author: HILLARY J. CRAIN, Judge Pro Tem.

text:
    STATE of Louisiana v. Al J. CRAIG.
    No. 10-KA-854.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Paul J. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretná, LA, for Plaintiff/Appel-lee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and HILLARY J. CRAIN, Pro Tempore.
   HILLARY J. CRAIN, Judge Pro Tem.

On June 16, 2005, a Jefferson Parish Grand Jury returned an indictment charging defendant, Al J. Craig, with second degree murder in violation of LSA-R.S. 14:30.1. Defendant pled not guilty at his arraignment on the following day. The court ordered a competency hearing and thereafter found defendant competent to stand trial. The court also conducted a hearing on defendant’s motion to suppress statement and motion to suppress identifications. After considering the evidence presented, the court denied the motions to suppress.

On October 27, 2008, the State amended the indictment to charge defendant with manslaughter in violation of LSA-R.S. 14:31. Defendant then withdrew his not guilty plea to second degree murder, and after being fully advised of his rights, he pled guilty to the amended charge of manslaughter under the provisions of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In accordance with the plea agreement, the trial court sentenced defendant to twenty-three years of imprisonment with the Department of Corrections. In addition, the State agreed that it would not file a multiple bill in the matter. On June 16, 2010, defendant was granted an out-of-time appeal.

ANDERS BRIEF

On appeal, defendant’s appellate counsel filed a brief pursuant to the procedure approved by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. The Anders procedure in Louisiana was discussed in State v. Benjamin, 573 So.2d 528, 530-31 (La.App. 4 Cir.1990), sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), adopted for use by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110, and expanded by the Louisiana Supreme Court in State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam).

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if they find their case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel. should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.”

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point identified by the court, or grant the motion and appoint substitute appellant counsel. State v. Bradford, 676 So.2d at 1110.

In her brief, defendant’s appellate counsel provides a rather extensive statement of the case, which includes a discussion of how defendant was determined to be competent to stand trial. It also includes a discussion of the hearings on the motions to suppress identifications and to suppress the statement made by defendant, which were denied. Counsel explains that after the State reduced the charge to manslaughter, defendant entered an Alford plea. Counsel also explains that defendant was “fully Boykinized,” was told that a twenty-three year sentence would be imposed, and was advised that the State would not file a multiple bill. . Appellate counsel also contends that no issues were preserved for | ^appellate review during the plea colloquy. Based on her thorough and conscientious review of the record, defendant’s appellate counsel concludes that there are no non-frivolous issues to raise on appeal.

Along with her brief, appellate counsel has filed a motion to withdraw as attorney of record, which states that she filed her brief after reviewing the record and determining that no issues were preserved for appellate review when the plea was taken. She states that she has informed defendant that no valid, non-frivolous arguments concerning his case could be presented and has sent him a copy of the brief. Additionally, this Court sent defendant a letter by certified mail informing him that such a brief had been filed and that he had until November 19, 2010, to file a pro se supplemental brief. However, on November 4, 2010, after considering defendant’s motion to file a supplemental pro se brief, this Court ordered that defendant had until December 3, 2010, to file a supplemental brief in this matter. As of this date, defendant has not filed a brief.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues and no rulings which arguably support an appeal. In the present case, defendant pled guilty to manslaughter. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea proceedings, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Additionally, although the trial court denied defendant’s motions to suppress his statement and several identifications, defendant did not preserve these rulings, or any other rulings, for appellate review under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

It is also noted that the record contains a ruling by the trial judge finding defendant competent to stand trial. At the hearing, defense counsel stipulated to | ¡¡the expertise of the doctor and the authenticity of the report, and further stipulated that if the doctor were called to testify, she would testify consistent with her report. Given these stipulations, it does not appear that this ruling would present any issue to support an appeal.

We have also reviewed defendant’s guilty plea and have found no non-frivolous issues which would support an appeal. The record shows that defendant was aware that he was pleading guilty to manslaughter pursuant to North Carolina v. Alford, supra. Further, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), during the guilty plea colloquy and by means of the waiver of rights form. He indicated that he understood that he was waiving these rights. Defendant also indicated that he had discussed the case with his attorney, that the waiver of rights form was explained to him by his attorney, and that he understood the waiver of rights form.

Defendant denied that he was under the influence of drugs or alcohol. The judge questioned defendant regarding his age and date of birth. The judge also inquired into defendant’s educational background. Defendant stated that he had an eighth grade education and could read, write, and understand the English language. In the waiver of rights form, defendant indicated he had not been forced, intimidated, or coerced into making the plea. He also indicated that he was not promised anything in exchange for the plea. Defendant was also advised of the possibility that his conviction could be used to enhance a penalty under the habitual offender law.

The waiver of rights form reflects that defendant was advised that he faced a penalty range of zero to forty years at hard labor and that if his plea was accepted he would be sentenced to twenty-three years of imprisonment with the Department |7of Corrections. During the colloquy, defendant was also informed that if the plea was accepted he would receive a twenty-three year sentence with the Department of Corrections. However, according to the transcript, the trial judge informed defendant that he faced a maximum sentence of four years at hard labor. Under LSA-R.S. 14:31(B), defendant faced a sentence of imprisonment at hard labor for not more than forty years. Nevertheless, this apparent improper advice regarding the maximum sentence by the trial court during the colloquy does not appear to constitute a non-frivolous issue that should be raised on appeal.

LSA-C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. Violations of LSA-C.Cr.P. art. 556.1 that do not rise to the level of Boy-kin violations are subject to harmless error analysis. State v. Guzman, 99-1528 and 99-1753 (La.5/16/00), 769 So.2d 1158, 1164-66; State v. Gilliam, 01-748 (La.App. 5 Cir. 1/15/02), 807 So.2d 1024, 1027, writ denied, 02-0512 (La.11/1/02), 828 So.2d 562. The Louisiana Supreme Court has clearly held that the core Boykin requirements have never been extended to include advice with respect to sentencing. State v. Guzman, 769 So.2d at 1164.

In the present case, defendant was told the proper, maximum penalty by means of the waiver of rights form. Further, it appears the advisement of the agreed upon sentence was sufficient for compliance with LSA-C.Cr.P. art. 556.1. In State v. Broadway, 40,569 (La.App. 2 Cir. 1/25/06), 920 So.2d 960, 963, the defendant argued that his guilty plea was involuntary because the court erred in failing to adequately apprise him of the sentencing range for the attempt crime to which he pled guilty. The Second Circuit noted that advice regarding sentencing exposure was not part of the core Boykin requirements and that moreover, the | Rcourt advised the defendant of the agreed sentence, which satisfied the notice requirement of LSA-C.Cr.P. art. 556.1. Further, in the present case, this could have been just a typographical error with the transcript, especially since the waiver of rights form reflects the proper maximum sentence.

Having thoroughly reviewed the guilty plea proceedings, including the transcript and the waiver of rights form, we find that defendant was properly advised of his core Boykin rights, that defendant understood the consequences of his guilty plea, and further that defendant’s guilty plea was entered freely and knowingly. We find that there are no non-frivolous issues with regard to defendant’s guilty plea which would support an appeal.

We also note that defendant pled guilty pursuant to North Carolina' v. Alford, supra. When a defendant pleads guilty under Alford, constitutional due process requires that the record contain strong evidence of actual guilt. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1123. In the present case, the trial judge failed to recite the specific evidence of defendant’s guilt during the plea colloquy, but stated that a factual basis existed for the plea. However, the record in this matter, which includes the suppression hearing transcripts, contains strong evidence of defendant’s actual guilt. Specifically, at the suppression hearing, the State presented evidence that defendant was identified as the shooter in this matter and was seen running away from the shooting. Accordingly, there was a sufficient factual basis for the Alford plea, and therefore, this does not present an issue that should have been raised on appeal.

With regard to defendant’s sentence, we note that it falls within the sentencing range prescribed by statute. See LSA-R.S. 14:31(B). Further, defendant’s sentence was imposed pursuant to a plea agreement. LSA-C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Based on the foregoing, the proceedings surrounding defendant’s plea of guilty and his sentence do not appear to present any non-frivolous issues to be raised on appeal. Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, counsel’s motion to withdraw as attorney of record is granted.

ERROR PATENT REVIEW

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors patent that require corrective action.

For the foregoing reasons, defendant’s conviction and sentence are affirmed. The motion to withdraw as counsel for defendant is hereby granted.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Ralph MAYES v. DEEP SOUTH CHEMICAL, INC.
    No. 11-91.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.

      William Howard Goforth, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Ralph Mayes.
    Amanda H. Carmon, Eagan, Johnson, & Stiltner, Baton Rouge, LA, for Defen-danVAppellant, Deep South Chemical, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

The employer, Deep South Chemical, Inc. (Deep South), appeals the workers’ compensation judgment in favor of its employee, Ralph Mayes, awarding him temporary total disability benefits. Mayes initially appealed the Workers’ Compensation Judge’s (WCJ’s) denial of penalties and attorney fees; however, Mayes has since dismissed that appeal, but reserved his answer to the appeal in which he seeks attorney fees for work on this appeal.

FACTS AND PROCEDURAL POSTURE

Mayes was employed as an outside salesman for Deep South. His job required the use of his personal vehicle, for which Mayes was provided a gas card and a $550-per-month car allowance. Further, Deep South maintained accounts with select repair establishments for repairs to Mayes’ car, although Mayes paid for all repairs from his monthly allowance.

The nature of Mayes’ job demanded very flexible hours. On March 11, 2008, Mayes’ day began at 4:00 a.m., when he embarked for Intracoastal City to meet crews of rig workers as they came off their shifts. After completing his tasks in In-tracoastal City, Mayes drove to Opelousas to obtain a tension pulley for his car, thence to Chabill’s Tire Service in Brous-sard to have the pulley installed. While there, at approximately 2:30 p.m., Mayes was injured when the chair in which he was sitting collapsed.

Shortly before the March 2008 accident, Mayes had been treated for low back complaints by Dr. John Cobb, a Lafayette orthopedic surgeon. Dr. Cobb had performed a lumbar laminectomy and fusion at the L3-4 and L4-5 levels in December 2007. Mayes returned to Dr. Cobb after the subject accident on March 17, 2008, and lahas treated with him since. Mayes has also been treated for injuries related to the chair collapse by Dr. Michael Cava-naugh, a chiropractor practicing in Lafayette.

The matter was tried on stipulations and exhibits on July 15, 2010, and the matter was taken under advisement. On September 14, 2011, the WCJ rendered oral reasons for judgment awarding Mayes temporary total disability benefits and past medical expenses. The WCJ determined that Mayes was injured in an accident that arose from and was in the course of his employment with Deep South. This determination was rooted in the WCJ’s determination that “for all intents and purposes, his vehicle was a company vehicle,” that Mayes was required to travel extensively in his job, and that his vehicle was essential to performing his job duties. Thus, the WCJ found the repairs to the truck arose from his employment with Deep South, although he was not making a sales call at the time.

ASSIGNMENT OF ERROR

Deep South assigns as error the trial court’s determination that Mayes’ accident occurred in the course of and arose from his employment.

ANALYSIS

An employee who sustains personal injury from an accident arising out of and in the course of his employment is entitled to benefits. La.R.S. 23:1031(A). An accident arises from employment “if the employee was engaged about his employer’s business and when the conditions of obligations of the employment cause the employee in the course of employment to be at the place of the accident at the time the accident occurred.” McLin v. Indus. Specialty Contractors, Inc., 02-1539, p. 9 (La.7/2/03), 851 So.2d 1135, 1142 (citing Guillory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So.2d 1152; Kern v. Southport Mill, 174 La. 432, 141 So. 19 (La.1932)). 13An accident is considered to have occurred in the course of employment when it occurs at a time and in a place associated with the employment. Guillory, 653 So.2d 1152. These two requirements are not viewed independently and a strong showing of “arising out of’ can overcome a weak showing of the “in the course of’ requirement. Id.

Findings by the WCJ that an accident arose out of and was in the course and scope of employment are factual determinations subject to review under the manifest error standard. See Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992). The trial of this case on stipulations does not affect the standard under which this case is reviewed. See Becht v. Morgan Bldgs. & Spas, Inc., 01-1091 (La.App. 1 Cir. 6/21/02), 822 So.2d 56, writ granted, 02-2047 (La.11/8/02), 828 So.2d 1117, aff'd, 02-2047 (La.4/23/03), 843 So.2d 1109, cert. denied, 540 U.S. 878, 124 S.Ct. 289, 157 L.Ed.2d 142 (2003); Orleans Parish Sch. Bd. v. City of New Orleans, 96-2664 (La.App. 4 Cir. 9/3/97), 700 So.2d 870, writ denied, 97-3094 (La.3/13/98), 712 So.2d 877. Under the manifest error standard, courts of appeal review the record to determine whether it reasonably supports the determination made by the trier of fact. Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993).

Mayes was required to maintain flexible hours. This fact was demonstrated by his activities on the date of the accident. He left his home in order to meet a crew change arriving in Intracoastal City at 5:00 a.m. He then proceeded to get his vehicle repaired. Deep South contends that Mayes’ accident did not arise from his employment because he typically worked seven to nine hours a day. His work day began quite early and would have ended before the accident at 2:30 p.m., Laccording to Deep South. Further, the risk that Mayes’ chair would collapse was no greater as a result of his employment than a member of the public at large. See Sallean v. Jefferson Parish Med. Soc’y., 01-128 (La.App. 5 Cir. 5/30/01), 788 So.2d 1205, writ denied, 01-1925 (La.10/12/01), 799 So.2d 505.

We view Mayes’ activities as analogous to those in cases involving the so-called “Going-and-Coming Rule.” We have articulated the reasoning behind the Going- and-Coming Rule:

Generally, an employee who has an accident while traveling to and from work is not in the course and scope of employment and, thus, is not entitled to worker’s compensation benefits. “This rule is premised on the theory that ordinarily the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work.” Yates v. Naylor Industrial Services, Inc., 569 So.2d 616, 619 (La.App. 2 Cir.1990), writ denied, 572 So.2d 92 (La.1991). “Moreover, an employee’s place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination.” Orgeron ex rel. Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 227. Requiring an employee to show up for work does not make the employee’s transportation incidental to the employment contract.

Kennedy v. Martin Gas Transp. Co., Inc., 96-100, p. 4 (La.App. 3 Cir. 8/21/96), 680 So.2d 1195, 1197, writ denied, 96-2838 (La.1/24/97), 686 So.2d 860 (citations omitted).

This rule admits of exception. In McLin, 851 So.2d 1135, an electrician who was required to attend an off-premises safety meeting was deemed to have been involved in an accident arising out of and in the course of his employment when involved in an auto accident en route home from the safety meeting. In Dean v. Southmark Constr., 03-1051 (La.7/6/04), 879 So.2d 112, a carpenter was injured Iswhile traveling to work when' his' direct employer deviated from his route to stop at another job site. Because the employee was paid during work hours regardless of whether he was actually working at the time, and because he was being transported by his direct employer, the Louisiana Supreme Court agreed with the WCJ that the accident did arise out of and occur in the course of his employment.

In Dean, the supreme court discussed several incidents illustrating the exceptions to the rule. Among these are “situations where an employer has involved himself in the transportation of the employee as an incident to the employment agreement, either through furnishing a vehicle or payment of expenses, or where wages are paid for time spent traveling.” Id. at 117. The present matter certainly meets those conditions. Mayes was paid a generous car allowance. Deep South directed the provider of vehicle repair services. And, although the accident occurred over ten hours after Mayes began his work day, he embarked on his journey to obtain the part necessary for the repair immediately after he left Intracoastal City. This would have been within his normal working hours.

Louisiana courts are well-acquainted with workers’ compensation claims involving salesmen whose transportation is provided by their employers. Regarding such claims, we long ago stated:

The general rule is that an injury suffered by an employee away from his employer’s premises while going to or returning from work, does not arise out of and in the course of his employment. This general rule, however, is subject to a number of exceptions. It does not apply, for instance, where the employee is a traveling salesman, or where he is required to travel from place to place in the performance of his duties and to provide his own means of transportation in doing so. In such an instance there is no fixed place of employment and his hours necessarily are irregular. If the employee sustains an injury while traveling under those circumstances, although not on the employer’s premises, his injuries will be considered as having been sustained in the course of his employment if he was then engaged about his employer’s business, and [ finot merely pursuing his own business or pleasure, and the necessities of his employer’s business required him to be at the place of the accident when it occurred. Boutte v. Mudd Separators, Inc., 236 So.2d 906 (La.App. 3 Cir.1970); Simmons v. Liberty Mutual Insurance Company, 185 So.2d 822 (La.App. 3 Cir.1966); Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932); Aymonde v. State National Life Insurance Company, 138 So.2d 460 (La.App. 3 Cir.1962); DeMaggio v. United Mills Corpporation [Corporation], 252 So.2d 530 (La.App. 4 Cir.1971); Babineaux v. Giblin, 37 So.2d 877 (La.App. 1 Cir.1948).

Gautreaux v. Life Ins. Co. of Ga., 256 So.2d 832, 834 (La.App. 3 Cir.1972). Traveling and having one’s vehicle repaired at the employer’s direction for that travel are analogous: in both situations, the automobile represents an essential tool of the employee’s work and the employer mandated the employee’s action. In this case, the employer’s business required Mayes to be at Chabill’s. Under these circumstances, we find the record reasonably supports the WCJ’s findings.

Mayes has requested attorney fees for work performed by his counsel on appeal. Ordinarily, an employee is entitled to additional attorney fees for successfully defending a workers’ compensation judgment on appeal. See Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. At trial, Mayes requested attorney fees, which the WCJ declined to award. He initially assigned the refusal to award attorney fees as an error, but later abandoned that appeal. In requesting attorney fees on appeal, Mayes asserts that Deep South’s appeal is frivolous. We disagree, and decline to award attorney fees on appeal. The fact that Deep South did not prevail on appeal does not render its appeal frivolous.

CONCLUSION

A determination that an accident arises out of and occurred in the course of employment is reviewed for manifest error. The record reveals a reasonable basis for the WCJ’s findings. As such, the findings are not subject to reversal. The judgment |7of the WCJ in favor of Plaintiff/Appellee, Ralph Mayes, is affirmed. We decline to award attorney fees on appeal to Plaintiff/Appellee. All costs of this appeal are taxed to Defendant/Appellant, Deep South Chemical, Inc.

AFFIRMED.

      . Mayes contends that he regularly worked from 3:00 a.m. until past 5:00 p.m. Under the particular facts of this case, we find the distinction uncompelling.


author: GENOVESE, Judge.

text:
    STATE of Louisiana in the Interest of K.S., K.S., & D.S.
    No. 11-251.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.

      William T. Babin, Lafayette, LA, for Appellee, Louisiana Department of Social Services.
    Michael Harson, District Attorney, Fifteenth Judicial District, Michelle Breaux, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Lloyd Dangerfield, Lafayette, LA, for Appellees K.S., K.S., and D.S.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

S.S., the biological mother of the minor children, K.S., K.S., and D.S., appeals the judgment of the trial court terminating her parental rights and certifying her minor children for adoption. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Custody of K.S., K.S., and D.S. was placed with the State of Louisiana, through its Department of Social Services, Office of Community Services, renamed Department of Children and Family Services (hereinafter referred to as the State), on February 14, 2008, on the ground of neglect. A stipulation for their continued custody with the State was entered on February 20, 2008. On March 14, 2008, petitions were filed, alleging that each child was in need' of care. The children were subsequently adjudicated as children in need of care with their custody being placed with the State pursuant to judgment rendered March 31, 2008.

On October 25, 2010, a Petition for Termination of Parental Rights and Certification for Adoption was filed by the State seeking the termination of S.S.’s parental rights. The petition requested that S.S.’s parental rights be terminated under the provisions of La.Ch.Code art. 1015(5). Specifically, the State alleged the | ¡.following:

a. The mother has failed to obtain a safe home in order for the children to be returned to her custody;
b. The mother’s mental illness or mental deficiency has rendered her unable or incapable of exercising parental responsibilities without exposing the children to substantial risk of serious harm, based upon expert opinion and/or based upon an established pattern of behavior;
c. The mother has failed to comply with the required program of treatment and rehabilitation services provided in the case plan;
d. The condition that led to the removal or similar potentially harmful conditions continue to persist;
e. As set forth above, and as also to be shown at the trial hereof, the mother has failed to cooperate in completion of the case plan designed for the reunification of the family; and
f. The mother has shown a lack of substantial improvement in redressing the problems which prevent reunification of the family.

The trial court held a termination hearing on December 9, 2010. Following said hearing, the trial court rendered judgment in favor of the State and terminated the parental rights of S.S. S.S. appeals.

ASSIGNMENTS OF ERROR

S.S. asserts the following assignments of error:

I.
The trial court erred in terminating the parental rights of S.S.[] The court further erred in concluding that S.S.’s failure to disclose her romantic relationship was sufficient to prove by clear and convincing evidence that S.S. had not substantially complied with her case plan and that there was no reasonable expectation for further improvement in her condition or conduct in the near future nor reasonable expectation that she would complete any new requirements of the case plan as deemed |snecessary for the safe return of the children.
II.
The trial court erred in finding that termination was in the best interest of the children, especially considering the relationship the children have with S.S.
LAW AND DISCUSSION
We set forth the burden of proof the State must meet when terminating parental rights in State in the Interest of Q.P., 94-609, p. 4 (La.App. 3 Cir. 11/2/94)[,] 649 So.2d 512, 515:
Parental rights to the care, custody, and management of children is a fundamental liberty interest warranting great deference and vigilant protection under the law. State in the Interest of C.P., 463 So.2d 899 (La.App. 2 Cir.1985). On this basis, the Louisiana legislature imposed statutorily strict procedural and evidentiary requirements which must be met before issuance of a judgment terminating parental rights. As explained in State in the Interest of J [.], 582 So.2d 269 (LaApp. 1 Cir.), writ denied, 583 So.2d 1145 (La.1991), the evidentiary standard established in termination cases mandates that the State present proof by clear and convincing evidence of the parents’ failure to comply with all the enumerated conditions relied upon in the specific paragraph(s) of LSA-Ch.C. Art. 1015 before terminating parental rights. Accordingly, this heightened burden of proof requires the State to show not only that the existence of the fact sought to be established is more probable, but rather that the fact is highly probable or more certain. Hines v. Williams, 567 So.2d 1139 (La.App. 2 Cir.), writ denied, 571 So.2d 653 (La.1990). However, we are mindful that in assessing whether the clear and convincing evi-dentiary standard was followed in the lower court, we must determine whether the record reflects that the juvenile court manifestly erred. Resell v. ESCO, 549 So.2d 840 (La.1989).

In the Interest of C.D. and J.C. v. L.C., 01-663, p. 2 (La.App. 3 Cir. 10/3/01), 796 So.2d 844, 845-46, writ denied, 01-2986 (La.11/20/01), 801 So.2d 1079.

In the instant matter, the trial court found that the State had met its burden of proving by clear and convincing evidence the grounds for termination of 5.5.’s |4parental rights and that termination was in the best interest of the children. We disagree.

S.S.asserts on appeal that the real issue regarding her alleged noncompliance with her case plan was her “dishonesty” with regard to her relationship with her boyfriend, J.C. S.S. admitted at trial that she had not been completely honest with the State about her boyfriend staying at her house. She explained that her long-term case manager, Mr. Leon Winters, was aware since 2009 that she was in a relationship with someone. According to S.S., Mr. Winters told her that he was going to have J.C. evaluated. In fact, J.C. participated in two visits that “went excellent.” Since he was allowed visitation with the children, S.S. did not think that the State had a problem with their relationship.

When Courtney Landos, a new case manager, took over, S.S. was not forthcoming about being romantically involved with someone. She explained that she was afraid that she was doing something wrong which may cause her to get in trouble with the State. However, we agree with S.S. that “part of the problem with this case is each party’s interpretation of what ‘living with’ means.” S.S. explained that her boyfriend was working in Shreveport, and, when he would come into town, he would spend the night at her home. According to her testimony, he was not there all of the time. Rather, he would stay at her house on Fridays, Saturdays, and Sundays. 5.5. testified that she was confused because she believed that J.C. staying at her house from Friday to Sunday was not the same thing as “living with her.”

With respect to the other requirements of S.S.’s case plan, Ms. Landos testified that S.S. had substantially complied with her plan. According to Ms. Landos, S.S. had completed parenting classes and had completed the Sexual Abuse Response Center program. Additionally, although money management had previously been a problem, S.S. had “done very well with managing her bills[,]” had been going to Gamblers Anonymous where “she was making some progress[,]” and “[had] maintained financial stability” since 2009. Ms. Landos also testified that S.S. completed her psychological evaluation. Additionally, although S.S. had not received the individual counseling that had been recommended, Ms. Landos testified that one facility declined to render services to her because she failed to meet the criteria for their program. A second facility declined to render services to her, stating that she was not in need of their services. With respect to housing, S.S. had a home separate from her father (who was not allowed to be around her children because of the abuse he had subjected her to as a child), and she had been current on her rent for eight months.

However, the State argues that “completing a case plan is not only attending the sessions and the classes[,] but also benefitting from them.” The State places much emphasis on the testimony of Dr. Ed Bergeron, who was accepted by the court as an expert in clinical psychology. Dr. Bergeron testified that “while [S.S.] was apparently attending all of her classes and counseling and everything else, she was going through the motions, but she was not benefitting.” Dr. Bergeron was of the opinion that S.S. has a dependent personality disorder. Because she “was engaging in deception!,]” he concluded that “the problem still exists.” According to Dr. Bergeron, it could be one 16to several years before S.S. would see significant improvement from treatment depending upon her motivation.

Dr. Bergeron evaluated S.S. on only two occasions, March 25, 2008 and February 12, 2010. He testified that “she actually was able to generate normal profiles.” At that point, Dr. Bergeron felt that “everything turned out pretty well[,]” and he concluded “that [he] did not detect any active mental disturbances that would preclude her from functioning as a primary caregiver.”

We find it noteworthy that Dr. Bergeron had no personal knowledge of what transpired in the ten-month period between his last visit with S.S. in February of 2010 and the time of trial, other than his having been “informed that she was involved with a man[.]” Dr. Bergeron admitted, “once [he] was informed of the situation, then [he] just went ahead and wrote an opinion ... based on what [he] was told.” Dr. Bergeron also testified that after he changed his recommendation, there was a request by the State that he do a family assessment, but he “didn’t see the point of it.” Despite this request by the State, Dr. Bergeron concluded that S.S. “clearly was not ready to be a primary caregiver[.]”

Additionally, as it relates to S.S.’s second assignment of error, we acknowledge the importance of the relationship S.S. has with her children. Ms. Landos testified that S.S. loves her children and that the children are bonded with her. The children have expressed an interest in being reunited with their mother. Their current placement is not a permanent placement, and their foster care parents have no interest in adopting them. Moreover, given their ages of ten, nine, and six, Ms. Láñe-los testified that it would be hard to find an adoptive placement for the children. Considering the facts in this case, we conclude that termination at this juncture is not 17in the best interest of these children.

This court has recognized that “[piaren-tai rights to the care, custody, and management of children is a fundamental liberty interest warranting great deference and vigilant protection under the law.” State ex rel. V.F.R., 01-1041, p. 2 (La.App. 3 Cir. 2/13/02), 815 So.2d 1035, 1036-37, writ denied, 02-797 (La.4/12/02), 813 So.2d 412 (quoting In re J.K, 97-336, p. 4 (La.App. 3 Cir. 10/29/97), 702 So.2d 1154, 1156). Additionally, in considering the matter before us, we are mindful of the instruction provided to us by our supreme court in State ex rel. J.A., 99-2905, p. 9 (La.1/12/00), 752 So.2d 806, 811, that we “must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens.” “Moreover, as the second circuit has recognized, ‘[a]n order of termination of parental rights, serves, in fact, as the parental death penalty.’ State ex rel. S.A.C., 41,474, p. 3 (La.App. 2 Cir. 8/23/06), 938 So.2d 1107, 1109.” State ex rel. B.O.G., 08-1103, p. 13 (La.App. 3 Cir. 3/4/09), 5 So.3d 1018, 1026.

S.S. has substantially complied with her case plan and has exhibited a willingness to do what is necessary to be reunited with her children. The children have a bond with their mother, and they, likewise, would like to be reunited. Considering the record of these proceedings, the facts do not warrant “the parental death penalty.” Id. “Because of the finality of the termination of one’s parental rights, it is far better to err in favor of reunification than to err on the side of termination.” Id. at 1027.

Having thoroughly reviewed the record of these proceedings, we find that the State failed to satisfy its burden of proof by clear and convincing evidence the | ^requirements of La.Ch.Code art. 1015(5) and that the termination of S.S.’s parental rights is in the best interest of the children at this time. Thus, we find manifest error in the ruling of the trial court that S.S.’s parental rights be terminated and that the children be certified for adoption. Though it is clear that there is a problem which needs to be addressed, we are not convinced that termination at this juncture is the solution to the problem. S.S. should be afforded one final opportunity to achieve the goal of reunification with her children.

For the foregoing reasons, we reverse the trial court’s judgment terminating the parental rights of S.S., reestablish custody of the children with the State, Department of Children and Family Services, and reinstate S.S.’s case plan. We order an updated evaluation of S.S. by the State and an evaluation of J.C. (if he is still involved in a relationship with S.S.). We also order an updated evaluation on S.S. by Dr. Berger-on, or someone of similar standing designated by the State if Dr. Bergeron is unwilling or unavailable, and that person is to submit a report of his findings to the State. S.S. is given one last opportunity to substantially and satisfactorily complete her case plan with the goal of reunification. Should S.S. falter or default, then the State, in its discretion, may proceed once again with termination of her parental rights.

DECREE

For the foregoing reasons, the judgment of the trial court terminating the parental rights of S.S. is reversed, and the matter is remanded to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

      . Pursuant to Uniform Rules — -Courts of Appeal, Rules 5-1 and 5-2, the initials of the parties are used to protect and maintain the privacy of the minor children involved in this proceeding.

      . The biological father of K.S. and K.S. is deceased. The biological father of D.S. filed a voluntary surrender of his parental rights which was approved by the trial court. Hence, the termination of the respective biological fathers’ parental rights is not at issue herein.

      . Louisiana Children's Code Article 1015 provides, in pertinent part, as follows:
      The grounds for termination of parental rights are:

      (5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

      . This was of particular concern due to prior abuse of the children by a prior live-in boyfriend, which is what lead to the State’s initial involvement in this matter.

      . Her understanding from Mr. Winters was that this was permissible.

      . We note that the other evidence of record as to their living arrangement was introduced through the testimony of Ms. Landos, who testified that she was informed by the Housing Authority that his name was on the lease.