Opinion
2022 CU 0540
09-26-2022
M.T. [1] v. K.T.
Kevin M. Elder David A. Oriol Covington, LA Counsel for Plaintiff/Appellee, M.T. Tammy Karas Griggs Counsel for Defendant/Appellant, K.T. Margaret H. Kern Covington, LA
NOT FOR PUBLICATION
Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket Number 2016-14044, Division "K" Honorable Patrice W. Oppenheim, Judge Presiding
Kevin M. Elder
David A. Oriol
Covington, LA
Counsel for Plaintiff/Appellee, M.T.
Tammy Karas Griggs
Counsel for Defendant/Appellant, K.T.
Margaret H. Kern
Covington, LA
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
WHIPPLE, C.J.
In this child custody case, the father, K.T., appeals the trial court's judgment awarding the mother, M.T., sole custody of their minor children and granting the father limited, supervised visitation with only one of the children. For the reasons that follow, we affirm in part, vacate in part, and remand.
FACTS AND PROCEDURAL HISTORY
M.T. and K.T. were married on November 20, 2004; three children were born during the marriage, C.T., born in 2006, A.T., born in 2012, and K.J.T., born in 2015. The parties separated on or about September 16, 2016, and M.T. filed for divorce on September 27, 2016. A divorce was ultimately granted on November 29, 2017. In her initial petition for divorce, M.T. requested that the parties be awarded joint custody of the minor children and that she be named as the domiciliary parent. However, two days later, on September 29, 2016, M.T. filed an "Ex-Parte Motion for Temporary Custody in Accordance with LSA-C.C.P. Art. 3945 and Other Incidental Matters" requesting ex-parte temporary custody, citing concerns about K.T.'s "severe temper and intemperance" and his conduct after the parties separated, as well as his failure to see or speak to the children. Ultimately, M.T. sought sole custody of the minor children, with supervised visitation only in favor of K.T., and that K.T. be ordered to undergo a mental health evaluation. K.T. answered, requesting 50/50 shared custody and contending that M.T. failed to tell him she was leaving the marital home and had refused to communicate with him since she left.
On November 7, 2016, the parties entered into a consent judgment in which they agreed to enroll in "Our Family Wizard" for communication purposes, attend co-parenting classes, work with a parenting coordinator, and follow certain co-parenting guidelines. They further agreed that K.T. would enroll in and complete an anger management course, and that on a temporary basis, K.T. would have visitation with the children every Saturday from 8 am - 6 pm, to be supervised by his mother. The consent judgment did not determine legal custody of the children.
After a hearing officer conference on November 29, 2016, the hearing officer recommended, inter alia, that the parties be awarded joint custody, that M.T. be designated as domiciliary parent, and that pending the results of a mental health evaluation and the parenting coordinator's recommendation, K.T. be allowed to have four hours of supervised visitation with the children every Saturday, supervised by a licensed clinical social worker. The trial court made the hearing officer's recommendations a temporary order of the court pending a hearing.
However, after supervising three visits, the social worker wrote a letter to the court detailing K.T.'s behavior and requesting that she be removed as the supervisor, and that the St. Tammany Parish Sheriffs Office (STPSO) supervise the visits. Shortly thereafter, in January of 2017, the parties entered into a stipulation that K.T. would attend a twenty-six week batterer's intervention course sponsored by Truth 180 and stay 100 yards away from M.T.'s home and place of employment, that his visits with the children would be supervised by the STPSO, and that he could call the children at a set time every day to speak with them.
No further custody-related filings occurred from January 2017 until August 31, 2020, when K.T. filed a pro se "Rule to Lift Restriction of Supervision Due to Completion [of] Anger Management," wherein he alleged that he recently completed the Truth 180 program, admitted that he "previously did not act with the respect that the proceedings deserved," and contended that due to the COVID-19 restrictions placed on supervision by the STPSO, he had not been able to see his children for several months. After a hearing officer conference in response to this motion, the hearing officer recommended that his motion to terminate supervised visitation be denied on the basis that it would not be in the best interest of the children to allow K.T. unsupervised visitation with the children.
In the following year, on February 8, 2021, K.T., acting pro se, filed another amended "Rule to Modify Visitation Restrictions Due to Completion of all that was Ordered by the Court," contending that he had not been in the presence of his children unsupervised or allowed to attend any of the children's extracurricular events or functions since the January 2017 judgment. Contending further that "no incidents" had occurred during his visits supervised by the STPSO, K.T. specifically requested that he be allowed to spend more time with the children, that they be allowed to visit him at his home, that he be allowed to attend their school events and extracurricular activities, and that he be made aware of any and all medical or health information regarding the children. He further requested that the parties be ordered to attend conflict resolution counseling, at his expense. In support, K.T. averred that he had recently completed the court-ordered Truth 180 course, 23 sessions of individual therapy, "several hours" of online domestic violence courses between 2018 and 2020, and had undergone a court-ordered psychological evaluation by Dr. Kristin Luscher.
After M.T. filed an exception of no cause of action, the trial court allowed K.T. to amend his pleadings. Still appearing pro se, K.T. filed a "Memorandum in Support of Rule to Modify Visitation Restrictions" on March 16, 2021. In his memorandum, K.T. made numerous allegations regarding a recent hospitalization of C.T., the parties' oldest child. He additionally averred that although he and C.T. have not had a relationship for "nearly four years" because "[i]n May of 2017, she decided suddenly that she no longer wanted to see me or speak to me, ... [intervention is needed to prevent further and irreversible damage" to C.T., as it is "apparent that [C.T.]'s mental health began to deteriorate once she no longer had a relationship with" K.T. However, his pleading was silent as to the other two children, A.T. and K.J.T.
The matter was eventually tried on October 12 and 14, 2021, at which time K.T. had representation by counsel. At trial, the trial court heard testimony and considered evidence pertaining to M.T.'s earlier filed "Ex-Parte Motion for Temporary Custody in Accordance with LSA-C.C.P. Art. 3945 and Other Incidental Matters," as well as K.T.'s 2020 "Rule to Lift Restriction of Supervision Due to Completion of Anger Management" and K.T.'s 2021 "Rule to Modify Visitation Restrictions Due to Completion of all that was Ordered by the Court." After trial, at which extensive testimony and evidence was presented, the parties asked the trial court to review K.T.'s entire employment record from the STPSO. After reviewing those records and considering the evidence presented, the trial court thereafter signed a judgment and issued written reasons for judgment on December 3, 2021, denying both of K.T.'s motions and granting M.T.'s motion, thereby granting sole custody of the children to M.T. and ordering that K.T. only have supervised visitation subject to limitations that K.T. have no visitation with C.T. except as she and her mental health provider together determine is best for C.T., that K.T. have no visitation with A.T. until her mental health provider determines that she is ready for visitation, and that K.T. have visitation with K.J.T. consisting of two hours of supervised visitation each month, to be supervised by the STPSO at K.T.'s cost.
From this judgment, K.T. appeals, contending that the trial court erred in:
1. finding that his participation in numerous treatment programs was not "meaningful;"
2. interpreting the facts as stated in its written reasons for judgment;
3. "granting more credence" to Dr. Luscher's evaluation of K.T. in 2017 than Dr. Scuddy Fontenelle's evaluation in 2021;
4. not finding that a conflict of interest existed when C.T. and A.T.'s therapist also treated M.T.;
5. awarding M.T. sole custody of the children;
6. maintaining that K.T. is only allowed to have supervised visitation of the minor children;
7. making his visitation with C.T. dependent on C.T. and her therapist;
8. making his visitation with A.T. dependent on her therapist;
9. limiting his visitation with K.J.T. to only two hours each month; and
10. not providing steps by which he could eventually be awarded unsupervised visitation of the children.
LEGAL PRECEPTS
The governing principle in a custody case is that the court shall award custody in accordance with the best interest of the child. LSA-C.C. art. 131. Indeed, the best interest of the child is the sole criterion to be met in making a custody award, and the trial court 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 that are the court's very purpose in child custody cases; thus, the court must protect the child from the real possibility that the parents are engaged in a bitter, vengeful, and highly emotional conflict. The legislature has mandated that the court look only to the child's interests so that the court can fulfill its obligations to the child. Hodges v. Hodges, 2015-0585 (La. 11/23/15), 181 So.3d 700, 702.
If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. In the absence of an agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. LSA-C.C. art. 132. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. Harrell v. Harrell, 2017-0561 (La.App. 1stCir. 12/5/17), 236 So.3d 704, 709, writ denied. 2018-0018 (La. 2/2/18), 235 So.3d 1112. 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. LSA-C.C. art. 136(A).
As provided in LSA-C.C. art. 134, all relevant factors in determining the best interest of the child must be considered by the court; such factors may include:
1. The potential for the child to be abused, as defined by Children's Code Article 603, which shall be the primary consideration.
2. The love, affection, and other emotional ties between each party and the child.
3. 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.
4. The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
5. The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
6. The permanence, as a family unit, of the existing or proposed custodial home or homes.
7. The moral fitness of each party, insofar as it affects the welfare of the child.
8. The history of substance abuse, violence, or criminal activity of any party.
9. The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.
10. The home, school, and community history of the child.
11. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
12. The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party.
13. The distance between the respective residences of the parties.
14. The responsibility for the care and rearing of the child previously exercised by each party.
The list of factors provided in Article 134 is nonexclusive, and the determination as to the weight to be given each factor is left to the discretion of the trial court. LSA-C.C. art. 134, 1993 Revision Comment (b). The illustrative nature of the listing of factors contained in Article 134 gives the court freedom to consider additional factors; and, in general, the court should consider the totality of the facts and circumstances of the individual case. LSA-C.C. art. 134, 1993 Revision Comment (c). Hodges, 181 So.3d at 703.
Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Harrell, 236 So.3d at 709-10. The best interest of the child standard is a fact-intensive inquiry that requires the weighing and balancing of factors concerning the issue of custody on the basis of the evidence presented. Because the trial court is in the best position to ascertain the best interest of the child, it is vested with broad discretion in deciding child custody cases. Appellate courts must be vigilant to not retry cases. Thus, a trial court's determination regarding child custody will not be disturbed absent a clear abuse of discretion. Henry v. Sullivan, 2016-0564 (La.App. 1st Cir. 7/12/17), 223 So.3d 1263, 1271; Martello v. Martello, 2006-0594 (La.App. 1st Cir. 3/23/07), 960 So.2d 186, 191-92.
DISCUSSION
Assignments of Error Nos. 1-4
In his first two assignments of error, K.T. essentially challenges factual findings of the trial court. K.T. challenges the trial court's factual "interpretations" and, in particular, the trial court's specific finding that his alleged participation in different treatment programs was not "meaningful." In his third assignment of error, K.T. avers that the trial court erred by "granting more credence" to Dr. Luscher's psychological evaluation over Dr. Fontenelle's testimony and therapy notes. Finally, in his fourth assignment of error, K.T. maintains that the trial court erred in failing to find that Ms. Jennifer Nicoll's treatment of M.T., C.T., and A.T. constituted a conflict of interest.
It is well settled that an appellate court cannot set aside a trial court's factual findings in the absence of manifest error or unless the findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the trial court's findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced it would have weighed the evidence differently had it been the trier of fact. Rosell, 549 So.2d at 844. In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record clearly establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993); see also Moore v. Moore, 2018-1713 (La.App. 1st Cir. 5/1/19), 276 So.3d 1063, 1068.
Where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. When a fact finder is presented with two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882-83. Additionally, when findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, 549 So.2d at 844.
Further, the trial court is not required to give any extra credence to the testimony of experts. Givens v. Givens, 2010-0680 (La.App. 1st Cir. 12/22/10), 53 So.3d 720, 729. It is well settled in Louisiana that the fact finder is not bound by the testimony of an expert, as such testimony is to be weighed the same as any other evidence. After weighing and evaluating expert and lay testimony, the fact finder is entitled to accept or reject in whole or in part the opinion expressed by an expert. Babcock v. Martin, 2019-0326 (La.App. 1st Cir. 10/24/19), 289 So.3d 606, 612. The effect and weight to be given expert testimony are within the trial court's broad discretion and are dependent upon the expert's professional qualifications and experience, as well as the factors upon which the expert's opinions are based. Morgan v. State Farm Fire & Casualty Co., Inc., 2007-0334 (La.App. 1st Cir. 11/2/07), 978 So.2d 941, 946; Cain v. Cain, 39,903 (La.App. 2nd Cir. 5/11/05), 903 So.2d 590, 596, writ denied, 2005-1517 (La. 6/15/05), 904 So.2d 679, cert, denied, 546 U.S. 978, 126 S.Ct. 563, 163 L.Ed.2d 462 (2005).
Throughout the course of the two-day trial in this matter, the trial court heard extensive (and conflicting) testimony and received extensive evidence regarding the parties' past and continuing custody and visitation issues, including testimony from the parties, Ms. Nicoll, Dr. Luscher, Dr. Fontenelle, three STPSO deputies who supervised K.T.'s visits with A.T. and K.J.T., two of K.T.'s co-workers, and a family friend. After hearing all of the testimony and reviewing the evidence submitted, the trial court made numerous factual and legal findings, as set forth in the written reasons for judgment and reflected in the judgment rendered by the court.
Regarding the events leading up to the parties' separation, as well as K.T.'s relationship with their children, M.T. testified that even while the family unit was still intact, K.T. was not an active father, such that when the children were young and she had to work, the children often stayed with her mother. She stated that at times she would have to get a babysitter for the children when she had work because K.T. would be sleeping. She further testified that she eventually decided to end the marriage due to K.T.'s ongoing temper and "explosive" behavior, which caused her and the children to "[walk] on eggshells" around him, and because he directed "a lot [of] negativity [and] verbal abuse" towards C.T. M.T. testified that she ultimately took the children and left the marital home after K.T. threw a mirror at her while she was holding their youngest child, KJ.T., who was approximately only one year old at the time. According to M.T., this was not an isolated incident, as K.T. had thrown objects around or in her direction on other occasions throughout their marriage, including a full water bottle which was thrown at her while she was pregnant. She testified that when K.T. would become angry, he would become verbally abusive and call her derogatory names, which sometimes occurred in front of the children. She pointed out one occasion in which he took a pack of pretzels from C.T. and threw them across the kitchen floor before leaving the house for work because he did not want her to eat the snack.
She testified that after she left the marital home with the children in 2016, K.T. sent numerous verbally abusive and threatening text messages to her, which were introduced in evidence, wherein he called her derogatory names, cursed at her, and made threating statements, including threatening to charge her parents with kidnapping if he saw them with the children. When asked about the text messages at trial, K.T. did not deny sending them, but stated that he was in a "pretty terrible place at that time" and that earlier he was "in a different state of mind... completely different than I am now." He further testified that although he was a STPSO deputy at the time he sent the threatening text messages, he did not intend to threaten to charge M.T.'s parents with kidnapping (even though the text messages stated otherwise) and, as mitigation, pointed out that "[he] didn't carry anything out." Despite acknowledging in the text messages that he was "way too hard" on C.T., at trial, he attempted to explain and justify his treatment of C.T. by stating that he felt he was the "disciplinarian" of the family. K.T. also disputed M.T.'s testimony about his conduct, stating that he never yelled in front of the children and that he is "not a yeller."
M.T. testified that in October of 2016, she went to the marital home with family members to get her belongings, but K.T. somehow found out they were there, pulled into the driveway, and began yelling at them to leave the house. As a result of K.T.'s conduct and behavior, M.T.'s brother called the police, and K.T.'s supervisor at the STPSO came to the house and allowed them to get their belongings. However, when they entered the house, all of her belongings were placed in one room and were "trashed." K.T. had also ripped items off of the wall. At trial, she produced pictures evidencing the condition of the room and her belongings.
She noted that approximately one week after this event, the parties attended the hearing on M.T.'s ex parte custody motion, where they agreed to the temporary custody order, allowing K.T. to exercise supervised visitation with the children on Saturdays, with his mother as the named supervisor.
The parties thereafter entered into a stipulation at the hearing officer conference in December 2016 that M.T. would have exclusive use and occupancy of the marital home. M.T. testified that after she was granted sole use and occupancy of the home, K.T. broke into the house on two separate occasions. In the first break-in, he placed things in front of all of the doors to block entry into the house, including putting a broomstick through the garage door, and left a note nearby that said "Nice try" with a heart on it, which she assumed was a reference to her attempts to get into the house. She testified that in the second break-in, he broke a piece of the fence to gain access to the home, moved all of the furniture, again tried to block the doors, and placed an oily substance on one of the doors. M.T. stated that at this time, she was not living in the home because she was too scared to live there. When questioned about these incidents at trial, K.T. responded, "First of all, this was my house and I wasn't allowed to get property out of there." Although he attempted to minimize his actions in gaining entry to the property, he admitted to doing most of the things that M.T. testified he did to access the home, as well as his effort to prevent others from gaining entry into the home.
M.T. testified that after the temporary custody order was in place, the visits with K.T.'s mother as supervisor did not go well, and that C.T. came home from the visit crying. According to M.T., C.T. told her that K.T. cursed out their grandmother in front of them and then cried to C.T., telling her that M.T. was trying to put him in jail. C.T. also reported to her mother that the visit took place at the family home, which was still in a state of disarray similar to when M.T. went to get her belongings. Approximately one month later, the parties went to the hearing officer conference, after which the hearing officer recommended that K.T. undergo a mental health evaluation with Dr. Luscher, complete an anger management program, and that any visits with the children by K.T. be supervised by a licensed clinical social worker.
However, after supervising three visits between K.T. and all three children, Ms. Cerissa Blackburn, the social worker in the case, wrote a detailed letter to the court in January 2017, requesting that she be removed as supervisor and recommending that the STPSO supervise the visits instead. Dr. Luscher also interviewed Ms. Blackburn for K.T.'s mental health evaluation. Ms. Blackburn reported that problems arose because K.T. disregarded the court order, gave very short notice when requesting visitation, would ask the children questions about M.T. and make derogatory remarks about her to the children, made false promises to the children, and focused all of his attention on A.T., at the expense of the other children, whom he appeared to essentially or purposefully ignore. The social worker noted that his clear favoritism of A.T. was disturbing and "creepy" and caused a lot of tension with C.T. because she also wanted attention from her father. As noted in the reasons for judgment, Ms. Blackburn withdrew from the supervision "citing the fact that during the visits, [K.T.] made repeated negative comments about [M.T.],... made promises to the children about possible overnight stays despite knowing he only had daytime supervised visitation," that K.T.'s "actions evidenced a bias in favor of [A.T.] over [C.T.], and [K.T.] referred to [KJ.T.] as a 'little s**t."' The trial court noted that all of this "was documented by Dr. Luscher in her report and testimony presented at the October 2021 hearing[,] and no evidence was introduced to refute the accuracy of it."
When asked about the visits with his mother as the supervisor and the social worker's recitation of events, K.T. maintained that the problem was that his mother "didn't understand the rules" and he did not "know whose fault that was." However, he also admitted that he "probably said some things [he] shouldn't have" to C.T. at the visits supervised by his mother. Despite these admissions, K.T. nonetheless disputed that everything Ms. Blackburn and Dr. Luscher said was true.
M.T. testified that after the visitation supervisor was switched to the STPSO in January 2017, K.T. only visited with the children once a month until April 2017, after which he stopped all communication with the children. She testified that fourteen months later, in June 2018, he texted her to ask to see the children, but stated that he did not want the court or the sheriffs office to be involved. M.T. responded she didn't think it was a great idea to just "jump back into a visit" and specifically told him "[n]o" as to the court not being involved. After he stopped visits in April 2017, visitations did not resume until the summer of 2019, over two years later. M.T. testified that in the interim, the children were affected by his actions and the situation: C.T. felt "very abandoned" by her father and it weighed on her self-esteem; A.T. asked if K.T. was dead because he never called to speak to them; and KJ.T. was too young to understand what was happening with their father.
In June 2018, K.T. sent a message to M.T. through "Our Family Wizard" wherein he acknowledged that he had not seen the children or communicated with them for a year. However, at trial, he claimed that during the time he was "gone" from the children's lives, he sent gifts to them and communicated with M.T. Although K.T. wanted unsupervised visitation with the children in June 2018, at trial he admitted that he did not attempt to have another supervised visit until July 2019. At trial, K.T. conceded that he did not see the children for approximately two years, but claimed that he only stopped seeing them in 2020 because the STPSO stopped supervising visits due to COVID-19. K.T. testified that it was "tough" to explain why he stopped all of the visits for two years, but that he "thought that was in the best interests" of the children. K.T. did not dispute that he had not seen or spoken to C.T. since 2017, when he initially stopped visiting with the children, except for some communications via letter; however, K.T. also stated that "[f]or some reason[, C.T.] remembers only the bad stuff."
K.T. testified that in June 2018, he began to attend individual therapy sessions at Northshore Counseling and Wellness. K.T. testified that he attended 23 sessions, as purportedly documented in a sheet of paper he submitted in conjunction with his 2020 rule to lift supervision, showing "Northshore Counseling and Wellness" typed on the top of the page and a provider's name, with a numerical list of 23 dates and a notation of either "45 minutes" or "60 minutes" next to each date. Although K.T. stated that he attended these sessions during which for the first time he "really talked to someone one-on-one," no records or report were introduced to show the nature, purpose, extent, or results of these sessions. K.T. stated that his main objective was to try to talk to M.T. through the therapist because he felt it was in their best interest for M.T. to be reintroduced to him in a clinical setting. He stated that M.T. went to a few individual sessions as well, but complained that she quit going. According to K.T., he kept attending sessions "even after she lost interest and didn't want to stick with the plan that she originally agreed to."
M.T. testified at trial that she did meet with this therapist and at one point, gave her "a lot of information" about the familial situation. She testified that she saw the therapist again about a month later and the therapist told her that K.T. cried a lot at the sessions and said he missed his family, but that the therapist "didn't know anything about his issues." M.T. testified that she quit attending the sessions because she "felt like it was a waste of time."
The record further reflects that after K.T. filed his rule to lift supervised visitation in August 2020, the parties attended a hearing officer conference on December 2, 2020. After the conference, the hearing officer rendered findings of fact, which noted that "The father has not contacted the Sheriffs office to see if they have resumed supervision, which they have. He said he has lost a lot of overtime income because of [COVID-19] and cannot afford paid supervisors." M.T. testified at trial that the STPSO resumed supervision of visitation in May 2020. When asked about the hearing officer's report at trial, K.T. stated it was not true that he did not contact the STPSO to see if visitation had resumed; he claimed that he was "in contact" with a deputy around May of 2020 who said "he would be in contact with [K.T.]” when visitation resumed, but that the deputy never contacted him.
According to M.T., K.T. did not see or call the children for approximately ten months in 2020, but around the time that the parties attended the hearing officer conference in December 2020, K.T. began trying to regularly call the children. Further, although K.T. completed the Truth 180 course in July 2020, he admittedly was court-ordered to complete the course in 2017. M.T. testified that when visitation resumed at the end of 2020 or the beginning of 2021, A.T. and K.J.T. regularly attended the visits without issue until August 22, 2021. The fact that there were no issues during the visits was corroborated by the testimony of three sheriffs deputies who acted as supervisors. The 2021 visits were always in public places and occurred "mostly every other week," but sometimes in consecutive weeks for approximately two hours each time.
We note that K.T. was originally ordered to enroll in and complete an anger management course in a consent judgment signed on November 7, 2016; this appears to be separate from the Truth 180 course that was first ordered on January 9, 2017. At trial, M.T.'s counsel pointed out that the anger management and Truth 180 course were in two separate court orders, but K.T. maintained that the Truth 180 course was both anger management and batterer's intervention. However, K.T. denied ever being ordered to go to a specific anger management course that was listed in the November 7, 2016 consent judgment. When presented with the judgment at trial, K.T. claimed "I'm not sure what that is. I've never seen it before."
According to one of the deputies, the SPTSO's minimum requirement for a visit is two hours, but it can "[absolutely" be longer if the court order allows longer visitations.
However, problems arose at the August 2021 visit, while A.T. and K.J.T. were visiting with their father at a park. According to the deputy who supervised the visit, he terminated the visit early after A.T. came to him crying and asked for the visit to end. The deputy stated that, while he did not personally hear the conversation between K.T. and A.T. that upset her, A.T. told him what happened. He understood it to be a dispute about the location of the visits and K.T. accusing A.T. of saying something that her mom supposedly told her to say. When questioned at trial, K.T. disputed that he ever said anything to A.T. about her mom. Instead, he contended that A.T. was simply complaining that it was hot outside and that she has "sports asthma" and claimed that K.J.T. was actually the one who said it was "probably mom" who was telling her to say that. However, M.T.'s recitation of the events as told to her by both A.T. and the deputy was similar to the deputy's testimony at trial, which was contrary to K.T.'s assertion that KJ.T. suggested M.T. told A.T. to complain about the heat. However, it is undisputed that since this visit, A.T. has refused to see her father.
Considering the record before us, we find no merit to K.T.'s first assignment of error, i.e., that the trial court erroneously found that his participation in the various treatment programs was not "meaningful." Moreover, we are unable to say that the trial court committed manifest error in its factual "interpretation" of the record. Considering the events leading up to trial, and the evidence presented, we find ample support in the record for the trial court's findings. Thus, on review, considering the conflicting testimony presented and the deference due the trial court in making credibility determinations, we agree that the trial court appropriately rejected K.T.'s claims that his behavioral problems had resolved. Accordingly, we find no merit to K.T.'s first assignment of error.
Likewise, K.T.'s fourth assignment of error challenges the trial court's credibility determination and weighing of evidence as to Ms. Nicoll's testimony and whether or not her treatment of M.T., C.T., and A.T. presented a conflict of interest. The trial court's decision to give weight to Ms. Nicoll's testimony and find her testimony credible is a decision that is well within the trial court's discretion under the manifest error standard. See Rosell, 549 So.2d at 844.
Moreover, even assuming arguendo that this issue was preserved for review, we find no error. The record shows that Ms. Nicoll is a licensed clinical social worker and that C.T., AT., and M.T. have all attended therapy sessions with Ms. Nicoll. At trial, the parties stipulated that Ms. Nicoll was an expert in the field of clinical social work. On cross-examination, K.T.'s counsel questioned Ms. Nicoll as to whether or not she believed it was a conflict of interest to "hold sessions" with M.T, as well as the two children, to which Ms. Nicoll responded, "Not in this case I don't, because most of the time [sessions with M.T. focus on] the parenting and anxiety,... A lot of times ... we're working on how to help with [A.T.] and [C.T.] and the situation, the situation with visitations, things like that." Ms. Nicoll candidly acknowledged that she has never spoken with or treated K.T, and K.T.'s counsel did not question Ms. Nicoll any further about her having any potential conflict of interest in this case.
We note that K.T.'s counsel did not raise a formal objection to Ms. Nicoll's testimony at trial and further stipulated that Ms. Nicoll was an expert in the field of clinical social work.
We again note that under the manifest error standard, the trial court was free to weigh the evidence and evaluate the credibility of witnesses. Based on the record before us, we are unable to say that the trial court was clearly wrong, or manifestly erroneous, in determining the weight to be given to Ms. Nicoll's testimony. Accordingly, we find no merit to assignment of error number four.
K.T.'s second and third assignments of error relate to the trial court's assessment of the weight to be given to his participation in either therapy or mental health evaluations in his seeking custody herein. We again emphasize that the trial court heard extensive testimony, reviewed evidence, and rendered judgment based on its findings, to which the manifest error standard of review demands great deference. Moreover, the trial court was not required to accept any testimony that was presented and could reject any evidence presented as part of its role in weighing evidence and making credibility determinations. See Rosell, 549 So.2d at 855: see also Babcock, 289 So.3d at 612.
The record reflects that K.T. was first ordered to submit to a mental health evaluation by Dr. Luscher in December 2016. He did not begin the evaluation until approximately June 2017, when he presented for the first portion of testing; the evaluation was not completed until December 2017. In conducting this evaluation, Dr. Luscher interviewed: K.T.; M.T.; both of K.T.'s parents; John Morreale, K.T.'s supervisor at the Orleans Parish Sheriffs Office; Ms. Nicoll; and Ms. Blackburn, the social worker who supervised three of K.T.'s visits with all three children in December 2016. Dr. Luscher also conducted and interpreted the results of three tests, namely, the Minnesota Multiphasic Personality Inventory (MMPI), a Personality Assessment Inventory (PAI), and a State and Trait Anger Expression Inventory (STAXI 2). Dr. Luscher also reviewed C.T. and A.T.'s therapy notes from Acadian Care signed by Pamela Chrisman; C.T.'s therapy notes from Ms. Nicoll, the hearing officer conference report from December 2016, text messages between the parties in September 2016, pictures of a Facebook post from K.T. after he broke into the home, and pictures taken by M.T. after K.T.'s "outbursts" at the home.
Notably, Dr. Luscher stated that throughout the various tests she conducted, she did not find K.T. to be forthcoming, especially due to the fact that two of the tests indicated that he was underreporting in his answers, and one of the test results was actually invalid due to "the level of the ... lie scale," which indicated minimization of existing symptomatology, or attempts to present "overly positive." Additionally, Dr. Luscher noted that both of K.T.'s parents' reports also "appeared consistent with underreporting" and "suspicious of minimization" due to conflicting information between interviews. She testified that she was unable to "obtain an objective assessment of [K.T.'s] psychological and mental health functioning" due to these test results. However, she did find that based on the collateral source information from interviews and records, K.T. seemed to have difficulty controlling his anger and difficulty modulating his reactions, for which he had relatively poor insight and judgment. Her report additionally reflects that "at times [K.T.] appeared dismissive of the evaluation process," and that the PAI test result indicated that he would likely resist therapy or see little value in treatment. Dr. Luscher ultimately concluded that K.T. would benefit from psychiatric treatment to address mood instability and aggression, but again noted an "[a]mbivalence" towards treatment. Additionally, she found that K.T. may benefit from psychoeducation and motivational interviewing, mindfulness interventions, or group therapy. Dr. Luscher explicitly recommended against the lifting of supervised visitation until K.T. was "able to successfully complete psychological treatment" and address "his derogating and emotionally neglectful behavior" towards C.T. and KJ.T.
As to K.T.'s contention that the trial court erred in "granting more credence" to Dr. Luscher's evaluation of him in 2017 than Dr. Fontenelle's evaluation in 2021, we find no merit. The record reflects that K.T. began to see Dr. Fontenelle on June 15, 2021 for a "psychoeducational program to improve his parenting awareness, re-establ[ish] a consistent and positive relationship with his three children as well as techniques to improve his understanding of the parent-child relationship." To prepare for this program with K.T., Dr. Fontenelle reviewed Dr. Luscher's psychological evaluation and some of C.T.'s medical records. Dr. Fontenelle testified that K.T.'s "goal of coming into the office" was to develop and establish or improve his relationship with his children. Dr. Fontenelle stated that K.T. agreed to attend ten individual psychoeducational training sessions. Dr. Fontenelle said he found "no indication" that K.T. suffers from a mental health condition or needs psychiatric intervention, and that K.T. recognized that "there were aspects about himself either through his use of words or gestures or communication style that apparently had triggered some conflict with his children."
Dr. Fontenelle testified that K.T. was very concerned about C.T.'s medical records and the fact that they indicate that C.T. said he physically abused her, which K.T. denied, and "felt like it maligned his character as a person and as a parent." Upon questioning by M.T.'s counsel at trial, Dr. Fontenelle clarified that he only spoke with K.T. and did not conduct any collateral interviews, nor did he read Ms. Nicoll's therapy notes for C.T. or A.T. Importantly, Dr. Fontenelle testified that he was not aware that there was a "stay away order" in place against K.T. and in favor of M.T., nor was he aware that K.T. had been ordered to attend a course designed for perpetrators of family violence. Dr. Fontenelle further testified that while K.T. did indicate that there was a period of time that he did not see his children, K.T. "indicated that he was not allowed to," not that he chose not to see the children. Additionally, Dr. Fontenelle conceded he did not conduct any other psychological testing of K.T. and accordingly, he could not show any current testing results. However, he felt that even if the court had already found K.T. had a history of perpetrating family violence, he would have supported the same goal because "children need to establish a relationship with their parents even if their parents had behaved badly at sometime in the past."
At the outset, we note that both Dr. Luscher and Dr. Fontenelle were accepted as experts by stipulation of the parties. On review of the record and Dr. Luscher's and Dr. Fontenelle's testimony and reports, we find that the trial court clearly weighed the evidence and made a credibility determination between the two experts based on the facts and evidence presented at trial. As the trial court apparently recognized, despite Dr. Fontenelle's good faith efforts and intentions in his psychoeducational sessions with K.T., K.T. clearly did not provide him with the full facts of his situation, which likely affected Dr. Fontenelle's conclusions regarding K.T's conduct. Moreover, K.T. specifically disputed several things Dr. Fontenelle stated in his testimony and claimed that Dr. Fontenelle "misunderstood" him or that he did not say the things that Dr. Fontenelle indicated were told to him by K.T. While Dr. Luscher's evaluation of K.T. occurred in 2017, Dr. Luscher conducted a comprehensive psychological examination that did not rely solely on information provided to her by K.T. As such, the trial court was well within its vast discretion to find that Dr. Luscher's conclusions were more reasonable or reliable and to assign her testimony greater weight at trial. See Morgan, 978 So.2d at 946.
Moreover, as it relates to the second assignment of error, we note that even while testifying that he does not think he is a victim in this case and acknowledging that he acted incorrectly, K.T. also demonstrated a clear pattern of disputing everyone else's testimony or recitation of events. Specifically, K.T. lamented that Dr. Luscher did not interview him after she conducted the collateral interviews, and that he was "waiting" and "hoping" to "address some of these accusations" from the interviews. Additionally, while K.T. maintains that he went above and beyond what the court required him to do, including seeing Dr. Fontenelle and completing several online domestic violence courses between 2018 and 2020, he clearly left out significant and important information regarding the custody proceedings and his prior actions, which would have been pertinent information when Dr. Fontenelle formed his opinions of the situation and determined what actions K.T. would need to take to move forward.
Further, while K.T. accepted minimal responsibility for some of his actions, including the disturbing text messages to M.T. in 2016, he also refused to accept responsibility for many of his other actions, including, inter alia, the text message where he threatened to have M.T.'s parents arrested for kidnapping, his inappropriate behavior at visits supervised by his mother and by the social worker, his conduct at the August 2021 visit, where A.T. became so upset she asked to terminate the visit early, his failing to resume visitation after the STPSO resumed visits during COVID-19, and his breaking into the marital home twice after M.T. was granted exclusive use and occupancy by agreement of the parties.
We note that K.T.'s credibility was further undermined through another incident in which K.T. refused to accept responsibility for his actions and disputed a documented recitation of events. While K.T. was employed at the STPSO, K.T. was involved in an incident in which he was disciplined due to his handling of a complaint of potential counterfeit money. The STPSO's records reflect that in connection with this incident, he was reprimanded, transferred to another district, reassigned to desk duty, suspended for eighty hours without pay, and found to have acted in violation of department policies. However, K.T. testified that he was not suspended without pay, was not transferred to another district, and was ultimately not found to be at fault for any rule or policy violation. When presented with the records from STPSO, which included his signature under the comments regarding his "corrective action," K.T. continued to refute the record evidence showing that he was suspended without pay or transferred to another district. Specifically, he stated, "this is not completely correct" and "[m]aybe it was overturned" in reference to the records bearing his signature. K.T. further testified that the family went on a vacation "directly following the incident" and "it could have ... coincided" with the discipline.
Although K.T. also testified that this incident was the only time he was investigated during his law enforcement career, the parties agreed to submit his entire employment record at the STPSO for the trial court's review. The records reflect that there was another incident where he was dispatched to an attempted suicide, but changed the nature of the dispatch call and was found to be in violation of department policies for "a willful failure to make a required report."
Moreover, while K.T. testified that he attended 23 individual therapy sessions in 2018 and submitted a list of apparent dates and times, he did not submit any notes from the sessions or a report from the counselor, nor did the counselor testify at trial as to the scope or results of these purported sessions.
On the record before us, we are unable to say that the trial court was manifestly erroneous in making its factual determinations or that the trial court improperly weighed the evidence and testimony of the lay witnesses and experts, particularly regarding K.T.'s mental health evaluation and treatment. Thus, we also find no merit to K.T.'s second and third assignments of error.
Assignments of Error Nos. 5-10
Through his final six assignments of error, K.T. challenges the trial court's award of sole custody to M.T., allowing him no visitation with C.T. and A.T. and awarding him supervised visitation with K.J.T. for only two hours each month, as well as the requirements for him to regain visitation with C.T. and A.T. As previously noted, if custody to one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. LSA-C.C. art. 132. Thus, it was M.T.'s burden at trial to show that it was in the best interest of the children that she be awarded sole custody. Custody determinations will not be disturbed absent a clear abuse of discretion. Henry, 223 So.3d at 1271.
Based on our thorough review of the record in this case, including the evidence discussed in our consideration of assignments of error one through four, we cannot say that the trial court erred or abused its discretion in awarding sole custody to M.T. As reflected in the trial court's extensive written reasons for judgment, the trial court clearly analyzed every element of LSA-C.C. art. 134 and appropriately weighed each factor, with regard to each parent. The record established that the children have continually lived with M.T. since 2016, that K.T. displayed verbally abusive and threatening behavior towards her and her parents, has continued to disparage her to their children, and, by his own choice, has been notably absent from the children's lives for many years without explanation or true justification. Additionally, when making its custody determinations, the trial court obviously was concerned with K.T.'s delays in obtaining the court-ordered mental health evaluation and attending the Truth 180 classes, as well as the fact that he did not begin to see Dr. Fontenelle until June 2021. Despite K.T.'s claims that his behavior had improved, his repeated conduct and inability to recognize the harmful effects of his conduct on his children were shown at trial. Accordingly, we find that the trial court did not commit an abuse of discretion when awarding sole custody of the children to M.T. Thus, we find no merit to assignment of error number five.
However, as to his remaining assignments of error, which focus on the trial court's determinations regarding K.T.'s supervised visitation with the children, we note that LSA-C.C. art. 136(A) provides that "Subject to R.S. 9:341 and 364, 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." This is a restatement of the test for parental visitation set forth by the Louisiana Supreme Court in Maxwell v. LeBlanc, 434 So.2d 375 (La. 1983).
These provisions cited in LSA-C.C. art. 136(A) are invoked when there is a finding of family violence or domestic abuse.
In Maxwell, 434 So.2d at 376, the right of visitation for a non-custodial parent was found to be a natural right, enforceable in a civil action when a custodial parent denies visitation access. The Louisiana Supreme Court specifically found that "a parent is entitled to reasonable visitation rights unless it is proved conclusively that visitation would endanger seriously the child's physical, mental, moral, or emotional health." Thus, a presumption in favor of visitation operates unless "conclusive evidence" shows that the parent has forfeited his right of access to the children by his conduct or that the exercise of that right to visit with the children would injuriously affect the child's welfare. Maxwell, 434 So.2d at 379. However, the trial court is still vested with great discretion in making these determinations regarding visitation. Maxwell, 434 So.2d at 378.
In this case, the trial court was presented with extensive evidence regarding whether or not supervised visitation would be in the best interest of the children. Based on all of the trial court's findings, we cannot say that the trial court abused its discretion in finding that continuing to limit K.T.'s visitation to supervised visitation only was in the best interest of the children. The trial court was presented with ample evidence regarding K.T.'s actions during his supervised visits with the children over the years. Although K.T. and the three deputies who testified on his behalf stated that K.T.'s recent visits with A.T. and KJ.T. have gone well, the trial court clearly found the August 2021 visit, where A.T. became so upset as to require that the visitation end early, was significant and showed that K.T.'s troubling behavior was ongoing and continued to affect the children. Thus, the trial court's reasons for requiring that K.T.'s visitation with the children be supervised are fully supported by the overall record herein, and we find no error in this ruling.
In addition to ordering supervised visitation with the children, the trial court also placed restrictions on that visitation, effectively denying visitation by K.T. with C.T. and A.T. and severely limiting K.T.'s visitation with KJ.T. As to C.T., we note that M.T. presented proof of years of trauma and psychological damage suffered by C.T. due to K.T.'s actions. As reflected in K.T.'s own admissions, the supervising social worker's observations, and C.T.'s therapist's testimony and medical records, K.T. clearly favored A.T. at the expense of C.T., which has had a detrimental effect on her mental health and well-being. Despite K.T. seeking joint custody and unsupervised visitation, C.T. has refused to see him since at least mid-2017. Moreover, Ms. Nicoll, C.T.'s therapist, testified that she does not think it would be in C.T.'s best interest to resume visitation with her father as it would have a detrimental effect on her. Additionally, while not determinative, Ms. Nicoll testified that she "absolutely" thinks C.T. is mature enough to determine if she is ready to see her father.
We further note that when C.T. was hospitalized for depression and suicidal ideations in 2021, K.T.'s complaint was that M.T. did not provide him information regarding the hospital. However, at trial, when the court asked him what he would have done if M.T. had provided him with information regarding the hospital where C.T. was receiving treatment, he stated that he did not intend to do anything with that information, but that "I just think I'm entitled to know more about what's going on with them." M.T. testified that when she texted K.T. to tell him that C.T. was at the hospital, he responded, "g*dd**n it, she needs me,”
We also note that since C.T. has stopped seeing K.T., she has written a letter to him on at least one occasion, to which he responded. However, in a session with Ms. Nicoll on April 14, 2021, C.T. reported that in his response, "he admits no wrong [and] dismissed everything," and that she did not understand how K.T. could believe that the letter he wrote is the truth. While not determinative, Ms. Nicoll's session notes further document and support C.T.'s concerns such that she did not want to see K.T. or have a relationship with him.
While the record is clear that not all of C.T.'s problems are directly related to K.T., Ms. Nicoll testified that in her opinion, C.T.'s depression and anxiety are related to K.T.'s past and recent behavior, and that the effect of her relationship with her father was a factor in her hospitalization, even though there were other social factors that contributed as well. Based on this evidence in the record, we are unable to say the trial court abused its discretion in finding that it would not be in C.T.'s best interest to resume even supervised visitation with K.T. at this time.
With regard to A.T., Ms. Nicoll's session notes reflect that as of April 2021, A.T. likewise did not want the visits with K.T. to be unsupervised, nor did she want the visits to be at his house. The notes further reflect that A.T. stated that she "feels bad" because K.T. was only ever nice to her and not to her siblings. Although the child's preference alone is not determinative, the evidence shows that while A.T. originally enjoyed the supervised visitation with K.T., after the events that occurred at the August 2021 supervised visit, she has also refused to see him. As the record clearly shows, K.T.'s actions in the past have likewise detrimentally affected A.T. Although she was much younger at the time of the separation, she also observed his actions and has been affected by them. Moreover, as recognized by the trial court, "[t]he evidence established] that [A.T.] has now gotten older and is more aware of [K.T.'s] actions." Accordingly, based on the trial court's various findings, including the conduct directed toward A.T. at the August 2021 visit, as well as K.T.'s refusal to accept any responsibility for his behavior, including his effort to shift the blame for the upsetting incident to K.J.T., a young child, we cannot say that the trial court abused its discretion in finding that it was not in A.T.'s best interest to resume supervised visitation with K.T. at this time.
K.T. also assigns as error that the trial court only awarded him two hours of supervised visitation with K.J.T. a month. We again note that the trial court has vast discretion in its consideration of the need for supervised visitation and in determining what is in the best interest of the child. Here, the trial court found that the evidence showed that K.T. has little insight into how his actions impact the children, and the court expressed its concern that K.T.'s documented pattern of behavior with C.T. and A.T. would begin to affect K.J.T. as well. Thus, considering the evidence in the record, the options available to the trial court, and the trial court's role in determining what is in the best interest of the children, we are unable to say that the trial court abused its discretion in limiting the amount of K.T.'s supervised visitation with K.J.T. This assignment of error also lacks merit.
However, while we recognize the trial court's vast discretion in making custody determinations and setting restrictions with regard to visitation, see Petsch v. Petsch, 2004-0491 (La.App. 1st Cir. 6/22/01), 809 So.2d 222, 225, and recognize that the trial court may consider the testimony and recommendations of treating therapists or health care providers, we are not aware of any authority that allows the trial court to assign the ultimate determination as to what is in the best interest of the children to the sole discretion of a witness or to the minor child. Moreover, even if the trial court could defer completely to the judgment of a mental health provider, we note that the judgment herein provides no requirement of a time frame for such an evaluation to take place. Accordingly, we find the trial court erred in its decision to allocate the responsibility of determining the best interest of the children solely to C.T. and A.T.'s therapist. For those same reasons, we find the trial court also erred in allocating its decision-making authority to C.T., a minor child. While the reasonable preference of the child is a factor that may be considered, and in some circumstances may be of particular importance, see Cave v. Cave, 2020-0240, 2020-0550 (La.App. 1st Cir. 3/25/21), 2021 WL 1134946, *19 (unpublished), the trial court is obligated to consider all relevant factors in determining whether visitation is in the best interest of the children.
Thus, we find merit, in part, to K.T.'s seventh and eighth assignments of error.
Accordingly, considering the record before us, we conclude that a remand is necessary to allow the trial court to order and set a review schedule or time frame for such evaluations to take place, to allow the trial court to review the visitation provisions and consider any updated information and evaluations with regard to visitation, and to consider any updated evaluations ordered by the trial court as may be required to determine the best interest of the children and whether any changes in nature or amount of visitation are warranted with respect to each child.
In making this finding, we note that the standard to modify visitation and to modify custody are separate and distinct. Howze v. Howze, 2017-0358 (La.App. 1st Cir. 9/28/17), 232 So.3d 606, 610. Visitation may be "tweaked" without proving the heightened standard required by Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La. 1986). Melton v. Johnson, 2018-0403 (La.App. 1st Cir. 12/12/18), 2018 WL 6571044, *6 n. 14 (unpublished).
CONCLUSION
For the above and foregoing reasons, the portion of the trial court's December 3, 2021 judgment awarding M.T. sole custody of the minor children is hereby affirmed.
The portion of the judgment awarding K.T. two hours of supervised visitation with K.J.T. each month, to be supervised by the St. Tammany Parish Sheriffs Office at K.T.'s sole cost, is hereby affirmed.
The portion of the judgment determining that at this time, visitation between K.T. and C.T., as well as K.T. and A.T., is not in the best interest of the children is hereby affirmed.
The portion of the judgment providing that K.T. shall not have visitation with C.T. "except as [C.T.] and her mental health provider together determine is best for [C.T.]" is hereby vacated.
The portion of the judgment providing that K.T. shall not have visitation with A.T. "until [A.T.'s] mental health provider determines that [A.T.] is ready for visitation" is also hereby vacated.
This matter is remanded to the trial court with instructions to set a reasonable time frame for any necessary further evaluations to take place and to order such evaluations or updates to the court as necessary to allow the trial court to continue to reassess the visitation provisions herein and to facilitate the best interest of the children.
Costs of this appeal are assessed to the appellant, K.T.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED WITH INSTRUCTIONS.