See event Huber 355 not been highly unusual a particular thing a finding by the not facts 00 2696 p 02 0664 at p 1 838 7th BLACK S LAW DICTIONARY 236 ed 1999 The record shows that unwed an Dupuy continued help with A In the time Ms During her teenager Shaw with intennittent stays Ms at to at pregnancy Dupuy gave birth to A A S she resided the honle of her she was priInarily with Margaret grandmother After A A Ss birth reside with her mother who had taken tinle off of work to A S May 1989 Ms Dupuy moved into her grandnlother remained until October 1990 dating Mark Shaw Texas and Ms house where she During this tinle period Margaret Shaw began They took occasional trips Dupuy s allowed A A S to go on to visit Mark Shaw these trips s family in In October 1990 Ms Dupuy moved back into her mother s home where she resided with Margaret and Mark Shaw The Shaws subsequently married and Ms Dupuy continued with them until March 1993 when she married Scott Jones and moved house to Ms Dupuy separated from the Shaws home until In the A A S went a smnmers on May by her of 1994 1995 1997 and 1998 family vacations together parents for a February 1994 and out again reside of their retunled 1994 condominium located about her Mr Jones in to two down the Shaws Ms In the late 1990s Ms Illiles fronl the Shaws payment In June 1998 and Dupuy purchased using Ms pregnant with B D L and married the child s father Mr LaCOlnbe 4 Dupuy nloney given to Dupuy became After physical a before B D L s altercation between Ms birth Mark Shaw Mr LaCombe In 1998 ball te home from school and projects In Denhmu Mr LaCon1be the daughter bOTI1 was to the In the was an hospital where spring 1999 Ms assistant coach for A A S the 1999 00 and 2000 01 school years to night separated A A S s took the bus Mark Shaw assisted A A S with her homework the Shaws after school August 2001 Dupuy married Brad Dupuy and they moved Ms Springs Louisiana During the couple A A S B D L them Gulf Shores Alabama to baby 1999 and 2000 Mark Shaw During m his accompanied the Shaws remained with her until after the Dupuy and Dupuy and and B D Mr Dupuy s s In June 2002 the Shaws watched honeymoon child from a prior relationship the Shaws to taking again enjoyed a fmuily vacation with the children the Shaws started In 2001 every week January 2004 through June 2004 According thelu Family nights continued through two or beginning to the Shaws in the Ms Dupuy did participation Dupuy did not want to in a Ms lawsuit in an or family dined together 2004 although during participate were no longer pernutted to The Shaws opined that that of her children with effort visit Dupuy had becon1e upset with foster parent progrmu share her inheritance They then filed this not A A S and B D L spring of 2004 because the Shaws child where the family night to resume participation a Ms foster in their granddaughters lives Ms Dupuy testified that her parents behavior and actions in front of children contradicted and interfered with her beliefs and rules which is tem1inated contact she stated that clothing between the on numerous grandparents and the grandchildren occasions including short shorts and they a 5 allowed A A S string bikini and to As the why she examples buy inappropriate they pem1itted her unlimited amounts of parents have told A A S Dupuy phone feels the to though they will provide her with Ms Dupuy does teenager is ready Ms Dupuy imposes restrictions Margaret Shaw showed parents refusal A A S to testified that she indicating that to act a Ms was decision against as not lot and her inheritance a foster parent paid enough she as a Subsequent not to the one until she parents tendency understand why Ms She recounted that in short shorts when she to believe that they do not attempting disciplines her children to override her parental to become foster concerns the Shaws to Ms care care parents Ms Dupuy for her nlother s health for foster children had left Dupuy also questioned Margaret Shaw s She stated that until the time she turned 18 her attention to her took her Ms places with her boyfriends Dupuy denied concerns about losing result of the presence of foster children in the Shaws lives but She also did Dupuy be the person who frequently left her alone herself trom theln if that have cell Dupuy also has problems with her Ms adnutted that she told her mother that she had fi om them not behavior Ms it because of prior attempt by a to to a Dupuy feels that her parents permissive should stop Margaret Shaw seriously depressed drank matter what Ms to her the Shaws as daughter daughters have caused the children respect her desire authority and defer mother had car no takes issue with her picture of a was She believes that the Shaws Insofar her the teenager s respect their nlother s decisions to ability not want Dupuy also on younger age than A A S attitude toward her have a authority by telling A A S that they do undennine her was a She is upset that her the internet on She also is disturbed that her parents have offered A A S says even time unsupervised acknowledged that they chose to she told the Shaws that she would distance participate tell them she would placement hoped her children would inherit in the foster remove care the children from their lives of foster children in the Shaws 6 program but said care A A S and the Shaws accOlupanied thenl to Gulf Shores with B DL Dupuy described Ms Shaws visitation with her the event that She daughters the tenmnation of the precipitated explained that after her daughters the and the Shaws returned fronl Gulf Shores foster children conversation with Mark Shaw and he to attelupted call the another hit him on in phone in another called the a room and Mark Shaw roonl police to daughters were a but did not pursue charges once close fanlily who participated A A S was Ms Dupuy and her parents which resulted visitation the Shaws are resolution ordinarily matters of Ms constitute the concerning the we highly care the record is devoid of any v Dickson find the trial B D L to as credibility allotted Dupuy care Dupuy and her lives in the past the or court abused agree The on frequent Inconsistencies in to the true we find that as unusual set of facts fact finder for a matter La or App of law it is necessary to amount to in a parent s custody and control of her children allegations 2003 5 p 5 the Shaws cOlTImunicate s grandchildren extraordinary circunlstances justifying interference Flack to her retunled was accepting only the Shaws version of the basis for the case split between parents and daughter to Ms in the tenllination of the with their enjoyed once But in this insufficient in each other She restrain her who to presented with divergent views of the basis for the chasm between court testimony to attelupted pack her bags and that she should leave with hilU trial was She moved Mark Shaw told A A S fingers with the cordless phone his a As she police police he removed the cord frOlu the jack different having began belittling her She asked hinl to leave Although the record demonstrates that the Shaws and decisions was and when he refused she told him she would call the her house the she right to make Mindful that proof of the unfitness of the mother 3d Cir 4 30 03 its discretion by awarding 843 So 2d 1261 see 1264 visitation of A A S and inability of the nlother and the grandparents many issues or 7 the mother s alleged concern for to an encroachment inheritance she believes she and her children on an receive frOlTI her parents does 136B to required by Article not support to an the award of visitation the Shaws is reversed entitled to extraordinary circumstances Accordingly the trial granted custody of the children of A A S and B D L amount to are court s to the relatives not award of visitation 4 DECREE For these reasons Shaws is reversed the trial Appeal costs court are s judgment which awards visitation assessed to Mark and Margaret to the Shaw REVERSED 4 Having concluded that the record fails to establish extraordinary circumstances sufficient to find it unnecessary warrant an award ofvisitation in favor of the Shaws under A1iicle 13GB to address Ms Dupuy s contention that a proceeding for divorce between the parents ofthe child we is a pre requisite to an action for visitation of the child under that statute whether Article 13GB is married applicable to the Shaws father and therefore AAS s never a claim for visitation since Ms divorced from him is 8 Thus pretemlitted discussion Dupuy on never MARK AND MARGARET SHAW STATE OF LOUISIANA COURT OF APPEAL VERSUS FIRST CIRCUIT TONY A RENEE SHAW DUPUY WHIPPLE J 136 the these to 2000 to make Supreme decisions breathtakingly broad and to decision review by a Troxel 530 U S comi in parents of 9 344 was limited a v at any third 67 120 S Ct the and statute at or constitutional because it parents of the deceased issue therein interference with that As this comi the upon parent s visitation to s of LSA R S any to state court 9 344 visitation for the concluded that LSA R S drawn in that it was not expressly contemplate relationship with the other parent right to make or childrearing decisions noted in Troxel LSA C C art 136 is located in the Louisiana Civil Code and relatives extraordinary circumstances subject to 795 So 2d 350 absent parent and it did fundamental specifically Divorce section of the child to be upon that constitutional App 1st Cir 3 28 01 narrowly or of at 2061 incarcerated parent was right control of their party seeking visitation constitutionality deceased interdicted significant intrusion reasonable Washington Harris 2000 2696 La addressing to the custody parent concelning visitation of the parent s children In Ga1iour this care unconstitutionally infringe right by effectively permit ting 147 L Ed 2d 49 120 S Ct 2054 2060 concerning the does to A A S as Comi reaffirmed the fundamental The Court fuliher found the children art 136 without doubt LSA C C of action for visitation at the very least a cause the United States parents I find that proceedings Granville 530 U S 57 66 v of LSA C C majority pretermits discussion of the application not afford the Shaws In Troxel 2006 CU 0546 concurring Although art NUMBER upon and upon a the contemplates parties finding by the divorce court if that such grant of a there an are award is in the best interest of the child La Kelsay 94 1038 To 1 App 3rd Cir 3 95 LSA C C apply Troxel effectively permit 136 B ati relative any to 795 So at 67 120 S unconstitutional by the has Shaws While to as 775 in Huber v quoted where the trial comi intend for LSA C C visitation of their However even if I as clearly does not limit the child court art apply to own to circumstances lives at mother s C C the trial to 838 So art comi grandparents attempting s 2d 771 legislature did I also would conclude that to not gain rights afforded under the facts awarding grandparent visitation to was least in the past there warranting such visitation her mother and maternal acknowledged s an with the maternal 7 203 that the a child abused its discretion in in each other by any claim the child conclude that the Shaws had any l36 B opinion whose parents apply to contact s expressed its opinion to v Troxel challenged the applicability of LSA from their were Lingo review to A A S 136 B art The record demonstrates that while this patiicipated a close are no who family extraordinary Moreover while A A S had lived with grandparents when she was very young Mrs Shaw that A A S had not lived in their household for many years and that never lived in their household Additionally interests to state court Midkiff 2002 0664 La l36 B grandchild presented the trial B D L had not therein art to them under LSA C C the Shaws to also any decision subject request for visitation of B D L I find merit the Shaws statements Dupuy has to grandparents herein where maternal custody and has simply chosen grandparents 136 s see I believe that this would be Thus In my view the atiicle A A S as 2061 at 355 visitation issues would in my seeking visitation of LSA C C application divorced were never Ct at 651 So 2d 499 parent concelning visitation of the parent s children 530 U S 2d I am unable to find that such visitation is in the children The record demonstrates that the Shaws 2 s best clearly and repeatedly interfered with Dupuy rights s make decisions about her children and undermined her to with her children authority and relationship to compelled in its provisions include The fact that the trial court felt judgment that Dupuy should make all major decisions for the children and that the Shaws should refrain from certain actions demonstrates the trial court with make decisions for her children Dupuy s right interferes now has s own discretion and constitutes significantly with Dupuy physical custody ofB D L Given the evidence of the maternal grandmother paramount rights as find that the interests of the Shaws only one on one that daughter envisioned in Troxel when the Court case in that she and the s for respect S to Dupuy biological the the events which to return A A proper sadly find this of particular occasion abuse of weekend per month lack and was an overbroad grant of visitation in that it relationship with and in the parent I an interference ongoing adoptive maternal grandfather judgment is legally Instead s interference s summoning of the police to recognition I find the court ordered visitation with B D L Moreover the trial court to s mother the required I am s unable or substantively in the children to present the type of circumstances again rejected s best interference with state court parenting decisions Given the absence of any well documented agree on to limit or and some the mother end contact with the Shaws is respected and upheld regardless of our view for doing s s acts to communicate of the ultimate the or grandparents right and decision legally protected and must be of the moral soundness of her reasons decision to the trial so For these comi proof of unfitness of the mother of the disclosures and shocking and inappropriate even or inability of the mother and grandparents many issues which I find allegations judgment reasons I concur and dismiss the in the majority s grandparents petition 3 reverse for visitation STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CU 0546 MARK AND MARGARET SHAW VERSUS TONYA RENEE SHAW DUPUY McCLENDON J Based result reached on concurs the totality of the facts presented herein by the majority I concur with the MARK AND MARGARET SHAW NUMBER 2006 CU 0546 FIRST CIRCUIT VERSUS COURT OF APPEAL TONYA RENEE SHAW DUPUY tJ WELCH J I STATE OF LOUISIANA DISSENTING respectfully disagree with the majority opinion in this record in this matter clearly demonstrates circumstances and that visitation with Mark and that there case because the extraordinmy are Margaret Shaw would be in the best interest of the children As the was to was moved out of the Shaw Tonya Dupuy years move a back Indeed the who to unfortunate s the Shaw s s s lives became home at home gave birth to A A S her mother and gave birth to B D L home with her children more Mark and that of was And over the necessary for since Margaret Shaw she Although she personal circumstances made it testimony indicated that it was Tonya Dupuy primarily with working single parent young grandchildren team time at the notes unwed teenager and resided an eventually her majority Tonya Dupuy s role in their parent rather than grandparent a Mark Shaw who coached A A S s ball get A A S off of the school bus and who helped her to with her homework and other school projects While Mark and allowing A A S participation she did Shaw ability s and B D L in the to contend that share her inheritance Tonya Dupuy Tonya Dupuy discontinued visit with them because she Department of Social Service not want to foster child Margaret Shaw contends that or s was upset with their foster parent program because her children s inheritance with a she halted the visitation because the behavior and actions in the presence of the children interfered with her to parent her children Although the evidence indicated that since Tonya Dupuy married Brad Dupuy she has more active role in developed parenting now become her children there is more no stable and has taken doubt that between the Shaws and the minor children that a strong bond has for the most were a part reared in their household In concluding under La C C that Mark and 136 art the trial demonstrated that they have had that up until 2004 they had been Margaret Shaw court have had a also noted that it had relationship However move in Dupuy s a as they found that Mark and never Margaret proof Shaw long and lasting relationship with the children positive influence seen a to s family who had such a on Mark and the mother and that lives and Mark and s the children grandparents were had met their burden of very active in the children awarding visitation wishes court far apart from each other so reminded them that Margaret Shaw as the Shaw lives The trial close and family had done Margaret Shaw the trial and that they were they not to were make loving to comi respect Tonya important decisions for the children I agree with the trial court and find these circumstances Margaret Shaw had reared at least one a long standing relationship with the children of the two children in their home parental role in their grandchildren to be grandchildren and lives due to and too extraordinary circumstance often in as the today s inheritance would be a grandparents rearing their ie society majority does I also find the fact that unusual willingly accepted Tonya Dupuy life circumstances To in this judicially ignore case is a such great injustice s an to Tonya Dupuy terminated the relationship between the Shaws and the minor children because of her highly essentially grandparents acting in parental roles because of their children circumstances arises all the children s This type of situation extraordinary where Mark and adversely impacted by the presence of parenting behavior and likewise 2 an perception that her foster child be a extraordinary to circumstance I find Accordingly no elTor circumstances exist in this in the trial court determination that s case Having determined that extraordinary circumstances that the record demonstrates that visitation with Mark and best interest of A A S court to use in the of the first factor the length and quality the relative is Margaret Shaw have provided stability wants her In children her early to have a years or tutelage which contains evidence that Mark and participated numerous in the children vacations With nor s can best be Margaret Shaw have taken regard to to the beach particularly that she Shaw B D L testified the continue their considering close and religious have taken the children awaited visitation with Mark and the fourth factor the continuing relationship note that Mark and active role and have on testimony elicited from the parties reflect that in Shaw and that to an preference of the child although neither the third factor the they desire the relative the record Disney World and Texas anxiously Margaret relationship and visitation with them willingness of the relative between the child and his parent to encourage or parents we Margaret Shaw testified that they have always promoted the children s Dupuy wishes with s and school work extraculTicular activities and the past both children have a provided by Additionally Mark and Margaret Shaw upbringing In Margaret The Mark and Tonya Dupuy admitted with Mark and 5 the child and undisputed that for both of the children Furthermore relationship determination prior relationship between It is l analyzing the second factor whether the child is in need of guidance enlightenment A A S Margaret Shaw is in the best interest clearly established by this record during exist I also believe Louisiana Civil Code article l36 B and B D L provides factors for the trial with A A S extraordinary relationship with their mother and have always abided by Tonya regard to her children when made known The last factor for consideration in 3 determining the to them best interest of the child is the health of the child and relative both reveals no physical 136 B art with Mark and mental health Therefore Margaret Shaw C C or I find in the trial no error was given to findings that there the trial were considering the fact that visitation so not to as with the mother be a s manner gave which would diminish ability its discretion in prohibited to For these Mark and I Mark and considering the vast in this s case court best interest Furthermore upon the children to s Tonya Dupuy authority to Mark and s s respectfully dissent court s relationship role as the in any her children trial Margaret Shaw judgment of the trial 4 over cannot say that the s and that visitation Margaret Shaw from acting Tonya Dupuy awarding visitation reasons deference raise her children I would affinn the January 9 2006 that judgment limited Mark and Margaret Shaw significant intrusion children undermine her best interest reasonable basis for the trial in the children was that the specifically mother and a extraordinary circumstances Margaret Shaw with Mark and s and B D L and I find court Mark and determination that visitation s in A A S and B D L A A S Margaret Shaw have had with discretion court or factors set forth in La length and quality of the relationship the The record problems with either the children having considered all of the Margaret Shaw Considering mentally and physically court or abused Accordingly I

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