Irma Nichole Bauer Versus Raul Eduardo Mena

IRMA NICHOLE BAUER NO. 22-C-234 VERSUS FIFTH CIRCUIT RAUL EDUARDO MENA COURT OF APPEAL

STATE OF LOUISIANA

May 31, 2022

Susan Buchholz First Deputy Clerk

IN RE RAUL EDUARDO MENA

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B. DARENSBURG, DIVISION "C", NUMBER 734-505

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson

WRIT GRANTED; INTERIM VISITATION ORDER VACATED IN PART; STAY LIFTED

Relator, Raul Eduardo Mena, seeks this Court’s emergency supervisory review of the trial court’s May 19, 2022 Interim Order that granted supervised visitation to Irma Nichole Bauer of the parties’ three minor children in South Carolina for a period of four weeks starting on May 27, 2022 at 10:00 a.m.

According to the writ application, opposition, and attachments thereto, on March 9, 2020, Mr. Mena was granted sole custody of the three minor children, subject to supervised visitation with Ms. Bauer. Ms. Bauer was to submit a urine test on the Mondays preceding her Saturday visitations, which were to be supervised by her mother and occur in the New Orleans area. In December 2021, Ms. Bauer’s sister and brother-in-law, Elizabeth and Adam Dubose, who reside in South Carolina, filed a petition for intervention for temporary custody pursuant to La. C.C.P. art. 3945 and to set a hearing to determine permanent custody. In the petition, they alleged that both parents have a history of substance abuse and that Mr. Mena has a history of domestic abuse. Trial on the matter was set for April 20, 2022;1 however, the trial did not occur on that date, and the parties instead held a status conference. All parties were drug tested on April 20, 2022 by both a urine sample and a hair follicle sample. The urine drug test results showed that Ms. Bauer and Mrs. Dubose were positive for alcohol and marijuana, Mr. Dubose was positive for alcohol, and Mr. Mena was positive for Buprenorphine. The hair follicle test results, which were returned on April 25, 2022, showed all parties negative for all substances.

1 The Stuart H. Smith Law Clinic and Center for Social Justice of the Loyola College of Law was appointed to represent the minor children.

A custody evaluation by Dr. Karen van Beyer was submitted to the trial court on May 8, 2022. A status conference was then held on May 9, 2022 via Zoom, and on May 19, 2022, the trial court issued an Interim Order, in which the trial court granted Ms. Bauer supervised visitation with the minor children in South Carolina for a period of four weeks to begin on May 27, 2022. Mr. and Mrs. Dubose would be the supervisors, and the children were not to be left alone with Ms. Bauer. Further, the order required that all parties be randomly drug screened at least three times a week until further notice. If Mr. or Mrs. Dubose test positive for drugs or alcohol, then the visitation shall terminate immediately, and the children should return to Louisiana.

In his writ application, Mr. Mena argues that the trial court erred in granting Ms. Bauer supervised visitation with her minor children in South Carolina for one month when she has a history of drug abuse and when she recently tested positive for alcohol and marijuana. Mr. Mena argues that the trial court based this decision on Dr. van Beyer’s custody evaluation; however, he was not allowed to cross- examine anyone or present any testimony or evidence at the status conference on May 9, 2022. He contends that until a full trial on the merits can occur, when the parties can cross-examine witnesses and present evidence, the March 9, 2020 judgment should remain in full force and effect. See Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986). La. C.C. art 136 provides that “[a] parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.” (Emphasis added.) As with custody, the paramount criterion for determining a noncustodial parent’s right to visitation is the best interest of the child. Kaptein v. Kaptein, 16-1249 (La. App. 4 Cir. 6/14/17), 221 So.3d 231, 238, writ denied, 17- 1421 (La. 10/9/17), 228 So.3d 746. The question of visitation is always open to change when the conditions warrant it. Id. Upon review, on the showing made, it appears that a proper contradictory hearing regarding the change in visitation has not occurred. Therefore, this writ application is granted. We vacate, in part, the trial court’s May 19, 2022 Interim Order, except that those rulings that pertain to the drug testing of all parties, those rulings associated with the upcoming Watermeier Hearing set for June 24, 2022, and the exceptions set for hearing on May 31, 2022, shall remain in effect. The trial on the merits in this case shall remain as set for July 21-22, 2022. Further, we order the trial court to set and conduct, expedited if necessary, a contradictory hearing concerning all matters regarding summer visitation, both in Louisiana and South Carolina. The stay granted by this Court on May 24, 2022 is hereby lifted.

Gretna, Louisiana, this 31st day of May, 2022.

JGG SMC RAC

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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