text:
    In re Chanci Shermaine SHAW.
    No. 2014-B-0751.
    Supreme Court of Louisiana.
    June 20, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| Nhis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Chanci Shermaine Shaw, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Shaw, 11-1967 (La.1/11/12), 82 So.3d 261.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In January 2012, the ODC filed formal charges against respondent in 12-DB-001. Respondent answered the formal charges and denied any allegations of misconduct. At respondent’s request, the matter proceeded to a hearing in mitigation, conducted by the hearing committee in May 2012.

In June 2013, the ODC filed a second set of formal charges against respondent in 13-DB-026. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

|2Thereafter, the two sets of formal charges were consolidated by order of the disciplinary board. The board subsequently filed in this court a single recommendation of discipline encompassing both sets of formal charges.

12-DB-001

In April 2004, Christine Fontenot hired respondent to represent her in a personal injury claim. Thereafter, respondent failed to keep Ms. Fontenot informed of the progress of the representation. Respondent also filed suit on behalf of Ms. Fontenot after prescription had run, entered into a settlement without advising Ms. Fontenot that she had done so, and failed to pay Ms. Fontenot any of the settlement proceeds or provide her with an accounting of the settlement.

In her written response to the disciplinary complaint, respondent alleged the matter settled for $10,000 with Ms. Fontenot’s approval and consent. However, counsel for the defendant advised the matter settled instead for $12,500. Respondent has not accounted to the ODC for the settlement proceeds, despite being asked to do so. Respondent has not cooperated with the ODC in the investigation or responded to the ODC’s request for additional information.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2 (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4(a) (failure to communicate with a client), 1.4(b) (a lawyer shall give a client sufficient information to participate intelligently in decisions concerning the objectives of the representation), 1.15(a) (safekeeping property of clients and third persons), 1.15(d) (a lawyer shall promptly deliver to a client or third person any funds or other property that the client or third person is entitled to receive), 1.15(e) (when in the course of representation a lawyer is in possession of property in which two or more persons claim interests, the property shall be kept separate until |sthe dispute is resolved), 1.16(d) (obligations upon termination of the representation), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Mitigation Hearing

As previously indicated, respondent answered the formal charges in 12-DB-001. She denied any misconduct, but requested a hearing in mitigation, which was conducted by the hearing committee in May 2012. Respondent did not appear at the hearing and was not represented by counsel. The ODC introduced documentary evidence and called witnesses to testify before the committee.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee determined the factual allegations of the formal charges were proven by clear and convincing evidence. The committee also determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee further determined the applicable baseline sanction in this matter is suspension. In aggravation, the committee recognized respondent’s pattern of failing to cooperate with the ODC throughout these proceedings. It found no mitigating factors present.

Considering respondent’s misconduct in light of the prior jurisprudence of this court, the committee recommended respondent be suspended from the practice of law for one year and one day. The committee also recommended that | ¿respondent attend the Louisiana State Bar Association’s Ethics School prior to seeking reinstatement. The committee further recommended respondent make restitution to Ms. Fontenot in the amount of $5,722, the amount of Ms. Fontenot’s unpaid medical bills, plus legal interest.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

13-DB-026

On November 17, 2011, a grand jury in East Baton Rouge Parish returned an indictment charging respondent with two counts of felony theft by fraud and two counts of filing false public records. State v. Shaw, No. 11-11-0604 on the docket of the 19th Judicial District Court for the Parish of East Baton Rouge. On May 2, 2013, respondent pleaded guilty to Count I of the indictment, which charged her with theft by fraud of fifteen hundred dollars or more, a felony, in violation of La. R.S. 14:67(A)(B)(1). Count I of the indictment reads as follows:

On or about December 1, 2007, through and/or including on or about November 17, 2011, the defendant herein committed the Theft of Fraud of fifteen hundred ($1,500) dollars or more, in that the defendant knowingly submitted false information for the purpose of obtaining greater compensation than that to which Helping Hands and the defendant were legally entitled for furnishing services when the defendant falsified a Medicaid “provider agreement” application to conceal the true ownership of Helping Hands of South Louisiana, Inc., criminal convictions of one of the owners, disciplinary [ ^action, and previous enrollment information, to obtain a Medicaid provider number. The defendant certified that to the best of her knowledge, information contained in the provider agreement is accurate and complete and agreed that concealment of a material fact may result in prosecution under applicable federal and state laws. The defendant, with intent to deprive the State of Louisiana permanently of these monies, used the illegally obtained Medicaid provider number to fraudulently bill the Medicaid Program and received compensation through fraudulent means, in violation of La. R.S. 14:67(A)(B)(1).

The remaining counts of the indictment were dismissed pursuant to a plea agreement with the state. Respondent was sentenced to serve five years at hard labor, suspended, and placed on five years active supervised probation. As a condition of her probation, respondent was ordered to make restitution to the Louisiana Department of Health and Hospitals in the amount of $46,992.16 and to the Department of Justice in the amount of $18,350 for the cost of her prosecution.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c).

Hearing Committee Report

As previously indicated, respondent failed to file an answer to the formal charges in 13-DB-026, and consequently, the factual allegations contained therein were deemed admitted.

After considering the ABA’s Standards for Imposing Lawyer Sanctions, the hearing committee determined the applicable baseline sanction is disbarment. In aggravation, the committee recognized a dishonest or selfish motive. It found no mitigating factors.

| fiConsidering respondent’s misconduct in light of the prior jurisprudence of this court, as well as the aggravating circumstances and lack of mitigating factors, the committee determined an upward deviation from the baseline sanction is appropriate. Accordingly, the committee recommended respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

12-DB-001 & 13-DB-026

After reviewing the consolidated matters, the disciplinary board adopted the findings and conclusions of the hearing committees. The board determined the record supports a finding that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board further determined respondent knowingly and intentionally violated duties owed to her client, the public, the legal system, and the legal profession. Her misconduct resulted in actual injury to her client and the legal profession as well as very substantial injury to the public by way of Medicaid fraud. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is disbarment.

In aggravation, the board recognized a dishonest or selfish motive, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, indifference to making restitution, and illegal conduct. It found no mitigating factors.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended respondent be permanently disbarred. The board also recommended respondent be |7ordered to pay restitution to Ms. Fontenot in the amount of $5,722. The board further recommended respondent be assessed with all costs and expenses of these proceedings.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed in a given case depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Here, respondent stands convicted of theft by fraud. This crime is a felony under state law and clearly warrants serious discipline. The only issue to be resolved by this court is the appropriate sanction for respondent’s misconduct.

The documentary evidence submitted by the ODC in this case reflects that respondent obtained certification of Helping Hands of South Louisiana, Inc. as an eligible Medicaid provider based upon a false certification of the ownership of the company. Between 2007 and 2011, she used the illegally obtained Medicaid provider number to fraudulently bill the Medicaid program and received compensation through fraudulent means. Under these facts, and considering |sGuideline 6 (insurance fraud) of the permanent disbarment guidelines, permanent disbarment is warranted.

Because the imposition of permanent disbarment is the most severe sanction that can be imposed on respondent, having the effect of forever removing her from the bar of this state, we find it is not necessary to discuss at length the misconduct charged in the Fontenot matter. See In re: Sheffield, 07-0288 (La.6/15/07), 958 So.2d 661; In re: Stephens, 07-0180 (La.4/27/07), 955 So.2d 140. Nevertheless, we do find the misconduct was proven by clear and convincing evidence, and we will order respondent to make restitution to Ms. Fontenot.

Based on this reasoning, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that the name of Chanci Shermaine Shaw, Louisiana Bar Roll number 27641, be stricken from the roll of attorneys and that her license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. It is further ordered that respondent shall make restitution to Christine Fontenot. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . La. R.S. 14:67 provides:
      A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
      B. (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of one thousand five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Margrett FORD.
    No. 2014-B-0831.
    Supreme Court of Louisiana.
    June 20, 2014.
    See also, In re Ford, 98 So.3d 269.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| j This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Margrett Ford, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Respondent was admitted to the practice of law in Louisiana in 1968. In 2005, the court considered a joint petition for consent discipline filed by respondent and the ODC, wherein the parties stipulated that respondent neglected a legal matter, failed to communicate with a client, and failed to refund an unearned fee. The court accepted the petition for consent discipline and suspended respondent from the practice of law for one year and one day, fully deferred, subject to two years of supervised probation with conditions. In re: Ford, 05-1328 (La.6/24/05), 905 So.2d 287 (“Ford I”). In 2008, respondent and the ODC submitted a joint motion to extend respondent’s probation based on her failure to comply with the terms of her probation and her failure to cooperate with the ODC in its investigation of a disciplinary complaint. The court granted the motion and ordered that respondent’s probation be extended for one year. In re: Ford, 08-0274 (La.4/4/08), 978 So.2d 287 (“Ford II ”).

In March 2010, the court suspended respondent for one year and one day for neglecting a legal matter, failing to communicate with clients, failing to refund an | ¡¡unearned fee, making false statements to the disciplinary board and the ODC, and failing to cooperate with the ODC in its investigation. In re: Ford, 09-2524 (La.3/26/10), 30 So.3d 742 (“Ford III”). In September 2012, the court disbarred respondent for neglecting legal matters, failing to communicate with clients, failing to return unearned fees and costs, failing to withdraw from the representation of her clients after her suspension in Ford III, and failing to cooperate with the ODC in its investigation. In re: Ford, 12-1016 (La.9/12/12), 98 So.3d 269 (“Ford IV”). Respondent remains disbarred from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

FORMAL CHARGES

Count I — The Cutliff Matter

Donnie Cutliff paid respondent $900 to complete the succession of her father, a proceeding which had been initiated by-Ms. Cutliffs mother before she died in 2007. Pursuant to the representation, respondent filed a judgment of possession, which was denied after the judge determined it was not filed properly. Thereafter, Ms. Cutliff heard nothing from respondent and the matter did not move forward. In October 2012, Ms. Cutliff filed a disciplinary complaint against respondent. Respondent’s response to the complaint was due to the ODC by November 23, 2012. However, respondent failed to answer the complaint, necessitating the issuance of a subpoena for her sworn statement. Despite being personally served with the subpoena, respondent failed to appear for the sworn statement as scheduled.

| $Count II — The Mitchell Matter

In July 2010, Ouida Anderson Mitchell paid respondent $500 to probate the succession of her sister, who died in July 2009. Thereafter, respondent failed to complete the legal work for which she was hired. In October 2012, Ms. Mitchell filed a disciplinary complaint against respondent. Respondent’s response to the complaint was due to the ODC by November 23, 2012. However, respondent failed to answer the complaint, necessitating the issuance of a subpoena for her sworn statement. Despite being personally served with the subpoena, respondent failed to appear for the sworn statement as scheduled.

DISCIPLINARY PROCEEDINGS

In May 2013, the ODC filed two counts of formal charges against respondent, alleging that her conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4(a)(3) (failure to keep a client reasonably informed about the status of a matter), 1.5(f)(5) (failure to refund an unearned fee), 1.16(a)(1) (a lawyer shall withdraw from the representation of a client if the representation will result in a violation of the rules of professional conduct or other law), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct).

Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

_[4Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee adopted the deemed admitted factual allegations of the formal charges as its factual findings. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

The committee determined respondent knowingly violated duties owed to her clients and the legal profession. Respondent’s neglect delayed the resolution of her clients’ legal matters, resulting in actual harm. Respondent also caused actual harm to her clients by failing to return unearned fees. Her failure to cooperate in the disciplinary investigation harmed the legal profession by forcing the ODC to unnecessarily expend its limited resources trying to sufficiently investigate these matters. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction for respondent’s misconduct is disbarment.

The committee found the following aggravating factors are present: a prior disciplinary record, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, substantial experience in the practice of law (admitted 1968), and indifference to making restitution. The committee found no mitigating factors present.

Recognizing the conduct at issue occurred during the same time frame as the misconduct for which respondent was disbarred in 2012, the committee recommended respondent be adjudged guilty of additional violations of the Rules of Professional Conduct, and that these violations be added to her record for consideration if and when she seeks readmission to the practice of law. The committee further recommended respondent be ordered to pay restitution to her former clients and that she be assessed with all costs of these proceedings.

IN either respondent nor the ODC filed an objection to the hearing committee’s report.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings in this deemed admitted matter are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations. The board also found respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined respondent knowingly, if not intentionally, violated duties owed to her clients and the legal profession. She caused actual injury to her clients by failing to complete their legal matters and by failing to refund a total of $1,400 in unearned fees. Furthermore, respondent’s failure to cooperate with the ODC caused that office to expend additional resources. The board agreed with the committee that the baseline sanction is disbarment. The board also agreed with the aggravating factors found by the committee and found no mitigating factors present.

Turning to the issue of an appropriate sanction, the board determined respondent’s substantive misconduct occurred during the same time period as the misconduct subject of Ford IV. Accordingly, the board determined that the approach of Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), is applicable to the substantive misconduct in this case. However, the board pointed out that respondent’s failure to cooperate occurred outside of the time period subject to the Chatelain analysis. Therefore, for respondent’s misconduct in failing to cooperate with the ODC in its investigation, the board recommended the |fitime period in which respondent can apply for readmission be extended by one year. Finally, the board recommended respondent be assessed with all costs of these proceedings and be ordered to make restitution to her former clients.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The record in this deemed admitted matter supports a finding that respondent neglected legal matters, failed to communicate with clients, and failed to refund unearned fees. Respondent also failed to cooperate with the ODC in its investigation of the disciplinary complaints filed against her. Accordingly, we 17agree respondent violated the Rules of Professional Conduct as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987).

The record further supports a finding that respondent knowingly violated duties owed to her clients and the legal profession, causing actual harm. We agree with the hearing committee and the disciplinary board that the baseline sanction for respondent’s misconduct is disbarment. The record supports the aggravating factors found by the hearing committee and the board. There are no mitigating factors present.

Turning to the issue of an appropriate sanction, we note the substantive misconduct consists of the abandonment of two client matters. This misconduct is similar to Ford IV, which included abandonment of three client matters. Had the instant charges been considered simultaneously with the charges forming the basis of Ford IV, it would have only reinforced our view that disbarment was warranted to sanction respondent for her misconduct. Under the circumstances, we agree the substantive misconduct in the instant matter should be considered if and when respondent applies for readmission from her disbarment.

However, respondent’s failure to cooperate with the ODC commenced in November 2012, two months after we rendered our judgment in Ford IV Therefore, additional discipline is appropriate for these charges. In In re: Boudreau, 03-1890 (La.12/3/03), 860 So.2d 1119, we considered a case wherein an attorney’s substantive misconduct occurred in the same general time frame as |8the attorney’s previous misconduct, but the failure to cooperate with the ODC occurred after the attorney was disciplined. Although we applied. a Chatelain analysis to the substantive misconduct, we imposed a separate six-month suspension for the failure to cooperate charge. In light of Boudreau, we agree that it is appropriate to extend the time period in which respondent can apply for readmission.

Accordingly, we will adopt the board’s recommendation. For the substantive misconduct in the Cutliff and Mitchell matters, we will apply Chatelain and adjudge respondent guilty of additional violations warranting discipline, which may be considered should she apply for readmission to the practice of law. For her failure to cooperate, we will extend by one year the time period in which respondent can apply for readmission. We will also order respondent to make restitution to her former clients.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Margrett Ford, Louisiana Bar Roll number 5690, be and she hereby is adjudged guilty of additional violations warranting discipline, which shall be considered in the event she seeks readmission after becoming eligible to do so. It is further ordered that for the misconduct which occurred outside of the time frame of In re: Ford, 12-1016 (La.9/12/12), 98 So.3d 269, the minimum period for seeking readmission from respondent’s disbarment shall be extended for a period of one year. It is further ordered that respondent shall make restitution to Donnie Cutliff and Ouida Anderson Mitchell. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest |9to commence thirty days from the date of finality of this court’s judgment until paid.

      . In Chatelain, this court observed that when a second attorney disciplinary proceeding involves conduct that occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.


author: JOHNSON, C.J.,

text:
    STATE of Louisiana v. Reginald WILLIAMS.
    No. 2013-OK-0100.
    Supreme Court of Louisiana.
    June 20, 2014.
    JOHNSON, C.J., dissents and would deny the writ with reasons.
   JOHNSON, C.J.,

dissents and would deny the writ.

1,1 respectfully dissent. On June 25, 2012, the United States Supreme Court issued an opinion in Miller v. Alabama, which held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” Miller v. Alabama, 567 U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. I dissented from this court’s ruling in Tate, finding that Miller announced a new rule of criminal procedure that is substantive and consequently should apply retroactively. For the same reasons expressed in my dissent in Tate, I must dissent in this case.


text:
    STATE of Louisiana v. Nelson CHAMBERS.
    No. 2014-K-0091.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Chambers, Nelson; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. D, No. CR 125227; to the Court of Appeal, Third Circuit, No. KA 13-637.

Denied.


text:
    STATE of Louisiana v. Tyrone MITCHELL.
    No. 2014-KO-0102.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Mitchell, Tyrone; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Vermilion, 15th Judicial District Court Div. C, No. 53423-B; to the Court of Appeal, Third Circuit, No. 13-426.

Denied.

JOHNSON, C.J., and HUGHES, J., would grant.


text:
    STATE of Louisiana v. Chadwick Joseph BOUDREAUX.
    No. 2014-K-0115.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Boudreaux, Chadwick Joseph;— Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 12-5509; to the Court of Appeal, Fifth Circuit, No. 13-KA-394.

Denied.


text:
    STATE of Louisiana v. William Lee WALLACE.
    No. 2014-KO-0159.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Wallace, William Lee; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 01 — 11— 0577; to the Court of Appeal, First Circuit, No. 2012-KA 2023.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Bernard Franklin VERRETT.
    No. 2014-KO-0168.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Verrett, Bernard Franklin; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 586,959; to the Court of Appeal, First Circuit, No. 2013 KA 0632.

Denied.


text:
    STATE of Louisiana v. Travis S. BROWN.
    No. 2014-K-0194.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Brown, Travis S.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 496700; to the Court of Appeal, First’ Circuit, No. 2013 KA 0814.

Denied.


text:
    AMERICAS INSURANCE COMPANY v. Verna Cole CHATMAN.
    No. 2014-C-0332.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Americas Insurance Company;— Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. E, No. 100,488; to the Court of Appeal, First Circuit, No. 2013 CA 0954.

Denied.

VICTORY and WEIMER, JJ., would grant.


text:
    Billy D. JOSEY, III v. Kenneth R. ROWAN Metlife Auto and Home Group a/k/a Economy Premier Assurance Company.
    No. 2014-CC-0819.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Josey, III, Billy D.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. F, No. 136,246-F; to the Court of Appeal, Second Circuit, No. 49,225-CW.

Denied.

JOHNSON, C.J., and WEIMER and HUGHES, JJ., would grant.


text:
    John F. KELLY, III v. Angela Discon SMITH.
    No. 2014-C-0822.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Smith, Angela Discon; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. H, No. 2005-02319; to the Court of Appeal, Fourth Circuit, No. 2013-CA-0280.

Denied.


text:
    Michael INDEST, Jr. v. LOYOLA UNIVERSITY NEW ORLEANS.
    No. 2014-CC-0823.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Indest Jr., Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div L, No. 12-11585; to the Court of Appeal, Fourth Circuit, No. 2014-C-0129.

Denied.

VICTORY and HUGHES, JJ., would grant.


text:
    Robert PECK, Jr. and Misty B. Peck v. RICHMAR CONSTRUCTION, INC.
    No. 2014-C-0830.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Richmar Construction, Inc.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. D, No. 103341; to the Court of Appeal, First Circuit, No. 2013 CA 1170.

Denied.

VICTORY, J., would grant.

HUGHES, J., recused.


text:
    INTERDICTION OF Harold Otis WRIGHT.
    No. 2014-C-0832.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Asher, Harold; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. A, No. 64196; to the Court of Appeal, First Circuit, No. 2013 CA 0862.

Denied.


text:
    J. Marion MATHERNE v. TWH HOLDINGS, L.L.C.
    No. 2014-C-0854.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Matherne, J. Marion; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 610,401; to the Court of Appeal, First Circuit, No. 2012 CA 1878.

Denied.


text:
    GULF COAST REFRIGERATION, LLC v. HOUMA TERREBONNE HOUSING AUTHORITY, as Principal, Companion Property and Casualty Insurance Company, as Surety, and Olympic Commercial & Residential Repair, as Agent.
    No. 2014-C-0855.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Gulf Coast Refrigeration L.L.C.;— Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 167715; to the Court of Appeal, First Circuit, No. 2018 CA 1512.

Denied.


text:
    Thomas “Gene” ALEXANDER v. Herman WASHINGTON, Economical Janitorial Supplies, Inc. and Zurich American Insurance Company.
    No. 2014-C-0856.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Economical Janitorial Supplies, Inc.; Washington, Herman; Zurich American Insurance Company; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 578,945; to the Court of Appeal, First Circuit, Nos. 2012 CA 1296.

Denied.


text:
    Murphy J. PAINTER v. The STATE of Louisiana, through the OFFICE OF the GOVERNOR, the Department of Revenue and Taxation, Alcohol and Tobacco Control Commission, Cynthia Bridges, in her official capacity as Secretary of the Department of Revenue and Taxation, the Office of the State Inspector General, and Stephen Street, in his Official Capacity as State Inspector General.
    No. 2014-CC-0857.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re State of Louisiana through the Office of Inspector General; Stephen Street Jr., in his capacity as Inspector General; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 604,308 to the Court of Appeal, First Circuit, No. 2014 CW 0083.

Denied.


text:
    Sylvia J. CANNON v. Douglas MITTELSTAEDT, et al.
    No. 2014-CC-0859.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Cannon, Sylvia J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div J, No. 2013-8526; to the Court of Appeal, Fourth Circuit, No. 2014-C-0150.

Denied.


text:
    John L. DAVIS v. J.R. LOGGING, INC.
    No. 2014-C-0860.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Davis, John L.; — Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District 6, No. 11-00856; to the Court of Appeal, First Circuit, No. 2013 CA 0568.

Denied.


text:
    Taki E. AVERY v. GRAMERCY INSURANCE COMPANY and Norman C. Matthews.
    No. 2014-C-0861.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Avery, Taki E.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 614104; to the Court of Appeal, First Circuit, No. 2013 CA 1214.

Denied.

HUGHES, J., would grant.


text:
    Rommel MLADENOFF v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al.
    No. 2014-C-0862.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re LAMMICO; Pretus, M.D., Henry A.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 696-600; to the Court of Appeal, Fifth Circuit, No. 13-CA-477.

Denied.


text:
    STATE of Louisiana v. Kevin BOYD.
    No. 2014-KK-0864.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 513-029; to the Court of Appeal, Fourth Circuit, No. 2014-K-0197.

Denied.

GUIDRY, J., would grant.


text:
    Michelle SHEFFIE v. WAL-MART LOUISIANA LLC, Wal-Mart Real Estate Business Trust.
    No. 2014-C-0881.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Wal-Mart Louisiana, LLC; Wal-Mart Real Estate Business Trust; — Defendants); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 639-714; to the Court of Appeal, Fifth Circuit, No. ll-CA-792.

Denied.

VICTORY, J., would grant.


text:
    Gregory Dewayne LEWIS v. STARNET INSURANCE COMPANY, Boots Smith Oilfield Services, L.L.C., Louisiana Department of Transportation and Development and Larry C. Pittman. Daniel Hedrick and Whitney Hedrick v. Starnet Insurance Company, et al.
    No. 2014-CC-1039.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Boots Smith Oilfield Services, LLC; Pittman, Larry C; Starnet Insurance Company; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. D, No. 104,406 C/W 140,474; to the Court of Appeal, Second Circuit, No. 49243-CW C/W 49244-CW.

Denied.

VICTORY and GUIDRY, JJ., would grant.


text:
    STATE of Louisiana v. William E. BROWN.
    No. 2014-KK-1056.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Brown, William E.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. I, No. 2012-03448; to the Court of Appeal, Fourth Circuit, No. 2014-K-0497.

Denied.


text:
    Patricia BERGERON, George Bergeron, Jr., and Wendy Bergeron, individually and on behalf of her minor child, Alexis Bergeron and Jennifer Tuttle Hopkins, individually and on behalf of her minor child Abbigail Tuttle and William Tulak and Heather Tulak individually and on behalf of their minor children, Mackenzie Tulak and Ian Tulak v. Lanier James SOUDELIER, Power Torque Services, LLC, American States Insurance Company, American First Insurance Company and Liberty Mutual Insurance Company.
    No. 2014-CC-1096.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Soudelier, Lanier James; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 167,907; to the Court of Appeal, First Circuit, No. 2013 CW 1996.

Denied.

VICTORY and HUGHES, JJ., would grant.


text:
    Terrion HOPKINS, et al. v. Michael GIORDANO, et al.
    No. 2014-CC-1097.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Alexander, Keitshal; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2012-06434; to the Court of Appeal, Fourth Circuit, No. 2014-C-0429. .

Denied.

HUGHES, J., would grant.


author: LOLLEY, J.

text:
    STATE of Louisiana in the Interest of S.A.T.
    No. 49,143-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2014.

      Layne M. Adams, Monroe, for Defendant-Appellant Teronica Lynn Thomas.
    Keesha Bordelon, Rayville, for Appellee State of Louisiana DCFS.
    Elizabeth Brown, for Appellee S.A.T.
    Johnny L. Sanders, II, for Plaintiff-Ap-pellee State of Louisiana.
    Varhonda Burrell, for Defendant-Appel-lee Corey Hammond.
    Before BROWN, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| Veronica Thomas appeals a judgment of the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, terminating her parental rights to her minor child, S.A.T. For the following reasons, we affirm the trial court’s judgment.

Facts

On September 15, 2009, Thomas went to the emergency room at E.A. Conway Hospital in Monroe, Louisiana, because she was “aching all over.” With her at the time were her boyfriend, Jonathan Hayden, and her child, S.A.T., who was born on June 19, 2008, and was a little over the age of one at the time. Thomas left the waiting room, leaving her child in Hayden’s care. At that time, Hayden took the child to the restroom, where he proceeded to beat her. The investigation of the matter revealed that the child was observed to have a hematoma on her left temple, bruising on her left ear and temple, bruising underneath her right eye, and swelling to her right cheek.

Upon questioning by the Department of Children and Family Services (“DCFS” or “the department”), Thomas claimed that the bruise on S.A.T.’s left ear had been caused three days earlier when she struck her head on a shopping cart. Although Hayden admitted to spanking the child on the buttocks, there were no signs observed of a spanking to that part of her body. Hayden subsequently admitted to striking the child in the face and grabbing her by the arm, because she was crying and needed her diaper changed. He [ 2also admitted to having struck the child the previous day. As a result of the incident, Hayden was charged with one count of cruelty to a juvenile.

In addition to suffering physical abuse as a result of Hayden’s actions, S.A.T. has a myriad of physical and developmental issues that the department discovered Thomas was not attending to. The record shows that S.A.T. had previously been on a PEG feeding tube inserted in her abdomen due to her inability to swallow food. However, when Thomas relocated to Monroe from Houston (where the child was born), Thomas failed to obtain any treatment for S.A.T.’s condition. As a result, S.A.T. had suffered a significant weight loss. The child was determined also to have developmental delays in communication and physical, cognitive, and adaptive skills. At the time of the termination hearing, the child was under the care of a neurologist, occupational therapist, physical therapist, speech therapist, and continued having troubles swallowing when eating and pronouncing her words.

Following the beating by Hayden, on September 15, 2009, an instanter order was issued by the trial court adjudicating S.A.T. as a child in need of care. She was removed from Thomas’s custody and placed in the care and custody of DCFS. At the adjudication and disposition hearing held on December 3, 2009, custody of S.A.T. was maintained by DCFS. Throughout the course of S.A.T.’s case, during which she continuously remained in the custody of DCFS, there were approximately eight case plans developed and approved by the trial court. Initially, DCFS sought as its goal reunification between Thomas and S.A.T. As part of her various case plans, Thomas was required to do the following (among other things): obtain and | .¡maintain stable and safe housing; complete a substance abuse evaluation; submit to random drug screens; complete domestic violence counseling; obtain and maintain employment; submit to a psychological evaluation and follow the recommendations; and, have consistent visitation with her child. Ultimately, due to Thomas’s inability to adhere to the case plan, the department recommended in its report of April 19, 2011, a change in its goal from reunification to termination of parental rights with the adoption of S.A.T. Notably, despite her original medical condition, the department’s final report shows that S.A.T.’s overall health is good and she is progressing well while in the custody of DCFS. On June 25, 2013, the DCFS filed its petition for the involuntary termination of Thomas’s parental rights for grounds as provided in La. Ch. C. art. 1015.

The initial termination hearing was scheduled for October 19, 2013, and Thomas failed to appear although she had been given and received notice. The trial court considered the testimony of the DCFS supervisor assigned to S.A.T.’s case, Letoshia Ross. Thomas was given an opportunity to testify at a later hearing on December 9, 2013, by which point in time her child had been in custody for four years. After the continued hearing, the trial court verbally issued a judgment terminating Thomas’s parental rights to S.A.T. Corresponding written judgments were signed on October 19 and December 9, 2013. This appeal by Thomas ensued.

Discussion

Louisiana Children’s Code article 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. State ex rel. 2010-1111 (La.10/19/10), 49 So.3d 345; State 4in Interest of C.V.W., 48,166 (La.App.2d Cir.04/10/13), 113 So.3d 1202. In order to terminate parental rights, the court must find that the state has established at least one of the statutory grounds set forth in article 1015 by clear and convincing evidence. State ex reí. H.A.B., supra. Even upon finding that the state has met its evidentiary burden, a court should not terminate parental rights unless it determines that termination is in the child’s best interest. La. Ch. C. art. 1037(B); State ex rel. H.A.B., supra; State ex rel. C.J.K., 2000-2375 (La.11/28/00), 774 So.2d 107. Whether termination of parental rights is warranted is a question of fact, and a trial court’s determinations will not be set aside in the absence of manifest error. State ex rel. H.A.B., supra; State in Interest of C.V.W., supra.

Grounds for Termination of Parental Rights

Two of Thomas’s assignments of error are related to the grounds for which the trial court terminated her parental rights as to S.A.T. First, she argues that the trial court erred in its determination that DCFS proved by clear and convincing evidence that she did not substantially comply with her case plan. Thomas points out that under La. Ch. C. art. 1015(5), DCFS had to prove no substantial parental compliance with the case plan. However, she claims that there has been complete compliance by her. According to Thomas, she was in complete compliance in March 2011 and. September 2011. She maintains that she was in complete compliance until 2012, when she became “frustrated” with the department and broke off contact with DCFS between January and May 2012. She further argues that ease plans were formulated in September 2012 and September 2013, and she was in substantial compliance. According to Thomas, as of the present, she is in ^substantial compliance, in that she has: housing; legal income through partial employment, one child’s SSI, and S.A.T.’s SSI (if she regains custody); no evidence of drug use or domestic abuse; a strong support system; and, has exercised legal and physical custody of her two-year-old since birth without incident.

Here, the trial court determined that termination of Thomas’s parental rights was warranted under La. Ch. C. art. 1015(5), which provides:

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 parents’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

Lack of substantial compliance with a case plan can be evidenced by the parent’s failure to comply with the required program of treatment and rehabilitation services, the parent’s lack of substantial improvement in redressing the problem preventing reunification or the persistence of conditions that led to removal or similar potentially harmful conditions. La. Ch. C. art. 1036(C); State v. L.J., 48,341 (La.App.2d Cir.06/26/13), 118 So.3d 526.

Here, there is no question that Thomas put her child in harm’s way when she initially left S.A.T. in Hayden’s care, leading to her abuse. As a result of that physical abuse, along with Thomas’s inability to attend to S.A.T.’s medical condition, the child has been in the department’s custody for four years. DCFS has had in place over these four years numerous case | (¡plans giving Thomas the opportunity for reunification with her child. The record is clear that Thomas lacked substantial compliance with her case plans over much of the four years. Going through the considerations listed in La. Ch. C. art. 1015(5), Thomas did not comply with her case plans, nor did she make substantial improvements for the safe return of her child. The record shows that Thomas was deficient in several areas, some of those being:

• Housing: the case plans clearly show that Thomas moved several times during S.A.T.’s custody with the state, despite the department’s goal that she secure and maintain safe housing.
• Substance abuse: Further, the case plan shows that Thomas has a substance abuse problem, having used powder cocaine, ecstasy, marijuana and alcohol. Thomas admitted she was high on marijuana when S.A.T. was born. Because of her substance abuse, Thomas was required by the DCFS to submit to random drug tests, which she often missed or refused to take. At the hearing, Ross testified that Thomas had not submitted to any drug screenings in 2013.
h* Visitation: The record shows that she missed many family visits, and when she did make the visit, Thomas routinely failed to bring food, clothing or gifts that would have supported S.A.T. Notably, she cut off contact with DCFS between January and May 2012, due to her frustration, resumed visitation in June, but missed July.
• Mental health/domestic violence counseling: Thomas reported having been abused emotionally, physically, and sexually during her life. She was diagnosed with adjustment disorder with mixed anxiety and depressed mood and chronic post traumatic stress disorder. Although she had undertaken some counseling, more was recommended to address her needs, develop tools to resist drug use, and be aware of unhealthy relationships that compromise her and her child’s safety. In the beginning of 2012, Thomas refused to comply with the case plan, and received no counseling. Her counseling efforts throughout have been sporadic.

Thomas’s actions do not represent substantial compliance with the case plan, nor do her actions in any way demonstrate that there would be a significant improvement in her condition. In fact, she has failed to show any trend of improvement. Thus, we find that the trial court did not commit manifest error in determining that Thomas had not substantially complied with her case plan as required under La. Ch. C. art. 1015(5). This assignment of error is without merit.

In another assignment of error, Thomas argues that the trial court |serred in determining that DCFS proved by clear and convincing evidence that Thomas placed her child in the department’s custody under circumstances demonstrating an intention to permanently avoid parental responsibility. We disagree.

In addition to determining that Thomas did not comply with her case plan, the trial court also determined that Thomas’s parental rights were terminated for her failure to support and maintain contact with her child, an independent basis for termination of parental rights under La. Ch. C. art. 1015(4), which states:

(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:
a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child’s parent continue to be unknown.
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.
c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by ■visiting him or communicating with him for any period of six consecutive months.

Here, the record shows that Thomas has failed to provide even minimal support on behalf of S.A.T. According to DCFS, Thomas was ordered to pay $100.00 a month in child support; at the time of the hearing, she had an arrearage of over $2,000.00. DCFS also submits that Thomas brought food and/or gifts to only two visits. Once, she brought S.A.T. a fast-food child’s meal (even though S.A.T. was unable to chew solid food). | (Another time, she brought a cake and gifts for the child’s birthday, but did not allow her to take them home. We recognize that Thomas has her own difficulties; however, the record does not indicate that during the four years of assistance by the department Thomas has made a conscientious effort to make changes in her life that would allow for reunification. It is clear that Thomas has taken little to no action in furtherance of the intent to avoid having her parental rights terminated. Accordingly, this finding by the trial court also was not in error.

Best Interest of the Child

Finally, in another assignment of error Thomas maintains that the trial court erred in its determination that DCFS proved by clear and convincing evidence that termination of her parental rights was in S.A.T.’s best interest. According to Thomas, even if DCFS had proven grounds for termination, the trial court must still determine that termination is in the best interest of the child. Here, she argues DCFS did not make that showing. According to Thomas, DCFS does not have a plan for permanent placement of S.A.T. Thomas maintains that the child has an option for placement with her. She also states that the child is beginning to bond with her, and she knows that she has a younger sister. Thomas believes it is safe for the child to be returned to her custody.

The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for the child’s physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and | ^responsibilities and to achieve permanency and stability for the child. State ex rel. S.M.W., 2000-3277 (La.02/21/01), 781 So.2d 1223; State in the Interest of C.V.W., supra. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the state remains to secure the best interest for the child, including the termination of parental rights if justifiable grounds exist and are proven. Id.

When S.A.T. entered the department’s care, she was a malnourished one-year-old requiring a feeding tube because she was unable to swallow food-this in addition to having been physically abused by Hayden. Further, at that time when she was taken into custody, S.A.T. had not been treated by a medical professional in over five months. The record shows that during the time of her custody with DCFS, the child has thrived and is speaking more, being more responsive, and is generally happy. Ross testified that it would be in S.A.T.’s best interest to have Thomas’s parental rights terminated, because Thomas cannot provide her the stability she needs. Clearly, the best interest of S.A.T. calls for her to have permanency in her life. Thomas has been given four years to work out her case plan, and we agree with DCFS that the child should not be forced to wait indefinitely for Thomas to get herself together and complete her plan. The length of time might not have been an issue if Thomas had demonstrated a trend of improvement — even slowly. She failed to do so. In this case, termination of parental rights was clearly in the best interest of the child, and the trial |, ¡court’s determination on this issue was not in error.

Conclusion

Considering the foregoing, we affirm the trial court’s judgment terminating the parental rights of Teronica Thomas so to her minor child, S.A.T. No costs are assessed in this appeal.

AFFIRMED.

      . Hayden is not S.A.T.’s father. Initially, Thomas identified someone as the child’s father, but he was proven not to be through DNA testing. A man subsequently named as father has never been located despite efforts by DCFS and is represented herein by a court-appointed curator ad hoc.


author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana in the Interest of T.W.
    No. 2013-CA-1564.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 14, 2014.

      Leon A. Cannizzaro, Jr., District Attorney J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellee.
    Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MADELEINE M. LANDRIEU, Judge.

| Nile juvenile, T.W., appeals the judgment of the Juvenile Court for the Parish of Orleans, adjudicating him delinquent of simple robbery. For the reasons set forth below, we affirm the adjudication and disposition.

FACTS AND PROCEEDINGS BELOW

On May 7, 2013, while walking home from Walgreens, C.C. was the victim of a robbery. C.C. testified that after he exited Walgreens, he noticed a group of three boys following him. One of the boys, later identified as T.W., had his shirt pulled up to cover part of his face and began attacking C.C. and demanding his shoes and cell phone. During the struggle, a dollar bill fell out of C.C.’s pocket. At that time, C.C. started running away from the scene. The perpetrator picked up the dollar bill from the ground. C.C. testified that one of the boys was recording the attack and the other boy was eating. D.J., the victim’s mother, testified that when C.C. returned home, his eyes were bloodshot and his nose was bloody.

Detective James Kish testified that he met with C.C. and his mother a few hours after the incident and observed the injuries to C.C.’s face, including minor [{¡swelling to his left eye, a bloody nose, and obvious signs of blood leaking from his nose to his clothing. After he obtained vague descriptions of the boys, Detective Kish prepared photo lineups for an identification procedure that was conducted by another officer. C.C. did not identify anyone in the photo lineups. Notably, a photograph of T.W. was not included in these lineups.

On May 12, 2013, while walking with his mother, C.C. passed T.W. sitting on the porch of a house. C.C. recognized T.W. as the boy who had attacked him. D.J. testified that she told C.C. to go back to their house, took a picture on her cellphone of T.W., and called 911. Officer Brandon Coleman testified that when he arrived at the scene, he spoke to D.J. and subsequently arrested T.W. for simple robbery. After T.W. was detained, C.C. identified him as the perpetrator.

On May 14, 2013, T.W. was charged by delinquency petition with one count of simple robbery, a violation of Louisiana Revised Statute 14:65. On May 23, 2013, T.W. appeared in court and entered a denial to the allegations in the petition. The adjudication hearing was scheduled for July 22, 2013. At a pre-trial hearing on July 15, 2013, the judge, on her own motion, continued the adjudication hearing to August 26, 2013. T.W. objected to the hearing being held outside of the ninety-day time limitation of Louisiana Children’s Code article 877(B). On August 26, 2013, the judge adjudicated T.W. as delinquent of simple robbery. The court set the date of October 10, 2013 for the disposition hearing and ordered a pre-investigation report and victim impact statement. At the disposition hearing, the | .judge sentenced T.W. to a suspended sentence of three years and three years of active probation. This appeal follows.

ASSIGNMENTS OF ERROR

T.W. asserts the following assignments of error: the evidence was insufficient to prove all of the elements of simple robbery; the judge abused her discretion by finding good cause to delay the adjudication hearing beyond the time limitation set forth in Louisiana Children Code article 877(B); the judge abused her discretion in setting the disposition hearing beyond the time limitation set for in Louisiana Children Code article 892; and he was denied effective assistance of counsel under the Sixth Amendment.

DISCUSSION

I. Sufficiency of the Evidence

In this assignment of error, T.W. contends that the trial judge erred in finding that the State established the elements for adjudicating him delinquent of simple robbery beyond a reasonable doubt. This court recently reiterated an appellate court’s standard of review in State in the Interest of J.J., 2013-0548, pp. 2-3 (La.App. 4 Cir. 9/25/13), 125 So.3d 1248, 1250:

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.C. art. 883. The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous then the standard of proof required in a criminal proceedings against an adult.” State in the Interest of J.W., p. 3 (La.App. 4 Cir. 6/6/12), 95 So.3d 1181, 1184. As a court of review, we grant great deference to the juvenile court’s factual findings, credibility determinations, and assessment of witness testimony. State 4ex rel. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61.
In evaluating the sufficiency of evidence to support a conviction an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State in the interest of T.E., 2000-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review is applicable in juvenile delinquency cases. Id.

T.W. first argues that the State did not meet its burden of identifying him as the perpetrator. We disagree. In order to carry its burden of proof beyond a reasonable doubt, the State is required to negate any reasonable probability of mis-identification. State v. Smith, 430 So.2d 31, 45 (La.1983). The positive identification by one witness is sufficient to support a conviction. See State v. Mussall, 523 So.2d 1305, 1311 (La.1988). The credibility of a witness 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, and credibility will not be reweighed on appeal. State v. Vessell, 450 So.2d 938, 943 (La.1984).

In adjudicating T.W. delinquent of simple robbery, the trial court chose to believe the witnesses’ testimony regarding the identification of T.W. as the perpetrator. C.C. did not identify anyone as the perpetrator from a photo line-up that did not include T.W.’s photograph. However, he later identified T.W. as the perpetrator, without provocation, when he spotted T.W. sitting on a porch. C.C. also identified T.W. as the perpetrator during an identification procedure with Officer Coleman and again in open court. The victim’s identification of T.W. 1 .-.before and during the trial was sufficient for the State to meet its burden in this case.

T.W. next contends that the State failed to prove that anything of value was taken from C.C. or from his immediate control by force or intimidation. Simple robbery is “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.” La. R.S. 14:65(A). The property must be sufficiently under the victim’s control that, absent force or intimidation, the victim could have prevented the taking. State v. Thomas, 447 So.2d 1053, 1055 (La.1984).

Here, the testimony is clear that a one dollar bill fell out of C.C.’s pocket and was picked up by the perpetrator. T.W. contends that because C.C. ran away, the dollar bill was abandoned, and therefore, was not in his possession or immediate control. We disagree. The record supports the trial court’s finding that the dollar fell out of C.C.’s pocket during the attack and that it was still in his immediate control. C.C. fled in order to escape his attacker, not to abandon his money. We find this assignment of error to be without merit.

II. Timeliness of Adjudication Hearing

In this assignment of error, T.W. contends that the trial court erred in finding good cause to continue the adjudication hearing outside of the time limitations set forth in Louisiana Children’s Code article 877(B). We disagree.

| Louisiana Children’s Code article 877(B) provides, “[i]f the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.” Upon a showing of good cause, the court may extend the time period. La. Ch.Code art. 877(D). In the event that the hearing is not timely commenced, upon the child’s motion, the court shall dismiss the petition. La. Ch.Code art. 877(C). The trial court is vested with “broad discretion” in determining good cause. State in the Interest of RG., 2006-1625 (La.App. 4 Cir. 7/18/07), 963 So.2d 475, 477.

On May 23, 2013, T.W. appeared before the court to answer the petition. He denied all of the allegations. An adjudication hearing was scheduled for July 22, 2013. At a pre-trial conference on July 15, 2013, the court continued the adjudication hearing until August 26, 2013, which was three days outside of the ninety-day time limitation. In finding good cause to extend the deadline, the court stated “it does not appear that a signed judgment is in any file, nor has the district attorney or the defense lawyer received a copy of the signed judgment.” The judge also said that it was unlikely that the clerk’s office had received the missing judgment and, therefore, the clerk’s office did not issue subpoenas to the witnesses as the May 23, 2013 judgment instructed. T.W. objected to the new trial date.

This court has previously held that such “administrative errors” constitute “good cause” to extend the timeline of the adjudication hearing. In State in the Interest of Franklin, 95-0423 (La.App. 4 Cir. 7/26/95), 659 So.2d 537, writ denied, 95-2162 (La.11/17/95), 663 So.2d 711, this court found that the trial 17court had good cause to, on its own motion, extend the time limitations of article 877 because the original record had been misplaced in the courthouse. In State in the Interest of R.D.C., Jr., 93-1865 (La.2/28/94), 632 So.2d 745, 749, the Supreme Court instructs that judges should not “apply a draconian definition of ‘good cause’ when the state seeks an extension. The judge should be mindful of those situations where ... causes beyond the control of the state may impinge on its ability to prepare for the hearing.”

In the instant case, we find that the trial court did not abuse its discretion in extending the time limitations of article 877 for good cause. As such, we find this assignment of error to be without merit.

III. Timeliness of Disposition Hearing

In his final assignment of error, T.W. asserts that the trial judge erred in setting the disposition hearing outside of the time limitation set forth in Louisiana Children’s Code article 892, which provides that the disposition hearing may be conducted immediately after the adjudication and shall be conducted within thirty days thereof. The period may be extended for good cause. La.Ch.C. art. 892. Here, the adjudication hearing was held on August 26, 2013, at which time the juvenile court scheduled the disposition hearing for October 10, 2013. T.W. did not object to the disposition hearing being scheduled outside of the thirty-day time frame. Louisiana Code of Criminal Procedure article 841 states “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of |sthe occurrence.” The absence of a contemporaneous objection prevents T.W. from raising this issue on appeal. Therefore, this assignment of error lacks merit.

IV. Ineffective Assistance of Counsel

In his final assignment of error, T.W. contends that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment because his defense counsel failed to file a motion to dismiss the petition when the ninety-day time limitation had expired for the adjudication hearing and after the thirty-day time limitation had expired for the disposition hearing. The standard of review for ineffective assistance of counsel in a juvenile case was reiterated by this court in State in the Interest of J.T., 2011-1646, pp. 6-7 (La.App. 4 Cir. 5/16/12), 94 So.3d 847, 852-853:

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief filed initially in the district court where a full evidentiary hearing can be held.... However, in the interest of judicial economy, an appellate court can consider an ineffective assistance claim if the record on appeal contains sufficient evidence to evaluate the merits of the claim....
To succeed on an ineffective assistance of counsel claim, a defendant must establish two criteria: (i) that his trial counsel’s performance was deficient and (ii) that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). A claim of ineffective assistance may be disposed of based upon a finding that either one of the two Strickland criteria have not been established.

State v. Robinson, 11-0066, pp. 11-12 (La.App. 4 Cir. 12/7/11), 81 So.3d 90, 96-97. “Counsel’s performance is ineffective when it can be |3shown that he made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed 'to the defendant by the Sixth Amendment.” Porche, 00-1391 at p. 7, 780 So.2d at 1156 (citing Strickland, 466 U.S. at 686, 104 S.Ct. at 2064). “Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial.” Id. The defendant has the burden of showing that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Id. (quoting Strickland, 466 U.S. at 693, 104 S.Ct. at 2068).

We must first consider whether counsel’s performance fell below an objective standard of reasonableness. Then, if we find that counsel’s performance was unreasonable, we must determine whether T.W. was prejudiced by the deficient performance of his counsel. T.W. argues that had his counsel objected to the expiration of the time limitations or filed motions to dismiss once those limitations had expired, the petition would have been dismissed or the disposition would have been set aside, and thus T.W. would not be serving probation. We disagree.

T.W. asserts that his defense counsel was ineffective because he failed to file a motion to dismiss the petition after the ninety-day time limitation for the adjudication hearing lapsed. Counsel objected at the pre-trial conference to the trial court continuing the adjudication hearing outside of the ninety-day period, but did not subsequently file a motion to dismiss. Preter-mitting whether the failure to file the motion to dismiss falls below an objective standard of reasonableness, T.W. was not prejudiced by counsel’s actions. Over T.W.’s objection, the trial court found good cause to extend the time limitation, a decision we affirm.

11flTW. next contends that counsel was ineffective because of his failure to object to the disposition hearing being held outside of the time limitation and further because he neglected to file a motion to dismiss the petition upon the expiration of the thirty-day time limitation.

Again, pretermitting whether counsel’s actions fell below the objective standard of reasonableness, we must determine whether T.W. was prejudiced by counsel’s failures. Louisiana Children’s Code article 892 does not provide a remedy for a violation of the time limitation. When procedural matters are not addressed by the Children’s Code, the juvenile court proceeds under the provisions of the Code of Criminal Procedure. La. Ch.C. art. 104. Louisiana Code of Criminal Procedure article 874 provides that “[sentences shall be imposed without unreasonable delay. If the defendant claims that the sentence has been unreasonably delayed, he may invoke the supervisory jurisdiction of the appellate court.” The sanction for an unreasonable delay in sentencing is to divest the trial court of the power to impose the sentence. State v. McQueen, 308 So.2d 752, 755 (La.1975).

To determine whether the sentencing delay is unreasonable, this court will apply the four factors developed by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972): the length of the delay, the reason for the delay, the defendant’s assertion of his right to a speedy trial, and the prejudice the defendant has suffered. T.W.’s adjudication hearing was held on August 26, 2013. Therefore, the disposition hearing should have been held no later than September 1125, 2013. However, it was held on October 10, 2013, a delay of fifteen days. The record is not clear as to the reason for the delay, but indicates that at the closing of the adjudication hearing, the trial judge and counsel for the State and T.W. agreed on the October 10, 2013 date.

T.W. has not asserted his right to a speedy trial until this appeal. As stated earlier, T.W.’s counsel did not object to the October date. T.W. nevertheless contends that he was prejudiced by his counsel’s failure to file a motion to dismiss because if the motion had been filed, T.W. would not be on probation. We cannot say that T.W. would not have been sentenced to probation had defense counsel filed a motion to dismiss. Therefore, we find no merit in this assignment of error as T.W. has not shown that he was prejudiced by the sentencing delay.

CONCLUSION

For the foregoing reasons, we affirm the adjudication and disposition of the juvenile court.

AFFIRMED.

      . T.W. does not argue that the court erred in admitting the identifications.