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The New Orleans Times-Picayune (LA)
September 13, 1997
Author: JOE DARBY
West Bank bureau Estimated printed pages: 3 In a rare double reversal, the state Supreme Court has overturned two 5th Circuit Court of Appeal rulings in one day, including a case that awarded money to the mother of an 11-year-old boy who committed suicide after the state temporarily removed him from her custody. “The Supreme Court affirms the vast majority of our decisions,” said 5th Circuit Judge Sol Gothard, who wrote the opinion that upheld the judgment of the 24th Judicial District Court.
In June 1996, District Court Judge Susan Chehardy awarded the mother, Sheila Todd, more than $336,000, finding the Office of Community Services of the state Department of Social Services and a state caseworker at fault for the death of Joshua Todd. The mother’s attorneys, Randy Meyer and Lenny Levenson, contended Thursday that in its decision, the Supreme Court had rewritten the facts of the case. Steve Mayer, general counsel for the Department of Social Services, said the opposite, that the 5th Circuit, in upholding the district court ruling, had gotten the facts wrong. Meyer and Levenson said they intend to ask for a rehearing before the Supreme Court. Todd said she is devastated by the Supreme Court’s decision. She said she wanted to win her case so that other children will not be treated as her son was, and that his death will not have been in vain. “If I can do anything to save other children, I want to do it,” she said.
The high court said the facts of the case are: On Oct. 12, 1993, Carol Wells, acting principal of Jefferson Elementary School in Jefferson, found bruises on Joshua’s neck and said the bruises were from the worst beating she had seen in 27 years of teaching. Joshua told her the bruises were inflicted by his mother after they argued over homework. State caseworker Cody LaBauve told Sheila Todd that Joshua could stay with a relative while the alleged abuse was investigated, and the mother said she already had made arrangements for the boy to stay with his father. The state placed Joshua with his father. Three days later Joshua hanged himself in his grandmother’s shed.
Todd’s attorneys said the Supreme Court’s 6-1 ruling failed to take note of testimony that, despite what Wells said about the severity of the beating, LaBauve said she had seen only what was “possibly” a handprint on the boy’s back. Also, the attorneys said the court apparently did not take into account the testimony of Dr. Fraser MacKenzie, who performed the autopsy on Joshua, and said he found no evidence of a beating. Chehardy, and the 5th Circuit, found that LaBauve and the state were liable because LaBauve failed to interview Todd within 24 hours of beginning the investigation of abuse, as required by state law. The high court said there was nothing to prevent Todd from telling LaBauve about her son’s problems over the phone.
LaBauve was investigating a claim of child abuse and her first priority was to protect the child by removing him, at least temporarily, from the custody of a possibly abusive parent, the court ruled. “To hold LaBauve negligent for failing to recognize a profound psychological disturbance under these circumstances is purely hindsight and untenable in law,” the justices said. Meyer and Levenson said that LaBauve several times canceled an appointment with Todd and that Todd had told the caseworker over the phone that a doctor had prescribed Prozac for Joshua and that he had been put in Coliseum House for treatment of emotional problems. Mayer said, however, that “in this case the Supreme Court hit the nail on the head because the primary purpose of OCS is to protect children.” Mayer said LaBauve no longer works for the state. She could not be reached for comment.
In a Wal-Mart case, 2nd Parish Court Judge Roy Cascio had awarded Diane White of Algiers $5,742 after she slipped on a wet spot and fell in the Wal-Mart store on Behrman Highway in the Gretna area. The 5th Circuit upheld that judgment. But the Supreme Court ruled 4-3 that she had failed to prove how long the liquid she slipped on had been on the floor, and that Wal-Mart should have known of the dangerous condition. White’s attorney, Colin Sherman, said he will apply to the high court for a rehearing. Section: