author: CHARLES R. JONES, Judge.

text:
    In the Matter of Henry J. HELM.
    No. 2011-CA-0914.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 21, 2011.

      Shannon Casey Rodriguez, Michael I. Rodriguez, Jr., Rodriguez Law Firm, New Orleans, LA, for Appellant.
    Jennifer B. Eagan, New Orleans, LA, for Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, and Judge PAUL A. BONIN).
   CHARLES R. JONES, Judge.

hThe Appellant, Barbara Manteris, seeks review of the judgment of the district court ordering her to pay the attorneys’ fees and costs of counsel for Athea G. Helm, Donna Oufnac and Lester Ouf-nac, the Appellees. Finding that the district court erred in assessing costs against Ms. Manteris because she is not a party to the interdiction proceeding herein, we vacate in part the judgment of the district court ordering her to pay attorneys’ fees and costs.

In December 2010, Athea G. Helm, the wife of Henry Helm, filed a Petition for Interdiction and Appointment of Curator and Under-Curators seeking to interdict her husband. He was interdicted in January of 2011. Mrs. Helm was appointed as his curatrix and his daughter and son-in-law — Donna Oufnac and Lester Oufnac— were appointed as the undercuratrix and undercurator, respectively. Thereafter, the district court held a hearing on the | amotions to tax costs filed by counsel for Mrs. Helm, and counsel for Mr. Helm, Timothy Schafer. The district court awarded counsel for Mrs. Helm attorneys’ fees and costs in the amount of $15,089.82, and ordered Ms. Manteris to pay this amount. The remaining portion of the judgment is not relevant to our review. Ms. Manteris timely appealed the judgment of the district court.

The sole issue raised by Ms. Man-teris on appeal is that the district court erroneously taxed the Appellees’ attorney fees and costs of Mr. Helm’s interdiction proceedings against her because she is a non-party to the proceedings. District courts are vested with much discretion in arriving at an award of attorney’s fees, and such award will not be reversed absent a showing of an abuse of that discretion. Good v. Saia, 2008-0682 (La.App. 4 Cir. 4/8/09), 9 So.3d 1070, 1073, reh’g denied (May 12, 2009), writ denied, 2009-1315 (La.9/25/09), 18 So.3d 73 and writ denied, 2009-1323 (La.9/25/09), 18 So.3d 72 (citing Filson v. Windsor Court Hotel, 2007-0755, 2007-0756, p. 6 (La.App. 4 Cir. 7/23/08), 990 So.2d 63, 67).

Ms. Manteris argues that while the district court may assess costs and attorney fees “against any party, as the court may consider fair” under the Louisiana Code of Civil Procedure, only Mr. and Mrs. Helm are parties to the interdiction. Thus, she argues, the district court should not have rendered judgment against her for the costs and fees of the Appellees’ attorney. She further argues that the proper party to bear attorney fees and costs is the estate |sof the interdict. Additionally, because the Helms are married, Mrs. Helm’s attorney fees and costs are a community debt that should be paid by Mr. Helm’s estate.

Mrs. Helm filed a Motion to Tax Costs in this matter to recover attorney fees, court costs, expert witness fees, copying costs, and costs of trial exhibits from the “objector”, whom she did not identify. Ms. Manteris argues that the district court determined that she was the objector. The Louisiana Code of Civil Procedure specifically provides for assessment of costs associated with interdiction proceedings in Article 4550, which states that the court may render judgment for costs and attorney fees, or any part thereof, against any party, as the court may consider fair. Ms. Manteris asserts that Black’s Law Dictionary defines a “party” as referring “to those by or against whom a legal suit is brought, whether in law or in equity ... all others who may be affected by the suit, indirectly or consequentially, are persons interested, but not parties.” The jurisprudence of this State has interpreted the Article 4550 requirement of fairness as that which is reasonable. According to Article 5052 of the Louisiana Code of Civil Procedure, unambiguous words are not to be disregarded. Further, Article 5053 provides that “[wjords and phrases are to be read in their context, and are to be construed according to the common and approved usage of the language employed.”

Ms. Manteris avers that she cared for Mr. Helm for one month prior to his interdiction in accordance with his request. She argues that Mr. Helm, in his answer to the Petition for Interdiction, requested that she should be named curatrix over his person and property if he was interdicted. However, Ms. 14Manteris contends she was never served with the Petition for Interdiction; she did not oppose the interdiction proceedings; she never filed any pleadings; and she was never called to testify. Lastly, she argues that she was only present in court during the interdiction proceeding because she was Mr. Helm’s agent by virtue of the Power of Attorney that he executed prior to the institution of the Petition for Interdiction in December 2010; however, her appearance as his agent did not make her a party.

The Appellees argue that Ms. Manteris held herself out as a party to the interdiction proceedings in her capacity as his agent; however, she now wants to escape the district court’s taxing of fees and costs by denying her role in the proceedings was vital and decisive. In support of their position, the Appellees argue that the following factors should be taken in consideration:

1. Counsel for Mr. Helm, Timothy Schafer, represented both Mr. Helm and Ms. Manteris. Indeed, when he made his appearance at trial, he stated that he was representing both Mr. Helm and Ms Manteris. Ms. Manteris sat at counsel table with Mr. Schafer for the entire trial. The district court considered the possibility of a conflict of interest in Mr. Schafer’s representation of both clients.
2. Ms. Manteris was excluded from the sequestration order, which is an exception reserved only for experts and parties pursuant to La. C.E. art. 615.
8. Midway through the interdiction trial, Mr. Schafer admitted to the district court that he was no longer contesting the interdiction. As a result of this admission, the sole inquiry for the district court became whether the power of attorney granted to Ms. Manteris was valid and enforceable.

Lastly, the Appellees argue that the district court found Ms. Manteris to have been responsible, at least in part, for the fees incurred in the prosecution of | Bthis suit. This finding was supported by the Court’s analysis of Ms. Manteris’ acts of intrusion into the supervised nursing care that they arranged for Mr. Helm, including the principal role Ms. Manteris played in removing Mr. Helm from the nursing home without notifying them. They maintain that as a matter of equity, it is unfair and unreasonable for the limited estate of Mr. Helm to be depleted because counsel for Mr. Helm and Ms. Manteris continued with this case even when the need for Mr. Helm to have supervised nursing care was clear to everyone else. They further assert that the district court reasoned that the law firm of Schafer & Schafer and Ms. Manteris went too far in the face of overwhelming evidence that Mr. Helm needed supervised nursing care. Further, they argue that the district court reprimanded both the law firm of Schafer & Schafer and Ms. Manteris for tearing apart a family by pursuing this case even when the need for supervised and guarded nursing care for Mr. Helm was clear to everyone else.

Pursuant to Title VIII of the Louisiana Code of Civil Procedure, entitled Interdiction and Curatorship of Interdicts, the principal parties to an interdiction are: the individual petitioning the court for the interdiction, the person sought to be interdicted referred to as the “defendant”, the curator/curatrix and the undercurator/un-dercuratrix. La. C.C.P. arts. 4541, et. seq. Additionally, La. C.C.P. art. 4543(B) requires the petitioner to mail a copy of the petition to all interested parties — those persons named in the petition — by certified mail within three (3) days of filing the petition. Ms. Manteris does not fit into any of the aforementioned categories of persons, and there is no proof in the record before us that she was served as an interested person in the interdiction | (¡proceeding. Moreover, under our review of the instant record, a third party demand was not made against her under La. C.C.P. art. 1111, the Appellees did not seek to amend their petition to add her as a defendant, nor did Ms. Manteris intervene in the interdiction pursuant to La C.C.P. art. 1091. Indeed, in the judgment at issue, the district court states that Mr. Schafer solely represented Mr. Helm in these proceedings. Although Ms. Manteris may be a client of Mr. Schafer, she is not a party to the instant proceedings.

The Appellees provide no legal authority evidencing that one becomes a party to litigation by playing a “vital and decisive” role in the factual scenario leading up to trial. Moreover, the district court cannot sua sponte make an individual a party to a judicial proceeding regardless of his or her involvement in the matter before the court. The involvement of Ms. Manteris in the care of Mr. Helm may have caused the instant interdiction to become contentious; however, her de facto participation does not make her a party de jure to these proceedings.

Considering that Ms. Manteris did not intervene in the interdiction, that a third party demand was not made against her, that she was not directly sued by the Appellee and further considering that she was not even served as an interested party in the interdiction, we find that it was legal error for the district court to assess costs against her because she was not a party to the interdiction. “A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial.” Hamp’s Constr., L.L.C. v. Hous. Auth. of New Orleans, 10-0816, p. 3 (La.App. 4 Cir. 12/1/10), 52 So.3d 970, 973. "Where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable.” Fornerette v. Ward, 2010-1219, p. 4 (La.App. 4 Cir. 5/11/11), 66 So.3d 516, 520, writ denied, 2011-1210 (La.9/23/11), 69 So.3d 1159 (citing Evans v. Lungrin, 970541, 970577 (La.2/6/98), 708 So.2d 731, 735). Thus, we vacate that portion of the March 2011 judgment of the district court ordering Ms. Manteris to pay attorneys’ fees and costs.

DECREE

For the forgoing reasons, the judgment of the district court is vacated in part.

JUDGMENT VACATED IN PART

      . Subsequently, Mr. Helm appealed the appointment of Mrs. Helm as his curatrix and sought the appointment of his niece, Ms. Manteris — who was his procuratrix — as his curatrix instead. On appeal to this Court, in case number 201 l-CA-0500, we affirmed the appointment Mrs. Helm as curatrix. The judgment appointing Mrs. Oufnac as undercu-ratrix was reversed, and she was removed as undercuratrix. Lastly, we remanded the case with instructions to the district court to conduct further proceedings, and ordered that all costs are taxed to the interdict's estate.

      . In her Memorandum in Support of Motion to Tax Costs, Mrs. Helm sought the assessment of costs and attorneys fees against "the objector” to the interdiction proceedings. We note that the name of "the objector” is not provided therein.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Michael MILLER.
    No. 11-KA-498.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long,

      Megan L. Gorman, Myles Ranier, Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

12Pefendant, Michael Miller, was indicted by a grand jury on October 8, 2009, on one count of aggravated rape in violation of LSA-R.S. 14:42, and one count of aggravated incest in violation of LSA-R.S. 14:78.1. Defendant was arraigned and pled not guilty. On December 8, 2010, a 12-person jury found him guilty as charged on both counts.

Defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial, both of which the court denied. Defendant was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence on the aggravated rape conviction, and he was sentenced to 20 years imprisonment at hard labor on the aggravated incest of a child conviction. The court ordered the sentences to run consecutively. Defendant made an oral motion to reconsider ¡.-¡sentence, which the court denied. By this appeal, defendant asserts two assignments of error.

At trial, Sergeant James Wine of the Jefferson Parish’s Sheriffs Office testified that on December 4, 2007, he responded to a report of sexual abuse. He met with the victim, J.B., and his father, Ja.B. J.B. alleged that he had been sexually abused approximately two to three years prior by defendant, Mike Miller, at an address on Central Avenue. J.B. lived in two different apartments on Central Avenue and could not remember either address. Sergeant Wine drove J.B. to Central Avenue, and J.B. showed him the location where the abuse occurred.

The alleged sexual abuse in this case occurred when J.B. was living with his mom, S.B., and his stepfather, Mike Miller, between May 20, 2002 and March 8, 2004. J.B. testified at trial. J.B. recalled the first time the abuse occurred when he was “about six” years old. J.B. stated, “[Defendant] called me into the living room. He was laying (sic) down and he exposed his penis to me and told me to suck it.” J.B. did as he was told. J.B. stated that defendant “spermed out” and then “he would wipe it on a rag.” J.B. testified that this occurred more than once. When asked where the abuse occurred, J.B. responded, “On Central.”

J.B. also recalled other instances of abuse that occurred when he was seven years old. J.B. stated, “I was to kneel on the couch, pull down my pants, and he put his penis through my legs and pushed it back and forth.” When asked how defendant would push it back and forth, J.B. responded, “He would hump.” J.B. testified that sometimes “there was pornography on the TV” during the abuse. When asked what was happening on the tape, J.B. responded that “a male and pfemale were having sex.” J.B. testified that the abuse occurred while his mom was at work. Defendant threatened to kill J.B. if he told anyone. J.B. testified that the abuse stopped when defendant went to jail in 2004, when J.B. was about eight years old.

The victim’s father, Ja.B., testified that his son, J.B., was born on May 20, 1996, when Ja.B. was 16. Ja.B. was convicted in 1997, when he was 17, and was in prison until October of 2002. Ja.B. testified that a few months after he was released from prison, J.B., his mom, S.B., and defendant moved to Central Avenue. They lived there for three to six months before moving into another apartment on Central Avenue. Ja.B. testified that he initially saw J.B. on the weekends, but it started to become an issue when they moved to the new apartment on Central Avenue. He stated that when speaking to J.B.’s mother, S.B., he could hear defendant in the background not agreeing to the visitation. He testified that after defendant moved out in 2004, he could see his son “anytime [he] wanted.”

Ja.B. further testified that J.B. began living with him in September of 2007 due to his son’s behavioral issues. J.B.’s behavior worsened, and J.B. began “showing his privates” at school. Finally, at the suggestion of others, Ja.B. asked his son if anyone had ever abused him. J.B. responded affirmatively. J.B. told his father that he had been abused by defendant, “Mr. Mike.” Ja.B. then called the St. Tammany Parish Sheriffs Office, and they informed him that he needed to take J.B. to Jefferson Parish, where the abuse occurred. That evening, Ja.B. drove J.B. to Jefferson Parish, and they met with Sergeant Wine.

The victim’s mother, S.B., testified that she married defendant in September 2001, when J.B. was five years old. After they married, J.B. lived primarily with rela-fives. In 2002, S.B. and defendant moved into an apartment on Central |fiAvenue, and J.B. began staying with them more often. At that time, S.B. testified she was working at a daycare, but defendant was not working.

They subsequently moved into another apartment on Central Avenue. S.B. testified that defendant would walk J.B. to school in the morning and afternoon. Additionally, S.B. testified that J.B. began to have behavioral problems at Jefferson Elementary School when they were living on Central Avenue.

Erika Dupepe of the Jefferson Children’s Advocacy Center (“CAC”) testified that she interviewed J.B. on April 16, 2008, at the CAC. She testified regarding the role of the CAC and her qualifications as a forensic interviewer. She further testified about the interview process in general and the procedures that were followed when she interviewed J.B. The DVD of the CAC interview was then played for the jury.

Dr. Adrienne Atzemis testified as an expert in the field of child abuse pediatrics. Dr. Atzemis testified regarding possible reasons for a child’s delayed disclosure of sexual abuse and behavioral problems that result from sexual abuse. She further testified that she examined J.B. at Children’s Hospital on May 1, 2008. She stated that J.B. “disclosed a clear and detailed history of sexual abuse by Mr. Miller.” She stated:

He disclosed two types of contact. The first was penile/oral contact, meaning that Mr. Mike’s penis was in his mouth or his mouth was on Mr. Mike’s penis. And then also penile/thigh contact. He was saying that it was in between his legs. The penis was touching his thighs.

She farther stated that J.B. had disclosed that defendant threatened to hurt him “if he told about what happened.”

Defendant was the defense’s only witness. Defendant denied watching pornography with J.B. and denied abusing J.B.

|fiBy this appeal, defendant claims the evidence was legally insufficient to convict him of aggravated rape and aggravated incest. Defendant argues that J.B.’s testimony had a number of inconsistencies. First, defendant contends that J.B. was inconsistent in his accounting of how defendant sexually abused him. Second, defendant argues that J.B. was inconsistent as to where the abuse occurred. Third, defendant argues that J.B. made inconsistent statements regarding whether a pornographic video was playing on the TV. Finally, defendant argues that J.B.’s statement concerning a washing machine at one of the apartments illustrates that J.B. was not being truthful.

Defendant further contends that the inconsistencies in J.B.’s testimony, as well as certain language he used, indicates that he was coached. Defendant also argues that J.B.’s biological father, Ja.B., was angry with defendant, suggesting that Ja.B. fabricated the allegations of abuse in retaliation.

In conclusion, defendant argues that J.B.’s testimony was the only evidence that defendant committed a crime and it had numerous inconsistencies. Defendant claims that these inconsistencies were enough to create reasonable doubt.

In response, the State set forth the law and the testimony elicited at trial. The State argues that the jury heard and weighed the testimony of the witnesses at trial. Furthermore, the State contends that the jury heard defendant’s closing argument in which he discussed what he believed to be inconsistencies in J.B.’s testimony, and the jury heard defendant’s theories as to why J.B. would devise such allegations. The State argues:

As the verdict demonstrates, the jury found the testimony of the State’s witnesses to be credible and the evidence sufficient to find the defendant guilty beyond a reasonable doubt as to both charged counts. Considering the consistent and detailed account of the offenses recounted by the victim, the verdict was well-founded.

|7The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. A reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. State v. Bolden, 03-0266 (La.App. 5 Cir. 7/29/03), 852 So.2d 1050, 1056.

First, it is necessary to establish whether the elements of aggravated rape and aggravated incest were established at trial. Defendant was convicted of the aggravated rape of J.B. in violation of LSA-R.S. 14:42. At the time the abuse first occurred, LSA-R.S. 14:42 provided in pertinent part:

A. Aggravated rape is a rape committed .... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.

Rape is defined by LSA-R.S. 14:41(A) as “the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.” Oral sexual intercourse is defined, in pertinent part, as: “The intentional engaging in any of the following acts with another person: (2) the touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim.” LSA-R.S. 14:41(0(2).

|sThus, in order to convict defendant of aggravated rape by oral sexual intercourse, the jury must have found: (1) the defendant intentionally engaged in the touching of the anus or genitals of the defendant using the mouth or tongue of the victim; and (2) the act was without the lawful consent of the victim because he was under the age of 12 years at the time of the offense.

Defendant was also convicted of aggravated incest in violation of LSA-R.S 14:78.1, which provides in pertinent part:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child ...
B. The following are prohibited acts under this Section:
(1).... sexual battery, ...

Sexual battery is defined by LSA-R.S. 14:43.1. At the time the abuse occurred, LSA-R.S. 14:43.1(A) stated:

The intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender acts without the consent of the victim, or where the other person has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

Thus, in order to convict defendant of aggravated incest, the jury must have found that: (1) the defendant committed a sexual battery upon the victim; (2) the victim was under eighteen years of age; (3)the victim was the stepson of the defendant; and (4) the defendant had knowledge of the relationship.

Defendant does not dispute that J.B. was his stepchild or that he was under the age of 18; therefore, those elements were met. At trial, J.B. testified that | ¿‘[Defendant] called me into the living room. He was laying (sic) down and he exposed his penis to me and told me to suck it. And then I sucked it.” J.B. testified that he was “about six” years old when this occurred. J.B. also recalled other instances of abuse that occurred when he was seven years old. J.B. stated, “I was to kneel on the couch, pull down my pants, and he put his penis through my legs and pushed it back and forth.” When asked how defendant would push it back and forth, J.B. responded, “He would hump.” Based on J.B.’s testimony, the elements for aggravated rape and aggravated incest were established at trial.

Second, it is necessary to determine if the victim’s testimony, in light of the alleged inconsistencies, was sufficient to support defendant’s conviction.

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Rowan, 97-21, p. 7 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. State v. White, 472 So.2d 130, 132 (La.App. 5 Cir.1985). Furthermore, the credibility of witnesses will not be reweighed on appeal. Rowan, supra. “[T]he Jackson standard does not serve as a vehicle for a reviewing court to second guess the rational credibility determinations of the fact finder at trial.” State v. Juluke, 98-341, p. 4 (La.1/8/99), 725 So.2d 1291, 1293, writ denied, 01-3171 (La.9/30/02), 825 So.2d 1190.

The testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific or physical evidence to prove the commission of the offense. State v. Hawkins, 99-217 (La.App. 5 Cir. 7/2/99), 740 So.2d 768, 769. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ | ^testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. State v. Ruffin, 02-798 (La.App. 5 Cir. 12/30/02), 836 So.2d 625, 630, writ denied, 03-3473 (La.12/10/04), 888 So.2d 831.

In the present case, defendant argues that J.B.’s testimony had a number of inconsistencies. First, defendant contends that J.B. was not consistent in his accounting of how defendant sexually abused him. Defendant argues that, in one version, J.B. stated that defendant “made him suck his penis.” And, in another version, J.B. stated that defendant “put his penis between his thighs and moved back and forth.” At trial, J.B. testified that the sexual abuse occurred more than once. J.B. recalled the first time he was abused when he was six years old. J.B. also recounted another instance of abuse that occurred when he was seven. J.B.’s testimony at trial regarding the different ways he was abused, what age it occurred and that it occurred more than once was consistent with Dr. Atzemis’ report.

Second, defendant argues that J.B. was inconsistent as to where the abuse occurred. Defendant contends that J.B. told Sergeant Wine that the abuse only occurred at 236 Central Avenue, but then told Erika Dupepe from CAC that the abuse occurred in Texas and two places in Jefferson Parish. Sergeant Wine testified that he drove J.B. to Central Avenue so they could pinpoint the actual address where the abuse occurred. Sergeant Wine testified that J.B. did point to a particular location, and Sergeant Wine was “pretty sure”- it was 236 Central Avenue. Sergeant Wine further stated, “I’m not really sure how the conversation took place, but he did say that he didn’t — he said at the second address, 689 Central, there was no second — no more abuse.” The defense attorney then stated, “And you took that to mean that’s when the abuse stopped?” Sergeant Wine responded, “Yes, sir.”

|nDef'endant contends that J.B. was inconsistent as to whether the abuse only occurred at 236 Central Avenue or occurred at both apartments on Central Avenue and in Texas. At trial, Sergeant Wine was never asked if J.B. reported the abuse occurring in Texas, and, at trial, J.B. was never asked if the abuse occurred in Texas. Furthermore, the defense counsel’s questions and Sergeant Wine’s testimony concerning the Central Avenue apartments imply that J.B. moved to 689 Central Avenue after living at 236 Central Avenue. But, S.B. testified that they lived at 689 Central Avenue before moving to 236 Central Avenue. Additionally, J.B. told Dr. Atzemis that the abuse occurred in Texas and two places in Jefferson parish, which is consistent with J.B.’s statement in the CAC interview. At trial, when asked where the abuse occurred, J.B. just replied, “On Central.”

Third, defendant argues that J.B. made inconsistent statements regarding whether a pornographic video was playing on the TV. Defendant contends that J.B. statements are inconsistent because J.B. stated that he had been “exposed to porn” in the CAC interview, but then told Dr. Atzemis he couldn’t remember if a pornographic video was on the TV. At trial, the defense attorney asked Dr. Atzemis how J.B. responded when asked if anyone had ever exposed him to pornography. Dr. Atzemis responded,

So I asked. “Did anyone ever show you a video or something like that?” And he said, “Uhm, I think.” And I said, “Tell me about that.” And he goes, “Well, it’s hard to remember.” And I said, “Okay. Well, what makes you think that someone showed you something?” And then he said, “Uhm, I don’t know.”

The defense attorney then stated, “. at that point you pretty much concluded that you didn’t feel he had been” exposed to pornography. And, Dr. Atzemis responded, “No. I didn’t come to an assumption that he had been exposed to pornography. I think it’s (sic) potential but I didn’t conclude that that happened.” The record shows that Dr. Atzemis didn’t reach a conclusion as to whether J.B. had | ipbeen exposed to pornography. J.B. testified at trial that sometimes “there was pornography on the T.V.” during the abuse, which was consistent with J.B.’s statement in the CAC interview.

Finally, defendant argues that J.B.’s statement regarding a washing machine did not make sense. J.B. told Dr. Atzemis that defendant put the rag in the washing machine, but defendant contends they never lived anywhere with a washing machine in the apartment. Defendant is referring to Dr. Atzemis’ testimony on cross-examination, in which she states, “I asked him if anything came out of the private area, and he said that there was white stuff that came out. I asked where it went, and he said onto I think a wash rag or rag of some kind that then went into the washing machine.” Defendant contends this illustrates that J.B. is not telling the truth because there was not a washing machine in the apartment. However, S.B. testified that there was not a washing machine in either of the Central Avenue apartments, but that 236 Central Avenue did have a small facility downstairs with a washing machine.

Defendant contends that J.B.’s testimony indicates that he was coached. Defendant argues that, during the CAC interview, J.B. was unable to describe sex, yet J.B. made use of an adult phrase when he stated that he had been “exposed to porn.” Defendant argues that “the use of such an adult phrase ought to have implied coaching to the forensic interviewer if she was fact gathering in a neutral manner.”

Defendant further argues that J.B.’s biological father, Ja.B., was angry with defendant, suggesting that Ja.B. fabricated the allegations of abuse in retaliation. Ja.B. was released from prison in 2002 and was on parole in 2003. Ja.B. went to Mississippi in violation of his parole, and defendant reported Ja.B. to his parole officer. Defendant contends that Ja.B. was incensed, and suggests that it was not a | ^coincidence that J.B. did not report being sexually abused until after living with his father for a few months.

At trial, Ja.B. testified that he did go to Mississippi in violation of his parole, and defendant had informed his parole officer. But, Ja.B. stated that it did not cause him any problems with his parole. He also denied ever telling defendant that he was going to get him back. Defendant testified that in 2003, he informed Ja.B.’s parole officer that Ja.B. had been going to Mississippi in violation of his parole. Defendant testified that Ja.B. was upset, and he “threatened to get even with me, but that was quite awhile ago.”

In State v. Singleton, 05-622, p. 5-7 (La.App. 5 Cir. 1/31/06), 922 So.2d 647, 650-51, the defendant challenged his conviction for aggravated rape on the basis that the only evidence was the victim’s unbelievable testimony. This Court admitted there were some inconsistencies regarding when the victim told her mother about the incident, but concluded that the victim consistently described the details of the incident through her statements, interviews, and her testimony. This Court concluded the trier of fact made a credibility determination, which is not to be reassessed on appeal, and that the evidence proved the essential elements of aggravated rape beyond a reasonable doubt. Singleton, 05-622 at 7, 922 So.2d at 651.

Furthermore, in State v. Gaddis, 07-395, pp. 11-12 (La.App. 5 Cir. 11/13/07), 973 So.2d 21, 27-28, writ denied, 08-156 (La.10/10/08), 993 So.2d 1277, the defendant argued the victims’ testimony should not have been believed because of inconsistencies. This Court acknowledged there were some differences in what one of the victims said during her CAC interview and her trial testimony. Citing State v. Simmons, 03-20, p. 14 (La.App. 5 Cir. 4/29/03), 845 So.2d 1249, 1258, this Court noted that the discrepancies were not necessarily indicative of untruthfulness or incompetence. Gaddis, 07-395 at 11, 845 So.2d at 27 n. 14. This Court concluded that despite some slight inconsistencies regarding some of the details, both victims described numerous events that were substantially the same. This Court found the jury’s decision to believe the victims’ account of the events over the defendant’s testimony was rational and that the State proved the essential elements of aggravated rape beyond a reasonable doubt.

In the present case, although there may have been some slight inconsistencies in J.B.’s testimony, interviews and statements, the jury made a credibility determination and chose to believe the victim. A review of the record reflects that the jury’s decision to believe the victim over the defendant was rational. Thus, viewing the evidence in the light most favorable to the prosecution, we find the State proved the essential elements of aggravated rape and aggravated incest beyond a reasonable doubt.

Defendant next argues that the trial judge’s imposition of consecutive sentences was excessive. The trial judge sentenced defendant to life imprisonment for the aggravated rape conviction and an additional 20 years imprisonment for the aggravated incest conviction. The sentences were ordered to run consecutively. Defendant contends that the trial judge did not provide an explanation for the consecutive nature of the sentences, and that it is “on principle excessive.”

The State responds that the trial court did not impose a constitutionally excessive sentence, arguing that the trial judge articulated reasons for the sentences imposed and that the record more than justifies those sentences. The State argues:

The defendant repeatedly sexually victimized a very young child. Rather than protecting the stepson left in his care, the defendant |1sexploited the victim for his own sexual gratification on multiple occasions and threatened to kill the child if he told anyone. The defendant’s actions caused serious emotional and behavioral issues to manifest in the boy’s conduct years later. Furthermore, the defendant had an extensive criminal history with multiple convictions.

Thus, the State argues that, “given the background of the defendant and the nature and circumstances of his offenses,” the consecutive sentences were not constitutionally excessive.

Additionally, the State argues that, even if this Court were to find the consecutive nature of the sentences excessive, remand would serve no practical purpose since defendant is already serving a life sentence without benefit of parole, probation or suspension of sentence on his aggravated rape conviction, citing State v. Bradley, 02-1130 (La.App. 5 Cir. 3/11/03), 844 So.2d 115.

A sentence is excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1219.

In reviewing a sentence for ex-cessiveness, this Court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentence. State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, 1056, writ denied, 99-3148 (La.4/20/00), 760 So.2d 340. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Watts, 99-311, (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145.

Regarding the imposition of consecutive sentences, LSA-C.Cr.P. art. 883 provides, in pertinent part, as follows:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

A trial judge retains discretion to impose consecutive sentences on the basis of factors such as the offender’s past criminal acts, the violent nature of the charged offenses, or the risk that the defendant may pose to the safety of the community. State v. Williams, 08-556, p. 9 (La.App. 5 Cir. 1/13/09), 8 So.3d 3, 9, writ denied, 09-330 (La.11/6/09), 21 So.3d 298. If the trial court elects to impose consecutive sentences for crimes arising from a single course of conduct, it must articulate the reasons it feels the sentence is necessary. Id. Although the imposition of consecutive sentences requires particular justification when the crimes arise from a single course of conduct, consecutive sentences are not necessarily excessive. Id., citing Bradley, supra.

At the sentencing hearing in the present case, the trial judge stated as follows:

All right. Let me just say I’ve considered the sentencing guidelines contained in Article 894.1 of the Code of Criminal Procedure. A jury has found Mr. Miller guilty of aggravated rape and aggravated incest of a child. I think it’s one of the most horrible crimes that can happen. There’s crimes of greed, avarice, anger for money, all kinds of things, but when anything is done to a child (sic) adults are supposed to protect children. This was a very young child, six to eight years old, when it started. I don’t remember the exact dates because there was a fluctuating date, but I think he was six to eight, and eight maybe when it finally ended. And it’s just abhorrent. And I believe that considering the crime itself and your past record, which came out |17during the trial, your number of convictions, any other sentence which I’m going to give would deprecate the seriousness of the crime. And I just hope that the child can overcome, and I know he’s had a really, really rough time in his life, and this has really been traumatic for that young man. I hope he can overcome it and live a life with some peace and dignity.

The trial judge sentenced defendant to 20 years imprisonment at hard labor on the aggravated incest of a child conviction and life imprisonment without benefit of parole, probation or suspension of sentence on the aggravated rape conviction. The trial judge ordered that the sentences run consecutively. Defense counsel orally made a motion to reconsider the sentence, “especially the consecutive nature of the life and twenty-year sentence.” The trial court denied the motion.

LSA-R.S. 14:42(D) sets forth the punishment for aggravated rape. LSA-R.S. 14:42(D)(2)(b) provides in pertinent part, “if the victim was under the age of thirteen years, ...., and if the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”

LSA-R.S 14:78.1(D) provides the punishment for aggravated incest.

At the time the abuse first occurred, LSA-R.S 14:78.1(D) stated: “A person convicted of aggravated incest shall be fined an amount not to exceed fifty thousand dollars, or imprisoned, with or without hard labor, for a term not less than five years nor more than twenty years, or both.”

In the present case, defendant argues the trial judge erred by ordering his sentences to run consecutively, and he properly raised this claim at the sentencing hearing. The aggravated incest and aggravated rape convictions did constitute parts of a common scheme or plan; therefore, under LSA-C.Cr.P. art. 883, the sentences “shall be served concurrently unless the court expressly directs that some or all be served consecutively.”

|18In Williams, supra, this Court stated that LSA-C.Cr.P. art. 883 does not specifically require the trial court state reasons justifying the imposition of a consecutive sentence when the crimes arise out of a single course of conduct. Rather, the history of the jurisprudence reveals that the requirement for articulating specific reasons for imposing a consecutive sentence is based on LSA-C.Cr.P. art. 894.1, which requires a sentencing court to “state for the record the considerations taken into account and the factual basis therefore in imposing sentence.” Over time, the Louisiana Supreme Court has found that the failure to articulate reasons for sentencing pursuant to Article 894.1 does not require a remand when the sentence imposed is not “apparently severe” and there is an adequate factual basis for the sentence contained in the record. Therefore, the failure to articulate specific reasons for imposing a consecutive sentence also does not require a remand if the record provides an adequate factual basis to support a consecutive sentence. Bradley, 02-1130, 844 So.2d at 118.

In the present case, the trial court did not articulate specific reasons for its imposition of consecutive sentences. However, based on this Court’s decision in Williams, a remand is not required if the record provides an adequate factual basis to support a consecutive sentence.

In State v. Puckett, 02-997 (La.App. 5 Cir. 1/28/03), 839 So.2d 226, writ denied, 03-891 (La.12/12/03), 860 So.2d 1148, this Court found that the trial court did not err in ordering defendant’s aggravated oral sexual battery conviction to run consecutively with his aggravated rape conviction. In Puckett, defendant did not challenge the mandatory life sentence for aggravated rape, but argued the consecutive nature of his sentences were excessive because both offenses arose out of the same criminal episode and the trial court failed to state factors justifying the consecutive sentences. Puckett, 02-997, 839 So.2d at 233. This Court found that |19the record supported the consecutive nature of the sentences, stating (1) the record showed defendant had a significant criminal history involving three felony convictions, (2) defendant harassed the victim prior to the incident, (3) the actual incident was cruel and humiliating; and (4) defendant attacked a victim with a compromised mental capacity. Puckett, 02-997, 839 So.2d at 234.

Additionally, in State v. Morgan, 09-694, p. 9 (La.App. 5 Cir. 2/23/10), 34 So.3d 909, 915, this Court held that the trial court did not err in imposing consecutive sentences. This Court found that the record supported consecutive sentences even though the offenses appeared to have been part of defendant’s common scheme or plan to rape his daughter. This Court noted that the trial judge gave his reasons for imposing consecutive sentences, stating that he viewed the rape of a child as “practically the most heinous thing” he had ever seen and the “wors[t] thing that could happen to an individual.” This Court also noted that the trial judge was concerned with the trauma the child suffered as a result of defendant, her biological father, raping her over a period of years. Id.

In the present case, the trial judge stated that the crime was abhorrent, noting the young age of the child and that the abuse had occurred over a period of time, when the child was between the ages of six and eight. The trial judge also indicated that he considered defendant’s past record, in which he had a number of convictions. Additionally, as in Morgan, the trial judge in the present case was concerned with the trauma the child suffered from the abuse.

Based on the foregoing, we find that the record contains an adequate factual basis for the consecutive nature of the sentences.

Accordingly, for the reasons assigned herein, the convictions and sentences of defendant Michael Miller are hereby affirmed.

AFFIRMED

      . The initials of the victim and those of certain family members are used under the authority of LSA-R.S. 46:1844(W)(3), which allows the court to protect the identity of a crime victim who is a minor or a victim of a sex offense. State v. Greene, 06-667, p. 3 (La.App. 5 Cir. 1/30/07), 951 So.2d 1226, 1229, writ denied, 07-0546 (La. 10/26/07), 966 So.2d 571.

      . At trial, J.B. was 14 years old.

      . The address of the second apartment was 236 Central Avenue.

      . In Simmons, this Court recognized that memory lapse and alleged inconsistencies may have resulted from the child-victim’s tender age of five years on the date of the incident, the traumatic nature of the experience, exposure to unfamiliar surroundings, or the method of interrogation. In Simmons, this Court noted that despite some minor inconsistencies in the details surrounding the attack, the victim never wavered in her statement to the police, to her mother, and in her CAC interview, that the defendant put his "thing” in her mouth and "down there.” Simmons, 03-20 at 13-14, 845 So.2d at 1258.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana in the Interest of J.R. and C.F.
    No. 11-CA-351.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Sherry A. Watters, Tilden Greenbaum, III, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellee.
    Fontella Fountain Baker, Attorney at Law, Laplace, LA, John A. Gutierrez, Attorney at Law, Prairieville, LA, for Defendant/Appellant.
    Donald J. Cicet, Attorney at Law, Laplace, LA, for Minor/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

[SC.R. and C.F. are the parents of two minor children. The children were removed from the home by the State. Sixteen months later, the State filed a Petition for Termination of Parental Rights. Following a hearing, the trial court rendered judgment terminating the rights of both parents. They both have appealed. For the following reasons, we affirm.

PROCEDURAL HISTORY AND FACTS

C.R. is mother of two children, J.R., who was born on May 17, 2006, and C.F., Jr., who was born on March 5, 2009. On April 7, 2009, the Department of Children and Family Services (“DCFS”) received a report that C.R. would leave her young children alone to “go out and buy drugs.” On April 16, 2009, the St. John Sheriffs Office notified DCFS that C.R. had been attempting to shoplift in a store. The employees called a relative to come and get her and the children. It was | ¿reported that C.R. could not clearly speak or keep her balance and was thought to be under the influence of narcotics. The children were placed with relatives. On April 22, 2009, a DCFS worker spoke to C.R. and C.R. admitted to taking drugs and acknowledged that she could' not take care of her children while taking drugs “but she needed to feel better.” C.R. was ordered to make a temporary safety plan for the children and they were continued in the care of relatives. On April 28, 2009, DCFS determined that C.R. could not properly care for her children and they would be in danger if they remained in her care. A verbal instanter order was thus issued placing the children into DCFS custody. On April 30, 2009, both parents attended the child in need of care hearing. The father, C.F., was in jail at the time. The court found that the children were in need of care and ordered that the children be maintained in custody of the State. Dates were set for future hearings.

On June 16, 2009, a review hearing was held and the court determined that the children were still in need of care. The DCFS case plan, dated May 28, 2009, was provided and explained to C.R. C.F. was still incarcerated but the DCFS case manager provided a copy of the plan to him and explained its contents. On October 20, 2009, a review hearing was held. C.R. was not present for this hearing because she was in jail. The children were returned to C.F. with supervision by DCFS. The court minutes from that date reflect that after the hearing was over and everyone had left, the drug test results for C.F. came back positive. C.F. was informed that he could get retested and another hearing was set for October 22, 2009. Due to the positive drug screen for C.F., the children were returned to custody of DCFS. C.F. was ordered by the court to cooperate with the case plan. C.R. remained in jail.

|sA review hearing was held on December 8, 2009. C.R. was absent (in jail). C.F. was present. The court minutes reflect that the children would remain in their current placement and the court will follow the DCFS case plan. C.R. was served with the plan in jail. She wrote a letter to the court expressing her promise to comply with the requirements of the case plan.

A permanency hearing was held on April 20, 2010. Both parents were present. The court minutes reflect that the “case plan is reunification with concurrent plan of adoption, subject to what happens in the short term.” On July 20, 2010, a review hearing was held. Both parents were present but C.F. was currently serving time in jail. The court ordered that the status quo be maintained. On August 17, 2010, a review hearing was held. Both parents were present. At that point, the DCFS report recommended adoption rather than reunification. The court minutes reflect that the court adopted the recommendation of DCFS.

On August 20, 2010, DCFS filed a petition for termination of parental rights. The court minutes reflect that both parents appeared in court to deny the allegations of the petition.

The hearing on the termination petition was held on November 16, 2010. Dana McGary, the case manager for DCFS, tes-tifled that the children came in to DCFS’s care on April 28, 2009. They were placed with their maternal grandmother. However, when C.F. got out of jail, he took the children from their grandmother and brought them to live with him and his parents. The children were then placed with a foster family. Ms. McGary testified that she went over the conditions of the case plan with both parents. Both parents were told that their failure to comply with the plan within one year of the children being taken into custody could result in termination of their parental rights.

|fiThe plan required that C.R. complete a substance abuse program, refrain from activities that would cause her to be arrested, resolve her pending legal charges, complete a parenting education course, identify transportation for the children, pay $182 per child per month in support, get her driver’s license back, and attend all family visits, family team conferences, and court hearings. Ms. McGary testified that C.R. was arrested on June 22, 2009. She pled guilty to pending charges and part of her sentence was probation with substance abuse treatment. On October 22, 2009, C.R. entered a drug treatment program. She was dismissed from that program for non-compliance due to alcohol abuse. She was found in contempt and sentenced to serve thirty days in jail. She was then placed in “drug court” which required periodic drug screening. C.R. had positive drug tests on February 2, 2010 and May 10, 2010. After testing positive for drugs on May 10, 2010, C.R. was ordered to go to residential substance abuse treatment. She was enrolled in that program at the time of the termination hearing. Ms. McGary testified that she received a letter indicating that C.R. was in compliance with the residential program. On cross-examination, Ms. McGary testified that C.R. had complied with certain aspects of the plan such as attending parenting education and supplying transportation information. Ms. McGary stated that of forty-seven possible visits with the children, C.R. had attended only twenty-five. She also noted that C.R. never had six consecutive months of employment.

Ms. McGary testified that C.R. paid no support, as required by the case plan, from April 28, 2009 until December 31, 2009. She acknowledged that from January 2010 until May 2010, C.R. was working and had paid over $700 in support. Ms. McGary stated that while the children were in DCFS custody, C.R. was arrested six times for failure to complete her probation and for possession of 17stolen things. Ms. McGary explained that C.R. failed to maintain contact with DCFS and advise them of her location.

With regard to C.F., Ms. McGary testified that he was in jail at the time the children were placed in care of DCFS. The case plan requires that C.F. complete a substance abuse program, refrain from transporting the children using a suspended driver’s license, identify transportation for the children, pay the required fee to lift the suspension on his driver’s license, pay support of $182 per child per month, attend all family visits, family team conferences, and court hearings. Ms. McGary also testified that C.F. did not pay any support up until three weeks before the termination hearing at which time he paid $70 for each child. She acknowledged that he completed a substance abuse program but explained that he entered a program on June 3, 2009 and was dismissed from that program in July 2009 for non-compliance. He re-entered the program on August 25, 2010 just after he was served with the petition for termination. He completed the program on October 27, 2010 and was supposed to participate in after-care. There was no proof however that he has participated in after-care.

Ms. McGary explained that when C.R. completes the residential treatment, she plans on living with C.F. and his parents and two siblings in a three-bedroom trailer and the children would sleep in the bedroom with C.F. Ms. McGary testified that C.F.’s parent’s home had a “history with DCFS” as well as “criminal history.”

Ms. McGary testified that the parents had not demonstrated their ability to meet the basic needs of the children as they both were in and out of jail and there was no stability. The children had been in the care of the same foster family since June 18, 2009 and had bonded with this family who wanted to adopt them. For this reason, DCFS determined that adoption was in the best interest of the children.

IsC.W. testified that he is the guardian of the children and they are doing well in his home. They refer to him as “dad” and to his wife as “mom.” The children came into his home when one child was three months old and the other child was three years old. C.W. testified that he feels as though these children are his own and he intends to adopt them.

C.F. testified that in order to comply with the plan, he paid two large fines within the past month. He explained that he earned the money to pay for these fines by working when he was released from prison in August 2010. He stated that he had been in jail a total of 65 days since the children were taken into custody and that he had not paid support because he was not working. He explained that he was currently working and was trying to get “caught up with support.” He testified that he wants the custody of the children returned to him and that he had found a home where they could live.

L.D., a CASA volunteer, testified that she was assigned to this ease and had been following these children since August 1, 2009. She supported the DCFS’s recommendation of adoption. L.D. explained that C.R. and C.F. had a total and consistent disregard for the law as evidenced by their failure to attend court dates, which resulted in the issuance of attachments. She noted that C.R. had had many passes from her residential treatment program, yet she failed to attend two recent court dates. She further stated that these parents had only recently attempted to comply with court orders.

At the conclusion of the hearing, the trial court took the matter under advisement. He then rendered judgment terminating parental rights, accompanied by extensive reasons for judgment. The court noted the failure of the parents to comply with the case plan as described in the testimony of Ms. McGary. The court also noted that while C.R. had complied with certain aspects of the plan in that she | flCompleted a parenting program and furnished transportation providers for the children, she lost her job because she tested positive for drugs resulting in her placement in a residential substance abuse program. This timely appeal followed.

LAW AND DISCUSSION

The petition alleged that C.R.’s rights should be terminated under La. Ch.C. art. 1015(4) and (5), and that C.F.’s rights should be terminated under La. Ch.C. art. 1015(3), (4) and (5). This article provides in pertinent part:

The grounds for termination of parental rights are:

(3)Misconduct of the parent toward this child or any other child of the parent or any other child in his household which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
(j) Abuse or neglect after the child is returned to the parent’s care and custody while under department supervision, when the child had previously been removed for his safety from the parent pursuant to a disposition judgment in a child in need of care proceeding.
(4) Abandonment of the child by placing him in the physical custody of a non-parent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
* ⅜ *
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(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|incourt 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.

On appeal, C.R. argues that the trial court erred in terminating her parental rights due to “no substantial parental compliance with the case plan.” C.R. contends that her efforts in the eleven months prior to termination show a significant improvement and reformation, noting that she was employed for the five months prior to the time she enrolled in an inpatient substance abuse program, had paid support for the children, completed parenting classes and attended many family visits.

C.F. also argues that the trial judge erred in finding that he was not in substantial compliance with the case plan. His argument focuses on his completion of drug rehabilitation. He contends that this was the most important element of the plan and that although other portions of the plan were “beneficial for the custody of the children, they were not necessary.” He reasons that the other provisions of the plan did not affect the safety of the children.

While parents have a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with their children, the State has a legitimate interest in limiting or terminating parental rights under certain conditions. State in the Interest of A.C., 93-1125 (La.1/27/94), 643 So.2d 719, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291, 132 L.Ed.2d 292 (1995). To terminate parental rights, one of the grounds for termination set forth in La. Ch.C. art. 1015 must be established by clear and convincing evidence, and termination must be found to be in the child’s best interest. State ex rel. D.L.R., 2008-1541 (La.12/12/08), 998 So.2d 681, 688.

lnThe manifest error standard applies to appellate review of the trial court’s findings as to whether parental rights should be terminated. State ex rel. K.G., 2002-2886 (La.3/18/03), 841 So.2d 759, 762. Whether a parent has complied with a case plan is a question of fact that may not be set aside in the absence of manifest error or unless clearly wrong. State ex rel. J.T. v. J.M., 46,090 (La.App. 2 Cir. 12/12/10), 56 So.3d 1009, 1012. The department need only establish one of the enumerated grounds for termination set forth in La. Ch.C. art. 1015. Id. at 1016.

A review of the record indicates there was no error in the trial court’s ruling. In addition to Ms. McGary’s testimony as discussed above, reports to the trial judge and all of the case plans were filed into the record prior to the hearings and corroborate Ms. McGary’s testimony. A review of the case plan filed into the record dated April 15, 2010 indicates that C.R. had made some progress in complying with the case plan. She was currently attending St. Charles drug court but had one relapse and two positive screenings. C.R. had failed to resolve legal issues and refrain from activities that result in her arrest. According to this case plan, C.R. was last arrested on March 5, 2009. She failed to attend the family team conference on October 8, 2009 and had not attended all court hearings due to incarceration. She had completed the parenting classes while seeking substance abuse treatment and she was paying child support. C.F. had also made some progress but had not completed substance abuse treatment and had failed to comply with random drug screens. C.F. had not resolved his legal issues. C.F. had failed to attend the family team conference on November 20, 2009 and had failed to pay any support for the children. This plan was signed by both parents. At this hearing, DCFS requested and was granted a three-month extension to continue to assess the consistency in the family’s progress.

112The report filed into the record on July 15, 2010 for the status review hearing on July 20, 2010 indicates that on May 12, 2010, C.R. was arrested for a drug violation and “her repeated failure to secure a Doctor’s release” to enter a residential drug rehabilitation program. C.R. was originally ordered to enroll in a residential drug rehabilitation program on January 27, 2010, but C.R. had to obtain a release from her doctor and “clear up all attachments and warrants” prior to being accepted into the program. She was finally released from jail on June 30, 2009 to enter the six-month residential drug rehabilitation program. At that time, she had seven open warrants and attachments and her driver’s license had been suspended since 2004. The record shows that as of July 10, 2010, C.F. had been attending a clinic for substance abuse but repeatedly failed to bring the money to pay for his drug test. The test cost $2.00. He was held in contempt of court for missing his probation review in St. Charles Parish, was arrested on April 29, 2010 for contempt, and on May 6, 2010 was sentenced to 30 days in prison. C.F. was released from prison on May 25, 2010, and was given a 90-day suspended sentence and placed on two years of probation. On May 17, 2010, C.F. missed a court date in St. John Parish for multiple traffic offenses. On July 7, 2010, C.F. was arrested for probation violation and sentenced to 30 days in jail. This report concluded that the parents have not made progress with their case plan, have not completed substance abuse treatment, have not obtained valid driver’s licenses, ear insurance or maintained stable housing with working utilities, have not developed a back-up plan in the event of relapse, and were not paying support for their children or adhering to the recommendations made. The report recommended that the children remain in foster care with the goal of adoption and stated that the current caregivers are willing to adopt the children.

11sThe testimony of Ms. McGary and L.D., as well as the reports and case plan reviews, show by clear and convincing evidence that these parents abandoned their children by failing to provide significant contributions to the children’s care and support for any period of six consecutive months. La. Ch.C. art. 1015(4)(b). Additionally, the evidence submitted and testimony adduced at trial show by clear and convincing evidence that at least one year has elapsed since the children were removed from the parents’ custody pursuant to a court order, there has been no substantial parental compliance with the case plan for services which was filed and approved by the court as necessary for the safe return of the children, and there is no reasonable expectation of significant improvement in the parents’ condition or conduct in the near future, considering the age of the children and their need for a safe, stable, and permanent home. La. Ch.C. art. 1015(5). Further, the testimony at trial and reports filed into the record show that the children were thriving with current caregivers who were willing to adopt the children and supports the trial court’s finding that termination of the parents’ rights is in the best interest of these children.

Both parents argue that they were unable to provide support due in part to their incarceration. However, imprisonment is not an excuse to escape parental obligations. State ex rel. C.M.O., 2004-1780 (La.App. 4th Cir.4/13/05), 901 So.2d 1168, 1171. Nor is incarceration a defense to failure to support one’s children in a termination of parental rights case, particularly because incarceration results from one’s own actions. State ex rel. M.H. v. K.W.H., 40,332 (La.App.2d Cir.9/23/05), 912 So.2d 88, 92. Additionally, the minimal support payments made by C.F. were made after the termination petition was filed. La. Ch.C. art. 1015(4)(b) lists a ground for termination for failure to support “as of the time the petition is filed.” Thus, support payments made after the filing of a termination petition are not relevant to cure the abandonment alleged under La. Ch.C. art. 1015. State ex rel. A.D.S., 04-0250 (La.App. 4 Cir. 9/29/04), 888 So.2d 913, 918.

C.R. raises two additional assignments of error that are also without merit. C.R. argues that DCFS failed to develop a case plan within the 60-day time period provided for in La. Ch.C. art. 673. However, the record indicates that the children were removed from the home on April 28, 2009 and the first case plan was dated May 28, 2009 and filed into the record on June 2, 2010. Additionally, this case plan was signed by C.R. C.R. also argues that the trial court erred in excluding from evidence a letter from the residential treatment facility where she was enrolled at the time of the termination hearing. The basis for this argument is unclear as this letter was admitted and is contained in the evidence envelope of the appellate record.

C.F. raises additional assignments of error that are likewise without merit. C.F. contends that the trial court failed to prepare a written judgment following the child in need of care hearing. However, the lack of a written judgment in finding the child in need of care does not defeat a termination that was proved by clear and convincing evidence. La. Ch.C. art. 1015(5) requires that the court approve the case plan. The record shows the court repeatedly approved the case plans filed by DCFS. C.F. also argues that the court’s failure to comply with the procedural requirements in the hearings leading up to the termination hearing caused him to become “very confused and unfocused on what requirements must be met first out of the litany of requirements given to him.” Ms. McGary testified that she met with C.F. and explained the requirements of the case plan and that failure to comply with the case plan could result in termination of his parental rights. The record reflects that C.F. was in court and represented by counsel for hearings held on April 30, 2009, June 16, 2009, October 20, 2009, October 22, 2009, December |1B8, 2009, April 20, 2010, July 20, 2010, August 17, 2010, September 21, 2010 and November 16, 2010. At no time did C.F. object to the proceedings or indicate that he did not understand what was required for him to regain custody of his children. To the contrary, his testimony at the termination hearing and recent actions of paying fines and minimal support indicate that he knew what was required of him to substantially comply with the case plan.

C.F. repeatedly argues that he complied with the case plan in that he completed substance abuse treatment and had no positive drug tests in 2010. However, the record shows that C.F. often failed to bring the minimal payment that was required for the drug tests, thus showing his failure to substantially comply with the case plan. Moreover, the record reflects that the children were returned to C.F. on October 20, 2009 only to be removed two days later due to C.F.’s testing positive for drugs. This is clear evidence of misconduct by C.F. towards the children after they were returned to his custody while under DCFS supervision, when the children had previously been removed from the parent. La. Ch.C. art. 1015(3)(j). C.F. also complains that the trial court made no finding that there was any proof of removal under La. Ch.C. art. 1015(3). This argument is also without merit because proof of any one of the grounds listed in La. Ch.C. art. 1015 is sufficient to terminate a parent’s rights.

Finally, C.F. argues the trial court erred in excluding evidence of a paycheck from Automotive Enterprises to show that he was employed. The basis for this argument is unclear as the evidence in the appellate record contains a check dated November 5, 2010 from Automotive Enterprises payable to C.F. in the amount of $231.00.

In sum, after a thorough review of the record and the evidence in this case, we find that DCFS proved by clear and convincing evidence that the parents failed |1fito substantially comply with the case plan and that the trial court correctly terminated the parental rights of C.R. and C.F. The fact that C.R. finally enrolled in a residential drug treatment program over a year after the children were removed from her care and that C.F. had completed a short-term outpatient substance abuse program does not show substantial compliance with the case plan. Further, termination of these parents’ parental rights is in the best interest of these young children who have bonded with the caregivers with whom they have been living for over seventeen months. Adults can take years to improve their functioning but developing children do not have such time, as children’s lives are significantly disrupted while their parents are attempting to deal with their own problems. State in the Interest of C.D., 558 So.2d 806 (La.App. 5 Cir.1990).

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . The parents and the children have been represented by counsel throughout these proceedings.

      . She also had altered creatinine levels on April 7, 2010 and April 21, 2010. Ms. McGary explained that this is the result of C.F. trying to flush out her system.