England v. England, 238 So. 3d 1064 (2018)

March 2, 2018 · Court of Appeal of Louisiana, Fourth Circuit · NO. 2017–CA–0493; NO. 2017–CA–0498

238 So. 3d 1064

James ENGLAND
v.
Alina Julia ENGLAND

James England
v.
Alina Julia England

NO. 2017-CA-0493
NO. 2017-CA-0498

Court of Appeal of Louisiana, Fourth Circuit.

MARCH 2, 2018

Marc D. Winsberg, Jonathan D. Gamble, Robin P. Arnold, WINSBERG & ARNOLD, LLC, 650 Poydras Street, Suite 2050, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE

Richard Ducote, 318 East Boston Street, 2nd Floor, Covington, LA 70433, Phillip A. Wittmann, Carmelite M. Bertaut, STONE PIGMAN WALTHER WITTMANN L.L.C., 909 Poydras Street, Suite 3150, New Orleans, LA 70112-4042, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore)

Judge Marion F. Edwards, Pro Tempore In this child custody case, the appellant, Alina England, seeks reversal of the district court's March 30, 2017 judgment awarding the appellee, James England, sole custody of the couple's two young daughters, suspending Ms. England's visitation for ninety days, and ordering her to seek mental health counseling from a specific therapist. For the reasons that follow, we reverse and amend the judgment in part, and as amended, affirm the judgment.

There is a history of contentious litigation between these parties, including filings in this Court.¹ Consequently, we will limit our discussion of the facts and procedural history to what is relevant to the issues raised by this appeal.

Mr. and Ms. England were married in 2006 and divorced in 2015. They have two minor children, S.E. and C.E.² After the divorce, several petitions for protection from abuse were filed by Ms. England seeking protection from Mr. England. The first petition for protection from abuse was dismissed with prejudice after the parties agreed to a consent judgment, and the second and third petitions for protection from abuse were dismissed with prejudice by the district court after a trial. Thereafter, the district court sanctioned Ms. England, and awarded Mr. England attorney fees and costs attributable to the frivolous filing of Ms. England's second and third petitions for protection from abuse, finding that she failed to present any competent evidence to support her allegations of abuse and did not conduct a reasonable or diligent inquiry into the truthfulness of the allegations prior to filing the petitions. Throughout this litigation, Mr. England has denied abusing the children, and maintained that Ms. England has falsely accused him and has coached the children to do the same.

On March 17-18, 2016, the district court heard a motion Ms. England filed to determine history of family violence and conducted a custody hearing. After the custody hearing, the district court awarded Mr. and Ms. England joint custody and named Mr. England as the domiciliary parent in a judgment signed on March 31, 2016. The March 31, 2016 judgment ordered both parents not to "say or do anything in the presence or hearing of the child that would in any way diminish the child's love or affection for the other parent...."

Almost a year later, on March 13, 2017, Ms. England filed a fourth petition for protection from abuse. This petition for protection alleged that on March 5, 2017, Mr. England shoved C.E. into her bed and kicked her legs for requesting food, and that S.E. had witnessed the event. Ms. England's petition further alleged that on January 22, 2017, Mr. England pulled S.E.'s hair, kicked her, and called her an idiot; and that on February 4, 2017, Mr. England kicked S.E. in the legs. As a result, the district court issued an ex parte order of protection awarding Ms. England temporary sole custody of the children and prohibiting Mr. England from having any contact with them. The district court set Ms. England's fourth petition for protection from abuse for a hearing on March 23, 2017 and appointed an attorney for the children.

The next day, on March 14, 2017, Mr. England filed a petition for emergency temporary custody and rule to show cause pursuant to La. C.C.P. art. 3945. That petition requested that Ms. England be limited to supervised visitation due to her harmful and alienating false abuse allegations. As it had issued an order granting Ms. England temporary custody of the children the day before, the district court declined to issue Mr. England an ex parte order of temporary custody under La. C.C.P. art. 3945. The district court set Mr. England's rule to show cause for March 23, 2017, the same day as the hearing on Ms. England's fourth petition for protection from abuse.

On March 22, 2017, counsel for the children, LaKeisha Jefferson, filed a motion requesting that the district court conduct an in camera interview of the children pursuant to Watermeir v. Watermier ,³ in light of their strong preferences about visitation and the alleged physical abuse. The district court set the motion for in camera interview for March 23, 2017. During a pretrial conference, counsel for Ms. England argued that the district court should hear testimony from the children. Because Mr. England's counsel did not object to the in camera interview, the district court agreed to interview the children.

Mr. England's counsel then informed the district court of the existence of a video, which purportedly proved that the allegations asserted in Ms. England's fourth petition for protection from abuse were false. The video, taken on March 3, 2017, shows S.E. using headphones with her iPad on her bed, and C.E. jumping on Mr. England's back, falling off, and hitting her shin on S.E.'s bedframe. The video shows that, seconds later, Mr. England brought C.E. some ice, and his mother brought her a fold-up scooter. C.E. left the room using the scooter as a crutch.

The district court and all counsel reviewed the video prior to the start of the in camera interviews. However, the district court did not inform the children of the existence of the video prior to interviewing them.

C.E. was interviewed first. She testified that her father shoved her leg into her sister's bed. She further testified that the "abuse" continued in the living room, where her father kicked her shins three or four times while S.E. sat next to her on the couch, and that both girls asked him to "stop." When asked if she had ever jumped on her father's back, she said that she had not. She was specifically asked if she had ever jumped on her father's back and hit her leg on her sister's bed. She denied that happened. At this point, the district court showed C.E. the recording. After she saw it, C.E. acknowledged that she hit her leg on the bed, stating "I forgot about that." However, she maintained that she remembered hurting her leg because her father shoved her into the bed.

Next, the district court interviewed S.E, who told the court that her mother told her they were going to court because their father abuses the children, and they have to stop it. S.E. testified that her father hurts her and her sister when they ask for food. She further testified that her father shoved C.E.'s back, not her legs, causing her to hit the bed. S.E. also testified that she did not sit next to C.E. on the couch, but sat by herself at the dining room table. S.E. did not mention her father kicking C.E. as she sat on the couch, and stated that neither girl said anything to their father while he was in the living room during the alleged incident. When asked if she recalled C.E. jumping on Mr. England's back, she answered that she did not. When asked if she ever uses headphones with her iPad, S.E. stated that she only does that at her mother's house, because she does not have any headphones at her father's house. When the district court showed S.E. the video, she had an emotional breakdown and attempted to run out of the courtroom, screaming hysterically that she wanted to see her mother. At this point, the district court ended the Watermeier hearing.

Ms. England proceeded on her fourth petition for protection from abuse. The district court heard testimony from Dr. Neha Mehta, the medical director of the Audrey Hepburn CARE Center, Officer Bionca De'Irish of the New Orleans Police Department Child Abuse Unit⁴ , Ms. England, Dr. Kristen Luscher, and Mr. England. Dr. Mehta testified that she examined C.E. on March 6, 2017. She found a "fairly large bruise" located on C.E.'s right upper shin area, and stated that the bruise was consistent with being kicked. However, on cross-examination, Dr. Mehta admitted that the injury was "non-specific for abuse" and that the injury, though consistent with being kicked, could have occurred another way. Dr. Mehta also conceded that the injury could have happened when C.E. hit her shin on the bed rail, and that the bruise could still be present if the incident that caused it took place three days prior to her examination.

Ms. England testified that when she picked the children up from school on March 6, 2017, she noticed a large bruise on C.E.'s leg, and took her to the emergency room at Children's Hospital. Ms. England further testified that she filed a protective order and the fourth petition for protection from abuse as a result of the injury.

Dr. Luscher, who provides therapy to the children, testified that the children feel compelled to report mistreatment by their father, and that she believes Ms. England orchestrated certain situations in order to fabricate mistreatment by Mr. England. Dr. Luscher opined that Ms. England's "theatrics" have a detrimental effect on the children, especially in their relationships with their father, his family, and their peers. Specifically, Dr. Luscher stated that the children told her that their mother spoke to them about things that were "too adult," including telling them negative things about their father. Following the testimony, the district court, noting that the inconsistent allegations made by the children did not support the allegations made by Ms. England, denied the fourth petition for protection from abuse.

After the fourth petition for protection from abuse was denied, the district court heard Mr. England's petition. Both Mr. and Ms. England testified, and the district court took judicial notice of the other testimony given during the hearing on the fourth petition for protection from abuse. Mr. England testified that Ms. England puts immense amounts of pressure on the children, and that the joint custody arrangement was not improving the circumstances. Ms. England denied speaking to the children about things that were "too adult," despite Dr. Luscher's statements. At the conclusion of Ms. England's testimony, the parties submitted the case to the district court, which deferred its ruling.

Later, on March 30, 2017, after noting that the joint custody arrangement was causing harm to the children, the district court rendered judgment denying Ms. England's petition for protection from abuse, awarding temporary sole custody of the minor children to Mr. England, suspending Ms. England's visitation for ninety days, and ordering that following the suspension, Ms. England would be limited to eight hours of supervised visitation per week until she undergoes professional therapy with a specific therapist. Ms. England filed a timely appeal from that judgment.

LAW AND ANALYSIS

In brief to this Court, Ms. England has assigned four errors for our review. Initially, she argues that Mr. England did not meet his burden of proof that a material change in circumstances justified a change in custody.

La. C.C. art. 131 provides that; "(i)n a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child." This article applies in actions to change custody as well as those that initially set it.⁵ However, in actions to change a custody decision rendered in a prior considered decree, the proponent of change must show that a change of circumstances has occurred such that "the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or ... that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child."⁶ This burden of proof is imposed by the jurisprudence as a means of implementing the best interest standard in light of the special considerations present in change of custody cases.⁷ 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.⁸

Among the factors the trial court must consider in determining the child's best interest is the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.⁹ There is ample evidence to support the trial court's finding that Ms. England is unwilling or unable to encourage a close and continuing relationship between the children and

Mr. England. Dr. Luscher testified that the children feel compelled to report mistreatment by their father. Dr. Luscher opined that Ms. England orchestrated certain situations in order to fabricate mistreatment by Mr. England. Additionally, the conflict between the video and the children's statements, and S.E.'s reaction to the video, support Mr. England's assertion that the children's mother is fabricating abuse allegations and encouraging the children to verify them.

Ms. England has subjected her children to several investigations by the New Orleans Police Department (NOPD), including late night "welfare checks" while her children were visiting with their father. The trial court also considered Ms. England's "long history of filing unverified Petitions for Protection from Abuse," including one that resulted in sanctions against Ms. England in the amount of $95,450.19.¹⁰ The court further noted Ms. England's lack of veracity that has traversed all of the custody proceedings between these parties.

The court expressed concern that, despite all the advantages enjoyed by the children, they "internalize the belief that they hate their father and verbalize that belief to appease their mother." The court further found that Ms. England "treats her children like pawns in a devious game to prove Mr. England is a child abuser." Ultimately, the trial court determined that Ms. England's actions are "detrimental and deleterious to the children's wellbeing."

Upon review, we find no abuse of discretion in the trial court's award of temporary, sole custody to Mr. England, or in the order of supervised visitation. This assignment is without merit.

Ms. England's second assignment of error questions the trial court's decision to suspend her visitation rights for 90 days from April 3, 2017 to July 3, 2017. Mr. England counters that this ruling is moot as the suspension is now over. We agree.

An issue is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect.¹¹ Appellate courts will not render advisory opinions from which no practical results can flow.¹² Accordingly, moot questions are not considered on appeal. We find no purpose will be served in reviewing a ruling by the trial court on a suspension that has terminated and is no longer applicable. Any discussion on this issue would be pure dicta.

In her third assignment of error, Mrs. England asserts the trial court judgment is in violation of her due process rights in that the court ordered suspension of visitation rights went beyond any demand in the pleadings. Since we have ruled that the issue of the suspension of visitation is moot in that it was terminated on July 3, 2017, we find no merit in this argument.

In her final assignment of error, Ms. England argues that the trial court erred in ordering her to obtain mental health counseling by a therapist of the court's choosing. In the judgment, the district court ordered Ms. England to seek professional therapy from Betsey Backe, LSCW. In brief, Ms. England argues, "(t)here is no authority for a court to order that a party submit to treatment by an health care provider selected by the court-even in domestic disputes ..." (emphasis in original). Ms. England does not contest the authority of the court to order counseling; rather she points out that typically a court orders a parent to seek therapy by a therapist of her choice, and asks this Court to vacate that portion of the judgment that orders her to seek counseling with Betsy Backe.

We find merit in this argument. While the court has the authority and discretion to order counseling in custody matters¹³ , we find no authority to support the order of a specific therapist to provide that therapy. Accordingly, we hereby vacate that portion of the trial court's judgment mandating Ms. England to seek therapy specifically from Betsey Backe, LCSW. In all other respects, we affirm the judgment.

For the foregoing reasons, we vacate that portion of the judgment that orders Ms. England to seek treatment specifically from Betsey Backe, LCSW, and we amend the judgment on appeal to exclude the provision that orders Ms. England seek professional therapy "from Betsey Backe, LCSW ...". We affirm the judgment as amended.¹⁴

JUDGMENT VACATED IN PART AND AMENDED, AND AS AMENDED, AFFIRMED

1 See England v. England, 2016-0936 (La. App. 4 Cir. 6/28/17), 223 So.3d 582.

2 At the time of the hearing in question held in March of 2017, S.E. was ten years old and C.E. was nine years old. Initials are used rather than full names so as to protect the privacy of the minor children who are subject to the outcome of this proceeding. See Uniform Rules, Court of Appeal, Rule 5-1 and Rule 5-2. See also La. Ch.C. art. 337 and State in the Interest of A.S. , 2017-0028 (La. App. 4 Cir. 5/10/17), 220 So.3d 179.

3 Watermeier v. Watermeier , 462 So.2d 1272, 1274 (La. 1985) (holding that a child's competency hearing or interview should be held in the judge's chambers in order to relieve a child from as much pressure as possible from the "glare of the courtroom" and the possibly intimidating presence of his mother and father).

4 Officer De'Irish did not provide much testimony due to the open criminal investigation into the abuse allegations. On direct examination, Officer De'Irish only stated that she was called to Children's Hospital regarding an allegation of abuse against C.E., that she saw a bruise on C.E.'s leg, and had twice attempted, unsuccessfully, to call Mr. England. When cross-examined by Jefferson, Officer De'Irish stated that she could still see the bruise on C.E.'s leg on the day of the forensic interview.

5 AEB v. JBE, 99-2668 (La. 11/30/99), 752 So.2d 756, 761.

6 Bergeron v. Bergeron , 492 So.2d 1193, 1200 (La. 1986).

7 See Revisions Comments-1993 (d) to La.C.C. art. 131 ; AEB v. JBE, 99-2668, 752 So.2d at 761.

8 Bergeron, 492 So.2d at 1196.

9 La.C.C.P. art. 134 (10).

10 The decision in this award was reviewed and affirmed by this Court in England v. England, 2016-0936 (La. App. 4 Cir. 6/28/17), 223 So.3d 582, 590.

11 Cat's Meow, Inc. v. City of New Orleans Through Dept. of Finance , 98-0601 (La. 10/20/98), 720 So.2d 1186, 1193.

12 Enmon Enterprises, LLC v. City of New Orleans ex rel. New Orleans Aviation Bd. , 2015-0763 (La. App. 4 Cir. 5/4/16), 194 So.3d 709, 711, writ denied sub nom. Enmon Enterprises, LLC v. City of New Orleans , 2016-1046 (La. 9/16/16), 206 So.3d 884.

13 See for example, La. R.S. 9:331, La. R.S. 9:361 et. seq., and La. Ch.C. art. 308.

14 This amendment also includes the exclusion of Ms. Backe's contact information that follows her name.

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS.

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS.

I respectfully concur in part and dissent in part from the majority opinion. I concur in the majority's affirmation of the district court's award of sole custody to Mr. England and supervised visitation to Ms. England. I write separately as to that affirmation, however, to provide reasons why the burden of proof set forth in Bergeron v. Bergeron¹ was improperly applied to an emergency temporary allocation of custody time under La. C.C.P. art 3945.

I dissent from the majority's amendment and affirmation as amended of the portion of the district court's judgment ordering Ms. England to seek counseling from a specific therapist. I would reverse that portion of the district court's judgment because there is no authority in Louisiana law for a judge to order a litigant to seek counseling in a proceeding under La. C.C.P. art. 3945.

First, the district court's judgment in this case improperly applies the burden of proof set forth in Bergeron to Mr. England's Article 3945 petition. Although neither party expressly challenges the application of Bergeron, Rule 1-3 of the Uniform Rules of the Courts of Appeal states that the Courts of Appeal will review issues other than those specified in assignments of error when "the interest of justice" clearly requires such review. The interests of justice require that child custody matters are decided by application of the proper burden of proof. This improper application is problematic to future custody proceedings in this case and requires a clarification at this time. I therefore choose to address this error.

Bergeron requires that when a party seeks a modification of a custody arrangement established by a considered decree, the proponent of the change must prove that a change of circumstances materially affecting the welfare of the child has occurred since the prior custody order, and:

The party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child.

492 So.2d 1193, 1200 (La. 1986) ; see also Gray v. Gray , 2011-548, pp. 19-20 (La. 7/1/11), 65 So.3d 1247, 1258-59.

Louisiana Code of Civil Procedure article 3945 provides, in relevant part:

* * *

B. An ex parte order of temporary custody of a minor child shall not be granted unless:

(1) It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury will result to the child before the adverse party or his attorney can be heard in opposition.

(2) The applicant's attorney certifies to the court, in writing, either:

(a) The efforts which have been made to give the adverse party reasonable notice of the date and time such order is being presented to the court.

(b) The reasons supporting his claim that notice should not be required.

C. An ex parte order of temporary custody shall:

(1) Expire by operation of law within thirty days of signing of the order; however, the order may be extended for good cause shown at any time before its expiration for one period not exceeding fifteen days.

(2) Provide specific provisions for temporary visitation by the adverse party of not less than forty-eight hours during any fifteen-day period, unless the verified petition or supporting affidavit clearly demonstrates that immediate and irreparable injury will result to the child as a result of such visitation.

(3) Be endorsed with the date on which the ex parte order is signed and the date and hour of the rule to show cause.

D. The rule to show cause why the respondent should not be awarded the custody, joint custody, or visitation of the child shall be assigned for hearing not more than thirty days after signing of the ex parte order of temporary custody.

* * *

F. In the event an ex parte order of temporary custody is denied, the court shall specifically allocate between the parents the time which the child shall spend with each parent at the hearing on the rule to show cause set pursuant to Paragraph D of this Article, unless immediate and irreparable injury will result to the child....

Article 3945 thus provides for injunctive relief, first through an ex parte order, and then through a determination of custody at a hearing no more than thirty days after the signing or the denial of the ex parte order. At the thirty-day hearing, the district court "shall specifically allocate between the parents the time which the child shall spend with each parent unless immediate and irreparable injury will result to the child."

Article 3945 allows a district court to award sole custody at the thirty-day hearing where it finds that "immediate and irreparable injury will result...." This burden of proof, like the burdens established by other Louisiana statutes addressing emergency changes of custody,² differs from the burden of proof required by Bergeron . Moreover, the record indicates that the district court intended the custody judgment it rendered to be temporary. The judgment itself states Mr. England "is awarded temporary sole custody of the minor children."

Given the temporary nature of emergencies, it is problematic to apply a burden of proof meant to prevent frequent changes in a child's living situation. In Bergeron, the Louisiana Supreme Court concedes that the Bergeron standard may "inflexibly" prevent modifications of custody, but finds that such a "heavy burden of proof in custody modification cases is justified" due to the harm caused to children when "liberal custody modification rules" are applied. 492 So.2d 1193 at 1199 (citations omitted). The Court goes on to state:

The child has at stake an interest of transcending value in a custody modification suit-his best interest and welfare-which may be irreparably damaged not only by a mistaken change in custody but also by the effects of an attempted or threatened change of custody on grounds that are less than imperative. The consequences to the mental and emotional well-being and future development of the child from an erroneous judgment, unjustified litigation, threat of litigation, or continued interparental conflict are usually more serious than similar consequences in an ordinary civil case.

Id. at 1200. The Court's language makes its intent evident-the Bergeron standard exists to prevent frequent custody changes because frequent custody changes are harmful to children.

This rationale loses its sagacity when applied to emergencies under La. C.C.P. art. 3945. The problem Bergeron seeks to prevent, frequent changes in custody, is only amplified when a litigant must prove Bergeron in an emergency situation. Because a Bergeron determination results in a new considered custody decree, such reasoning would subject a child to two custody trials for one emergency-one to obtain a necessary temporary allocation of custody time during the pendency of the emergency situation, and another to return to the prior custody arrangement after the emergency has abated.³ To hold that the Bergeron standard applies to emergency custody changes under La. C.C.P. art. 3945 is to undo the rationale of Bergeron itself. Consequently, the district court erred as a matter of law in applying Bergeron to the Article 3945 petition.

Despite the district court's erroneous application of Bergeron , the emergency division of custody time rendered by the district court is proper and in the best interest of the children. The record makes clear that immediate and irreparable injury would result to the children if joint custody were continued, especially considering the testimony of Dr. Luscher and the emotional trauma experienced by the children when they viewed Mr. England's video during the Watermeier hearing. Accordingly, under La. C.C.P. art. 3945, the district court did not err in temporarily allocating time equivalent to sole custody to Mr. England.

Next, the district court improperly ordered Ms. England to seek mental health treatment. The majority states that Ms. England only challenges the portion of the judgment specifying a treatment provider, and not the provision requiring her to seek treatment itself. However, Ms. England states that the order requiring her to receive mental health treatment "is an attempt to regulate the behavior of the parties," "substitutes resolution of the parents' problems for the children's best interest," and "is prohibited." Moreover, Ms. England argues that the district court's judgment violates her constitutional right of free association-an argument that would be nonsensical if, as the majority states, Ms. England only objects to being ordered to associate with this particular mental health counselor. Therefore, the issue of whether the district court had the authority to order Ms. England to receive mental health treatment is properly before this Court.

The majority broadly states that "the court has the authority and discretion to order counseling in custody matters." This assertion is inaccurate. There is statutorily created authority for a district court under specific circumstances to mandate treatment. Under La. R.S. 9:364 (C), a district court shall mandate that a parent found to have a history of perpetrating family violence must participate in a domestic abuse program in order to be allowed supervised visitation, and mandate completion of that program in order for that parent to be allowed unsupervised visitation. Under part D of the same statute, a parent found to have sexually abused their child shall be prohibited from visitation until the parent has completed a treatment program for sexual abusers. Likewise, under La. R.S. 9:331.1, a party to a custody or visitation proceeding may be required to submit to drug testing. No such statutory authority exists, however, to require mental health counseling under La. C.C.P. art. 3945.

In contrast, the statutes the majority uses as "example[s]" of the district court's "authority and discretion to order counseling in custody matters" do not actually allow a district court to order treatment. Louisiana Revised Statute 9:331 allows a district court to order an "evaluation" of a party or a child in a custody or visitation proceeding.⁴

Louisiana Revised Statutes 9:361 et seq., (the Post-Separation Family Violence Relief Act) as explained supra in reference to La. R.S. 9:364 (C), only allow for mandated mental health treatment under specific circumstances not at issue in the case sub judice.⁵ Likewise, La. Ch.C. art. 308 only provides authority for a court to refer charges that a child's physical or mental health or welfare is in danger to the Department of Children and Family Services, not to mandate counseling.⁶

In the absence of statutory authority to do so, I would not interpret the district court's authority so broadly. Rather, I find that the district court lacks the "authority and discretion" to order mental health counseling when rendering judgment on proceedings under La. C.C.P. art. 3945.⁷

Accordingly, I would reverse that portion of the district court's judgment.

For these reasons, I respectfully concur in part and dissent in part from the majority opinion.⁸

1 492 So.2d 1193 (La. 1986).

2 Immediate temporary change of custody statutes require different showings than the burden of proof stated in Bergeron depending upon the nature of the emergency they were created to address. See La. R.S. 46:2131 et seq. (providing for an award of temporary custody where there is an immediate danger of abuse); La. R.S. 9:364 (specifying how a district court should award custody upon a showing that a parent has a history of perpetrating family violence); La. Ch.C. art. 1570 (allowing a juvenile court to award temporary custody "to bring about a cessation of abuse of a party"). Compare La. C.C.P. art. 3945 (G) (stating, "[t]he provisions of this Article do not apply to any order of custody of a child requested in a verified petition alleging the applicability of the Domestic Abuse Assistance Act, R.S. 46:2131 et seq., Children's Code Article 1564 et seq., or the Post-Separation Family Violence Relief Act, R.S. 9:361 et seq.").

3 For an alternative to this result, see infra fn. 8.

4 La. R.S. 9:331 states:

A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.

B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party.

5 The record in the case sub judice indicates that Ms. England filed a Motion to Determine History of Family Violence, which was denied. Mr. England never pursued relief under La. R.S. 9:364, and the district court did not invoke the provisions of the Post-Separation Family Violence Act sua sponte.

6 La. Ch.C. art. 308 states:

A. Whenever any court of this state in the trial of any proceeding has cause to believe that a child's physical or mental health or welfare is endangered by abuse or neglect, it may report and refer the charges to the local child protection unit of the Department of Children and Family Services in accordance with Article 610.

B. If from its investigation the department determines that the report is validated or if it has obtained an instanter order from the juvenile court, it shall file appropriate written notice in the civil proceeding in which the complaint arose. Thereafter, the juvenile court shall have jurisdiction to resolve the case as a child in need of care proceeding pursuant to the provisions of Title VI.

While the district court did not have the authority to mandate mental health counseling under La. C.C.P. art. 3945, the district court had the discretion to order a Mental Health evaluation pursuant to La. R.S. 9:331. The district court also had the discretion to report and refer these matters to the Department of Children and Family Services under La. Ch. C. art. 308 if the district court's decision to mandate mental health counseling for Mother and the children was due to a belief that the children's mental health was endangered by abuse or neglect. If the Department determines that the report is valid or obtains an instanter order from the juvenile court, then the juvenile court can exercise its authority to order mental health counseling for the family under proper monitoring and reporting as set forth in the Louisiana Children's Code. The parties could also agree to mental health treatment.

7 In support of her claim, Ms. England relies on Griffith v. Latiolais , 2010-0754 (La. 10/19/10), 48 So.3d 1058, 1071-72, which upheld the Third Circuit's reversal of the portion of a judgment requiring that the parents continue counseling sessions with a parenting coordinator and that they follow the parenting coordinator's recommendations. Id. at 2010-0754, p. 19, 48 So.3d at 1071. The Griffith court stated when so holding that "[t]here is no provision in the law that allows the trial court to require continued counseling outside the parameters of La. R.S. 9:358.1." Id. Ms. England relies on this statement for her assertion that the district court had no authority to require that she seek individual counseling with a specific therapist. A reading of the Griffith opinion in its entirety, however, makes it apparent that the Griffith court was referencing the lack of a provision allowing a district court to require continuing counseling from a parenting coordinator outside the parameters of La. R.S. 9:358.1. The Griffith court did not opine on the district court's requirement that those parents seek individual counseling with specific therapists. However, my finding that the district court exceeded its authority to mandate treatment with a specific mental healthcare provider is consistent with Griffith's interpretation of La. R.S. 9:358.1.

8 If the reasons provided by the partial concurrence and partial dissent were properly applied by the district court, "all of Ms. England's visitation sessions" would continue to be "supervised until...she is given written authority by the Court," as stated in the March 30, 2017 judgment (excluding the portions ordering that Ms. England subject herself to mental health counseling). Then, emergency temporary allocation of custody time under La. C.C.P. art 3945 would be lifted, and the original March 31, 2016 custody decree would be reinstated.