author: SAUNDERS, Judge.

text:
    Carlton Dale FONTENOT v. RYDER TRUCK RENTAL, INC.
    No. 03-1129.
    Court of Appeal of Louisiana, Third Circuit.
    March 24, 2004.

      J. Isaac Funderburk, Nancy Dunning, Funderburk & Herpin, Abbeville, LA, Alvin J. Bordelon, Jr., Bordelon, Hamlin & Theriot, New Orleans, LA, for Defendant/Appellant, Ryder Truck Rental, Inc.
    Joseph Charles Kosarek, Abbeville, LA, for Plaintifi/Appellee, Carlton Dale Fonte-not.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

Ryder Truck Rental, Inc. (“Ryder”) appeals the judgment of the trial court in favor of Carlton Dale Fontenot (“Fonte-not”), awarding him earned but unpaid vacation wages, as well as penalties and attorney fees for the bad faith actions of Ryder. For the following reasons, we affirm.

FACTS

Ryder hired Fontenot on November 27, 1978. Fontenot remained an employee of Ryder from this hire date until his retirement on November 30, 2002. At the time Fontenot was hired, Ryder’s vacation policy provided that an employee earned a certain amount of vacation time for every year of employment effective on the employee’s anniversary of his hire date. The vacation time earned in each year of employment was to be used the following year. For example, on November 27, 1979, following his first year of employment with Ryder, Fontenot earned vacation time according to the schedule set out by Ryder. The Ryder vacation policy was what is commonly referred to as a “use it or lose it” policy. Therefore, the vacation days earned by Fontenot during the year of employment from November 27,1978, to November 27, 1979, were to be used by his following anniversary date of November 27, 1980. Any days not used during that year were subsequently forfeited by the employee. They did not carry over to the following year. This policy was repeated annually.

In December of 2000, Ryder announced to its employees that it would be changing its vacation policy. This new vacation policy would be geared to the calendar year and not to the employee’s date of hire. The policy provided that every employee would be credited with vacation days as of January 1 of each calendar year in an amount determined based on the employee’s years of service. Following the | ^advancement of these vacation days on January 1 of each calendar year, the employees were required to use, or take, the number of vacation days advanced within the same calendar year. As with the prior policy, this new vacation policy was also a “use it or lose it” policy, meaning any vacation days not used by the employee during that year would be lost.

Under this new policy, any employee whose employment terminated during the calendar year and who had not taken all of the vacation days earned would be paid by Ryder for those days. Similarly, any employee whose employment terminated during the calendar year and who had used more vacation days than he had earned would be required to reimburse Ryder for those unearned days from his last paycheck.

In December of 2000, when Ryder announced this new vacation policy, the employees were instructed to fill out vacation calculation worksheets that were provided by Ryder to calculate the vacation days that they would have to use during the 2001 calendar year, as a result of the shift from the old vacation system to the new one. According to the December 2000 revision to the vacation plan, in addition to the twenty vacation days he had earned during his employment from November 27, 1999 to November 27, 2000, Fontenot also earned three vacation days during the period between his anniversary of hire on November 27, 2000, and December 31, 2000, the last day of the old vacation policy. Based on the December 2000 policy revision, Fontenot was to fill out the provided worksheet with the twenty-three vacation days earned under the old policy, which Ryder was required to provide by law. In addition to these twenty-three days, the worksheet instructed Fontenot to include the twenty days for which he would be credited on January 1, 2001, representing the vacation time he would earn during the 2001 calendar year under the |3new policy that took effect on January 1, 2001. Therefore, based on this worksheet Fontenot filled out pursuant to Ryder’s instructions, he had a total of forty-three vacation days available to him during the 2001 calendar year.

At some point during January of 2001, Ryder issued another vacation policy, which forfeited all vacation time credited to Ryder’s existing employees for the 2001 calendar year under the revised policy that took effect January 1, 2001. This policy was accompanied by another vacation calculation worksheet, which the employees filled out. Under this vacation policy, Fontenot received the twenty-three vacation days he had earned under the old policy in effect until December 31, 2000, but received no vacation days for the 2001 calendar year. Fontenot remained an employee of Ryder until his retirement on November 30, 2002.

Following his retirement Ryder paid Fontenot $3,900.34 as compensation for vacation time he earned during the 2002 calendar year but did not use. Fontenot made a written demand for compensation for the twenty vacation days credited for use on January 1, 2001, that had been subsequently removed from his vacation time by Ryder following their second revision of the vacation plan implemented in 2001. Fontenot filed a Rule for Unpaid Wages, Penalty Wages, and Attorney Fees, when Ryder refused to compensate him for the vacation days.

Following the May 12, 2003 hearing on this matter, the trial court issued its judgment in favor of Fontenot and against Ryder, awarding Fontenot $4,720.24 for earned vacation pay, $15,172.20 in penalty wages for Ryder’s bad faith actions relating to the revised vacation policy, and $2,187.50 as reimbursement to Fontenot for attorney’s fees. In his reasons for judgment the trial judge stated:

If there would have been any honesty about it. And I’m not going to attribute dishonesty, but I’m going to tell you this, I think on some |4level, within Ryder, somebody figured out, hey, Ryder can get a huge windfall. We’re talking about millions of dollars. By simply changing the calendar year. It will be portrayed — The biggest mistake Ryder made was in putting out that December 2000[sic], which was actually accurate, and they said: Oh, Jesus, look at all we’re giving them. But the employees will still be happy if we give them twenty-three (23) instead of forty-three (43), they’re going to be happy. If they had given them twenty-three (23) at the beginning, most people would have said, oh, boy, we’re getting a windfall. Actually, they were being short-changed. Ryder showed their hand with the December 2000 policy worksheet, and then tried to take it back.
But in January of 2001, somebody in Ryder said, wait a minute, man, — I’m not sure if they seized an opportunity to take twenty (20) days of vacation from every employee, or somebody felt forty-three (43) days was too much. But, in effect, what they did with the January 2001 policy was take twenty (20) days vacation for every employee who was entitled to twenty (20) days. If they were entitled to ten (10), they took ten (10). If they were entitled to fifteen (15) — In effect, no employee was given credit for the year they worked in 2001. Okay?
Now, did they go to great lengths to make it look like they had? Yes. Because [sic] in fact, he got to take twenty-three (23) days vacation in 2001. But the kicker was, this was not for 2001 this was for before December 31st, 2000. Okay? And if you’re following the talking points that were brought out, there was a real determined effort to sell the employees on the idea of, look, you’re going to get — we have to transition, and it’s because of the anniversary date, but there’s the other little problem that’s not spoken. The employees were not told “We’re not giving you credit for the vacation you earned in 2001.” Look at the talking points and find that. Because that’s the truth.

Ryder presents the following issues on appeal:

1.Did plaintiff earn the disputed 20 days vacation time under the defendant’s stated vacation policy so that compensation for these days was payable at the time of his retirement and recoverable under La.R.S. 23:631?
2. Did defendant have any equitable defense to plaintiffs demand for payment of his alleged 20 days of unused vacation time thus precluding defendant from penalty liability under La.R.S. 23:632?
3. Does plaintiff have a well-founded claim to the disputed 20 vacation 15days so as to render defendant liable for attorney’s fees under La.R.S. 23:632?

DISCUSSION

The appropriate standard of review for appellate courts concerning the factual findings of a trial court or jury is well established. We may not set aside the factual findings of the trial court absent manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). In Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106, 1112 (La.1990), the supreme court further clarified this standard, stating:

[T]he appellate court’s disagreement with the trial court, alone, is not grounds for substituting its judgment for that of the trier of fact. Borden, Inc. v. Howard Trucking Co., Inc., 454 So.2d 1081 (La.1983). If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell, supra. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.; Arcen eaux v. Domingue, 365 So.2d 1330 (La.1978).

Employees are entitled to earned vacation pay based on La.R.S. 23:631, which states in relevant part:

D. (1) For purposes of this Section, vacation pay will be considered an amount then due only if, in accordance with the stated vacation policy of the person employing such laborer or other employee, both of the following apply:
(a) The laborer or other employee is deemed eligible for and has accrued the right to take vacation time with pay.
(b) The laborer or other employee has not taken or been compensated for the vacation time as of the date of the discharge or resignation.
(2) The provisions of this Subsection shall not be interpreted to allow the forfeiture of any vacation pay actually earned by an employee pursuant to the employer’s policy.

| r,Additionally, La.R.S. 23:632 provides that employers are subject to penalties for violation of La. R.S. 23:631. Louisiana Revised Statute 23:632 states in pertinent part:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

Ryder argues that Fontenot did not earn forty-three vacation days during 2001. Based on the revised vacation policy distributed in January of 2001, Ryder claims that no vacation days were credited to employees for the 2001 calendar year. During what Ryder refers to as the “transition” year of 2001, employees did not earn vacation time and were allowed to use only the vacation days they had accrued under the previous policy in place until December 31, 2000. Under the new vacation policy, Ryder argues that Fontenot was entitled to twenty-three vacation days as earned under the previous policy and based on his years of service with the company.

Ryder admits that the original vacation calculation worksheet accompanying the new vacation policy distributed in December of 2000 indicated that Fontenot would be eligible to use forty-three vacation days during the 2001 calendar year. The twenty-three vacation days he earned in 2000 under the prior policy that accrued in 2001, as well as twenty vacation days for the 2001 calendar year, would be credited to him on January 1, 2001, when the new policy took effect. However, Ryder argues that this worksheet contained a mistake, and it never intended for its employees to 17earn vacation days during the 2001 transition year. Ryder claims that upon discovering this mistake in the original worksheet, it immediately acted to correct it, and, in January of 2001, Ryder distributed a new vacation calculation worksheet. Under the instructions accompanying that new worksheet, Fontenot was entitled only to the twenty-three vacation days earned during 2000, and was given no vacation days for his employment during the 2001 calendar year.

Ryder argues that this erroneous worksheet only created an “expectancy” of a future benefit in the form of vacation time to be earned during employment in 2001, therefore; Fontenot never earned the twenty additional vacation days for which he is currently seeking compensation. Ryder claims that the trial judge either misconstrued Ryder’s vacation policy or erroneously concluded that an employee has a right to earn paid vacation no matter what the employer’s vacation policy provides. Ryder also argues that the trial court confused earning vacation days with credited vacation time under this new policy. It contends that credited vacation time is not earned until the employee works throughout the year. Therefore, any vacation days credited to Fontenot with the December 2000 vacation calculation worksheet were reclaimed by Ryder before Fontenot had earned it. As Fontenot had no vested interest in those twenty vacation days, according to Ryder, he cannot seek compensation for them now.

Alternatively, Ryder contends that even if we should find that Fontenot earned an additional twenty days of paid vacation during 2001, those days were forfeited by non-use under Ryder’s unchanged “use it or lose it” policy. Therefore, because Fon-tenot did not use the twenty days during the 2001 calendar year, he lost them on December 31, 2001, and has no ability to claim a right to be compensated for them | Rnow.

Fontenot, on the other had, contends that Ryder acted in bad faith in the way it revised and re-revised its vacation policy. He claims Ryder’s contentions that there was a misinterpretation or misapplication of the vacation policy’s worksheet are unsupportable in light of the clear evidence showing otherwise. He argues that Ryder’s contention that 2001 was a transition year for this policy is a “smoke and mirrors” campaign designed to disguise the facts of this case. The facts that Fontenot argues, show that Ryder took away a benefit that had already been granted to its employees, and more particularly, that Ryder took away that benefit after realizing that their new vacation policy would create a large financial liability on the company during 2001.

Fontenot claims that once the vacation days were credited to Ryder’s employees on January 1, 2001, the employee’s right to those vacation days had vested, as they would have been able to use them immediately. Therefore, Ryder’s refusal to allow its employees to use the vacation days was a violation of La.R.S. 23:631. Ryder had no authority to retroactively rescind the vacation time credited to its employees on January 1, 2001.

Fontenot further urges that any vacation policy of an employer providing for forfeiture of earned vacation in any manner must be clear and unequivocal, and that any ambiguity will be interpreted against the employer. See Baudoin v. Vermilion Parish Sch. Bd., 96-1604 (La. App. 3 Cir. 4/2/97), 692 So.2d 1316, writ denied, 97-1169 (La.6/20/97), 695 So.2d 1358. He urges that these two vacation policies, issued within weeks of one another, are nothing if not questionable, and that the policies’ ambiguities must be interpreted in his favor and against Ryder. Fontenot also 19emphasizes that Ryder employees testified at trial that he was unable to use the disputed twenty days of earned vacation during the 2001 calendar year and that had he insisted that he be allowed to take those vacation days, he would have suffered adverse employment consequences. As a result of this admission by Ryder, Fontenot contends that he cannot justifiably be penalized for failing to use vacation days that Ryder had denied he was entitled to and refused to allow him to take.

The specifics of the various vacation policies implemented by Ryder are complicated and somewhat difficult to rectify on first glance. Following a careful review of the record, and specifically the December 2000 and January 2001 revisions to Ryder’s vacation policy, we find that the updated and “revised” vacation policy distributed in January of 2001 still indicates that employees would earn vacation days in the 2001 calendar year, despite the fact that the vacation calculation worksheet seems to indicate otherwise. The comparison of the documentation accompanying each of these vacation policies, examined in conjunction with Ryder’s briefs and trial testimony, reveals a staggering number of inconsistencies and inaccuracies concerning what this new vacation policy was included. It is highly unlikely that Ryder’s employees could have made sense of this “revised” policy and understood that they were not earning vacation days during 2001. The policy explicitly states that they would earn vacation days during 2001.

As stated in Ryder’s Revised 2001 U.S. Employee Vacation Program, page 2, which was distributed in January of 2001, allegedly correcting the mistakes appearing in the worksheet distributed in December of 2000:

What Program Features Stayed the Same:
The improvements to Ryder’s Employee Vacation Program are still applicable and are listed below:
| ^Transition from an award of vacation time beginning on the first anni■versary of an employee’s hiring date to awarding vacation at the beginning of each calendar year (January 1— December 31) — Beginning January 1, 2001 employees will earn vacation time on a pro rata basis throughout the calendar year.
Improvements in the amount of vacation for new employees — New employees hired after January 1, 2001 will receive up to 10 vacation days during their first year of service, rather than having to complete a full year of service before being eligible for vacation (as was the case under the precious vacation policy).

(Emphasis added).

Ryder also states on the “Fact Sheet” provided with the January 2001 materials accompanying the “revised” vacation policy:

Effective January 1, 2001, Ryder will be transitioning from awards of vacation time based on employees’ anniversary dates to awarding vacation time at the beginning of each calendar year (January 1 — December 31). Vacation time will be earned on a pro rata basis throughout the calendar year. This means that employees can take vacation time at any time during the year, contingent upon approval from their manager.

(Emphasis added).

By the clear language of its own policy materials, even the second revised policy awarded vacation time to existing employees during the 2001 calendar year. In the “Talking Points” given to managers with the January 2001 materials and which are referred to by the trial judge in his reasons for judgment, Ryder states in point 4:

The revised 2001 vacation program outlined in this package now offers each employee the greater of the sum of his/ her earned but unused vacation days plus the accrued vacation days earned through December 31, 2000, OR, the standard number of vacation days given to an employee annually (beginning January 1, 2001) based on years of service.

Ryder states that employees will earn vacation on a pro rata basis beginning January 1, 2001, and then allows employees to take only “the greater of 20 days or l^the sum of earned but unused and accrued vacation through December 31, 2000.” Use of “or” in the above quotes clearly indicates that employees either are being denied the vacation days they earned by working in 2000 or are being denied the vacation days Ryder indicates they will be credited for and then earn on a pro rata basis during the 2001 calendar year according to the language of this policy. In either case, employees are being denied vacation days to which they are entitled. As noted by the trial judge, there is nothing in the materials explicitly telling employees that they will not earn any vacation time during the 2001 calendar year'. To the contrary, the materials repeatedly state that, under the new policy, employees will be credited at the beginning of each calendar year and that the new policy is effective on January 1, 2001.

Ryder contends that the first worksheet accompanying the policy revisions was drawn erroneously. This worksheet was accompanied by several examples which clearly illustrated that as a result of converting to the new vacation system, many employee’s vacation days usable during 2001 would greatly exceed the ten, fifteen, or twenty vacation days normally available to them. This was clearly not only an error in the worksheet. The fact that vacation time available to employees during 2001 would likely exceed their previously available vacation time was clearly stated throughout the policy, and management was repeatedly encouraged to emphasize to them employees that all of this additional time must be used by December 31, 2001, or it would be lost under the terms of the policy. Prior to circulation of the “erroneous” vacation calculation worksheet, Ryder distributed a question and answer sheet to its management in an attempt to help them deal with employees questions concerning the new policy. In the document the following sample question was | ^presented:

I’m a manager with several long-tenured employees reporting to me. With the one-time transition, these employees have 30 and 40 days of vacation! How am I supposed to manage the workflow of my department with employees taking so much vacation?
To manage several employees with significantly increased amounts of vacation time in 2001, we recommend you and they plan now for their time off. You should be coordinating vacation time between employees and scheduling that time well in advance to ensure that you have the coverage you need at all times during the year — just as you would under normal circumstances. Remember that this is a one time transition that will impact you and your employees only in 2001.

This quote belies Ryder’s contention that the first vacation calculation worksheet distributed was only “a mistake.” In one breath Ryder contends that this was the result of an error in “one box on this worksheet,” yet in another, it contends that it was an error in the policy itself. The quote above shows, without a doubt, that at the time Ryder distributed the first revised policy in December, it fully intended to provide its existing employees a credit for vacation time to be earned throughout the 2001 calendar year. In light of these glaring inconsistencies, we find Ryder’s claims, both in briefs and at trial, that employees were not given any vacation time during the 2001 calendar year, to be unfounded.

We find it somewhat problematic that new employees hired during 2001 would immediately be credited vacation days, which they could use immediately and then “earn” by working during the 2001 calendar year. This is wholly contradictory to Ryder’s statement that employees would not earn vacation days during the 2001 transition year. This appears to be additional evidence that this second “revised” vacation policy was not the correction of some mistake made in the materials originally provided to employees concerning the new vacation policy but, instead, was developed when Ryder learned that the new vacation policy would create a | iafinancial burden on the company during 2001.

We also find Ryder’s alternative argument without merit. We find it astounding that Ryder would even attempt to argue that even had Fontenot earned these disputed twenty days in 2001, his failure to use them during the 2001 calendar year resulted in his forfeiture of the vacation time, and therefore, it is under no obligation to compensate him for those days now. When Fontenot inquired as to his ability to use the twenty vacation days, his supervisors specifically told him he could not use them. Ryder cannot deny their employees from using their rightly earned vacation time, and then argue that their failure to use that time caused them to forfeit any right to it. That argument is absurd and would allow employers to reap a huge financial benefit by systematically refusing to allow employees the right to use their earned vacation time, and then, refusing to compensate them for it. This is precisely the behavior prohibited by Louisiana statute, and the ability to even make such a claim provides a revealing glimpse into the motivation behind Ryder’s actions concerning this vacation policy.

It seems clear to this court that Ryder did not “make a mistake” in the vacation policy distributed in December 2000, as they repeatedly contend. As the trial court held, it seems clear that Ryder became aware of the financial liability created in 2001 with the implementation of its new vacation plan and attempted to find ways to reduce their financial liability, while still making it appear to its employees that they were receiving all the vacation days they were entitled to plus added benefits. Ryder failed to resolve the glaring inconsistencies between the policy materials provided to its employees and the statements in its briefs and at trial concerning how this policy was to operate. It was within the province of the trial judge to determine that the |14testimony of Ryder’s employees, attempting to justify its failure to grant Fontenot his 2001 vacation pay, was not credible. Based on our review of the record, Ryder’s employees did not receive all the vacation time they were entitled to under the revised vacation policy-

For the reasons stated above, the trial court did not commit manifest error when it ruled that Ryder denied its employees vacation earnings due them under the Ryder vacation policy. We affirm the trial court’s award of past-due vacation wages.

We similarly find no manifest error in the trial court’s determination that Ryder’s actions with respect to the development and implementation of its new vacation policy were in bad faith. Therefore, we find no error in the trial court’s award of penalties and attorney’s fees, as allowed under La.R.S. 23:632.

DECREE

For the above reasons, we affirm the judgment of the trial court granting Fon-tenot four weeks vacation pay, penalties of ninety days wages, and attorney’s fees. All costs of this appeal are cast to Ryder.

AFFIRMED.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of T.M.
    No. 03-929.
    Court of Appeal of Louisiana, Third Circuit.
    March 24, 2004.

      Ronald D. Cox, Judge, David Sterling Fitzgerald, Jr., Charles G. Fitzgerald, Cox, Fitzgerald, L.L.C., Lafayette, LA, for Applicant, R.T. B.T.
    William Tracy Barstow, Opelousas, LA, for Respondent, J.F.

      L. Antoinette Beard, Lafayette, LA, for Respondent, Office of Community Services.
    Vivian Veron Neumann, Lafayette, LA, for Respondent, T. M.
    Marcus Anthony Alen, Sr., Lafayette, LA, for Respondent, S.M.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

This appeal stems from a judgment of the trial court denying a request by the maternal grandparents to obtain custody of the minor child, T.M., from the State of Louisiana, Department of Social Services, Office of Community Services (OCS). Subsequent to the appeal, the grandparents, B.T. and R.T., filed a Combined Motion to Annul Judgment of the Juvenile Court and to Stay All Proceedings. For the following reasons, we deny the motion, affirm the trial court’s judgment, and issue instructions.

FACTS

Js.F. is the father of three minor children, T.M., whose mother is S.M., and Je.F. and H.F., whose mother is C.F. On September 12, 2002, the Carenero Police Department raided Js.F.’s home and arrested him on charges of possession of crack cocaine, marijuana, and drug paraphernalia. C.F., who was seven months pregnant with H.F., was arrested at the home on September 15, 2002, for possession of crack cocaine and drug paraphernalia. On September 17, 2002, an Oral Instanter Order was issued ordering the removal of T.M. and Je.F. from Js.F.’s custody and placing them in the temporary custody of OCS. An Instanter Order confirming the Oral Instanter Order was issued on September 18, 2002, based on a verified complaint filed by Melanie Brous-sard, an OCS employee. The Instanter Order sought custody of the children based on a finding that Js.F.’s home “was assessed to be hazardous and unsuitable (drug paraphenalia [sic], accessible weapon, pornographic material); mother and father have a history of substance abuse and have recently been arrested on drug-related charges; father currently incarcerated and mother’s whereabouts are [^unknown.”

At the time of the raid on Js.F.’s home, T.M. was visiting with his maternal grandmother, B.T., and his step-maternal grandfather, R.T., in Abbeville, Louisiana. In a September 19, 2002 Order of Continued Custody, the trial court found that reasonable grounds existed to believe that T.M. and Je.F. were children in need of care and ordered that they be placed in the custody of OCS. At the time of this hearing, OCS had placed T.M. with B.T. and R.T., while Je.F. was placed in foster care. Thereafter, OCS filed petitions requesting that the two children be adjudicated children in need of care; attorneys were appointed to represent them and C.F. On December 3, 2002, a Children in Need of Care Judgment of Adjudication and Disposition with Removal Pursuant to Articles 606, 666, and 684 of the Louisiana Children’s Code was rendered by the trial court. Adjudicated as children in need of care were T.M., Je.F., and H.F. H.F. was born on November 6, 2002, and came into OCS’s care on November 8, 2002. At the time of his birth, both he and C.F. tested positive for cocaine.

As part of the judgment of disposition, the trial court placed the children in OCS’s custody, approved its October 15, 2002 case plan, and further required the parents to cooperate with OCS and comply with the case plan. It further warned that their failure to comply could lead to a termination of their parental rights. At the time of this adjudication, both Je.F. and H.F. were placed with their maternal aunt and uncle, J.E. and T.E., in LeBlanc, Louisiana. T.M. was still placed with B.T. and R.T.

| oOn February 23, 2003, OCS forwarded a status report to the trial court which listed the efforts and failures of Js.F. and C.F. to comply with the October 15, 2002 case plan. It further noted that S.M. was living in Denver, Colorado, and that no contact had been made with her since the December adjudication hearing. The report further accounted T.M.’s current situation: “[T.M.] is currently placed in the home of maternal grandparents, [B.T. and R.T.]. [T.M.] has adjusted well to the home and is attending Dossier Elementary Pre-K. [T.M.] is also attending therapy with Christine Dugas, LCSW to address behavior problems and sexually acting out behaviors.”

A case review hearing was held in this matter on March 11, 2003, pursuant to La.Ch.Code art. 692. The trial court’s findings of fact at that time were that OCS had developed a case plan and had made reasonable efforts to achieve permanency for the minor children. It further found that OCS had made reasonable efforts to reunify the minor children with their parents. As a result of these findings, the trial court ordered continued custody of the children by OCS, continued foster care, and approval of the March 5, 2003 case plan and the goal of reunification. Subsequent to this hearing, a curator ad hoc was appointed to represent S.M. and C.F., both of whose whereabouts were unknown.

On May 6, 2003, B.T. and R.T. filed a Motion and Order seeking custody of their grandson, T.M., based on OCS’s decision to place him in the custody of J.E. and T.E., who were no relation, in order to reunite him with his “step-siblings.” A May 5, 2003 order dictated that T.M. remain with B.T. and R.T. Upending the outcome of this motion. On June 20, 2003, they filed a further Motion and Order requesting, on the recommendation of Dr. David Legendre, that T.M. not be removed from their home for more than three days, every other weekend, for visitation with his father and half-siblings fearing that “it would add to further confusion in young Mr. [T.MJ’s life.” This order was granted.

A hearing was held on B.T. and R.T.’s custody motion on July 1-2, 2003. Following the close of evidence, the trial court rendered written reasons maintaining custody of T.M. with OCS and approving its decision to remove him from B.T. and R.T.’s home and place him with the approved foster parents, J.E. and T.E., his half-siblings’ maternal aunt and uncle. Judgment was rendered on July 18, 2003. B.T. and R.T. sought supervisory writs to this court based on the trial court’s denial of their motion. We denied the writ application finding that the trial court’s judgment was an appealable judgment pursuant to La.Ch.Code art. 332, giving B.T. and R.T. an adequate remedy via appeal. Unpublished writ State ex rel T.M., 03-929 (La.App. 3 Cir. 8/5/03). Thereafter, B.T. and R.T. sought supervisory writs from the Louisiana Supreme Court, who granted the writ and remanded the matter to this court with the instructions that we convert the writ application to an appeal.

Subsequent to B.T. and R.T.’s application for writs, OCS submitted a status report to the trial court on September 16, 2003. In the report, OCS outlined the incidents of case plan compliance or noncompliance by the parents. It also recommended that the children remain in OCS’s custody for a further six months and noted that a Termination of Parental Rights staffing was set for October 20, 2003. On August 28, 2003, and September 9, 2003, counsel for B.T. and R.T. sent letters to [ scounsel for OCS requesting notice of any hearings or proceedings affecting T.M. On September 22, 2003, he wrote the Lafayette Parish Clerk of Court requesting ten days written notice of any further hearing or trial to be held in this matter. He further requested notice of the signing of any judgment or interlocutory order or judgment in this matter.

On September 23, 2003, a case review hearing was held before the trial court. Counsel for B.T. and R.T. did not receive notice of this hearing and was not present. After hearing testimony from two foster care workers, the trial court found that OCS had developed a case plan of reunification and it had made reasonable efforts to reunify the children with their parents. Based on these findings, the trial court ordered the continued custody of the children with OCS, approved the September 3, 2003 case plan, continued the children in foster care, and approved the permanent plan of reunification.

During the hearing, OCS told the trial court that it wished to decrease T.M.’s visitation with B.T. and R.T. and to cease all phone contact between them due to the negativity of B.T. Based on the trial court’s judgment, OCS reduced T.M.’s visitation with B.T. and R.T. from weekend visitation once a month to supervised visitation once a month for one hour at OCS’s office in Allen Parish. As a result of this judgment, B.T. and R.T. filed a Combined Motion to Annul Judgment of the Juvenile Court and to Stay All Proceedings since they did not receive notice of the September 23, 2003 hearing and because this judgment would effectively moot the July 3, 2003 judgment they had appealed.

[ ^MOTION TO ANNUL AND STAY PROCEEDINGS

At the outset, we will address B.T. and R.T.’s motion to annul the trial court’s September 23, 2003 judgment and to stay all juvenile court proceedings pending this appeal.

Louisiana Children’s Code Article 336 provides with regard to the effects of an appeal:

A. Except as provided by Paragraphs B and C of this Article, the effect of a judgment shall not be suspended by an appeal, unless the trial court or a court of appeal directs otherwise.
C. A suspensive appeal shall not suspend the execution of the judgment insofar as the judgment relates to custody or child support.

Pursuant to Paragraph C, a trial court’s judgment will not be suspended if it relates to custody. The judgment appealed by B.T. and R.T. pertains solely to the custody of T.M. Thus, their appeal does not suspend the execution of that judgment. Even if it does not relate solely to custody, we decline to order the suspension of the judgment. Although we have found very few cases pertaining to the effect of Article 336, we are not prepared to set such a precedent as asked by B.T. and R.T. because doing so could result in children being maintained in potentially dangerous or precarious situations, with possible adverse effects to their physical and/or mental well being. The trial court or juvenile court must be allowed to monitor the status of children during the children in need of care proceedings in order to make determinations in their best interest. Accordingly, we refuse to stay all juvenile court proceedings pending the outcome of this appeal.

17With regard to notice, B.T. and R.T. argue that they sent requests for notice to OCS on August 28, 2003, and September 9, 2003. They further argue that they sent a request for notice to the Lafayette Parish Clerk of Court on September 22, 2003, the day prior to the hearing. Based on their failure to receive notice, they argue that the trial court’s judgment stemming from the September 23, 2003 hearing is an absolute nullity.

The Louisiana Children’s Code provides for notice pertaining to case review and permanency hearings, respectively. In both instances, OCS shall give notice to foster parents, adoptive parents, or relatives giving care of their right to appear and be heard. La.Ch.Code arts. 695 and 705. Although B.T. and R.T. were formally relatives giving care to T.M., they no longer were considered as such when T.M. was removed from their care, subsequent to the July 23, 2003 judgment. Thus, they no longer technically fit into a category of persons entitled to receive notice of hearings affecting the interest of T.M. Although they requested notice from OCS and the Lafayette Parish Clerk of Court, those entities were legally not required to provide such notice to them. Accordingly, we do not find that the September 3, 2003 judgment is absolutely null.

We note that OCS’s counsel states in a brief that the trial court ordered the Lafayette Parish Clerk of Court to provide B.T. and R.T. with notice regarding any future proceedings. There is nothing in the record verifying this order. Although we find that B.T. and R.T. do not technically fit into the category of persons entitled to notice pursuant to Articles 695 and 705, we hereby order that they, as T.M.’s maternal grandparents and former caregivers, should receive notice in the future of |sany proceeding affecting his interest. Accordingly, these assignments of error are dismissed as being without merit.

APPEAL FROM JULY 18, 2003 JUDGMENT

B.T. and R.T. raise two assignments of error on appeal. They argue that the trial court erred by failing to apply the legislative policy favoring relative placements over non-relative placements within the realm of child in need of care custody placements. They further argue that the trial court failed to apply the best interest of the child test in this matter by focusing on what was in Js.F.’s best interest, rather than on T.M.’s best interest.

RELATIVE VERSUS NON-RELATIVE PLACEMENTS

In their first assignment of error, B.T. and R.T. argue that custody of T.M. should have been granted to them at every stage of this matter since they are his maternal grandparents. In support of their argument, they point to La.Ch.Code arts. 622, 627, 681, 683, and 702. At each stage of the proceedings, they argue that |1flthe trial court failed to find by clear and convincing evidence that it was not in T.M.’s best interest to be placed with them. They further argue that the trial court erred in failing to reduce his findings to written reasons, as required by La.Ch. Code art. 683.

On appeal, a trial court’s determination regarding child custody is to be afforded great deference and will not be disturbed absent a clear abuse of discretion. Bagents v. Bagents, 419 So.2d 460 (La.1982).

The trial court is in a better position to evaluate the best interest of a child because of its superior opportunity to observe the parties and witnesses who testified at the trial. In re State Ex. Rel. Thaxton, 220 So.2d 184, 187 (La.App. 1 Cir.1969). As an appellate court, we must afford great deference to the trial court’s decision, not only because of that court’s better capacity to evaluate witnesses, but also because of the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). Thus, the trial court’s decision will not be disturbed on review except in the clearest case of abuse of the trial court’s great discretion. Ba-gents, supra.

State ex rel. A.R., 99-813, p. 8 (La.App. 1 Cir. 9/24/99), 754 So.2d 1073, 1077-78; see also Bergeron v. Clark, 02-493 (La.App. 3 Cir. 10/16/02), 832 So.2d 327, writ denied, 03-0134 (La.1/29/03), 836 So.2d 54.

The motion filed by B.T. and R.T. is, in effect, a motion to modify the November 3, 2002 judgment of disposition giving custody of T.M., along with his half-siblings Je.F. and H.F., to OCS. “A judgment of disposition may be modified if the court finds that the conditions and circumstances justify the modification.” La.Ch. Code art. 716. The party bringing the motion to modify a judgment of disposition bears the burden of proving the requested change is justified. In re H.B., 99-565 (La.App. 3 Cir. 10/13/99), 747 So.2d 144. Although relatives may be in a favored class to receive custody of a child in need of care, the law provides an exception when “the court has made a specific finding that such placement is not in the best interest of the child.” La.Ch.Code art. 683(B). The best interest of the child trumps all other considerations in matters brought pursuant to the Child in Need of Care provisions of Title VI of the Louisiana Children’s Code. La.Ch.Code art. 601. In this instance, B.T. and R.T. bear the burden of proving that the change of custody is justified.

After hearing testimony over two days in the matter, the trial court made a specific finding that it was not in T.M.’s best interest that custody be awarded to B.T. and R.T. Although the trial court did not commit its findings to written reasons, we find that its judgment is borne out by the record.

Both B.T. and R.T. testified that they love T.M. very much. They denied making any negative remarks about T.M.’s parents, siblings, or extended step-family, | ^either in or out of his presence. They stated that they have never prevented T.M. from visiting with his siblings, nor would they do so in the future if they were awarded custody. R.T. explained that T.M. was enrolled in a pre-kindergarten course at the time the case worker wished to remove him from their custody and place him with J.E. and T.E. Because T.M. was sad at not being allowed to finish the course with his friends, R.T. testified that he obtained a court order maintaining their custody. After that incident, R.T. said that he just tried to get along with everybody. He stated that B.T. was unhappy about what had happened and that she may have ruffled some feathers; however, he did not feel that she had acted unreasonably.

R.T. testified that OCS asked them to take Je.F. in, along with T.M., when the children came into custody. He stated that they refused the request because they felt that Je.F.’s blood relatives should take her. He further testified that he did not see any reason for the children to remain together since he did not think they had lived together before being taken into OCS’ custody. R.T. testified that he was not aware that Js.F. had acknowledged T.M. as his child or that DNA testing had confirmed it. As to T.M.’s visitation, he stated that he only met T.E. a couple of times during exchanges/pickups. He recounted that T.E. was hostile and, as a result, he did not wish to speak to him anymore.

B.T. testified that she has always believed that Je.F. and H.F. were T.M.’s sister and brother, but could not remember if she had ever expressed a contrary opinion. She further denied ever telling T.M. that she would die if he was taken from her or that J.E. and T.E. would go to jail. B.T. testified that T.M. is scared of J.E. and T.E.’s sons, who are older, and that he does not like going to their home. |iaShe recounted that T.M. showed them were J.E. and T.E.’s home was located in LeBlanc, and that they took pictures of their house, but did not stop to visit.

Dr. David Legendre, a marriage and family therapist, opined that it was in T.M.’s best interest that he remain with B.T. and R.T. He stated that T.M. was very attached to them and he felt that they had his best interest at heart. However, all of Dr. Legendre’s knowledge in this matter came from B.T. and R.T., who hired him to evaluate them, or from his conversation with T.M., which lasted approximately an hour and a half. He performed no testing on any of the parties and he never spoke to any of the other persons involved in this matter, including the case worker and therapist. He stated that he tried to contact Jael Dugas, the foster care case worker, several times, but was unable to reach her. Had he been given more time, he stated that he would have examined the whole situation pertaining to T.M.’s custody with OCS. After completing his evaluation, he testified that he questioned why OCS was still involved in this matter, since he felt that it had performed its job.

In making his determination, Dr. Legendre testified that B.T. and R.T. were very open and cooperative throughout his evaluation, from which he surmised they were T.M.’s primary caregivers. In evaluating them, he stated that he questioned them about their parenting skills, ability to communicate, to participate in activities, and their future plans. Dr. Legendre testified that they volunteered the information that their relationship with T.M.’s parents had been strained over the years, but that they did not relate anything specific about Js.F. to him. He reported that the only allegation related by them concerning J.E. and T.E. was the possibility of a continuing history of drug abuse.

| uFrom speaking with T.M., Dr. Legendre determined that he was a very bright child, possibly ahead of his age. When questioning T.M. about his visitation with J.E. and T.E., he related that T.M. informed him of an inappropriate contact that occurred during the visitation, which caused him to seem very fearful. The contact he demonstrated was a hand in front of his pants. When he tried to learn more about the incident, Dr. Legendre stated that T.M. became very uncomfortable so he did not force the issue. When he questioned B.T. and R.T. about T.M.’s visitation, he learned that there were other children in the home and the logistics of the visitation. He stated that they did not report any incident of sexual abuse.

Dr. Legendre testified that B.T. and R.T. never informed him that Js.F. had custody of T.M., but that he deduced this fact later. He further learned from them that T.M.’s half-siblings, Je.F. and H.F. lived with J.E. and T.E., but that they did not grow up with him. However, he understood that they saw each other on sporadic visits.

Although B.T. and R.T. love T.M. and have cooperated with OCS fully, the State presented evidence of B.T.’s feelings of anger and hostility towards J.F. and C.F., and J.E. and T.E. Marla Rader, a supervisor and social worker with OCS, testified that OCS’s goal has always been to keep the siblings together. When the children first came into custody, she stated that B.T. and R.T. were asked to take Je.F., along with T.M. She stated that they declined this request because Je.F. was not related to them. Radar testified that she met with B.T. and R.T. on one occasion to discuss the goal, of reuniting the children, and she recalled that B.T. became so upset that they had to abort the conversation. Rader further testified that Js.F. was in | isthe waiting room on that occasion and, when B.T. saw him, she stepped up to him and threatened to hit him with her cane.

The State further presented evidence that B.T. has expressed her feelings of anger and hostility in the presence of T.M. Christine Dugas, a licensed clinical social worker, testified that she discussed those feelings with B.T. and asked her not to express them in T.M.’s presence. However, she opined that B.T. was unable to contain her anger in front of T.M., which she, herself, witnessed on three or four occasions. Dugas opined that B.T.’s behavior went beyond what was customary or ordinary. She stated that, even when efforts were made to redirect her anger, B.T. could not contain her outbursts. Du-gas further opined that this could have a very damaging effect on T.M.’s relationship with his family, possibly resulting in regression and acting out on his part due to his inability to cope emotionally with her anger. She further testified that she learned that B.T. and R.T. took T.M. with them to LeBlanc, Louisiana, to take pictures of J.E. and T.E.’s home. Dugas stated that this was not in his best interest because it involved him in their custody dispute.

Jael Dugas, a foster care case manager for OCS, testified that she has witnessed B.T.’s negativity in front of T.M., when she stated that Js.F. was “no good” and that C.F. was “trash” and a “crack addict.” She stated that these comments started on her first visit to B.T. and R.T.’s home and that they continued approximately every other time she had contact with both B.T. and T.M. On one occasion, she stated that T.M. was sitting next to B.T. and he became very upset as a result of her comments.

hfDugas testified that OCS began facilitating the transfer of T.M. in his visitation with J.E. and T.E. after they experienced difficulty caused by B.T.’s negativity. On one occasion, she stated that T.M. became hysterical, crying, “Don’t make me go.” Once OCS became involved in the transfers, Dugas related that these problems disappeared.

Dugas stated that T.M. was taken into custody as an infant by OCS, from S.M., and was placed in Js.F.’s custody. She stated that he was raised by C.F., whom he considers his mother and that he loves J.E. and T.E., and considers them his aunt and uncle. She further testified that Js.F. asked that his children remain together and that he voiced concerns about the negativity displayed by B.T. in front of T.M. As a result, he reported that T.M. would pull away from him; would not interact with him in front of B.T. and R.T.; would become aggressive with Je.F., telling her to “shut up” and that she was not his sister. Dugas testified that she was afraid that T.M. would lose the bond he has with his father and siblings if he remained with his grandparents. She stated that OCS’s goal is for the children to remain together. She testified that OCS wishes to place T.M.,with J.E. and T.E. because they will foster T.M.’s bond with Js.F., Je.F., H.F., and B.T. and R.T. without him feeling torn between them. She stated that J.E. and T.E. are always very positive about T.M.’s grandparents and that they would allow that relationship to continue.

T.E. testified that he has known T.M. since he was a month old and that he considers him his nephew, as T.M. considers him an uncle. He stated that Je.F. and H.F. are his wife’s sister’s children and that they are currently placed in his home. He explained that, when he would pick T.M. up in Crowley for visitation, B.T. and 117R.T. were ugly toward him, which caused T.M. to throw fits, which they, in turn, blamed on him. T.E. recounted that T.M. told Je.F. on many occasions, “I’m not your brother” and “your not my sister.” He stated that T.M. also told Js.F. that he was not his father, but that he was “just a grandson.” He further recounted that T.M. told him and J.E. that they were mean people and they would go to jail if they continued trying to take him away from his grandparents. On another occasion, T.E. stated that T.M. told them and Jael Dugas that he was going to Colorado on vacation. He testified that they asked T.M. about his vacation the next time they saw him and that he replied that he did not go because he had a “big mouth” and that he “talked too much.”

In maintaining the custody of T.M. with OCS, the trial court rendered the following oral reasons:

The Court has heard testimony how all this came about, because it was not possible at the time to place the — [T.M.] with his half sibling, [Je.F.] in the home of [J.E. and T.E.] And then after the other child, the younger child, was born, [H.F.], then the agency is now seeking to put the placement of all the children with [J.E. and T.E.], who are the — while they are not blood relatives, they are blood relatives of [T.M.J’s siblings. And the Court is convinced that there is a bond which has been created. Just like there’s a bond created with the grandparents, there’s also a bond that this child has created with [J.E. and T.E.] I have no problem with that.
I think where the problem in this case comes in, and I think you have to go back and look at what is presently the case plan, presently the case plan, we’re not talking about a permanency hearing. And I looked at the cases and the authority cited by Mr. Fitzgerald, the problem is we’re not in a permanency hearing. This is simply a motion to— basically, to change custody and remove the custody from the State and place the custody with the grandparents. The problem I’m having there is that my findings are that the grandparents, while I have no doubt about their love for the child, their interest in the child, and I still have that, is working and has worked in significant measures, at counter-purposes to the case plan in this case, which is reunification with the father. In other words, if you start planting negative thoughts about the father in the presence of the child, children— even though they may not 11sbe part of the conversation, children are like sponges, they pick up everything that’s said. I mean, even if you don’t think they’re listening, believe me, they are listening. I guess proof of that is, my parents never spoke to me in French, but I learned to speak French. They spoke to me in English. They only spoke to each other in French. I learned French, not because they were talking to me, but because I was listening. And they’re all listening. All the kids listen.
So to that extent, and maybe the biggest contributing factor. Now, in a permanency hearing, should we reach the stage where, say, it’s determined that [Js.FJ’s parental rights should be terminated, there is a possibility that placement could end up with the grandparents. At this stage, given the situation of this ease, given the case plan of reunification, I think it’s not in the best interest of [Je.F.] [sic] to be — And I don’t want it to sound that he is not well cared for; he is. But at the present time, it’s not in his best interest that he remain with his grandparents, so I’m not going to grant their request for custody. And basically, I will change nothing. [Je.F.] [sic] will remain, at present in the custody of—
Ms. Beard: [T.M.]
The Court: [T.M.] [T.M.] will remain, at present, in the custody of the State, and the State will make the determination as to temporary placement of the child.

After reviewing this evidence, we cannot say that the trial court abused its vast discretion in maintaining the custody of T.M. with OCS. Although Article 683 provides that relatives are given greater priority than non-relatives in custody granted pursuant to a disposition, a specific finding by the trial court that such placement is not in the child’s best interest will defeat that superior right. In this instance, the trial court made a specific finding that it was not in T.M.’s best interest to be placed in the custody of B.T. and R.T. The trial court found that B.T.’s inability to contain her negativity towards T.M.’s other family members, especially in front of T.M., was having a negative affect on him and interfered with OCS’s case plan of reunifying him, along with his siblings, with his father.

|13In reaching its decision, the trial court heard testimony from the main parties concerned and heard differing views with regard to the allegation of B.T.’s negativity and its effect on T.M. Accordingly, it was in a better position to assess the credibility of the witnesses than this court is on appeal. Since this finding is within the trial court’s vast discretion, it will not be disturbed. This assignment of error is dismissed as being without merit.

BEST INTEREST

In their second assignment of error, B.T. and R.T. argue that T.M.’s placement with J.E. and T.E., in effect, has placed him with strangers, rather than with his blood relatives. They argue that, while this was in the best interest of Js.F., it was not in T.M.’s best interest. B.T. and R.T. further raise the allegations of sexual abuse against J.E. and T.E.’s two sons and against T.E., himself.

We find no merit in these arguments. Although J.E. and T.E. are not related by blood to T.M., the trial court found that a bond did exist between them, just as a bond exists between T.M. and B.T. and R.T. Testimony was presented that T.M. considered C.F. his mother since she helped raise him from an infant. There was no evidence that he considers S.M. his mother or that she has any relationship with him. T.E. further testified that he has known T.M. since he was one month old and that he considers him his nephew, as T.M. considers T.E. his uncle. Thus, the placement of T.M. in the custody of J.E. and T.E. is not a placement with strangers as alleged by B.T. and R.T. He is with family members, albeit not blood relations, whom he has known all his life, including his siblings.

|2qB.T. and R.T. argue several times in their brief that the trial court should have held separate dispositional hearings for T.M. and Je.F. and H.F. In failing to do so, they claim that it was unable to distinguish between the individual circumstances of T.M., as compared to Je.F. and H.F. Thus, they argue that placing T.M. with J.E. and T.E. was in Js.F.’s best interest, rather than in T.M.’s best interest.

We disagree with this reasoning. Unfortunately, this is not a situation involving a traditional family unit consisting of father, mother, and siblings. Here, we have a complicated situation involving a father, two mothers, two siblings, and a half-sibling. Whether B.T. and R.T. wish to acknowledge it, T.M. is Js.F.’s child and the brother of Je.F. and H.F. They are a family, and it has always been OCS’s plan to reunite the children with their father. Thus, the trial court did not abuse its discretion by conducting one dispositional hearing and in finding that it was in T.M.’s best interest that he remain in OCS’s custody and be reunited with his sister and brother.

B.T. and R.T. further argue that Js.F. has made “substantially less than ‘significant measurable progress toward reunification,’ ” thus the trial court should have refused to enforce OCS’s case plan, “with the result that the OCS’s ‘basis’ for removing T.M. from his grandparents would be exposed for what it actually is — unfounded.” (Footnote omitted). However, whether Js.F. is complying with the case plan, whether reunification should remain as OCS’s goal, and whether the case plan is valid is a determination more within the realm of the trial court’s expertise.

With regard to the allegations of sexual misconduct occurring in J.E. and T.E.’s home, all that is contained in the record pertaining to these allegations are, .just 121 that, allegations. The September 19, 2002 Order of Continued Custody stated that relative placement for Je.F. was not in her best interest due to “allegations of sexual abuse against the maternal uncle where [Je.F.] was placed by the mother.” Nothing more is said in the record about this allegation; however, OCS later certified J.E. and T.E.’s home as an approved foster home and placed Je.F. and H.F. with them, of which placement the trial court had knowledge. In its brief, OCS states:

At the time of [Je.F.]’s removal she had been placed with her maternal aunt and uncle, [J.E. and T.E.], but was removed temporarily, when T.M.’s grandmother made allegations of an abuse complaint in regard to the uncle, [T.E.] This allegation proved to be false and [J.E. and T.E.] have since been certified as foster parent.

When Jael Dugas was questioned about the allegations of sexual misconduct, she recounted the following:

I do have a report from Christine Du-gas, who was working with the child, and she said that a few weeks after an incident supposedly happened at the aunt and uncle’s house, that [R.T.] went in and talked to her and said that so- and-so had touched [T.MJ’s penis. And she asked [R.T.] if he would — “Did [T.M.] say so and so or did [T.M.] say a name?” And he said, “[T.M.] said a name, but I don’t really want to say the name.” She said, “Well, I’m a mandated reporter. How would you like me to handle this?” And she said that [R.T.] said, “I would just like you to talk to [T.M.] about it, like question him about it and see what comes of it.” So she had her session with [T.M.], talked about good touch/bad touch. Has any of this happened? And nothing was disclosed by the child. So when she went out after the session to tell [R.T.] that, you know, that [T.M.] didn’t say anything, he said, “Well, good; we feel a lot better now.”

Considering the foregoing, we find that there is no evidence in the record substantiating B.T. and R.T.’s claim of sexual misconduct by either T.E. or his sons. Had the trial court found these allegations valid, it would have taken that knowledge into consideration in reaching its decision. Accordingly, we find no merit in this assignment of error.

I ^.CONCLUSION

For the foregoing reasons, the judgment of the trial court maintaining custody of T.M. with the State of Louisiana, Department of Social Services, Office of Community Services, is affirmed. Moreover, B.T. and R.T.’s Combined Motion to Annul Judgment of the Juvenile Court and to Stay All Proceedings is denied. The costs of this appeal are assessed to the defendants-appellants, B.T. and R.T. However, the Lafayette Parish Clerk of Court is ordered to provide future notice to B.T. and R.T. of any proceeding affecting T.M.’s interest.

MOTION DENIED; JUDGMENT AFFIRMED WITH INSTRUCTIONS.

      . Although the trial court entered the date on the judgment as November 3, 2002, the judgment was filed with the Lafayette Parish Clerk of Court’s Office on December 3, 2002, and notice was served on the parents on December 6, 2003.

      . Je.F. and H.F. are T.M.’s half-sister and brother.

      . La.Ch.Code art. 622 provides in pertinent part:
      A. Unless the best interest of the child requires a different placement, a child who is determined to be abused, neglected, or harmed and whose parents have failed to protect, or who is taken into custody as a child in need of care shall be placed, pending a continued custody hearing, in accordance with this priority:
      (1) In the home of a relative who is of the age of majority and with whom the child has been living in a wholesome and stable environment and who is willing and able to continue to offer such environment for the child pending an adjudication hearing.
      (2) In the home of a relative who is of the age of majority and who is willing and able to offer a wholesome and stable environment for the child pending an adjudication hearing.
      (3) In foster care under the supervision of the department until further orders of the court.
      (4) The following, among other relatives, are those who may be considered and to whom care of the child may be entrusted and are listed in the order of priority:
      (a) Grandparent.
      (b) Aunt or uncle.
      (c) Sibling.
      (d) Cousin.
      La.Ch.Code art. 627 provides with regard to continued custody orders, in pertinent part:
      A. Following a hearing, the court may return the child to the parents, or may place the child in the custody of a relative in accordance with Article 622, or other suitable person or in the custody of the department.
      B. If a child is not returned to the parents, the court shall place the child in the custody of a relative unless the court has made a specific finding that such placement is not in the best interest of the child. The court shall give specific oral and written reasons for its findings, which shall be made a part of the record of the proceedings.
      La.Ch.Code art. 681 provides for dispositional alternatives, in pertinent part:
      A. In a case in which a child has been adjudicated to be in need of care, the child’s health and safety shall be the paramount concern, and the court may:
      (1) Place the child in the custody of a parent or such other suitable person on such terms and conditions as deemed in the best interest of the child including but not limited to the issuance of a protective order pursuant to Article 618.
      (2) Place the child in the custody of a private or public institution or agency.
      (3) Commit a child found to be mentally ill to a public or private mental institution or institution for the mentally ill.
      (4) Grant guardianship of the child to any individual.
      (5) Make such other disposition or combination of the above dispositions as the court deems to be in the best interest of the child.
      La.Ch.Code art. 683 provides with regard to dispositions, in pertinent part:
      A. The court shall impose the least restrictive disposition of the alternatives enumerated in Article 681 which the court finds is consistent with the circumstances of the case, the health and safety of the child, and the best interest of society.
      B. The court shall place the child in the custody of a relative unless the court has made a specific finding that such placement is not in the best interest of the child. The court shall give specific written reasons for its findings, which shall be made a part of the proceedings.
      La.Ch.Code art. 702 provides with regard to permanency hearings, in pertinent part:

      C. The court shall determine the permanent plan for the child that is most appropriate and in the best interest of the child in accordance with the following priorities of placement:
      (1) Return the child to the legal custody of the parents within a specified time period consistent with the child's age and need for a safe and permanent home. In order for reunification to remain as the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care.
      (2) Adoption.
      (3) Placement with a legal guardian.
      (4) Placement in the legal custody of a relative who is willing and able to offer a safe, wholesome, and stable home for the child.
      (5) Placement in the least restrictive, most family-like alternative permanent living arrangement. The department shall document in the child's case plan and its report to the court the compelling reason for recommending this plan over the preceding higher priority alternatives.
      D. The court shall consider a child’s need for continuing contact with any relative by blood, adoption, or affinity with whom the child has an established and significant relationship in accordance with Article 1269.1 as one of several factors in determining the permanent plan that is most appropriate and in the best interest of the child.


author: CARLSON, Justice, for the Court.

text:
    Larry Wesley LAWRENCE v. STATE of Mississippi.
    No. 1999-CT-01101-SCT.
    Supreme Court of Mississippi.
    June 19, 2003.
    Appellant, pro se.
    Office of the Attorney General by Charles W. Maris, Jr., attorney for appel-lee.
   CARLSON, Justice, for the Court.

¶ 1. Larry Wesley Lawrence was convicted of burglary of a dwelling house and sentenced as a habitual offender to twenty-five years in prison without benefit of parole. A unanimous Court of Appeals affirmed, Lawrence v. State (Miss.Ct.App. 2001), and both Lawrence and the State sought review by this Court. We granted discretionary review by writ of certiorari to address only one of the ten assignments of error discussed by the Court of Appeals. That issue involves the fact that Lawrence was not given an initial appearance until six days after his arrest. The Court of Appeals found that there were violations of both Rule 6.03 of the Mississippi Uniform Rules of Circuit and County Court Practice (URCCC), and the Fourth Amendment to the United States Constitution. While we affirm the decision of the Court of Appeals, we write to clarify that although URCCC 6.03 was violated, there was no Fourth Amendment violation.

¶2. After a series of burglaries, Scott County law enforcement officers received a tip that stolen goods were being sold from a car of given description and tag number. Lawrence was driving the car when it was located and stopped by a deputy sheriff in the late afternoon of December 30, 1998. The car contained a “good bit” of jewelry in plain view, and a computer check revealed that Lawrence was a convicted felon driving with an expired license. A consensual search yielded a necklace which would later be used to link Lawrence to the burglary in question. Officers also found a shotgun in the trunk, at which point Lawrence was taken into custody.

¶ 3. Lawrence was read his Miranda rights from a form. The form contained a signature line for waiver of rights to an attorney. Lawrence, a thirty-year-old high school graduate with experience in the criminal justice system, signed the form. He spent the night of his arrest in the Smith County jail and was moved to the Scott County jail the next morning, December 31. On that New Year’s eve, a Thursday, the primary arresting officer presented an affidavit of probable cause to a justice court judge, without Lawrence being present for an initial appearance. The judge found the affidavit sufficient to issue an arrest warrant, and the warrant was served on Lawrence in jail that same day.

¶4. On Tuesday, January 5, 1999, six days after his arrest, officers again read Lawrence his Miranda rights, and he acknowledged those rights and waived his rights to an attorney by signing another copy of the form previously mentioned. Officers testified that Lawrence agreed to go for a ride in order to locate and identify the house he had helped burglarize. The subject house was so identified. With the confession in hand, the officers took Lawrence before the judge for his initial appearance. Lawrence signed a certificate listing the matters pertinent to an initial appearance, and his bond was set. At some point, Lawrence also signed the certificate on a hand drawn signature line, under the handwritten words “will represent himself.”

¶ 5. Lawrence testified at trial that his waivers were coerced, a matter contested by several law enforcement officers. There was no evidence to contradict officers who testified that Lawrence never expressed a desire for an attorney. Lawrence continued to assert his desire to represent himself through the date of the preliminary hearing, at which time the trial court appointed an attorney to assist Lawrence at trial. A jury found Lawrence guilty, and he was sentenced as a habitual offender, based on two prior burglary convictions.

¶ 6. The Court of Appeals found, inter alia, that the six-day delay between Lawrence’s arrest and his initial appearance was a violation of his Fourth Amendment protection against unreasonable seizure; however, the Court reasoned that this violation was not fatal, because an illegal detention alone is not a sufficient basis for reversal of a conviction. The Court found that Lawrence was given his Miranda rights and waived his right to an attorney prior to his confession, and the confession was not involuntary under a totality of the circumstances analysis. The Court of Appeals addressed all ten assignments of error and affirmed the trial court’s judgment.

ANALYSIS

¶ 7. We first review URCCC 6.03, which states in its entirety:

RULE 6.03 INITIAL APPEARANCE
Every person in custody shall be taken, without unnecessary delay and within 48 hours of arrest, before a judicial officer or other person authorized by statute for an initial appearance.
Upon the defendant’s initial appearance, the judicial officer or other person authorized by statute shall ascertain the defendant’s true name and address, and amend the formal charge if necessary to reflect this information. The defendant shall be informed of the charges against him/her and provided with a copy of the complaint. If the arrest has been made without a warrant, the judicial officer shall determine whether there was probable cause for the arrest and note the probable cause determination for the record. If there was no probable cause for the warrantless arrest, the defendant shall be released. The judicial officer shall also advise the defendant of the following:
1. That the defendant is not required to speak and that any statements made may be used against him/her;
2. If the defendant is unrepresented, that the defendant has the right to assistance of an attorney, and that if the defendant is unable to afford an attorney, an attorney will be appointed to represent him/her;
3. That the defendant has the right to communicate with an attorney, family or friends, and that reasonable means will be provided to enable the defendant to do so;
4. Conditions under which the defendant may obtain release, if any;
5. That the defendant has the right to demand a preliminary hearing while the defendant remains in custody.

¶ 8. The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

¶ 9. Art. 3, Section 23 of the Mississippi Constitution states:

The people shall be secure in their persons, houses, and possessions from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.

¶ 10. Lawrence was arrested, without a warrant, on December 30, 1998, for a felony offense. The next day, law enforcement officials submitted an affidavit to a justice court judge, who in turn issued an arrest warrant served upon Lawrence while he was in custody. It was not until January 5, 1999, after his confession, that Lawrence was taken before a judge for the initial appearance required under URCCC 6.03. Without question, URCCC 6.03 was violated, and the State unhesitatingly concedes this. More specifically, the State concedes that “URCCC 6.03 was apparently violated when Lawrence was not taken for his initial appearance ‘without unnecessary delay and within 48 hours of arrest’ ” and “that the police officer’s securing of a warrant from a justice court judge the day after Lawrence’s warrantless arrest satisfied the Fourth Amendment, not URCCC 6.03.” However, as pointed out by the State, a failure to comply with URCCC 6.03 does not necessarily mean that there has been a Fourth Amendment violation.

¶ 11. The State refers to Ger-stein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), which states in pertinent part:

Whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.

420 U.S. at 124-25, 95 S.Ct. at 868-69 (footnote omitted). The Gerstein Court went on to state:

Although we conclude that the Constitution does not require an adversary determination of probable cause, we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State’s pretrial procedure viewed as a whole. While we limit our holding to the precise requirement of the Fourth Amendment, we recognize the desirability of flexibility and experimentation by the States. It may be found desirable, for example, to make the probable cause determination at the suspect’s first appearance before a judicial officer.

420 U.S. at 123, 95 S.Ct. at 868. It is thus clear from Gerstein that the States certainly have the right to enact rules and procedures to afford more rights than constitutionally required to those citizens who are criminally charged. However, when, as here, such a rule is enacted, and then violated, that rule violation does not necessarily rise to the level of a constitutional violation. In this case, a probable cause determination was made on Lawrence, well within the required 48-hour period, when he was served with an arrest warrant on the day after his arrest. There was no violation of Lawrence’s Fourth Amendment rights, although URCCC 6.03 was violated. See also Beard v. State, 369 So.2d 769 (Miss.1979).

¶ 12. Through Rule 6.03, Mississippi has provided a procedure for a fair and reliable determination of probable cause by a judicial officer promptly after arrest. See County of Riverside v. McLaughlin, 500 U.S. 44, 53-55, 111 S.Ct. 1661, 1668-69, 114 L.Ed.2d 49 (1991). If the procedure of Rule 6.03 is followed, the Fourth Amendment rights of the accused are protected; however, the converse does not necessarily follow-failure to follow the exact procedure of Rule 6.03 does not necessarily result in a Fourth Amendment violation.

CONCLUSION

¶ 13. The Court of Appeals fully addressed all ten issues raised by Lawrence and was eminently correct in affirming the judgment of conviction and the sentence of the trial court. However, for the reasons stated, we find that while URCCC 6.03 was violated, Lawrence’s Fourth Amendment rights were not violated. The judgments of the Court of Appeals and the circuit court are affirmed.

¶ 14. CONVICTION OF BURGLARY OF A DWELLING HOUSE, AS A HABITUAL OFFENDER, AND SENTENCE OF TWENTY-FIVE (25) YEARS, WITHOUT THE BENEFIT OF PAROLE, SUSPENSION OR REDUCTION OF SENTENCE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER AND COBB, JJ., CONCUR. DIAZ AND EASLEY, JJ., CONCUR IN RESULT ONLY. McRAE, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE OPINION. GRAVES, J., NOT PARTICIPATING.