C.M.J. v. L.M.C., Wife of C.M.J.

Supreme Court of Louisiana

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #051

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 15th day of October, 2014, are as follows:

BY CLARK, J.:

2014-CJ-1119 C.M.J. v. L.M.C., WIFE OF C.M.J. (Parish of St. Tammany)

Retired Judge Thomas C. Wicker, Jr., assigned as Justice ad hoc,

sitting for Hughes, J., recused.

Accordingly, we reverse the judgment of the court of appeal and

reinstate the trial court’s custody judgment, as well as the

trial court’s second judgment, containing the protective order

and conditions concerning the mother’s visitation privileges.

REVERSED; TRIAL COURT JUDGMENTS REINSTATED.

10/15/14

SUPREME COURT OF LOUISIANA

NO. 2014-CJ-1119

C.M.J.

VERSUS

L.M.C., WIFE OF C.M.J.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,

FIRST CIRCUIT, PARISH OF ST. TAMMANY

CLARK, Justice*

This case concerns a highly contested custody dispute over three minor

children. After an eleven-day trial and extensive written reasons for judgment, the trial

court awarded sole custody of the children to the father and conditionally reserved

visitation privileges to the mother. The First Circuit Court of Appeal reversed and

remanded for a new trial. The main issue before us is whether the court of appeal

erred in finding the trial court abused its discretion in prohibiting the children from

testifying at trial and not relying on a sexual abuse evaluation. After careful

consideration of the record before us, we find no abuse of the trial court’s great

discretion nor do we find any manifest error by the trial court in this fact intensive

controversy. We reverse the court of appeal’s judgment and reinstate the judgment

of the trial court.

FACTS AND PROCEDURAL HISTORY

C.M.J., (hereinafter, “the father”), and L.M.C., (hereinafter, “the mother”), were

married in 1996. They had three children: C.T.J., a son, born in 1998; J.A.J, a son,

born in 2001; and J.T.J, a daughter, born in 2007. The father filed for divorce in May

*

Retired Judge Thomas C. Wicker, Jr., assigned as Justice ad hoc, sitting for Hughes, J., recused.

2011.

Incidental to his divorce petition, the father sought sole custody of the three

minor children.1 The father alleged that the mother (1) removed the children from the

family home for extended periods of time on multiple occasions without giving notice

to him; (2) kept the boys out of school for fifteen days straight; (3) refused the father

access to his children; (4) falsely accused him in two different criminal jurisdictions of

sexually abusing his then three-year old daughter, and kept those allegations a secret

from him; (5) unnecessarily subjected the daughter to an intimate physical examination

and forensic interview; (6) falsely accused the father of drugging both the mother and

the children; (7) engaged in questionable parenting practices, including paying the older

brothers to bathe their younger sister; (8) believed a medical conspiracy existed

wherein medical professionals intended to hurt the daughter; and (9) acted with the

intent of alienating the children from the father.

What followed were several months of highly contentious litigation, during

which the mother filed several petitions for protection from abuse, averring physical

and sexual abuse, only to voluntarily dismiss them herself. Further, at a pre-trial

hearing, amidst these allegations, the mother stipulated to joint custody of the children.

Also at this pre-trial hearing, the parties stipulated that they and the minor children

would undergo a sexual abuse evaluation and a mental health evaluation by Dr. Alicia

Pellegrin, a clinical psychologist, pursuant to La.R.S. 9:331.

The parties shared equal physical custody of the children until October 2011.

On October 25, 2011, the mother filed a motion for emergency ex parte custody and

injunction based on the recommendation of a Children’s Hospital nurse, Ann Troy,

that the three children receive “protective placement” away from their father, the

1

The father alternatively sought to be named the domiciliary parent in the event joint custody was

awarded.

2

“alleged perpetrator.” The circumstances of this recommendation are as follows: the

mother alleged that the daughter complained to her that the father hurt her rear end.

Based on this alleged complaint, the mother brought the daughter to Children’s

Hospital in New Orleans, where she was examined by Nurse Troy. Nurse Troy

referred the children to a social worker employed by the Department of Children and

Family Services, Ashleigh Stevens. Ultimately, based on communication to the trial

court by the Department of Children and Family Services, the motion for emergency

custody was signed by the duty judge in favor of the mother.

The father later discovered that a videotape was made by the mother on October

4, 2011— predating the visit to Children’s Hospital and the subsequently filed motion

for emergency custody. The videotape showed the mother discussing the sexual

abuse allegations with the daughter. Further, the mother allowed her sister to record

a conversation with the middle son concerning the allegations. Because these

recordings violated a court order which prohibited the parties from discussing the case

or allegations with the children or allowing family members to discuss the case or

allegations with the children, the father filed a rule for contempt and a motion in limine,

seeking to prohibit the videotape’s introduction into evidence, the use of any testimony

influenced by such tapes, and the children’s testimony. The father contended that the

mother coached the daughter into falsely accusing him of inappropriate behavior and

that the tape and the daughter’s tainted statements were then used to garner the

negative reports and testimony of Nurse Troy, Ashleigh Stevens, and anyone else who

subsequently interviewed the child. Further, it was the father’s position that the

children’s testimony would be contaminated due to the suggestability of the alleged

coaching.

A hearing on the rule for contempt was conducted, and the trial court found the

3

mother guilty of two counts of contempt of court. The mother was fined a total of

$500 and sentenced to sixty days imprisonment, which was suspended in favor of

unsupervised probation for sixty days.

The trial court next considered the father’s motion in limine. The court-

appointed expert in clinical psychology, Dr. Pellegrin, testified at the hearing, as well

as Nurse Troy. In open court on June 7, 2012, the trial court partially ruled on the

motion in limine, prohibiting the mother from introducing into evidence or using in any

manner the recordings of the children. The trial court referred to the merits the

remaining subjects of the motion in limine, including the children’s testimony and the

testimony of others who may be influenced by the recordings.

An eleven-day trial, spanning the course of several months, ensued. The trial

court heard testimony from the parties; Dr. Pellegrin; Lewis Eaton, an expert in

licensed professional counseling and a licensed family therapist who counseled the

parties; Nurse Ann Troy; Detective Scott Davis, a detective with the St. Tammany

Parish Sheriff’s Department who investigated the sexual abuse allegations; and

Ashleigh Stevens.

The trial court also considered numerous reports, records, interviews and Dr.

Pellegrin’s evaluation for custody. By judgment dated December 26, 2012, the trial

court prohibited the children from testifying, finding the testimony concerning any

alleged abuse was tainted by the mother’s manipulation. In oral reasons for ruling, the

trial court explained that it was her belief the children were contaminated and were

subject to such suggestability that any testimony from them would be unreliable and

untrustworthy.

Additionally, once the trial court determined that the daughter was an unavailable

witness, it heard the testimony of the maternal grandmother, who was testifying

4

regarding the daughter’s initial disclosure of sexual abuse. La.Code Evid. Art.

804(B)(5) excepts from the hearsay rule a “statement made by a person under the age

of twelve years and the statement is one of initial or otherwise trustworthy complaint

of sexually assaultive behavior,” if the child is unavailable to testify. The record shows

the trial court limited the grandmother’s testimony to the recitation that the daughter

fearfully exclaimed “the bleed, the bleed” when the grandmother attempted to tickle her

thighs during playtime. The trial court found this proclamation to be the initial

disclosure by the daughter and that any testimony elicited afterward would be

inadmissible hearsay. The mother objected and later proffered the grandmother’s

testimony.

Ultimately, on February 8, 2013, the trial court awarded sole custody of the

minor children to the father, providing twenty-six pages of written reasons.2 In

pertinent part, the trial court stated:

In reaching an opinion in this case, the Court considered all relevant

factors, including the twelve non-exclusive factors contained in La. C.C.

Art. 134 and makes the following findings on those factors to which there

was testimony and evidence placed on the record.

* * *

(2) The capacity and disposition of each party to give

the child love, affection, and spiritual guidance and to

continue the education and rearing of the child.

While both parents demonstrate ability to give the children love and

affection, the testimony at trial hereof establishes that the father has the

greater ability to give the children beneficial spiritual guidance grounded

in traditional values and to continue their education and rearing. Religion

has played a prominent role in both parents’ lives of late, however, [the

2

The judgment reflecting these reasons was signed on February 19, 2013. Additionally, a second

judgment provided for no visitation with the children by the mother until or unless certain conditions were

met, namely therapy approved by the court, upon which time, the mother would be allowed communication

with her children via the internet and telephone. Upon three months of treatment satisfying the Court’s

conditions and upon an updated recommendation by Dr. Pellegrin, supervised visitation would be

considered by the court. Further, the judgment issued a protective order prohibiting the disclosure and/or

dissemination of the judgment and the written reasons for judgment except to appropriately qualified mental

health professionals approved by the court.

5

mother’s] “religious” practices at some point became bizarre and

obsessive. Some of her activities that were proven at trial, involved

placing salt on the baseboards of the family home and crosses in oil on

the doors to keep out the evil spirits and examining [the father] upon his

arrival at home after work to see if his eyes had black circles under them,

in order to determine if the “devil” was in him. If so, she commanded the

devil, in “Jesus’ name,” to come out of him. [The mother]’s behavior,

which often occurred in front of the children, included calling the father

various names meaning “devil,” locking herself in closets to “pray,”

locking the children’s doors at night to keep out evil spirits, allegedly

taking her sister to an exorcist to get the devil out of her sister, putting

written prayers under beds and chair cushions to “knock” the devil out

of the person using the furniture, and mumbling unintelligible languages

at home and in public places, often swaying while doing so, and on one

occasion, falling out on the floor in a convulsive fit in church, but not

before looking behind her to see if her mother and sister were watching.

The Court observed her during the last days of trial, while court was in

session and also in recess, with her chin resting on her chest in a trance-

like state for long periods of time.

(3) The capacity and disposition of each party to

provide the child with food, clothing, medical care, and

other material needs.

The record reflects that, insofar as financial ability to care for the children

is concerned, [the father] is gainfully employed at this time. He maintains

substantial income handling administration and sales for Medical Corp

Management. [The mother] has not been employed since she owned and

worked prior to and early in the marriage in a “lingerie modeling”

business. Her income at the time of trial was derived solely from [the

father], from whom she received in excess of $90,000.00 per year in child

support and spousal support. In the event [the father] is awarded custody

of the children and/or [the mother] does not prevail in her claim for final

spousal support from [the father], the fault trial being currently set before

the Court on March 11, 2013, her ability to provide the children with

material needs would be adversely affected, and presumably she would

have to seek employment to maintain an income and provide for a home

and for her needs as well as those of the children. There was no evidence

offered at trial that she has the education or ability at this time to

independently support herself and the children through available

employment.

There was credible evidence adduced at trial that [the mother]’s

motivation for making the allegations of sexual abuse against [the father],

was, at least partially, monetary in nature. If successful in gaining sole

custody of the children, she would maintain a substantial monthly amount

of child support and spousal support from [the father], possibly

supplemented by a money judgment in the civil suit she filed against [the

father] in Jefferson Parish. The testimony and evidence established that

she frequently held out to the children and her relatives, that [the father],

6

post-separation, did not support them and give them enough money to

live, which was not based on fact, as was established at trial hereof. [The

father] testified that, in September 2011, some months after [the mother]

made the second set of sexual abuse allegations against him, she offered

him a “deal” in a telephone conversation, to settle for “money” - that if

he gave her one-half of his salary for the rest of his life, she would make

him a “better” custody arrangement, consisting of alternating weekends

and one day per week custody of the children. The Court finds this

testimony to be credible, despite [the mother]’s denial of same, and this

conversation between the parties most significant, as [the mother]’s

escalation in pursuing previous abuse allegations she had made against

[the father], including her recording of [the daughter], and her sister’s

recording of [the middle son], occurred soon after his rejection of the

“deal.”

On the issue of medical care of the children, the record reflects, and the

Court finds, that [the mother]’s unfounded skepticism and paranoia

about the medical profession and use of medication, has resulted in her

medical neglect of her children. The children have not been vaccinated

as recommended, their dental hygiene and care is abysmal, and [the

mother] has jeopardized their access to health care by unjustly accusing

their doctors and dentist, and/or their staffs, of attempting to harm or

even “kill” her children. The Court finds [the father] to have the far

greater capacity to understand and handle the children’s medical needs.

(4) The length of time the child has lived in a stable,

adequate environment, and the desirability of

maintaining continuity of that environment.

The children have lived for the last year and one-half in [the mother]’s

care, due to her allegations and the ensuing investigations and litigation.

For the reasons listed herein, the Court finds, to maintain the children in

that environment, removed from their father, is not in their best interest,

and any benefit to the children in maintain [sic] the continuity of that

environment is outweighed by the dangers posed to their mental and

physical well-being if they were to remain in the current environment.

* * *

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

Both parents appear to be in good physical health, however, the mental

health of the parents is a factor the Court finds must be attributed great

weight in reaching a decision in the children’s best interest.

Dr. Allicia Pellegrin, a clinical psychologist, who had been practicing for

over fifteen years at the time of trial, was appointed by the Court as an

expert and ordered to conduct a sexual abuse evaluation, and mental

health evaluations of the parties, specifically addressing the issues

presented in this case. She was appointed on August 15, 2011, after the

Court held a conference with counsel to discuss the substitution of an

7

expert, as the previously appointed expert, Dr. John Simoneaux, was

unavailable. There was no objection by counsel to her appointment, and

she thereafter conducted an extensive mental health evaluation of the

parties and made recommendations to the Court.

...

Dr. Pellegrin’s testimony was taken over a period of four days at trial. On

June 7, 2012, she testified in connection with the Motion in Limine, and

also testified in the custody trial on September 7, 2012, September 10,

2012 and December 5, 2012.

She testified she conducted a custody evaluation and not a child sexual

abuse evaluation in this case, because by the time she saw [the daughter],

the child had been inappropriately “interviewed” by the mother on

videotape, and any subsequent information that she could get from the

child would, in her opinion, be highly suspect. She also testified that [the

mother] admitted to her she had questioned [the daughter] repeatedly

since the year 2010 about alleged sexual abuse by her father. She testified

that the history revealed that the child had been taken to Children’s

Hospital at least four different times, and that the mother made a

complaint of sexual abuse in late 2010 in Jefferson Parish which was

investigated, but [the mother] did not follow up with the evaluation there

after the child was interviewed and never told [the father] about the

allegations or investigation. Dr. Pellegrin saw the parties on at least twelve

occasions, over a six month period of time.

She testified that the “videotape” made by the mother of her interview

with the child, [the daughter] [sic] was disturbing, stressful to the child,

and pressured the child to respond in a certain way. She testified that [the

mother] believes [the father] sexually abused her daughter and that the

information that the interviewer believes is the information that comes out

in the interview.

She testified that the fact that [the mother] allowed her young son, who

was 12 or 13 years old at the time, the right to “interview” his younger

sister who was 4 or 5 years old about the alleged sexual abuse allegation

involving their father, was very concerning, disturbing and showed a total

lack of judgment on [the mother]’s behalf. Dr. Pellegrin stated the two

boys presented to her in a way that suggested the mother had negatively

stereotyped the father to them, and that the fact that the mother and her

sister engaged in behaviors (the “interviewing” and taping of the children)

“blatantly flying in the face” of court orders suggests there is a problem

with abiding by authority and the rules. Her opinion was that because the

mother had custody of the children with no access to the father for an

extended length of time, the children have had no choice but to align

themselves with her.

In her opinion, there was probably never a properly conducted interview

of the child, [the daughter], since [the mother] told her she spoke to the

8

child numerous times before she took the child to Children’s Hospital the

first time. She testified that all the major protocols recognized by experts

in the field, require that an interview of a child be audio recorded and,

preferably, video recorded in order to evaluate the interview properly.

Only the two “interviews” [the mother] and her sister personally had with

the children were taped and subsequently presented to the Court.

In questioning Dr. Pellegrin, [the mother]’s own legal counsel effectively

agreed with Dr. Pellegrin’s ultimate assessment of his client’s “interview”

with her child, prefacing a question to Dr. Pellegrin concerning the

videotape made by [the mother] with the comment, “[w]ould you agree,

as bad as that interview was on October 4, 2011 ...” (T.p. 94, 6.7.12).

Dr. Pellegrin further stated that, if the “tape made by the mother is a

sample of the kind of questioning the child was subjected to, ... then I

think it is reasonable to assume that prior questioning of the child went

along similar lines.” (T.p. 130, 6/7/12).

She testified about serious concerns she had with the interviews of the

child and findings made at Children’s Hospital by the nurse practitioner,

Ann Troy, stating that Ms. Troy’s opinion relied on outdated, inaccurate

data, that does not take high conflict custody cases into account, that the

personnel at Children’s Hospital have a bias that “context does not

matter,” that the interview Ms. Troy conducted was not a forensic

interview following any established protocol, that Ms. Troy’s testimony

that she could tell that there is a difference in the way a child presents

information when they have been coached versus when they are telling the

truth, is patently false, that she believes Ann Troy is an “advocate” and

therefore biased.

Dr. Pellegrin testified that she told [the mother] that she recommended the

children be immediately enrolled in therapy and [the mother] also enroll

in therapy and that it was of great concern that she had not done so, and

that it shows very little insight and judgment on [the mother] [sic] part.

Dr. Pellegrin diagnosed [the mother] with a mixed personality disorder,

Axis II Cluster B, with three traits being present, that being borderline,

histrionic and narcissistic traits, and she stated that these traits are not

amenable to therapy as people who have this diagnosis have almost

complete lack of insight.

She testified that [the mother] admitted to her that she had earlier stated

the belief she was pregnant and the doctors hid this from her, that the

doctors gave her “drugs” to possibly cause her a miscarriage and hid this

from her. When asked by Dr. Pellegrin to explain these actions, she

blamed it all on [the father]. [The mother] also admitted to her that she

thought there was a “conspiracy” to kill the daughter. Dr. Pellegrin

opined that these thoughts and beliefs of [the mother] are evidence of a

specific delusion and are classified as psychotic in nature.

9

She testified she believes [the mother] has serious anger issues and that

the children are not safe with her.

* * *

She testified that [the daughter] was contaminated by the mother and that

for the child to testify to the Court would be traumatizing at this point,

and that it would be impossible not to be concerned about suggestibility

for all three of the children, and further that it was not in their best interest

to testify.

She testified that [the mother] telling the children she was worried they

didn’t have enough money and that’s why she left the dad was

“horrendous” and that [the mother] telling [the daughter] when [the

daughter] was approximately 3-years-old, that her father “really slammed

her mother into a wall,” was “heinous and indescribable.”

She opined that, if the allegations made by [the mother] were proven

false, it would not be unreasonable for the Court to make a determination

that [the mother] should have no contact with [the daughter] and any

contact, if allowed, should be “limited and supervised, if any.”

She further testified she had no concerns about the safety of the children

with [the father]. Dr. Pellegrin’s mental health examination of [the father],

showed he did not exhibit any psychopathology and that he essentially

tested “normal” for a parent involved in a high conflict custody case.

* * *

(13) Allegations of Abuse

The final and most important factor in this case , which the Court finds

relevant and considered in addition to those cited in Art. 134, are the

abuse allegations [the mother] made against [the father]. She alleged that

[the father] had sexually abused their minor child, [the daughter], and had

physically abused [the mother] and [their minor sons].

The evidence reflects that when [the mother] was unable to get the relief

she believed she was entitled to after making her allegation to the

authorities that [the father] was an abuser, she in desperation decided to

take matters into her own hands and videotaped an “interview” she

arranged with the child, [the daughter], who was then 4 years-old. Instead

of proving abuse by the father, the tape stands as definitive proof of [the

mother]’s mental abuse of the child including her exerting pressure, and

using guilt and coaching techniques to manipulate the child into making

false allegations. She concludes her “interview” by making the child

promise to lie to her teacher as per her instructions, the next day. That

[the mother] believed this tape would help her case is the best proof of

the lack of insight Dr. Pellegrin addresses in making her diagnosis of [the

mother]. The “videotape” was entered into evidence in the Motion in

Limine. Any review of this case should necessarily start with examination

of the videotape made by [the mother] and the equally flawed “interview”

10

her sister orchestrates with [the middle son]. How any expert who

purports to understand how suggestible and vulnerable children, when

subjected to this type of “interview” by a parent or relative they are

obviously seeking to please, could be anything but contaminated

thereafter, is incredible.

Detective Scott Davis, an investigator with the St. Tammany Parish

Sheriff’s Office Criminal Investigations Division, who has ten years

experience in sexual abuse investigations, testified at trial. Detective Davis

handled the investigation of sexual abuse allegations against [the father]

made by [the mother]. He stated he has handled between 500 - 1000

sexual abuse cases in multiple parishes in the state, and had 23 years total

experience in law enforcement. He initially received the complaint made

in St. Tammany Parish from [the mother] in April 2011. Detective Davis

has testified before the Court on numerous occasions and his vast

experience with sexual abuse investigations is well known to the Court.

Detective Davis testified that [the mother] made “the videotape” of [the

daughter] after he specifically requested her not to do so and after she

had been court ordered not to do so. She also told him that she and the

two boys had been drugged by [the father], but he found it significant

that she waited two months to report this, and never had the medical tests

which would have provided proof of same.

Detective Davis testified he conducted a thorough investigation, and the

end result was that he was greatly concerned about [the mother]’s

motivations, that there was no evidence or witnesses to support her

allegations, and that when he would not subsequently arrest [the father],

she and her family became very upset. Dr. Pellegrin testified Detective

Davis told her that at this point [the mother] became “belligerent.”

[The mother] testified she subsequently made a complaint against

Detective Davis for not interviewing her “witnesses.” Detective Davis

testified that there was ultimately determined by the authorities involved,

to be a lack of evidence to pursue criminal charges against [the father],

both in St. Tammany Parish and in Jefferson Parish. The Court found

Detective Davis’ testimony to be credible and supported by the record.

Louis Eaton, who was qualified by the Court as an expert in licensed

professional counseling and as a licensed family therapist, testified that

both [the father] and [the mother] saw him for several sessions of family

counseling beginning in 2007 and that he continued to see [the father]

until February 2012.

He testified that, during the session he conducted with the couple, the

physical abuse of each other and/or the children was not an issue, and

that the main issue was [the mother]’s obsessive accusations of [the

father]’s infidelity, despite the fact that there was no evidence of same.

He stated that she was aggressive, angry and insecure, and [the father]

was generally passive, and that when Mr. Eaton suggested that [the

11

mother] needed to examine herself and her past - she discontinued

counseling.

Mr. Eaton diagnosed [the mother] as having borderline personality

disorder, with histrionic and narcissistic traits, and also having dependent

personality traits. He described her moods as labile and excessive. His

diagnosis was remarkably similar to Dr. Pellegrin’s diagnosis of [the

mother].

After [the mother] ended her counseling with Mr. Eaton, he testified that

she and her family members filed several complaints against him with his

State Board and also with the pastor at the church he was connected with

in his counseling practice, all of which complaints were unfounded and

untrue. At the time of trial there was some indication made on the record

by counsel, that the State Board complaints had been dismissed.

Mr. Eaton stated that he had seen [the father] in counseling sessions over

many years - at least 60 - 70 times - and had no concerns about his ability

to parent his children.

The Court found Mr. Eaton to be objective, unbiased, highly experienced

in the matters to which he testified, and credible.

Ann Troy, was qualified by the Court as an expert nurse practitioner with

expertise in medical exams of children suspected of being abused. She

was employed at the time of trial with Children’s Hospital in New Orleans

and performed a medical exam and interviewed all three children in

October 2011, upon [the mother]’s presenting with the children to the

hospital. [Ms. Troy] testified on two different days of trial.

Ms. Troy testified concerning the history she took came from the mother

and the children. She testified she assumed they were all telling the truth.

Her interview was not a “forensic interview,” and although she testified

she uses interviewing techniques that “come from forensic interviewing,”

the evidence established her interviews with all of the children clearly do

not follow any standard accepted protocol for “forensic interviews.” She

performed physical exams on all three children which were normal and

she admitted that she performed no investigation of the case.

She stated she was never told a custody case was pending or that an

evaluator had been appointed by the Court, and that if she had known

those things, she would have only included it in her report, but this would

not have been significant to her.

Her interviews of [the daughter] and the boys, which she termed “medical

incident histories,” were subsequent to multiple interviews of the children

by many parties, over two years time in duration, none of which

“interviews” have been established as a true “forensic interview.” The

worst examples of these prior “interviews” were the mother’s videotaped

interview of the child, [the daughter], and her sister’s audiotape of [the

12

middle son]. Ms. Troy admitted she “blew it” by asking one

inappropriate question of [the daughter] during her interview, however,

the record reflects the entire interview is rife with inappropriate technique

and questioning, as fully detailed in Dr. Pellegrin’s testimony and

supported by established and recognized standards and protocols.

It is deeply concerning to the Court that, based solely upon a self-serving

history given by the mother; medical exams and “medical history” non-

forensic interviews of the children, after they were brought by the mother

to the hospital, which interviews meet no standards or protocols

established for forensic interviews upon which some reliability may be

placed; and all of this accomplished without the benefit of a thorough,

objective investigation to establish any context, that a conclusion is made

by a medical professional that a father has sexually abused his now 5-

year-old daughter. That Ms. Troy’s opinion was apparently made without

any reference to, but with full knowledge of the “videotape” the mother

had made of herself and the daughter, is remarkable.

The Court therefore attributes no weight to Ms. Troy’s findings in this

case, as the evidence and testimony elicited at trial established that the

history given to her by the mother was inaccurate and the children’s

interviews were flawed and occurred long after the children were

contaminated in this case. There was not even a cursory objective

investigation or inquiry that would lead a reliable result in reaching any

conclusion about whether or not these children had been abused and if

so, by whom, and while the process at Children’s Hospital may be

adequate and in fact, designed, to determine the children’s immediate

medical needs and acknowledging their desire to advocate for children

who have been abused is indeed laudable, it does not result in reliable

evidence in this particular case that can be used in determining the

ultimate issue before this Court.

For the same reasons, the testimony and conclusions drawn by Ashleigh

Stevens, an employee of the State of Louisiana, DCFS, the Court finds

to be based partially upon her misconception that the interview at

Children’s Hospital was “forensic interview” and that Ann Troy’s

conclusion that the child had been sexually abused by [the father] was

based upon reliable evidence. Ms. Stevens further based her individual

findings upon the videotape and audiotape of the children, presented to

her by [the mother], which contained statements by the children

obviously manipulated and orchestrated by [the mother] and her sister,

against specific court orders. That Ms. Stevens has minimal experience

is no excuse for training so faulty that she would not recognize the

significance and implications of what is contained on the tapes made by

the mother and her sister. Despite her admission that it was difficult to

determine who was telling the truth in this high conflict case and that she

never did manage to speak to Dr. Pellegrin, the Court’s appointed

evaluator, prior to reaching her conclusion, she made a valid finding for

sexual manipulation and fondling of [the daughter] by her father. Since

the information and history she received has been proven inaccurate, no

13

weight can be given her testimony or that of any of the thereafter referred

mental health experts who provided subsequent therapy or treatment for

the children.

CONCLUSION

In the final analysis, based upon the overwhelming evidence in this

matter, it has been proven to the Court by clear and convincing evidence

that the mother has mentally and physically abused these children by

making false allegations of sexual and physical abuse against their father

and manipulating the children to make false allegations against their father

over a long period of time, while using a most cautious court and medical

system to her advantage, in an effort to align the children with her and

alienate them from their father. The damage she has done to the children

and [the father] is incomprehensible and can only be explained by her

mental health diagnosis. There is no credible evidence that [the father]

ever sexually abused [the daughter] or physically abused [the daughter],

[the oldest son], [the middle son] or [the mother].

[The father] is therefore awarded sole custody of the three minor

children, [the daughter], [the oldest son] and [the middle son]. Due to

grave concerns the Court has about [the mother]’s deteriorating mental

health, her failure to seek therapy as recommended by the evaluator and

the distinct possibility that she is untreatable even if she enters therapy,

her continued position that the [sic] [the father] is a sexual and physical

abuser, and the possibility that unmonitored contact with their mother will

further damage the already fragile children, no visitation with the children

by the mother is ordered at this time.

In the event the mother enters treatment and cooperates and takes all

recommendations of appropriately qualified mental health professionals,

who are to be recommended by Dr. Pellegrin and appointed by the

Court, and are to be provided with this opinion and have access to the

entire record of this matter, in order to obtain a thorough history of this

case, the Court will then allow monitored telephone and/or internet

communication on a reasonable basis between the mother and the

children. Thereafter, after a period of three months has passed after the

mother enters into treatment, which period will allow the children time to

reacquaint themselves with the father, whose love and affection they have

been deprived of for over a year and a half, which will allow the father

and the children to make up some of the lost time and repair the

relationship, and will allow the children some time to engage in therapy,

the Court will consider closely monitored supervised visitation of the

mother with the children after an updated evaluation by Dr. Pellegrin, after

she has communicated with [the mother]’s doctor, therapist or treatment

providers and Dr. Pellegrin makes recommendations to the Court for

visitation, with such restrictions and conditions as she deems necessary.

The mother appealed the trial court’s rulings. The court of appeal reversed and

remanded with instructions, with one judge concurring. Jones v. Jones, 13-1270 (La.

14

1 Cir. 5/29/14), _So.3d_. The court of appeal found the trial court abused its

discretion in not allowing the children to testify and that the reasons provided by the

trial court were insufficient as a matter of law. The trial court, in the view of the court

of appeal, erred in not personally observing the demeanor of the children to determine

their competency to testify; instead, the court of appeal held that the trial court

improperly deferred to Dr. Pellegrin’s opinion that the children had been contaminated.

Also, the court of appeal found fault in Dr. Pellegrin’s refusal to perform a sexual

abuse evaluation despite being tasked by the court with the role of performing one.

The court of appeal found the trial court’s reliance on Dr. Pellegrin’s opinion, “which

was not supported by the appropriate court-ordered evaluation,” was an abuse of

discretion. Accordingly, the court of appeal remanded for a new trial with a new

court-appointed sexual abuse evaluator and for a determination of whether the children

are allowed to testify. Finally, in its analysis, the court of appeal held that the initial

disclosure exception to the hearsay rule allowed more testimony by the grandmother

than what was admitted by the trial court; thus, it found the trial court erred on this

ground as well.

The father filed a writ application with this court. The father also sought to stay

the execution of the court of appeal’s judgment. By order dated May 30, 2014, we

denied the stay as unnecessary, citing La.Code Civ.P. art. 2166. Accordingly, the

children have been in the care of their father since the trial court ruling in February

2013. We granted the writ to determine whether the court of appeal erred in reversing

and remanding the matter for a new trial. Jones v. Jones, 14-1119 (La. 6/30/14),

_So.3d_.

APPLICABLE LAW

The paramount consideration in any determination of child custody is the best

15

interest of the child. La. Civ. Code art. 131; Evans v. Lungrin, 97-0541 (La. 2/6/98),

708 So.2d 731. La. Civ. Code art. 134 sets forth the factors a court is to consider in

determining a child’s best interest:

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

and the child.

(2) The capacity and disposition of each party to give the child love,

affection, and spiritual guidance and to continue the education and

rearing of the child.

(3) The capacity and disposition of each party to provide the child

with food, clothing, medical care, and other material needs.

(4) The length of time the child has lived in a stable, adequate

environment, and the desirability of maintaining continuity of that

environment.

(5) The permanence, as a family unit, of the existing or proposed

custodial home or homes.

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

the child.

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

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

(9) The reasonable preference of the child, if the court deems the child

to be of sufficient age to express a preference.

(10) The willingness and ability of each party to facilitate and

encourage a close and continuing relationship between the child and

the other party.

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

(12) The responsibility for the care and rearing of the child previously

exercised by each party.

This court in Turner v. Turner, 455 So.2d 1374, 1378 (La. 1984), stated the

best interest of the child is the sole criterion to be met in making a custody award,

noting:

The trial judge sits as a sort of fiduciary on behalf of the child, and

must pursue actively that course of conduct which will be of the greatest

benefit to the child. It is the child's emotional, physical, material and

social well-being and health which are the judge’s very purpose in child

custody cases. He must protect the child from the harsh realities of the

parents’ often bitter, vengeful, and typically highly emotional conflict.

The legislature has mandated that the judge shall look only to the child’s

interests.

16

In furtherance of this important goal, the court has been vested

with broad and independent powers. It may, for example, order that an

investigation be conducted into the home lives of the parties, the

psychological health of the child, or into any other factor which the judge

deems to be important in his determination of the child’s best interest.

[Civ.Code art. 131]. In this way, the court can fulfill its obligations to the

child.

The court of appeal cannot simply substitute its own findings for that of the trial

court. Mulkey v. Mulkey, 12-2709, p.16 (La. 5/7/13), 118 So.3d 357, 368. The

determination of the trial court in child custody matters is entitled to great weight, and

its discretion will not be disturbed on review in the absence of a clear showing of

abuse. Id.

DISCUSSION

We begin our discussion with reiterating that the best interest of the child

standard is the fundamental inquiry in child custody matters. La. Civ. Code art. 131.

To promote this end, the legislature has expressly allowed for relaxed evidentiary rules

in child custody cases. La. Code Evid. Art. 1101(B) states:

[I]n the following proceedings, the principles underlying this Code shall

serve as guides to the admissibility of evidence. The specific

exclusionary rules and other provisions, however, shall be applied only

to the extent that they tend to promote the purposes of the proceeding.

...

(2) Child custody cases.

We held in Folse v. Folse, 98-1976, p. 11 (La. 6/29/99), 738 So.2d 1040,1046

that the legislature did not “remove any gate-keeping discretion from the judge

regarding admissibility of evidence” in cases where sexual abuse is alleged. Thus,

while the standard of proving the sexual abuse was elevated from the ordinary

“preponderance” standard to “clear and convincing,” the evidentiary rules did not get

stricter. Id.

17

The trial court in the instant matter found no credible evidence that the father

ever sexually abused the daughter or physically abused any of the children or the

mother. Instead, it found by clear and convincing evidence that the mother “mentally

and physically abused these children by making false allegations of sexual and physical

abuse and manipulating the children to make false allegations against their father over

a long period of time.” These were findings of fact made by a trial court that should

not be disturbed on appeal absent manifest error. “It is well settled that a court of

appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of

‘manifest error’ or unless it is ‘clearly wrong’ . . . .” Rosell v. ESCO, 549 So.2d 840,

844 (La. 1989).

The court of appeal found three errors by the trial court that warranted a

reversal: (1) the trial court’s refusal to allow the children to testify; (2) the trial court’s

reliance on Dr. Pellegrin’s testimony despite her failure to perform the court-ordered

sexual abuse evaluation; and (3) the trial court’s limiting of the grandmother’s

testimony. We will review each of these assigned errors to determine whether there

was manifest error in the factual findings or any legal error to justify a reversal of the

trial court’s judgment.

First, the court of appeal found the trial court abdicated her role in determining

the admissibility of the children’s testimony. In reaching this conclusion, the court of

appeal found that the trial court “relied exclusively on the observations and evaluations

of Dr. Pellegrin in determining that the children’s testimony had been contaminated”

and did not independently observe the minor children’s demeanor. After a close

review of the record, we find there was ample evidence beyond the opinion rendered

by Dr. Pellegrin to support the trial court’s decision to prohibit the children from

testifying.

18

While the trial court had the benefit of Dr. Pellegrin’s testimony—an expert who

was appointed by the court and had only the children’s best interest in mind—it also

had other evidence to show the presence of false allegations and contamination,

rendering any testimony by the children unreliable:

(1) The timing of the filing of the mother’s petition was suspect. Just four days

after the father was awarded temporary custody on June 17, 2011, the mother filed a

petition for protection from abuse and a reconventional demand, alleging specific

incidents of abuse that did not immediately precede the filing of the petition. Indeed,

some of the incidents alleged predated the petition for protection from abuse by almost

a decade, giving cause for a court to determine that these allegations may not have

been motivated by truth but by desperation. Furthermore, the mother voluntarily

dismissed the petition for protection from abuse. Again, this fact brings into question

the validity of the claims. (2) Significantly, the mother filed yet another petition for

protection from abuse, which she again voluntarily dismissed. (3) After making these

heinous allegations of abuse, the mother stipulated to equal physical custody of the

children. A mother’s voluntary agreement to share custody with the man she believes

harmed her children evidences a likelihood that abuse at the hands of the father did not

occur. (4) The mother dropped the criminal charges she instigated against the father

in Jefferson Parish, claiming her sister fabricated the allegations. Notably, the mother

never told the father she pressed criminal charges against him. (5) There was no

physical evidence of abuse. (6) After a thorough criminal investigation, the father was

never arrested or prosecuted due to a lack of probable cause. (7) The primary

evidence, if not the only evidence, against the father was testimony by Nurse Troy and

Ashleigh Stevens, which was based on interviews of the daughter that occurred after

her exposure to the alleged coaching by the mother and without the proper protocol

19

to render them forensic interviews.

Therefore, even without reference to the video tape that is the subject of much

argument, we find abundant support in the record to support the conclusion that the

mother fabricated the sexual abuse allegations.3 The trial court considered all evidence

and testimony before she ruled on the admissibility of the children’s testimony.

Having concluded that sexual abuse did not occur based on the foregoing evidence,

the trial court found (1) the likely contaminated testimony of the children would serve

no purpose in aiding it to make a fact-based determination and (2) that testifying would

not be in the children’s best interest.

We are ever mindful of the trial court’s important role as the child’s fiduciary

and cannot underscore enough the overriding standard in custody cases: the best

interest of the child. The trial court had the advantage of Dr. Pellegrin’s extensive

report which summarized every interview with every party and witness, including the

children. In comparing the proffered testimony of the children to that summarized by

Dr. Pellegrin in her report, we cannot say the trial court failed to benefit from any

testimony the children would have provided. Instead, what was before the trial court

in the form of Dr. Pellegrin’s summary of the children’s interviews is remarkably

similar to what was proffered. If anything, a comparison reveals the summary that the

trial court did review was more prejudicial to the father than the proffered testimony.

Accordingly, we find no crucial evidence was overlooked due to the trial court

disallowing the children to testify.

Moreover, we find the trial court’s determination that testifying would not be in

the children’s best interest, coupled with the relaxed evidentiary rules in custody cases,

3

This record is inundated with references to and conclusions made regarding the video tape of the

mother questioning the daughter. We expressly decline to comment on the video-tape’s admissibility into

evidence, and we limit our discussion to a review of all other record evidence.

20

serve as added support for the exclusion of the children’s testimony. Accordingly,

the court of appeal’s reversal on this ground was not warranted.

Next, we address the court of appeal’s contention that a new expert should be

appointed to perform a sexual abuse evaluation in light of Dr. Pellegrin’s failure to do

so. Pursuant to La. R.S.9:331, “[t]he court may order an evaluation of a party or the

child in a custody or visitation proceeding for good cause shown.” The statute further

instructs that the evaluation shall be performed “by a mental health professional

selected by the parties or by the court.” The trial court appointed Dr. Pellegrin to

perform a sexual abuse evaluation and mental health evaluation. Neither party objected

to the appointment.

We note that whether sexual abuse occurred is a factual finding that belongs

within the province of the trial court’s decision-making function. Expert witnesses are

intended to “assist the trier of fact” in understanding the evidence or in the

determination of a fact in issue. La. Code Evid. art. 702. Without question, the

opinion of an expert may be given great weight by a trial court in its determination of

the psychological well-being of a child or parent. However, this does not mean that

the expert has usurped the authority of the trial court in determining the key issue of

“best interest of the child.” As we stated in our discussion of the exclusion of the

children’s testimony, this decision is based on all the evidence and testimony

presented to the fact-finder. It is well settled in Louisiana that the trial court is not

bound by the testimony of an expert, but such testimony is to be weighed the same as

any other evidence. Green v. K-Mart Corp., 03-2495, p. 5 (La. 5/25/04), 874 So. 2d

838, 843. A trial court may accept or reject in whole or in part the opinion expressed

by an expert. Id. Further, a trial judge may substitute his/her own common sense and

judgment for that of an expert witness when such a substitution appears warranted on

21

the record as a whole. Id.

Importantly, the trial court found Dr. Pellegrin to be a reliable witness. As

evidenced in the reasons for judgment, the trial court explained:

Dr. Pellegrin’s qualifications and expertise in performing child custody,

sexual abuse and mental health evaluations are well established with the

court. She testified that she has conducted nearly 500 custody

evaluations throughout the State of Louisiana and over 90 of those

contained sexual abuse allegations.

Dr. Pellegrin attended every custody hearing in this matter over the six-

month period of time it took to try this case. In addition to the time she

spent with the parties, collaterals, and the children, while conducting

interviews for preparation of her evaluation prior to giving her testimony,

she also had the benefit of personally observing over 50 hours of

additional testimony offered by the parties and their witnesses at trial.

She was called back to the stand and testified at the end of trial after all

the testimony and exhibits had come into the record.

...

The Court found Dr. Pellegrin’s testimony and opinion in its entirety to

be extensively researched and thoroughly supported by the record.

It was Dr. Pellegrin’s professional opinion, in her capacity as a clinical

psychologist, that the children’s testimony would be contaminated and inherently

suspect due to suggestability. Dr. Pellegrin explained:

I did a custody evaluation. I did not perform a child sexual abuse

evaluation. I did not because by the time I was able to get to the child[,]

the child had already been interviewed by the mother with what we saw

on that tape. And any subsequent information that I could get from that

child, in my opinion, would be highly suspect.

Accordingly, Dr. Pellegrin, using her professional insight, chose not to conduct

a sexual abuse evaluation. Nothing in the law requires that a sexual abuse evaluation

be performed by a mental health professional when sexual abuse allegations are made;

in fact, La. R.S. 9:331 makes evaluations subject to the trial court’s discretion, as

evidenced by use of the word “may.” (“The trial court may order an evaluation . . .”)

Id. Thus, whether a sexual abuse evaluation was done is not dispositive of the issue

22

when such an evaluation would be only one piece of evidence for the trial court to

consider. Furthermore, Dr. Pellegrin repeatedly testified that she was not giving an

opinion as to whether sexual abuse occurred; rather, she gathered information in the

form of interviews, records, and psychological observations to aid in the trial court’s

ultimate determination.

The trial court, in looking at the totality of the evidence, found no sexual abuse

occurred. Based on the foregoing, we find no abuse of discretion in the trial court’s

reliance on Dr. Pellegrin’s professional opinion that a sexual abuse evaluation could

not be performed under the circumstances. Nor do we find any manifest error in the

factual finding regarding the alleged abuse or in the factual findings that support the

underlying custody judgment, which were so carefully and extensively justified in the

trial court’s reasons for judgment. Thus, this assigned error is meritless.

Last, we address the court of appeal’s holding that the trial court erred in

limiting the testimony of the maternal grandmother, who was the person to whom the

daughter allegedly first disclosed the sexual abuse. Upon finding the daughter to be

an unavailable witness by virtue of prohibiting the children’s testimony, the trial court

allowed the grandmother to be questioned about the daughter’s first report of sexual

abuse pursuant to the hearsay exception contained in La. Code Evid. Art. 804(b)(5).4

The grandmother testified that while the daughter was in her care, the grandmother was

“swinging her” and “playing with her in the den.” The grandmother explained that she

was tickling the daughter and when she “got to the thigh area she curled up. She had

fear on her face and she said, ‘The bleed. The bleed.’” The trial court limited the

4

La. Code Evid. Art. 804(b)(5) provides as an exception to the hearsay rule if the declarant is

unavailable as a witness:

A statement made by a person under the age of twelve years and the statement is one of

initial or otherwise trustworthy complaint of sexually assaultive behavior.

23

grandmother’s testimony to this expression, qualifying it as the initial disclosure. The

mother objected, arguing the testimony only set up the context of the initial disclosure

and not the complaint itself. The court of appeal agreed, finding the trial court did not

allow the grandmother to testify to the complete complaint of sexually assaultive

behavior.

According to the grandmother’s proffered deposition, after the incident where

the daughter said “[t]he bleed. [t]he bleed,” the daughter clearly complained of sexually

assaultive behavior to her grandmother. As with the children’s testimony, we

compared the grandmother’s proffered testimony to that contained in Dr. Pellegrin’s

evaluation, which was reviewed by the trial court, and found a virtually identical

recitation of the incident as told by the grandmother. Regardless of whether testimony

about this complaint should have been allowed pursuant to La. Code Evid. Art.

804(B)(5), we find the information was reviewed by the trial court in the form of Dr.

Pellegrin’s custody report. Thus, we cannot say that the trial court’s review of the

evidence was lacking for want of this testimony, and any reliance by the court of

appeal on this alleged error as a basis for reversal was improper.

CONCLUSION

The best interest of the child standard is a fact-intensive inquiry that requires the

weighing and balancing of factors favoring or opposing custody in the competing

parties on the basis of the evidence presented. La. Code Evid. Art. 134. The trial

court is in the best position to ascertain the best interest of the child and any findings

made in furtherance of that best interest should not be disturbed on appeal absent a

clear showing of abuse of discretion. Thompson v. Thompson, 532 So.2d 101 (La.

1988). Having found no legal or manifest error, we defer to the trial court’s well-

reasoned ruling.

24

DECREE

Accordingly, we reverse the judgment of the court of appeal and reinstate the

trial court’s custody judgment, as well as the trial court’s second judgment, containing

the protective order and conditions concerning the mother’s visitation privileges.

REVERSED; TRIAL COURT JUDGMENTS REINSTATED.

25