Yvonne Landry VS Jeffrey Thomas
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CU 1571 2011 CW 18 J 20 C 058 W YVONNE LANDRY VERSUS JEFFREY THOMAS Judgment Rendered December 21 2011 APPEALED FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH ST TAMMANY STATE OF LOUISIANA DOCKET NUMBER 2008 10514 DIVISION L THE HONORABLE HILLARY J CRAIN JUDGE PRO TEMPORE THE HONORABLE DAWN AMACKER JUDGE Richard Ducote Pittsburgh Pennsylvania Attorneys for PlaintiffFirst Appellant Yvonne Landry and Stephen M Petit Jr Willis J Ray Brittany R Bonnaffons Metairie Louisiana Robert Stern Attorney for DefendantSecond Appellant New Orleans Louisiana Jeffrey Thomas Meridith J Trahant Attorney for Department of Justice Assistant Attorney General Baton Rouge Louisiana BEFORE GAIDRY McDONALD AND HUGHES JJ McDONALD J At issue in this appeal is a judgment awarding a father supervised visitation with his minor daughter The child mother appeals the judgment claiming the s trial court erred by failing to award her sole custody based on sufficient evidence that the father sexually abused the child The child father also appeals the s judgment claiming the trial court erred by restricting his visitation to occur only under supervision after concluding the mother failed to prove sexual abuse In conjunction with the parties appeals we also address the mother two s writ applications that were referred to the merits of the appeal For reasons herein we deny both writ applications and affirm the trial court judgment s FACTS AND PROCEDURAL HISTORY Yvonne Landry and Jeffrey Thomas are the natural parents of S a minor T daughter born on March 17 2006 The parties were married in June of 2007 were separated shortly thereafter and in April 2008 were awarded joint custody of S with Ms Landry designated as domiciliary parent and Mr Thomas T awarded specific visitation rights The parties were divorced by judgment dated April 13 2009 In December 2009 Ms Landry filed a motion to suspend Mr Thomas visitation rights alleging he had sexually abused S Judge Dawn Amacker T suspended Mr Thomas visitation rights pending an investigation by the Office of Community Services in Orleans Parish Mr Thomas subsequently moved to have his regular visitation rights reinstated In April 2010 Judge Amacker granted the motion pending a hearing and allowed Mr Thomas interim visitation subject to his mother supervision s Ms Landry filed a writ application with this court challenging Mr Thomas reinstated visitation rights This Court granted the writ vacated Judge Amacker temporary visitation order s K and remanded for a contradictory hearing Landry v Thomas 2010 CW 0724 La App 1 Cir 10 28 4 Trial of the motion to suspend visitation proceeded before Judge Hillary Crain over the months of July August and September 2010 On December 20 2010 Judge Crain issued written reasons for judgment stating the allegations of sexual abuse had not been proven even by a preponderance of the evidence On February 22 2011 Judge Crain signed a judgment ordering visitation to Mr Thomas under his mother supervision according to a specified schedule s On January 5 2011 Ms Landry tiled a motion for new trial and for professionally supervised visitation This motion was based in part on a dispute between the parties over the location of Mr Thomas Christmas visitation with T S and the purported new opinion of therapist Dr Amy Dickson that S was T exhibiting symptoms of sexual abuse and that visitation should be professionally supervised On March 2 2011 Ms Landry filed a supplemental motion for new trial for professionally supervised visitation and for the court to review all transcripts and evidence the supplemental motion reurged the grounds submitted in the earlier motion with the additional allegation that the paternal grandmother was an ineffective hostile and negligent supervisor No opposition to the motion for new trial was filed Judge Amacker held a hearing on the new trial motions on March 1 7 2011 Ms Landry also moved to recuse Judge Amacker which motion was denied as moot as Judge Hillary Crain was sitting pro tempore for Judge Amacker while she was on medical leave Ms Landry moved to continue the visitation hearing which motion Judge Crain denied Ms Landry took a writ to this Court which was denied with language Landry v Thomas 2010 CW 1365 La App 1 Cir 7 10 28 z In his December 20 2011 reasons for judgment Judge Crain stated visitation would be awarded to Mr Thomas under the supervision of the maternal grandmother On February 22 2011 Judge Crain signed amended reasons for judgment stating that his reference to the maternal grandmother was a typographical error and that he intended to have the paternal grandmother supervise the visits 3 and denied them in open court Mr Thomas and Ms Landry subsequently each filed before the trial court a motion for appeal of Judge Crain February 22 2011 s judgment Ms Landry motion also challenged Judge Amacker s sdenial of her motion for new trial Both motions for appeal were granted Ms Landry also filed a writ application with this court seeking expedited consideration since S is now having visitation with her father which according T to Ms Landry is inadequately supervised by S paternal grandmother On s T April 11 2011 this Court issued an interim order referring Ms Landry writ to s the same appellate panel assigned the yet to be lodged appeal Landry v Thomas 2011 CW 0587 La App 1 Cir 4 11 11 In the interim Mr Thomas and Ms Landry were back in court before Judge Amacker At some point Ms Landry filed a Plaintiffs Supplemental Motion to Authorize Dr Amy Dickson to Provide Appropriate Therapy for the Parties Child Motion for Professionally Supervised Visitation which she alleges she filed due to S sexually acting out with another girl at school Judge Amacker held s T a hearing on the motion on June 27 2011 On July 1 2011 Ms Landry filed a motion to recuse Judge Amacker because of the judge comments and questions during both the March 17 and s June 27 hearings Mr Thomas filed an opposition to the motion Judge Reginald Badeaux was assigned the recusal motion and a hearing was held on July 6 2011 On August 4 2011 Judge Badeaux denied the recusal motion providing extensive reasons for judgment Ms Landry then filed a second writ application with this court under 2011 CW 1852 asserting that Judge Badeaux abused his discretion in refusing to recuse Judge Amacker She asked that her second writ be referred to the appeal panel handling the appeals from Judge Crain February 22 2011 s judgment and her first writ fled under 2011 CW 0587 challenging Judge 2 s Amacker denial of her motion for new trial She also sought an order from this court directing the clerk of the trial court to forward an audio recording ofthe June 27 2011 hearing to this Court for review On October 20 201 this Court 1 granted that part of Ms Landry sapplication seeking referral of her second writ to the same panel assigned to the appeals and her first writ application This Court denied that portion of her writ application requesting the June 27 2011 hearing audio recording Landry v Thomas 2011 CW 1852 La App 1 Cir 10 11 20 REVIEW OF FEBRUARY 22 2011 JUDGMENT AWARDING MR THOMAS SUPERVISED VISITATION We first address the parties appeals of the judgment awarding Mr Thomas visitation with S under his mother supervision Ms Landry contends Judge T s Crain erred by failing to award her sole custody based on evidence that Mr Thomas sexually abused S T Mr Thomas contends Judge Crain erred by restricting his visitation to occur only under supervision after concluding Ms Landry failed to prove sexual abuse Under La R S 9whenever a court finds by a preponderance of the A 341 evidence that a parent has subjected his child to sexual abuse the court shall prohibit visitation between the abusive parent and the abused child until such parent proves that visitation would not cause physical emotional or psychological damage to the child Should visitation be allowed the court shall order such restrictions conditions and safeguards necessary to minimize any risk of harm to the child Id Even when abuse is not proven a trial court may impose conditions upon visitation to minimize any the risk of harm to a child Harper v Harper 452 33 La App 2 Cir 6 764 So 1186 1191 Hollingsworth v 00 21 2d Semerad 35 La App 2 Cir 10 799 So 658 664 The paramount 264 01 31 2d consideration in setting visitation privileges for a non custodial parent is the best 5 interest of the child Harper v Harper 764 So at 1191 Appellate review of 2d a trial court findings with respect to child visitation is governed by the manifest s error standard of review State ex rel J v Reuther 36 La App 2 Cir W S 421 02 18 9 827 So 1199 1204 2d In reasons for judgment Judge Crain stated that sexual abuse of S by Mr T Thomas had not been proven by a preponderance of the evidence Despite this statement he continued However the court finds there are allegations made which if proven would be extremely disturbing and these allegations are sufficient in nature and are sufficiently factually based to create concerns in the professionals who are trained in determining sexual abuse and the Court finds that something may have occurred However due to the age of the child the lack of physical evidence and the circumstances surrounding the post separation relationship of the parties a determination cannot be reached at this time The Court has already placed the child in therapy with a therapist not subject to the litigation After therapy and after the child matures it may be possible to determine definitively whether sexual abuse did or did not occur The therapist has been ordered to report to the Court anything that would indicate that sexual abuse has occurred without raising the issue with the child So far there has been no indication to the Court Until a more definitive conclusion can be reached the Court believes that it is in the best interest of the child that visitation be controlled to preclude even the possibility of future abuse The evidence regarding the issue of sexual abuse presented to Judge Crain consisted of testimony grandmothers a from babysitter both Ms s T S parents s Landry maternal boyfriend a and child paternal protection investigator a psychologist and two pediatricians Ms Landry and one of her babysitters Jennifer Beach testified that S T often came home from visitation with Mr Landry with genital redness and irritation On one occasion in August of 2008 Ms Landry was particularly concerned because S two years old at the time returned home from her father T s house with such irritation that her genitals were almost purple and that S told T her my daddy hurt my privates and my butt really bad Ms Landry had S T Cel examined by three physicians after this incident but none opined that S had T been sexually abused According to Ms Landry in the fall of 2009 S began to T have toileting issues genital rashes and behaviorial changes S told her mother T that she bathed and slept with her father According to Loretta Landry S s T maternal grandmother who had regular contact with her S began to put her T hands down her pants tried to insert toys in her vagina in the bathtub began to pose in seductive ways and was obsessed with butts She also testified that T S returned from visits at her father house with a red vaginal area and stated s that S had told her she slept and bathed with her father that her father did not T wear pajamas and that her daddy really did hurt her privates In Late November 2009 S then three years old returned from a visit to T her father house and according to Ms Landry stated that her daddy had s touched her privates with his hand and finger that it hurt and she did not want him to do that again Ms Landry took S to her pediatrician Dr Amanda T Jackson who noted that S had mild genital redness and a vaginal discharge T T S reported to Dr Jackson that her daddy had hurt her privates and demonstrated by vigorously rubbing her hand back and forth over her genital area Concerned that S clearly demonstrated being touched in a way that no child should be T touched Dr Jackson referred S to Childrens Hospital in New Orleans for T possible sexual abuse follow up and contacted the Office of Community Services Marion Johnson a child protection investigator with the Department of Family and Child Services in Orleans Parish interviewed S when she arrived at T s Children Hospital S told Ms Johnson that daddy said he wasn going to to T t hurt me anymore and again demonstrated his actions by aggressively rubbing 3 John Lavis Ms Landry sboyfriend also testified that at some time in the fall of 2009 when T S would have been three years old she turned to her mother and Mr Lavis and out of nowhere all of a sudden kind of turned to us and stuck her butt out and said tickle my bottom 7 s between her legs Dr Yamika Head the pediatrician at Children Hospital who examined S also confirmed the child report and gesturing of an up and down T s motion with her finger to her genital area as what her daddy had done Although Dr Head had concerns about possible sexual abuse there was nothing definitive to confirm such she recommended that S future visitation with s T Mr Thomas be supervised As part of her investigation Ms Johnson spoke to both parents and told Mr Thomas about S disclosures s T Mr Thomas denied the allegations of sexual abuse but did not fully discuss the situtation with Ms Johnson based on advise from his attorney He showed Ms Johnson the sink where he bathed S T and admitted that S would occasionally sleep in his bed with him on her visits T Mr Thomas told Ms Johnson he thought Ms Landry was coaching S to T make accusations against him however Ms Johnson testified that she saw no evidence that investigation T S Ms was being Johnson brainwashed commenced by her proceedings to mother have Mr After her Thomas visitation suspended based on her belief that sexual abuse had occurred During his testimony Mr Thomas denied sexually abusing S and stated T that he and his daughter had a wonderful relationship Mr Thomas testified that T S occasionally did have diaper rashes when she was with him that she often came to him with a diaper rash that he would treat the rashes with rash cream or baby powder and that there had been times when it burned and S sat with me T and my mother and had to try to get it off Mr Thomas denied bathing with S T and testified that with the exception of once or twice he always bathed S in the T kitchen sink Rebecca Rutledge Mr Thomas mother who spent much time with 4 The proceedings instituted in Orleans Parish were subsequently dismissed 8 Mr Thomas and S during S visits also testified that Mr Thomas always T s T bathed S in his kitchen sink Ms Rutledge stated that she did not believe Mr T Thomas would have abused S and S told her that she told the doctor her T T daddy had hurt her because her mommy told her to After reviewing the evidence Judge Crain had before him we conclude he did not manifestly err in concluding there was insufficient evidence of sexual abuse to warrant termination of Mr Thomas visitation rights Judge Crain heard the witnesses firsthand and was in the best position to ascertain their credibility Romanowski v Romanowski 03 0124 La App 1 Cir 2 873 So 656 04 23 2d 660 Further although Judge Crain noted there were allegations sufficiently factually based to create concerns in the professionals who are trained in determining sexual abuse he was not bound by the concerns of these professionals in light of the evidence as a whole See Day v Day 97 1 La 994 App 1 Cir 4 711 So 793 797 Kuhl v Kuhl 97 1725 La App 3 Cir 98 8 2d 98 8 7 715 So 740 743 W v E 619 So 707 710711 La App 2d E M J 2d 3 Cir 1993 Expert witnesses are intended to assist the trier of fact in understanding the evidence or in the determination of a fact at issue La C art E 702 Clearly expert assistance may be valuable in a court determination s particularly dealing with the psychological and emotional welfare of children however the ultimate best interest of the child decision squarely remains in the exclusive province of the court W 619 So at 710 711 E M 2d This decision necessarily focuses on all ofthe evidence and testimony presented Id The record clearly indicates that as a toddler S had recurrent problems T with genital irritation Based on S reports that her daddy hurt her by rubbing s T her genitals fudge Crain could have believed those witnesses including experts who surmised S genital problems resulted from Mr Thomas inappropriate s T V sexual contact with her On the other hand Judge Crain also could have reasonably interpreted S reports and demonstrations as an expected reaction s T by a toddler to the discomfort caused by her father nonsexualized attempts to s treat her recurrent diaper rash Regarding other evidence presented including allegations that Mr Thomas bathed and slept with S and that S began to T T exhibit disturbing behaviors Judge Crain heard the witnesses read the depositions and apparently did not find the evidence sufficient to prove sexual abuse Given Judge Crain opportunity to observe the demeanor of the witnesses s he was in the best position to make determinations as to their credibility Our review on appeal reveals that he carefully evaluated the testimony and made factual findings that are reasonably supported by the record Ms Landry s arguments to the contrary are without merit We further conclude that Judge Crain did not err in ordering that Mr Thomas future visitation with S be supervised If Judge Crain had found that T Mr Thomas sexually abused S he would have been required under La R T S A 341 9 to order such restrictions conditions and safeguards necessary to minimize any risk of harm to S But even without a finding of abuse as is the T case here a trial court has the discretion to impose supervised visitation by a neutral party to minimize the risk of harm to the child Harper 33 La App 452 2 Cir 6 764 So at 1 00 21 2d 1901191 see also Coie v Coie 42 La App 2 077 Cir 2 948 So 1276 12791280 07 21 2d In reasons for judgment Judge Crain noted that S was in therapy and T that thus far there was no indication from that therapist that sexual abuse had 10 occurred He indicated that after therapy and after T S had determinations as to whether sexual abuse occurred might be possible matured But he went on to state that u a more definitive conclusion could be reached the ntil Court believes that it is in the best interest of the child that visitation be controlled to preclude even the possibility of future abuse Considering S young age s T and the contentious relationship between her parents it was not manifestly erroneous for Judge Crain to find that supervised visitation was in S best s T interest See Harper 764 So at 11 1191 From our review of the record 2d 90 there is ample evidence to support Judge Crain decision Mr Thomas arguments s to the contrary are without merit DENIAL OF MOTION FOR NEW TRIAL We next address Judge Amacker sdenial of Ms Landry motion for new s trial that the judge review the entire record and for professionally supervised visitation Judge Amacker heard the new trial motion on March 17 2011 In response to Ms Landry motion that she read the entire record before making a s determination on the motions for new trial and professionally supervised visitation Judge Amacker said ll I certainly take that into consideration after hearing everything we have today It all depends what at issue gentlemen as you know in s a case on whether or not I have to read the entire record every transcript everything that gone on in this case to reach a decision s on the isolated issues that you present in connection with a m otion for n t ew rial Judge Amacker went on to state that she did not want to unduly delay matters and as a number of the transcripts from hearings were not transcribed she would 5 At a May 26 2010 hearing the parties stipulated that Dr Amy Dickson a clinical psychologist would provide counseling services to S The stipulation provided that Dr Dickson would be T srole in this called to testify only if S therapy revealed evidence of abuse Dr Dickson s T litigation is discussed in relation to Ms Landry smotion for new trial and motion to recuse Judge Amacker see after the hearing if she felt comfortable ruling without reviewing all of the asyet unprepared record She noted that Ms Landry position in moving the s court to review the entire record was undermined by her failure to see that the record was available for review The trial court recessed for a period during which she reviewed portions of the record specifically a new deposition of Dr Dickson S therapist taken s T the previous day March 16 2011 Upon her return Judge Amacker stated that she had read everything that present in the record as of today s The court stated her finding that Ms Landry had failed to establish any newly discovered evidence sufficient to justify the granting of a new trial under La C art P 2 1972 She further denied the motion on discretionary grounds She noted that Dr Dickson snew deposition revealed no newly made allegations by the child of sexual abuse by any party Judge Amacker further opined that had Dr Dickson s new deposition been available to the court at trial it would not have changed the outcome because sexual abuse had not been proven Judge Amacker thus denied the motion for new trial Under La C 1972 a new trial shall be granted when the moving P 2 party has discovered since the trial evidence important to the cause which he could not with due diligence have obtained before or during the trial To meet this burden of proof on a motion for new trial based on newly discovered evidence the mover must show that such evidence 1 is not merely cumulative 2 would tend to change the result of the case 3 was discovered after trial and 4 could not with due diligence have been obtained before or during the trial Thomas v Comfort Center of Monroe LA Inc 100494 La App 1 Cir 29 10 48 So 1 1240 3d 228 The standard of review of a judgment on a motion for new trial whether on peremptory or discretionary grounds is that of 12 abuse of discretion Guillory v Lee 09 0075 La 6 16 So 1104 1131 09 26 3d Ms Landry motion for new trial is based on Dr Dickson March 16 s s 2011 deposition We agree with Judge Amacker that Dr Dickson deposition s contains no new evidence that would tend to change the result of this case In her deposition Dr Dickson discussed behaviors exhibited by S some of which she T opined were consistent with sexual abuse including physical aggression toward peers sudden bowel movements and urination in her clothing sexualized acts toward her mother and separation issues Dr Dickson testimony indicates that s most of these behaviors were occurring before the conclusion of the trial before Judge Crain but Dr Dickson did not reach the conclusion that they were consistent with sexual abuse until October 2010 after the trial However Dr Dickson also admitted that S behavior could have been attributable to s T stressors other than sexual abuse that the sexualized acts toward her mother were based solely on reports from Ms Landry or Ms Landry mother that S never s T specifically admitted to the sexual acts and that T S made unconf need accusations of abuse against individuals other than her father Given a trial court s discretion in assessing the weight to be given any evidence we find no abuse of discretion in Judge Amacker conclusion that Dr Dickson deposition did not s s constitute new evidence tending to change the result ofthis case b Judge Amacker denied Ms Landry motion for professionally supervised s visitation finding no reason to alter the judgment entered by Judge Crain and 6 As noted Dr Dickson arrived at her newly formed opinion that S behaviors were s s T indicative of sexual abuse in October 2010 after the close of the trial before Judge Crain but before his rendition of reasons for judgment or judgment At the hearing on the motion for new trial Judge Amacker questioned Ms Landry counsel as to why no attempt was made to notify s Judge Crain of Dr Dickson newly formed opinion before Judge Crain decided the case Under s similar procedural circumstances it has been held that a new trial is not warranted See Smith v Hyman 6 So 368 371 372 La App Orleans 1942 2d 13 noting that since the paternal grandmother had not yet had the opportunity to supervise a visit under the new order because of a stay in place pending the March 17 hearing there was nothing new offered about her suitability Agreeing that there is a lack of new evidence to prove Ms Landry allegations that Ms s Rutledge is an ineffective hostile and negligent supervisor or to otherwise discount the paternal grandmother qualifications as the supervisor of Mr s Thomas visitation we find no abuse of discretion in this determination Thus based on a thorough review of the record and Judge Amacker sruling with regard to Ms Landry motion we conclude Judge Amacker did not abuse s her discretion in denying the motion for new trial and for professionally supervised visitation Ms Landry writ application filed under 2011 CW 0587 is s hereby denied MOTION TO RECUSE JUDGE AMACKER We next address Judge Badeaux sdenial of Ms Landry motion to recuse s Judge Amacker which Ms Landry brings before this Court under writ application 2011 CW 1852 As earlier stated Judge Badeaux held a hearing on the recusal motion Following the hearing Judge Badeaux took the matter under advisement read the transcript of the June 27 2011 hearing and listened to one and one half hours of Dr Dickson testimony via audiotape In his reasons for judgment denying the s recusal motion Judge Badeaux reviewed Ms Landry specific allegations of bias s and concluded they were conclusory and not based on evidence of a substantial nature This Court has likewise reviewed Ms Landry allegations and agrees s 7 Ms Landry argues Judge Amacker abused her discretion in refusing to review all evidence adduced before Judge Crain before ruling on the new trial and professionally supervised motions Although it is unclear exactly what part of that evidence was pertinent to the motion for new trial our review of the record demonstrates Judge Amacker had sufficient evidence before her to properly decide the motions 14 with Judge Badeaux findings s We adopt his August 4 2011 reasons for judgment as our own Accordingly we find Judge Badeaux did not err in denying the recusal motion Ms Landry writ under 2011 CW 1852 is hereby denied s DECREE For reasons herein the February 22 2011 judgment is affirmed The writs fled under 2011 CW 0587 and 2011 CW 1852 are denied are assessed equally to Ms Landry and Mr Thomas JUDGMENT AFFIRMED WRITS DENIED 15 Costs of this appeal
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