252 So. 3d 950
La. Ct. App.2018Background
- Father C.E.B. filed a Petition for Protection from Abuse in March 2017 after an altercation on Feb. 20, 2017 in which mother S.L.B. admitted striking son J.B., causing a nosebleed; the court found the younger child D.B. witnessed the incident.
- After hearings (Sept. 7 & 19, 2017) the trial court found by a preponderance of the evidence that J.B. was physically abused by his mother, placed both children in the father’s temporary custody with supervised visitation, ordered parenting/anger-management classes, and issued an Order of Protection effective through March 19, 2019.
- S.L.B. appealed, arguing (1) her conduct was reasonable parental corporal punishment under La. C.C. art. 228, (2) due process violations because the children did not testify, (3) improper admission of hearsay (Dr. Jackson’s testimony and an audiotaped interview), (4) exclusion of a court-psychologist’s older report, and (5) improper admission/authentication of photographs.
- Trial evidence included J.B.’s statements to a pediatrician (Dr. Jackson), an audiotaped interview made at the Audrey Hepburn Care Center, medical records/photos, and testimony about prior behavioral issues for J.B.
- The appellate court reviewed for abuse of discretion (domestic protective orders) and manifest error as to factual findings, and affirmed the protective order in all respects.
Issues
| Issue | Plaintiff's Argument (S.L.B.) | Defendant's Argument (C.E.B.) | Held |
|---|---|---|---|
| Whether the mother’s physical discipline was lawful parental corporal punishment | Discipline was reasonable under La. C.C. art. 228 and prior jurisprudence permitting reasonable corporal punishment | The conduct (striking nose/mouth causing bleeding; restraining by sitting on child) constituted physical abuse beyond reasonable discipline | Court: affirmed trial court — discipline was unreasonable and constituted domestic physical abuse; no abuse of discretion in protective order |
| Whether S.L.B. was denied due process because the children did not testify / could not be cross-examined | Not allowing the boys to testify/ be deposed deprived her of the right to confront and cross-examine essential witnesses; uncalled-witness presumption applies | Father sought in-camera (Watermeier) process and moved to quash depositions; parties had repeated continuances; mother did not subpoena the children or preserve objection | Court: no due-process violation — parties had notice and opportunity to be heard; mother failed to secure subpoenas/depositions and did not preserve the issue; uncalled-witness rule not fatal |
| Admissibility of Dr. Jackson’s testimony and the audiotaped child interview (hearsay/Confrontation concerns) | Testimony and recording are hearsay, lacked forensic protocol, and should be given no weight | Recording and medical statements were part of medical records for diagnosis/treatment; Dr. Jackson authenticated the recording and was a qualified child-abuse pediatrician | Court: admissible — proper foundation laid; medical statements fall within treatment/diagnosis exception and are weighty evidence for factfinder; trial court not bound to expert but may weigh testimony |
| Exclusion of court-appointed psychologist’s older (2014) evaluation and admissibility/authentication of photos | Old psychological report was relevant to child’s long-term behavior; photos were not properly authenticated and were prejudicial | 2014 report not relevant to whether abuse occurred on Feb. 20, 2017; photos were on the child’s phone, identified by father, and were relevant to depict the incident | Court: no error — trial judge did not abuse discretion in excluding stale report; photos were properly authenticated and probative outweighs prejudice (bench trial) |
Key Cases Cited
- Dvilansky v. Correu, 204 So.3d 686 (La. App. 4 Cir. 2016) (purpose and standards under the Domestic Abuse Assistance Act)
- Alfonso v. Cooper, 146 So.3d 796 (La. App. 4 Cir. 2014) (domestic protective order review and purpose)
- C.M.J. v. L.M.C., 156 So.3d 16 (La. 2014) (trial court discretion on child testimony and weighing expert summaries)
- Koederitz, 166 So.3d 981 (La. 2015) (medical-record statements for diagnosis/treatment admissible under evidence exception in domestic violence context)
- McCann v. McCann, 33 So.3d 389 (La. App. 3 Cir. 2010) (acts causing cuts/bruises constitute domestic abuse)
- Mason v. Hadnot, 6 So.3d 256 (La. App. 1 Cir. 2009) (multiple strikes with a belt exceeded reasonable corporal punishment)