text:
    STATE ex rel. Billy Ray ROBINSON v. STATE of Louisiana.
    No. 2013-KH-2594.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Robinson, Billy Ray; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lasalle, 28th Judicial District Court Div., No. 72,511; to the Court of Appeal, Third Circuit, No. KH 13-00795.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Harry Lee RICHARDSON v. STATE of Louisiana.
    No. 2013-KH-2620.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Richardson, Harry Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 259,540; to the Court of Appeal, Second Circuit, No. 48,-860-KH.

Denied. See State ex rel. Fleury v. State, 93-2898 (La.10/13/95), 661 So.2d 488.


text:
    STATE ex rel. Rodney NORMAN v. STATE of Louisiana.
    No. 2013-KH-2621.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Norman, Rodney; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 02-6132; to the Court of Appeal, Fifth Circuit, No. 13-KH-819.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Claude R. FRAZIER v. STATE of Louisiana.
    No. 2013-KH-2622.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Frazier, Claude R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 5, No. 268,736; to the Court of Appeal, Second Circuit, No. 48,-852-KH.

Denied.


text:
    STATE ex rel. Taurius Marques HOLMES v. STATE of Louisiana.
    No. 2013-KH-2623.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Holmes, Taurius Marques; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. A, No. 05-CR3-92375; to the Court of Appeal, First Circuit, No. 2013 KW 1120.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Henry RANKIN v. STATE of Louisiana.
    No. 2013-KH-2624.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Rankin, Henry; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 288-636; to the Court of Appeal, Fourth Circuit, No. 2013-K-1303.

Denied.


text:
    STATE ex rel. Jerrod JOHNSON v. STATE of Louisiana.
    No. 2013-KH-2625.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Johnson, Jerrod; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 1, No. 567,102; to the Court of Appeal, Second Circuit, No. 48841-CW.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Richard Delbert BAZILE v. STATE of Louisiana.
    No. 2013-KH-2626.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Bazile, Richard Delbert; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div., No. 499577; to the Court of Appeal, First Circuit, No. 2013 KW 1247.

Denied.


text:
    STATE ex rel. John DAVIS v. STATE of Louisiana.
    No. 2013-KH-2146.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Davis, John; — Plaintiff; Applying for Reconsideration of this court’s action dated April 17, 2014; Parish of Desoto, 42nd District Court Div. A, No. 03-CR-009263; to the Court of Appeal, Second Circuit, No. 48,695-KH.

Reconsideration denied.


text:
    STATE ex rel. Dwayne SYLVESTER v. STATE of Louisiana.
    No. 2013-KH-2627.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Sylvester, Dwayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 504420-1 & 504421; to the Court of Appeal, First Circuit, No. 2013 KW 1130.

Denied.


text:
    STATE ex rel. Craig PARENT v. STATE of Louisiana.
    No. 2013-KH-2635.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Parent, Craig; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 00-5103; to the Court of Appeal, Fifth Circuit, No. 13-KH-643.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Nolan JAMES v. STATE of Louisiana.
    No. 2013-KH-2646.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re James, Nolan; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. D, Nos. 401,402; to the Court of Appeal, First Circuit, No. 2013 KW1250.

Denied.


text:
    STATE ex rel. Corey SMITH v. STATE of Louisiana.
    No. 2013-KH-2648.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Smith, Corey; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 417-684; to the Court of Appeal, Fourth Circuit, No. 2013-K-1279.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. See also La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Shawn WICKEM v. STATE of Louisiana.
    No. 2013-KH-2650.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Wickem, Shawn; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 22nd Judicial District Court Div. H, No. 98-2298; to the Court of Appeal, Fifth Circuit, No. 13-KH-767.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

KNOLL, J., recused.


text:
    STATE ex rel. Ricky BANKS v. STATE of Louisiana.
    No. 2013-KH-2651.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Banks, Ricky; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Franklin, 5th Judicial District Court Div. A, No. 97-460F; to the Court of Appeal, Second Circuit, No. 48846-KH.

Denied.

JOHNSON, C.J., would grant.


text:
    STATE ex rel. Richard LAY v. STATE of Louisiana.
    No. 2013-KH-2654.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Lay, Richard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 383759; to the Court of Appeal, First Circuit, No. 2013 KW 1081.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. La.C.Cr.P. art. 930.4(D).

WEIMER, J., recused.


text:
    STATE of Louisiana v. Eric P. HAMILTON.
    No. 2013-K-2664.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Hamilton, Eric P.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 507833; to the Court of Appeal, First Circuit, No. 2012 KA 1305.

Denied.


text:
    STATE of Louisiana v. QUANG T. DO.
    No. 2013-KO-2907.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Do, Quang T.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 11-1463; to the Court of Appeal, Fifth Circuit, No. 13-KA-290.

Denied.


text:
    BRENNAN’S, INC. v. Edward Tuck COLBERT, Kenyon & Kenyon, Leon H. Ritenberg, Jr., and Baldwin Haspel, L.L.C., F/N/A Baldwin & Haspel, L.L.C.
    No. 2013-C-2917.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Colbert, Edward Tuck; Kenyon & Kenyon; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 2005-08471; to the Court of Appeal, Fourth Circuit, Nos. 2013-CA-0943, 2012-CA-0145.

Denied.


text:
    STATE of Louisiana v. Deke Edmond DURASO.
    No. 2014-KO-0050.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Duraso, Deke Edmond; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 11526-09; to the Court of Appeal, Third Circuit, Nos. 12-1463,12-1465.

Denied.


text:
    STATE of Louisiana v. Brian SEGURA.
    No. 2014-K-0067.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Segura, Brian; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. H, No. 11-866; to the Court of Appeal, Third Circuit, No. 13-398.

Denied.


text:
    STATE of Louisiana v. Dere Edmond DURASO.
    No. 2014-KK-0074.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Duraso, Deke Edmond; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 11526-09; to the Court of Appeal, Third Circuit, Nos. 12-1463,12-1465.

Denied.


text:
    STATE of Louisiana v. Joseph NORAH.
    No. 2014-KO-0082.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re Norah, Joseph; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 497-717; to the Court of Appeal, Fourth Circuit, No. 2012-KA-1194.

Denied.


author: PAINTER, Judge. THIBODEAUX, Chief Judge, AMY, J.,

text:
    Richard YOUNG v. SUPPLIER SERVICES, LLC.
    No. 13-670.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.

      Jeffrey Martin Cole Plauché, Smith & Nieset, LLC, Lake Charles, LA, for Defendant/Appellanfc-Supplier Services, LLC.
    Gregory Paul Allen Marceaux Marceaux Law Firm, Lake Charles, LA, for Plaintiff/Appellant-Richard Young.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, J. DAVID PAINTER, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   PAINTER, Judge.

|,The employer in this workers’ compensation case, Supplier Services LLC, denied indemnity and medical benefits to the employee, Richard Young, after intoximeter alcohol tests indicated intoxication at the time of the accident. Though the tests failed to comply with workers’ compensation statutory requirements and could not be used to establish a presumption of intoxication, the Workers’ Compensation Judge (WCJ) admitted them along with other subjective evidence to prove intoxication.

Benefits, penalties, and attorney fees were awarded to Mr. Young after the WCJ rejected the intoxication defense. We reverse the admission of the intoximeter results and the award of penalties and attorney fees; however, we affirm the award of compensation benefits.

I.

ISSUES

We shall consider whether the WCJ erred by:

(1) admitting the intoximeter results into evidence;
(2) rejecting Supplier Services’ intoxication defense; and
(3) awarding penalties and attorney fees against Supplier Services.

II.

FACTS AND PROCEDURAL HISTORY

On March 26, 2012, Mr. Young fractured his ankle while exiting a truck in the course and scope of his employment with Supplier Services. After the incident, Mr. Young was taken to Occupational and Industrial Healthcare to be treated by Dr. Edward Butler. While individuals at the scene of the accident as |2well as employees from Dr. Butler’s office testified that they smelled alcohol on Mr. Young’s breath, he did not display any other physical signs of intoxication. Dr. Butler also administered a physical exam of Mr. Young in which he found no physical signs of intoxication. At Dr. Butler’s office, Mr. Young took an alcohol breath test with an intoximeter, which indicated that Mr. Young had an alcohol level of .252. A second breath test administered 17 minutes later showed an alcohol level of .254. However, no confirmation testing occurred. After testing positive for alcohol with the intoximeter, Supplier Services notified Mr. Young that they would not supply any additional medical treatment or workers’ compensation benefits.

That same day, Mr. Young went to the emergency room for surgery to repair his ankle. An emergency room nurse performed an initial assessment of Mr. Young and found no signs of intoxication before admitting him. Mr. Young was further assessed by the anesthesiologist who cleared him for surgery after observing no physical impairments.

Mr. Young filed suit for workers’ compensation benefits. He filed a motion in limine to deny the admission of the intox-imeter test results, arguing that the results were never verified by gas chromatography as required by the Louisiana Workers’ Compensation Act. Thus, such results could not be used as a basis to deny benefits. Supplier Services argued in response that while the intoximeter results may not support a presumption of intoxication, they could, when viewed with the totality of the evidence, lead to the conclusion that Mr. Young was intoxicated.

The WCJ denied the motion in limine and admitted the intoximeter results into evidence, reasoning that while the results were imperfect and could not | olead to a presumption of intoxication, they could be considered as part of the totality of the evidence. Despite this admission, the WCJ found in favor of Mr. Young, awarding him indemnity and medical benefits. The court assigned $2,000.00 in penalties against Supplier Services for failure to supply indemnity benefits, $2,000.00 for failure to provide medical treatment, and $2,000.00 for failure to pay medical bills. The WCJ also awarded Mr. Young’s counsel $19,888.25 in attorney fees.

III.

LAW AND DISCUSSION

Standards of Review

A court’s ruling on a motion in limine is an evidentiary matter. Consequently, we shall only disturb such a finding upon an abuse of discretion. Randall v. Concordia Nursing Home, 07-101 (La.App. 3 Cir. 8/22/07), 965 So.2d 559, writ denied, 07-2158 (La.1/7/08), 973 So.2d 726.

The WCJ’s determination that an employer failed to satisfy the intoxication defense is a factual finding that will not be overturned absent manifest error. Sweeden v. Hunting Tubular Threading, Inc., 01-724 (La.App. 5 Cir. 12/12/01), 806 So.2d 728; Dean v. Southmark Constr., 03-1051 (La.7/6/04), 879 So.2d 112. In applying this standard of review, we need not determine whether the factfinder was right or wrong. Rather, if the court’s findings are reasonable in light of the record, we may not reverse. Romero v. Northrop-Grumman, 01-24 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, writ denied, 01-1937 (La.10/26/01), 799 So.2d 1144. The WCJ’s decision to award penalties and attorney fees is another factual finding subject to the manifest error or clearly wrong standard of review. Warren v. Maddox Hauling, 02-733 (La.App. 3 Cir. 12/4/02), 832 So.2d 1082, writ denied, 03-04 (La.4/21/03), 841 So.2d 791.

Admission of the Intoximeter Test Results

Supplier Services continues to argue on appeal that the intoximeter results are admissible to prove intoxication. We disagree.

Louisiana Revised Statutes 23:1081(l)(b) states that no workers’ compensation shall be provided for an injury caused by the employee’s intoxication. To prove intoxication, La.R.S. 23:1081(3) outlines the requisite percent by weight of alcohol in an employee’s blood to establish a presumption of intoxication. However, tests showing intoxication levels must be verified by gas chromatography or other comparably reliable method before such tests “may be used as a basis for any disqualification.” La.R.S. 23:1081(9)(e).

Here, Mr. Young’s intoximeter tests were never verified by confirmation testing. As such, they cannot be used as a basis for disqualification. The pertinent question now becomes whether the improperly-administered tests possess any evidentiary value without serving as a basis of disqualification. We think not. The word “basis” is defined in Black’s Law Dictionary as “[a] fundamental principle; an underlying fact or condition.” Black’s Law Dictionary (9th ed.2009). Given the innate probative nature of evidence, a fact-finder will inevitably consider all evidentia-ry admissions as underlying facts of varying weights in deciding a case. Since the only probative value of the intoximeter tests is to show whether Mr. Young was intoxicated at the time of the incident, it is impossible to admit these tests without abrogating the statute.

| ¡¡Supplier Services argues that while the intoximeter results may not establish a presumption of intoxication, they may be considered under the totality of the circumstances. In support of this argument, it references the fifth circuit’s decision in Reuben v. Tidewater Marine, 97-527 (La.App. 5 Cir. 5/13/98), 712 So.2d 263, writ denied, 98-1486 (La.9/4/98), 721 So.2d 916, where the court held that a positive drug test that was not administered immediately after an accident as required by statute may be admitted into evidence, but it cannot establish a presumption of intoxication. While we are cognizant of the fifth circuit’s opinion, we respectfully disagree.

Louisiana Revised Statutes 23:1081(9)(e) requires confirmation testing before a positive test can be used as a basis for any disqualification. The statute never qualifies the usage of such tests for purposes of presumptions; it explicitly states that such tests may not be used for any disqualification. Supplier Services contends that the tests are admissible under La.R.S. 23:1081(6), which allows for “the introduction of any other competent evidence bearing upon the question of whether the employee was under the influence of alcoholic beverages[.]” However, this reasoning is flawed. Given the gravity of denying benefits to injured workers, La.R.S. 23:1081(6) requires that evidence be competent in order to be admitted. Here, without confirmation, there is no way to determine the competency and reliability of the intoxime-ter test results. Accordingly, we hold that the WCJ abused his discretion by admitting the intoximeter test results into evidence. We exclude consideration of this evidence in our review of the WCJ’s rejection of Supplier Services’ intoxication defense.

| (¡Validity of Supplier Services’ Intoxication Defense

Supplier Services argues that the trial court erred in rejecting their intoxication defense and awarding workers’ compensation benefits. We disagree. There is no evidence in the record that Mr. Young consumed alcohol on the day of the accident. No one observed him drinking, and no one found alcohol in his possession. Furthermore, Mr. Young never exhibited any physical signs of intoxication such as slurred speech or loss of motor skills, and he was even cleared for surgery the same day. While various individuals testified they smelled alcohol on his breath, this subjective fact alone is not enough to deny benefits given Mr. Young did not show any other physical signs of intoxication. See Beck v. Newt Brown Contractors, L.L.C., 46,523 (La.App. 2 Cir. 9/21/11), 72 So.3d 982, writ denied, 11-2352 (La.12/2/11), 76 So.3d 1180 (intoxication defense rejected as there was no evidence of anyone seeing the employee smoke marijuana or show any physical signs of intoxication on the day of the accident). Finally, the fact that Mr. Young has a history of alcohol use does not lead to the conclusion that Mr. Young was intoxicated in this particular instance.

Even if we assume Mr. Young was intoxicated, Louisiana law requires that the employee’s intoxication caused the injury in order to deny benefits. La.R.S. 23:1081(l)(b). To prove causation, an employer must present “some evidence other than the mere happening of the accident, such as behavior that would clearly demonstrate the employee’s intoxication and resulting impairment or loss of control.” Folse v. Am. Well Control, 536 So.2d 686, 690 (La.App. 3 Cir.1988), writ denied, 538 So.2d 592 (La.1989). At the very least, the employer must show “that the accident was of a sort that would not ordinarily happen absent intoxication.” Id. Here, Supplier Services failed to present any 17evidence of physical behavior indicating intoxication on the part of Mr. Young. Furthermore, fracturing an ankle by exiting a large truck onto uneven ground is the type of accident that could happen regardless of intoxication. As Supplier Services failed to provide any evidence of causation, we conclude that the WCJ was not manifestly erroneous in denying the intoxication defense and awarding benefits.

Award of Penalties and Attorney Fees

The WCJ awarded penalties of $2,000.00 for failure to authorize indemnity payments, $2,000.00 for failure to provide medical treatment, and $2,000.00 for failure to pay medical bills. The court also awarded $19,888.25 in attorney fees, reasoning that such fees were reasonable and warranted given Supplier Services’ failure to controvert the claim. We disagree.

Louisiana Revised Statutes 23:1201(F)(2) provides that penalties and attorney fees for failure to provide workers’ compensation benefits do not apply if the employer reasonably controverts the claim. In determining whether an employer meets this burden, “a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. ‘Where there is a serious defense presented in good faith, it is inappropriate to assess statutory penalties and attorney’s fees.” Savoy v. Cecil Perry Imp. Co., 96-889, p. 15 (La.App. 3 Cir.2/5/97), 691 So.2d 692, 701 citing Clifton v. Ditto’s Apparel, 95-1654 (La.App. 3 Cir.5/8/96), 673 So.2d 1372, writ denied, 96-1478 (La.9/20/96), 679 So.2d 437.

| sin this case, the employer had several lay witnesses who smelled alcohol on Mr. Young’s breath. Dr. Butler was of the opinion that Mr. Young’s ability to exit his truck would have been impaired by intoxication. Thus, we find that Supplier Services reasonably controverted Mr. Young’s claims and that the WCJ was manifestly erroneous in awarding penalties and attorney fees. We, therefore, reverse the award of penalties and attorney fees.

IV.

CONCLUSION

For the foregoing reasons, we reverse the WCJ’s admission of the intoximeter test results and the award of penalties and attorney fees. We affirm the award of compensation benefits. This court has held that “[a] workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer/insurer’s unsuccessful appeal.” Nash v. Aecom Technical Corp., 07-990, p. 8 (La.App. 3 Cir.2/6/08), 976 So.2d 263, 268. We award Mr. Young costs and $2,500.00 in attorney fees for defending this appeal.

REVERSED IN PART AND AFFIRMED IN PART.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons.

AMY, J., concurs in part, dissents in part, and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting in part.

|¶1 dissent from the majority’s refusal to award penalties and attorney fees.

There are consequences for failing to follow the law in every facet of life. The field of workers’ compensation is no different and should not be exempted. The defendant failed to perform confirmation testing as required by La.R.S. 23:1081(9)(e). It relied upon invalid testing. It continued to deny Mr. Young’s claim for indemnity benefits even after learning of the failure to do confirmation testing. Despite this clear breach of the law, the majority awards this failure by its refusal to impose penalties and attorney fees. That is error. Indeed, the workers’ compensation judge found that “[t]he employer did not reasonably controvert this claim, nor was there any dose legal call here. The employer simply and clearly did not comply with the law, requiring the claimant to seek redress in court.” (Emphasis supplied).

Moreover, not one witness saw any manifestations of alcohol usage. Indeed, the majority concedes that “Mr. Young never exhibited any physical signs of intoxication such as slurred speech or loss of motor skills.... ” He was even cleared for surgery that same day. Dr. Butler opined that Mr. Young’s ability to exit the truck would have been impaired by intoxication. However, Dr. Butler did 12not smell alcohol on the plaintiff. His opinion regarding Mr. Young’s ability to exit was just that— an opinion — and a purely subjective one.

I would affirm the imposition of penalties and attorney fees and award an additional $4,000.00 on appeal for attorney fees.

For the foregoing reasons, I respectfully dissent.

AMY, J.,

concurring in part and dissenting in part.

|TI join in the majority’s affirmation of the workers’ compensation judge’s award of compensation benefits. However, I do not join in the conclusion that the workers’ compensation judge erred in consideration of the intoximeter results. Rather, I think that the workers’ compensation judge appropriately considered the results within the totality of the evidence. Simply, I find that the claimant’s argument regarding La.R.S. 23:1081(9)(e) is out of focus for this intoxication by alcohol case.

Certainly, La.R.S. 23:1081(l)(b) generally prohibits compensation for an injury caused “by the injured employee’s intoxication at the time of the injury[.]” Additionally, La.R.S. 23:1081(3) provides an employer with certain presumptions (according to a scale of percentages by weight of alcohol in the employee’s blood) in establishing the intoxication defense of Paragraph (l)(b).

The claimant’s argument suggests, and the majority opinion determines, that La. R.S. 23:1081(9)(e) operates to exclude the intoximeter results advanced by the employer in pursuit of its intoxication by alcohol defense. However, reference to that provision indicates no apparent applicability to alcohol intoxication. Instead, Paragraph 9(e) provides:

(9) All sample collection and testing for drugs under this Chapter shall be performed in accordance with rules and regulations adopted by the director which ensure the following:
(e) Sample testing shall conform to scientifically accepted analytical methods and procedures. Testing shall include verification or confirmation of any positive test result by gas chromatography, gas chromatography-mass spectroscopy, or other comparably reliable analytical method, before the result of any test may be used as a basis for any disqualification pursuant to this Section. Test results which do not exclude the possibility of passive inhalation of marijuana may not be used as a basis for disqualification under this Chapter. However, test results which indicate that the concentration of total urinary cannabinoids as determined by immunoassay equals or exceeds fifty nano-grams/ml shall exclude the possibility of passive inhalation.

(Emphasis added.) Overall, La.R.S. 23:1081 refers separately to “drugs” and to “alcohol.” Paragraph (9) refers only to “drugs.” This distinction in terminology is meaningful in my opinion, and, in this case, precludes the application of La.R.S. 23:1081(9)(e) as a basis for exclusion of the intoximeter results from this intoxication by alcohol defense. Thus, I find the workers’ compensation judge’s consideration of those results appropriate, although the evidence supports a determination that the employer, in light of all of the evidence, failed to prove the intoxication defense.

Also, I find that the award of penalties and attorney fees must be reversed. Given both the intoximeter results and the eyewitness statements regarding the smell of alcohol, it seems clear to me that the employer reasonably controverted this claim even if it did not ultimately prevail on its defense. I do not find that its pursuit of the defense was unreasonable when, in fact, the evidence of intoxication is still unexplainable on the evidence presented.

Finally, and given the reversal of the penalties and attorney fees, I dissent from the majority opinion’s award for attorney fees incurred on appeal. Workers’ compensation jurisprudence indicates that “[a]n award for additional attorney fees is generally given when attorney fees were correctly granted on the trial level, for as to deny such a request on appeal would be inconsistent with the underlying judgment.” Bennett v. Pilgrim’s Pride, 07-753, p. 11 (La.App. 3 Cir. 12/12/07), 972 So.2d 423, 430, writ denied, 08-0103 (La.3/7/08), 977 So.2d 907. See also McKelvey v. City of Dequincy, 07-604, pp. 11-12 (La.App. 3 Cir. 11/14/07), 970 So.2d 682, 690 (wherein a panel of this court explained that “[a]n increase in attorney’s fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiffs attorney, provided the plaintiff requests such an increase”)(emphasis added).

In this case, however, the majority reverses the underlying award of penalties and attorney fees upon a specific finding that the employer reasonably controverted this claim. See La.R.S. 23:1201(F)(2). In my view, an award of attorney fees for work performed on appeal when no such fees were authorized at the trial level renders the appellate award inconsistent with the underlying judgment, contrary to the proposition cited in Bennett, 972 So.2d 423. Here, the employer pursued its right of appellate review of a judgment it was ultimately able to demonstrate was a reasonably controverted claim. I find no statutory basis for an award of appellate attorney fees absent a valid basis for such fees at the trial level. Such an award, in my opinion, essentially undermines an employer’s exercise of its right to appeal.

For these reasons, I affirm in part and dissent in part from the majority opinion.


author: PAINTER, Judge.

text:
    STATE of Louisiana in the Interest of D.B.
    No. 14-85.
    Court of Appeal of Louisiana, Third Circuit.
    May 7, 2014.

      Richard A. Spears, Attorney at Law, New Iberia, Louisiana, for Defendant-Appellant: D.B.
    J. Phil Haney, District Attorney, Nicole Burke, Assistant District Attorney, New Iberia, Louisiana, for Appellee: State of Louisiana.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

_JjD.B. appeals the sentence imposed by the juvenile court in connection with his plea of guilty to second degree murder. For the following reasons, we vacate the disposition imposed and remand.

FACTS AND PROCEDURAL HISTORY

D.B. was charged with second degree murder in connection with the stabbing death of Alita Bailey on March 12, 2013. He was thirteen years old at the time of the offense.

On March 19, 2013, D.B. was charged by petition with one count of second degree murder. The day prior, on March 18, 2013, a continued custody hearing was held, and the court determined that he should remain in custody. On April 23, 2013, D.B. appeared to answer the petition and entered a denial to the charges. On September 30, 2013, he withdrew his plea of not guilty by reason of insanity and entered a not guilty plea. Then, on October 2, 2013, he again changed his plea from not guilty to guilty of second degree murder. On October 16, 2013, the juvenile court imposed the following disposition: life imprisonment without benefit of probation, parole, suspension of sentence, or modification of sentence until D.B. reaches the age of twenty-one. D.B. filed a timely motion for appeal, which was granted on October 21, 2013. D.B. is now before this court, alleging one assignment of error.

Error Patent Review

This court has found that an error patent review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920. See State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir.2/4/98), 706 So.2d 1081. We have found errors patent that will be discussed herein, as well as an error patent regarding the disposition that is raised and assigned as error.

|21. Untimely Answer Hearing

Louisiana Children’s Code Article 854 provides as follows:

A. If the petition is filed prior to or during the hearing to determine continued custody, the court may order the child to answer the petition upon completion of the hearing. If not so ordered and the child is continued in custody, he shall be ordered to appear to answer the petition within five days after the filing of the petition.
B. In all other cases, the child shall be ordered to appear to answer the petition within fifteen days after the filing of the petition.
C. For good cause, the court may extend such period.

In this case, the petition was filed on March 19, 2018, a day after the continued custody hearing. Since D.B. was continued in custody, subsection A of article 854 required the answer hearing to be held within five days of the filing of the petition. Since two of the days within the five day period could not be counted because they were legal holidays (Saturday and Sunday), D.B.’s answer hearing should have been held by March 28, 2013. D.B.’s answer hearing was not held until April 23, 2013, and was, therefore, untimely.

On March 20, 2013, the day following the filing of the petition, the juvenile court issued a written order setting the answer hearing for April 23, 2013. The order states that D.B., his parent, and his attorney were to be served with the order. In accordance with the order, the answer hearing was held on April 23, 2013, with no objection by D.B. to the untimely setting of the hearing.

The supreme court has rendered a series of rulings holding that a juvenile’s failure to object to the untimely setting of a hearing constitutes a good cause extension of the time period. In the most recent case, State in the Interest of D.J., 13-1111, p. 1 (La.1/10/14), 131 So.3d 35, 36, the supreme court reversed the fourth ^circuit’s decision dismissing a petition filed against a juvenile. In its opinion, State in the Interest of D.J., 12-1416, p. 6 (La.App. 4 Cir.4/10/13), 113 So.3d 503, 507, the fourth circuit rejected the State’s argument that D.J. waived his right to a timely adjudication by failing to object to the adjudication date when it was initially set. Reversing the fourth circuit and reinstating the petition against D.J., the supreme court stated the following:

Here, through administrative error arising from the movement of the case from one section of the juvenile court to another, the adjudication hearing was set five days after the expiration of the 30-day time limit without objection by the child. Before the expiration of the time limit, the state recognized the error and requested an extension to maintain the hearing date apparently agreed upon by all parties. The juvenile court found that good cause existed and granted the state’s request. The court accordingly denied the child’s motion to dismiss on the date set for the hearing, and thereafter adjudicated the juvenile delinquent. The court of appeal, relying on State in the Interest of W.P., 11-1442 (La.App. 4 Cir. 3/7/12), 82 So.3d 571 (unpub’d), found that the juvenile court abused its discretion in denying the motion to dismiss because the child’s acquiescence in the setting of an untimely hearing date did not waive his right to strict compliance with La.Ch.C. art. 877(A). The court of appeal therefore reversed the juvenile court’s ruling, effectively vacating the lower court’s adjudication of the juvenile as delinquent and its disposition of the case. State in the Interest of D.J., 12-1416, pp. 5-6 (La.App. 4 Cir.4/10/18), 113 So.3d 503, 507. The court of appeal erred in this determination. See State in the Interest of W.P., 12-0794 (La.9/28/12), 98 So.3d 802 (remanding for reconsideration). Under the facts of the matter presented, the juvenile court did not abuse its discretion in denying the motion to dismiss. See State in the Interest of R.D.C., 93-1865, p. 3 n. 4 (La.2/28/94), 632 So.2d 745, 747 (“The hearing, originally set for June 30, 1992, was continued by the court until August 4, 1992, a date outside of the ninety day period [provided by La.Ch.C. art. 877(B) for adjudication hearings when the child is not continued in custody]. However, since the court, the child and the state agreed to this August 4, 1992 date, we will treat it as an extension for good cause by the court.”).
The decision of the court of appeal is therefore reversed, and the juvenile court’s adjudication of delinquency and disposition of the case are hereby reinstated.

D.J., 131 So.3d at 35-36.

|4We find that D.B.’s failure to object to the trial court’s setting of an answer hearing outside of the time limits is to be considered an extension of the time period for good cause. See also State in the Interest of W.P., 12-794 (La.9/28/12), 98 So.3d 802, State in the Interest of J.S., 11-2673 (La.4/20/12), 85 So.3d 1277, and State in the Interest of R.D.C., Jr., 93-1865, p. 3 (La.2/28/94), 632 So.2d 745.

Louisiana Children’s Code Article 854 allows for the time period to be extended for good cause. Having found that D.B.’s failure to object to the untimely setting of the answer hearing constituted a good cause extension of the time period, article 854 has been complied with.

2. Untimely Adjudication Hearing

The second error patent involves the time period for holding the adjudication hearing. Louisiana Children’s Code Article 877 provides as follows:

A. When the child is charged with a crime of violence as defined in R.S. 14:2(B) and the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within sixty days of the appearance to answer the petition. In all other cases, if the child is continued in custody pursuant to Chapter 5 of this.Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.

In this case, D.B. was continued in custody and was charged with second degree murder, a crime of violence as defined in La.R.S. 14:2(B). Thus, according to La.Ch.Code art. 877(A), D.B.’s adjudication should have started within sixty days of his appearance to answer the petition. Since D.B. appeared to answer the petition on April 23, 2013, his adjudication hearing should have taken place by June 23, 2013. However, no adjudication hearing took place by June 23, 2013, and D.B. entered a plea of guilty to second degree murder on October 2, 2013. We find that the sixty-day time period provided for in La.Ch. Code art. 877 was extended for good cause in this case because D.B. agreed to the setting of the adjudication hearing outside of the time period.

As stated above, the supreme court’s recent opinions suggest that the supreme court has decided that a juvenile’s failure to object to the trial court’s setting of an adjudication hearing outside of the time limits should be considered an extension of the time period for good cause. In this case, D.B. did not merely fail to object to the setting of the adjudication hearing outside of the time period but actually agreed to the setting of the adjudication hearing outside of the time period. At the April 23, 2013, answer hearing, the juvenile court asked the parties if they wanted to “pick a date[.]” D.B.’s attorney agreed that a longer period was needed to prepare. The juvenile court set the status conference for July 24th since the Juvenile’s father could not be present on June 26th. On July 10, 2013, prior to the July 24th status conference, D.B.’s counsel filed a “Waiver of Time Limitations on State of Louisiana.”

D.B.’s counsel agreed to set the adjudication outside of the time period set forth in La.Ch.Code art. 877 much like the juvenile’s counsel did in R.D.C. In the footnote addressing the agreement R.D.C.’s counsel made, the supreme court stated:

The hearing, originally set for June 30, 1992, was continued by the court until August 4, 1992, a date outside of the ninety day period. However, since the court, the child and the state agreed to this August 4, 1992 date, we will treat it as an extension for good cause by the court.

R.D.C., 632 So.2d at 747, n. 4. In this case, D.B.’s counsel agreed to set the adjudication hearing outside of the time period when he initially appeared at the | f,answer hearing. Then, D.B.’s counsel documented his waiver of the time limitations in a written “Waiver of Time Limitations on State of Louisiana!,]” in which he stated that he had requested a continuance to retain a forensic psychologist and that he expressly waived his right to “any and all time limitations.” On July 24, 2013, D.B.’s counsel again agreed to an extension of the time period so the State would have the opportunity to meet with the doctor who evaluated D.B. The adjudication hearing was set for October 2, 2013, on which date D.B. pled guilty to second degree murder.

Like the supreme court in R.D.C. and the subsequent cases, we find that the verbal agreement made by D.B. to the initial setting of the adjudication hearing outside of the time period, D.B.’s subsequent written waiver of the time limitations, and D.B.’s final verbal agreement to the adjudication hearing being set for October 2, 2013, should all be treated as good cause extensions of the time period set forth in La.Ch.Code art. 877. Thus, the time period set forth in La.Ch.Code art. 877 was extended in this case for good cause. Accordingly, we find that any error is harmless.

3. Failure to Advise of La.Code Crim. P. art. 930.8 Time Limitation

The juvenile court failed to properly advise D.B. of the time limitation for filing an application for post-conviction relief. At the guilty plea proceeding, the court stated:

The law requires that I tell you there’s a two-year limitation to file for post conviction relief. What that means is you have two years to complain about this matter if you think somebody did something wrong. Okay? That has to be done in writing. It has to be filed with the Clerk of Court in Iberia Parish. And Mr. Spears can explain more about that two [sic] you. You understand?

Louisiana Code of Criminal Procedure Article 930.8 provides the defendant has two years after the conviction and sentence become final to seek postjconvic-tion7 relief. Although the Children’s Code contains no similar provision, this court has previously held that this notice should be given. State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir.2/4/98), 706 So.2d 1081 and State ex rel. J.F., 03-321 (La.App. 3 Cir.8/6/03), 851 So.2d 1282. Therefore, this matter is remanded and the juvenile court directed to advise D.B. or the provisions of La. Code Crim. P. art. 930.8.

Sentencing

In this assignment of error, D.B. alleges error as to the sentence imposed by the juvenile court. Prior to D.B.’s disposition, there was some question as to what provision in the Children’s Code should govern the disposition imposed. Both the State and D.B. submitted briefs to the juvenile court. In its brief, the State asserted that the maximum judgment of disposition for D.B. was commitment until age twenty-one, without benefit of probation, parole, or suspension of sentence. The State cited La.Ch.Code arts. 898(A) and 898(C)(5) as the controlling provisions. In his memorandum, D.B. asserted that the maximum judgment of disposition was age eighteen, citing La.Ch.Code art. 898(C) as his authority.

At the sentencing hearing, the juvenile court stated that it felt the State’s position was the correct position:

I think the State of Louisiana is correct insofar as the range of penalty. I think the State has cited in its brief that there is no specific statutory authority on point and that the general rules of Article 898 A and 8[98]C(1) also applies since [D.B.] at the time of his adjudication and disposition was not under the age of thirteen. He’s thirteen at the time of both the commission of the offense, the adjudication and the disposition, so he doesn’t qualify to be tried as an adult as a fourteen year old, but he’s not also under the age of thirteen, which would require him to be sentenced up to age eighteen. So I think the disposition is found at Article 898 C(5) which says he can be sentenced until he reaches the age of twenty-one.

1 sD.B.’s attorney then asked the juvenile court if it felt a sentence until the age of twenty-one was mandatory or did it feel that such a sentence was discretionary. The juvenile court responded:

I think the law requires that I have to sentence him to life imprisonment without benefit of probation, parole, or suspension of sentence because he was convicted of second degree murder. Now, as a juvenile, that life sentence is maxed out at age twenty-one. It terms out at age twenty-one because we can’t hold him past twenty-one according to 898 C(5). So I have to give him life imprisonment, but I have to also predicate that until age twenty-one, because that’s what’s required by law.

Accordingly, the juvenile court imposed the disposition on D.B.: life imprisonment without probation, parole, suspension of sentence, or modification of sentence. Additionally, the juvenile court stated it “will make this sentence only until age twenty-one, based upon the provisions of Children’s Code Article 898 C(5).” Thus, the “sentence shall terminate upon his reaching age twenty-one.” According to the written custody order, the length of disposition is age twenty-one Although D.B.’s counsel asked for and was granted time to file a motion to reconsider sentence, the record does not indicate that such motion was filed.

In the “Issues Presented For Review” section of his brief, D.B. states that “[t]he sole issue presented to the court is whether the juvenile’s disposition/sentence ends at age 18 or age 21.” Then, in the “Specification of Error” section, D.B. states, “The trial judge erred in sentencing D.B., who was 13 thirteen years old at the time of the offense to imprisonment until 21 years of age, pursuant to La.Ch.C. Art. 897.1A.” In the “Law and Argument” section of the brief, D.B. asserts a two paragraph argument stating the following:

This is a novel issue in our courts. It is an uncontested fact that D.B., who [sic] date of birth is November 23, 1999, was 13 years old at the time of the offense. The State argues that La. Gh.C. Art. 897.1 applies to this juvenile despite it’s express statement that the court shall commit the child who is fourteen years or older at the time of the offense to ... be confined in secure placement until the child attains |9the age of twenty-one years without the benefit of parole, probation or suspension of sentence.”. La.Ch.C. Art. 897.1 A.
On its face, this provision does not apply to 13 year old D.B. The court cannot simply sentence him to age twenty-one but must allow for parole, probation or suspension of sentence. Such was never considered. R, 101-110.
CONCLUSION
The sentence of the trial court is inadequate. D.B. must be considered for all that the law allows at a new sentencing.

Contrary to what D.B. asserts in the “Law and Argument” section of his brief, it does not appear that the State is arguing that La.Ch.Code art. 897.1 applies. In its brief to the juvenile court and in its brief to this court, the State clearly asserts that La.Ch.Code art. 897.1 does not apply since D.B. is not age fourteen. Louisiana Children’s Code Article 897.1(A) provides:

A. After adjudication of a felony-grade delinquent act based upon a violation of R.S. 14:30, first degree murder; R.S. 14:30.1, second degree murder; R.S. 14:42, aggravated rape; or R.S. 14:44, aggravated kidnapping, the court shall commit the child who is fourteen years or older at the time of the commission of the offense to the custody of the Department of Public Safety and Corrections to be confined in secure placement until the child attains the age of twenty-one years without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence.

According to the petition, D.B.’s date of birth is November 23, 1999. The offense was committed on March 12, 2013. Thus, D.B. was thirteen at the time the offense was committed, making La.Ch.Code art. 897.1(A) inapplicable.

The provision that both the State and the juvenile court felt should apply is La. Ch.Code art. 898. That article states:

A. No judgment of disposition shall remain in force for a period exceeding the maximum term of imprisonment for the felony forming the basis for the adjudication. The court shall give a child credit for time spent in secure detention prior to the imposition of disposition.
B. When modification and parole is not prohibited by Article 897.1, if an order of commitment to custody of the Department of Public Safety and Corrections is subsequently modified and the child | inis placed on parole, the maximum term of parole shall be the remainder of the sentence originally imposed.
C. These máximums do not apply if:
(1) The child was under thirteen at the time of a commitment to custody of the Department of Public Safety and Corrections, in which case the judgment shall terminate upon the child’s reaching age eighteen.
(2) A portion of an order of commitment was suspended, when permitted by law, in which case the term of parole shall end when the time period so suspended has elapsed.
(3) The child is tried as an adult and is convicted of, or pleads guilty to a felony after having been committed to the Department of Public Safety and Corrections. In this instance, after sentencing, the department shall have the authority to keep the offender in custody according to terms of the juvenile disposition, or to transfer him to serve his adult sentence. The department shall retain such authority until the expiration of the juvenile commitment when, if not effected earlier, the individual will be transferred to begin serving the adult sentence.
(4) The judgment expires by its own terms, is modified when permitted by law, or is vacated.
(5) The child reaches age twenty-one.
(6) The child is ordered to participate in a juvenile drug court program operated by a court of this state, as a condition of probation, so long as the child is a full-time participant in such juvenile drug court program.

La.Ch.Code art. 898.

Although D.B. asserted in his juvenile court memorandum and again asserts in the “Issues Presented For Review” section of his appellate brief that the maximum judgment of disposition that could be imposed against him was imprisonment until he reached the age of eighteen, this assertion is clearly incorrect since La.Ch.Code art. 898(C)(l)’s limitation applies only to juveniles who were under thirteen at the time the offense was committed. D.B. was thirteen when the offense was committed. Thus, the juvenile court was correct in finding that La.Ch. Code art. 898(C)(1) was inapplicable. Additionally, because none of the | uother subsections of article 898 apply and no other Children’s Code article is applicable, the juvenile court was correct in finding that La.Ch.Code art. 898(C)(5) is applicable. Thus, according to La.Ch.Code art. 898(A) and (C)(5), the maximum term of imprisonment (life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence) for the felony forming the basis of the present adjudication (second degree murder) does not apply if D.B. reaches the age of twenty-oné. At the disposition hearing, D.B.’s counsel raised the question of whether article 898 mandated that D.B. be sentenced until age twenty-one or whether article 898 allowed the juvenile court discretion “up until twenty-one[.]” Although the juvenile court did not specifically answer D.B.’s question, his answer indicates that he felt that a disposition until age twenty-one was mandatory. It is unclear from a reading of the statute itself whether the juvenile court was mandated to impose a disposition until age twenty-one or had the discretion to impose a lesser term of imprisonment. On appeal, however, D.B. does not appear to be challenging the juvenile court’s decision that the term of imprisonment was mandatory. Other than the arguments discussed and disposed of above (the inapplicability of 897.1 and 898(C)(1)), the only argument specifically raised by D.B. that merits further discussion is whether the juvenile court erred in imposing D.B.’s sentence without the benefit of parole, probation, suspension, or modification of sentence.

It appears from the juvenile court’s pronouncement of the disposition that it imposed the sentence without benefit of parole, probation, suspension, or modification of sentence:

Therefore, in consideration of all these facts, the State’s memo and the Defense’s memo, the Court will sentence [D.B.] to life imprisonment without probation, parole, or suspension of sentence, or modification of sentence. Additionally, the Court will make this sentence only until age twenty-one, based upon the provisions of Children’s Code Article |1⅞898 C(5). This sentence shall terminate upon his reaching age twenty-one.

The written custody order, however, is not so clear. In one section, the custody order states that the length of the disposition is until age twenty-one. In another section, the custody order states that D.B. is placed in “the custody of the Office of Juvenile Justice ... to be kept within the jurisdiction of this Court pending further orders not to exceed age 21.” The custody order makes no mention of the sentence being imposed without benefits.

Although the custody order would normally need to be amended to accurately reflect the disposition reflected in the disposition hearing transcript, the juvenile court was incorrect in ordering the disposition to be served without benefit of parole, probation, suspension, or modification of the sentence. Unlike La.Ch.Code art. 897.1, article 898 does not state that the dispositions imposed pursuant to it must be imposed without benefit of probation, parole, suspension, or modification of sentence. In State in the Interest of J.C., 09-2000 (La.App. 1 Cir.7/15/10) (unpublished opinion), the first circuit found that a disposition imposed pursuant to La. Ch. Code art. 898 could not be imposed without the benefit of parole:

Although this article [898] provides maximum disposition limitations, Article 898 does not authorize the juvenile court to place limitations on a child’s parole eligibility at the time of the initial disposition. Such limitations are authorized and mandated only for the enumerated offenses set forth in Article 897.1....
Based on our interpretation of Article 898 in pari materia with Article 897.1, we find the juvenile court legally erred in ordering the first three years of custody to be served without benefit of parole. Accordingly, we amend the custody order to delete this restriction.

Like the underlying offense at issue in the present case (second degree murder), one of the underlying offenses for which J.C. was adjudicated, theft of a | isfirearm, called for the sentence to be served without benefit of probation, parole, or suspension of sentence. La.R.S. 14:30.1 and La. R.S. 14:67.15. Nonetheless, the first circuit found that J.C.’s disposition could not be imposed without benefit of parole since La.Ch.Code art. 898 did not restrict parole.

In reviewing La.Ch.Code art. 898 as a whole, as well as other articles in the Children’s Code and the Revised Statutes, we agree with the first circuit’s finding in J.C. that the trial court could not restrict parole under La.Ch.Code art. 898. Additionally, the juvenile court in the present case lacked authority to impose D.B.’s disposition without the benefit of modification. First, La.Ch.Code art. 898 does not specifically authorize a juvenile court to restrict any benefits. To the contrary, section B of article 898 anticipates that dispositions imposed pursuant to article 898 will be subject to modification and parole:

B. When modification and parole is not prohibited by Article 897.1, if an order of commitment to custody of the Department of Public Safety and Corrections is subsequently modified and the child is placed on parole, the maximum term of parole shall be the remainder of the sentence originally imposed.

Additionally, La.Ch.Code art. 909 states that the juvenile court retains the power to modify a juvenile’s disposition except as provided for in La.Ch.Code art. 897.1:

Except as provided for in Article 897.1, after the entry of any order of disposition, the court retains the power to modify it, including changing the child’s legal custody, suspending all or part of any order of commitment, discharging conditions of probation, or adding any further condition authorized by Article 897(B) or 899(B). It may also terminate an order of disposition at any time while it is still in force.

Louisiana Children’s Code Article 910 allows a motion for modification to be filed by the district attorney, the child, his parents, the custodian of the child, a probation officer, or the court.

l14In La.R.S. 15:906, the legislature announced its intent that all juveniles, except those sentenced pursuant to La.Ch.Code art. 897.1, should have the opportunity for early release from commitment:

A. (1) Except as provided for in Children’s Code Article 897.1, the Department of Public Safety and Corrections may recommend to the committing court the release of any juvenile committed to its care, who, in the opinion of the department, is ready to be returned to his own home, or to a substitute home. Such juvenile may be discharged by the court without supervision or may be placed under supervision until further orders of the court.
(2) Except as provided for in Subsection B of this Section, it is hereby declared to be the public policy of this state that commitment of a juvenile to the care of the department is not punitive nor in anywise to be construed as a penal sentence, but as a step in the total treatment process toward rehabilitation of the juvenile and that, therefore, the recommendations of the department should be given careful consideration by the court in determining what is to be the best interest of the juvenile. If, after release from the care of the department, but while the juvenile is still under the supervision of the court, the court deems it advisable to return the juvenile to the care of the department, a recommitment order shall be furnished the department.
B. In cases governed by Children’s Code Article 897.1, it is hereby declared to be the public polity of this state that commitment of a juvenile to the custody of the Department of Public Safety and Corrections for confinement in secure placement without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence, is necessary and proper because for these very serious offenses the protection of society is the primary objective.

In 1982, the first circuit relied upon La.R.S. 15:906 in finding that the trial court erred when it imposed restrictive conditions on the juvenile’s disposition. State in the Interest of Guy, 413 So.2d 657 (La.App. 1 Cir.1982). At the time of the Guy decision, the provisions of La.R.S. 15:906 were substantially the same as they are now, with the exception of La.R.S. 15:906’s current exclusion of those juveniles sentenced under La.Ch.Code art. 897.1. The trial court in Guy ordered that Guy receive “[n]o holiday leaves or weekend passes, leaves or paroles, etc. for one year” and that Guy be ineligible “for parole for a period not to exceed two (2) |iayears.” Id. at 658. Relying upon La. R.S. 15:906 and La.R.S. 15:908 (student furlough program), the first circuit ordered that these restrictive conditions be stricken from Guy’s commitment order:

Though the Family Court Judge may well be correct in his present conviction, based on his experience with this case and his personal observation of the appellant, that rehabilitation will require at least one year imprisonment without furloughs and at least two years before release, he should not have imposed those restrictions in advance as part of the order of commitment. Under the statutes reproduced above, the initial decision to recommend a furlough or release is to be made by the Department of Corrections based solely on its expert judgment of the rehabilitative progress made by the affected juvenile during the period of commitment. Thereafter, the committing judge is empowered to exercise a veto, but he is duty bound to bear in mind the non-penal nature of juvenile commitments and to give “careful consideration” to the Department’s recommendations.
The commitment order herein is hereby amended by striking out the restrictive conditions quoted in full above. As so amended, the judgment is affirmed.

Id. at 658-59.

Considering the language in La.Ch.Code art. 898(B) concerning the possibility of parole, the language in La.Ch.Code art. 909 concerning the court’s power to modify a sentence, the language of La.R.S. 15:906 concerning the Department of Corrections’ authority to seek early release for a juvenile, the language in La.R.S. 15:906 concerning the legislature’s clear intent for rehabilitation for all juveniles except those who fall under La.Ch.Code art. 897.1, and the first circuit’s opinion in J.C., the juvenile court erred in imposing the present Juvenile’s disposition without benefit of parole or modification of sentence.

The juvenile court also apparently believed that it could not suspend any portion of D.B.’s disposition and place D.B. on probation. As noted previously, unlike La.Ch.Code art. 897.1, La.Ch.Code art. 898 does not impose any restrictions |Hion suspension and probation. Additionally, probation is specifically allowed by La.Ch. Code art. 897 for any felony-grade delinquent acts other than those described in La.Ch.Code art. 897.1. Louisiana Children’s Code Article 897 provides in pertinent part:

A. After adjudication of any felony-grade delinquent act other than those described in Article 897.1, the court may:
(3) Place the child on probation in the custody of his parents or other suitable person.
E. Except as provided for in Article 897.1, the court may impose but suspend the execution of the whole or part of any order of commitment and place the child on probation subject to any of the terms and conditions authorized under Paragraph B of this Article.

Considering La.Ch.Code art. 897’s authorization of probation for all juveniles who commit a felony-grade delinquent act except for those who fall under La.Ch. Code art. 897.1, the juvenile court apparently believed that he could not suspend any portion of D.B.’s disposition and place him on probation. “[A] sentence founded on an incorrect view of the law should usually be set aside.” State v. Spruell, 403 So.2d 63, 64 (La.1981); See also State in the Interest of S.D., 13-1028 (La.App. 3 Cir. 2/12/14), 2014 WL 576265 (unpublished opinion), where this court vacated and remanded that portion of the disposition that was imposed under a mistaken belief that the juvenile court had no discretion as to the term of the disposition to be imposed. Thus, this court vacates the disposition imposed and remands for the juvenile court to impose a new judgment of disposition with the knowledge that the disposition should not be imposed without the benefit of probation, parole, suspension or modification of the disposition. However, this court also instructs the juvenile court that nothing in this remand should be construed as an instruction that |17it should impose a particular term of disposition or that the juvenile court should suspend any portion of D.B.’s disposition. See S.D., 13-1028.

CONCLUSION

For these reasons, this court vacates the disposition imposed and remands for the juvenile court to impose a new disposition with the knowledge that the disposition should not be imposed without the benefit of probation, parole, suspension, or modification of sentence. This court further instructs the juvenile court that nothing in this remand should be construed as an instruction by this court that it should impose a particular term of disposition or that it should suspend any portion of D.B.’s disposition. The juvenile court is further directed to inform D.B. of the provisions of La.Code Crim.P. art. 930.8 at the new disposition hearing.

DISPOSITION VACATED AND CASE REMANDED WITH INSTRUCTIONS.

      . Louisiana Children’s Code Article 114 provides that legal holidays are not to be counted if the time period is less than seven days. The article also states that Saturdays and Sundays are considered legal holidays.


author: GREMILLION, Judge.

text:
    STATE of Louisiana in the Interest of E.R.S.
    No. 13-1415.
    Court of Appeal of Louisiana, Third Circuit.
    May 14, 2014.
    Rehearing Denied July 2, 2014.

      Charlotte G. Bordenave, Mental Health Advocacy Service, Lafayette, LA, for Ap-pellee: E.R.S. (child).
    L. Antoinette Beard, Lafayette, LA, for Appellee: State of Louisiana, Department of Children & Family Services.
    Thailund Porter-Green, Assistant District Attorney, Martinville, LA, for Appel-lee: State of Louisiana, District Attorney’s Office Sixteenth Judicial District Court.
    S. Marie Johnson, Public Defender’s Office, St. Martinville, LA, for Appellants: P.A.A. (mother) J.A.S. (father).
    Court composed of ELIZABETH A. PICKETT, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

_JjThe parents, P.A.A. and J.A.S., appeal the trial court’s judgment terminating their parental rights to E.R.S. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

E.R.S. was born in February 2006. In June 2011, the Department of Children and Family Services (DCFS) received a report of sexual abuse of E.R.S.’s sister, O.A., who was born in 2004, by the sisters’ then twelve-year-old half-brother, W.T. During the investigation, it was learned that E.R.S. was also being sexually abused by W.T. W.T. was charged with aggravated incest, and P.A.A. was charged with accessory after the fact to aggravated incest as the sisters stated that not only had they had reported the abuse to P.A.A., but P.A.A. had witnessed W.T. and O.A. having intercourse and she failed to do anything. Further, J.A.S. told law enforcement that P.A.A. was aware of the abuse and allowed it to continue. E.R.S. was removed from her parents’ custody pursuant to an Instanter Order and was later adjudicated in need of care in September 2011. P.A.A. was arrested and placed in the custody of the St. Martin Parish Correctional Department. E.R.S. and her sister were placed in the home of their maternal grandparents. Both sisters had previously been in the State’s care from February 2008, through February 2010.

Numerous permanency and case review hearings were held from December 2011 through June 2018. DCFS filed a Petition for Termination of Parental Rights and Certification for Adoption on February 22, 2013. The trial court terminated P.A.A. and J.A.S.’s rights to E.R.S. on June 25, 2018, from which a judgment issued on July 19, 2013. P.A.A. and J.A.S. now appeal.

| .ISSUE

P.A.A. and J.A.S. assign as error:

1. Whether the trial court erred in granting judgment in favor of the State of Louisiana terminating the parental rights of [P.A.A.] and [J.A.S.] to the minor child, E.R.S.?

LAW AND DISCUSSION

We have stated that “[pjarental rights to the care, custody, and management of children is a fundamental liberty interest warranting great deference and vigilant protection under the law.” In re J.K., 97-336, p. 4 (La.App. 3 Cir. 10/29/97), 702 So.2d 1154, 1156. See also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Accordingly, a parent has a strong interest in the accuracy of a decision to terminate her rights. Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., NC, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Thus, the Louisiana legislature has imposed strict standards that require the State to prove, by clear and convincing evidence, the grounds for termination under La.Ch.Code art. 1015 before a judgment can be issued terminating parental rights. In re J.K., 702 So.2d 1154.

This analysis requires a balancing of the child’s interests and the parent’s interests; however, it has been repeatedly held that the interests of the child are paramount over that of the parent. In re J.A., 99-2905 (La.1/12/00), 752 So.2d 806. In that case, the supreme court stated:

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 his 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. 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, |3mcluding termination of parental rights if justifiable grounds exist and are proven. Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens.

Id. at 811 (citation omitted).

The trial court’s decision to terminate parental rights will not be reversed by the appellate court unless it is manifestly erroneous or clearly wrong. In re V.F.R., 01-1041 (La.App. 3 Cir. 2/13/02), 815 So.2d 1035, writ denied, 02-797 (La.4/12/02), 813 So.2d 412.

Louisiana Children’s Code Article 1015(5) sets forth the following as grounds for involuntary termination:

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

Louisiana Children’s Code Article 1036(C) states:

Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
|4(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

The trial court found by clear and convincing evidence that the parental rights of P.A.A. and J.A.S. should be terminated because:

[T]he parents have failed to substantially complete the case plan approved by the court, the parents have shown a continued inability to protect the child from harm and there is no reasonable expectation of improvement in the near future, and the parents have failed to provide support for the minor child for a period of greater than six months; and, that termination of parental rights and certification for adoption is in the best interest of the minor child, as the child is in need of permanency and is placed in the adoptive home of a relative.

In its oral reasons, the trial court gave the following reasons for termination:

The Court finds that the largest weight of the evidence, the Court finds, is the guilty plea of Obstruction of Justice on the issue of the allegations of abuse of the — neglect or abuse of the children here, which — of which [E.R.S.] is a child victim. Dad, the impression that I have, is mild-mannered and passive and not necessarily assertive in these circumstances, and mom is just the opposite. I think mom, obviously, has, under the law and all circumstances, a right to vigorously advocate her position. But I think Dr. Legarde was absolutely right. At some point, in the best interest of the child, the parent that puts that best interest forward will take his or her interests and put them behind to lower their sense of victimization and put that child’s welfare and interests and health and mental health first. And I do not find that [P.A.A.] did this.

The parents were given various case plans that were revised over time as activities were completed. P.A.A.’s case plans included: maintaining housing that is safe and free of illegal activities, maintaining a stable income, cooperation with the agency, completion of anger management classes, completion of parenting classes, participation in outpatient mental treatment, participation in sexual abuse |stherapy through Hearts of Hope, and maintaining contact with E.R.S. J.A.S.’s case plan was identical minus the need to complete sexual abuse therapy and receive mental health treatment.

Evidence and Testimony

P.A.A., the maternal grandmother, caseworkers, and therapists testified at the June 25, 2013 termination hearing. Felicia Chretian-Diggs, a child investigator with DCFS, testified that she initially investigated the claim of lack of supervision and passive sexual abuse. Chretian-Diggs found validity in both claims. She said that the parents failed to supervise the children and that they knew about the abuse but did nothing about it despite P.A.A. actually witnessing the abuse. A lengthy report detailing Chretian-Diggs’ findings was submitted into evidence. DCFS initially attempted to investigate, but P.A.A. would not allow the worker to speak to O.A. The St. Martin Parish Sher-riff s Office conducted an investigation and determined that both sisters had been sexually abused by W.T. Both E.R.S. and her sister provided details of recurrent sexual abuse by W.T. The report indicates that E.R.S. “said she told her Mommy what [W.T.] did, and then Mommy said she was going call the police.” However, she also indicated that P.A.A. and J.A.S. told her not to tell anyone what W.T. did to her.

During the initial investigation, P.A.A. claimed that she intentionally told her cousin (both P.A.A. and her cousin have children by the same father) that she witnessed O.A. and W.T. having intercourse to “see if she [the cousin] would tell.” She denied that the girls told her about the abuse. However, she noted that the girls were removed from her home in 2007, due to a report that W.T. was “touching” O.A.

IfiThe report further revealed that J.A.S. reported that he was at his mother’s house when P.A.A. called and told him that she saw O.A. on top of W.T. He also admitted that E.R.S. told him “a couple of months ago” that W.T. touched her. He recalled W.T. looking at pornography on the computer resulting in J.A.S. putting a password on the computer. J.A.S. said that W.T. reset the password and locked him out of the computer.

The medical exams of both girls revealed that their genital areas were red and both of their hymens were broken.

Bobby Bernard, a foster care worker with DCFS, testified that he was the case worker for E.R.S. and her parents. Bernard testified that E.R.S. had been removed from the home before. He said that the agency has validated five complaints of neglect in the past six-and-one-half years, beginning in October 2006. He said that E.R.S. was removed from her parents’ custody from February 2008 through February 2010 for neglect.

Bernard then discussed the case plans for the parents. He said the parents maintained stable housing. He said home visits were scheduled for three times per month, but that P.A.A. only allowed him into her home a total of three times over the course of the case. Bernard said that W.T. is in the state’s custody in a detention home but is scheduled to be released in June 2014, to his mother’s house, placing E.R.S. at risk.

Bernard said that J.A.S. stated that he worked at a plant in Arnaudville, but that he never provided any written documents verifying the employment or income. Bernard further testified that the parents never paid any of the court-ordered support (P.A.A. was to pay $50.00 per month and J.A.S. was to pay $25.00 17per month) but did bring gifts at most visits including school supplies, groceries, and school uniforms.

Psychological evaluations of the parents were completed on July 26, 2011, pursuant to the case plan. The recommendations of the psychologist were incorporated into the case plans for the parents. It was recommended that P.A.A. begin taking her medication again and attend individual therapy and parenting classes. P.A.A. was diagnosed with depression and personality disorder with poor coping skills. P.A.A. was to receive therapy specific to parents of sexual abuse victims, but Bernard said that P.A.A. refused transportation from the agency, so her case was closed. P.A.A. did attend more than fifteen therapy sessions with Dr. Henry Legarde. Bernard had to request additional therapy sessions because P.A.A. was not making any progress in therapy because she continued to deny that her children had been victimized or that her neglect led to the abuse.

Bernard stated that P.A.A. was referred to therapeutic services following her release from prison (P.A.A.’s mother had pulled the bond she posted for her daughter relating to the accessory charges) as part of a condition of her probation. However, P.A.A. declined to participate in this therapy due to lack of funds. Bernard said that the fee could have been waived if income statements had been provided, but that the parents refused to submit any income statements. However, at the time of trial P.A.A. was receiving services from Tyler Mental Health. She also completed anger management classes and seven parenting classes. J.A.S. was asked to participate in therapy with E.R.S. He completed four sessions and also attended parenting classes. Bernard said that both parents regularly attended the | ^visitations with E.R.S.; however, he said there was a lot of arguing at the visits between the maternal grandparents and P.A.A. Bernard also testified that the parents maintained regular contact with DCFS. He further said that P.A.A. would often complain about the injustices she was suffering from having to deal with DCFS. However, Bernard said that P.A.A.’s attitude had improved some once she started taking antidepressant medication (ten milligrams of Paxil).

Bernard testified that since July 2011, E.R.S. has been placed with her maternal grandmother and step-grandfather, a certified adoptive placement. She was also placed in the same home during her first time in foster care. Bernard said that the grandparents intend to adopt E.R.S. if she is freed for adoption. A four-year-old female cousin also resides with the grandparents. Bernard said that E.R.S. expresses a desire to remain with the grandparents and that the grandparents would facilitate a relationship with P.A.A. Bernard stated that it was DCFS’s opinion that it would be in the best interest of E.R.S. if her parents’ rights were terminated.

Dr. Legarde, a clinical psychologist, was tendered as an expert witness. Dr. Le-garde testified that he was P.A.A.’s therapist from February 3, 2012 through July 20, 2012, and had sixteen sessions with her. Regarding P.A.A.’s acknowledging the abuse by W.T., Dr. Legarde testified:

She did speculate about the possibility that her children had been molested by their brother and never really quite seemed to come to a final decision that that was valid and she had many reasons to conclude that that might not have been true. Including that the children were not always truthful, meaning the daughters, and that a lot of the way DCFS and other mental health, the legal authorities, had handled the investigation was faulty and unfair to her. So much of our sessions involved [P.A.A.] complaining about how she was being victimized. Now she did report, at one point, that she had reported her son as having — had sexual encounters with the daughters in 2007, but that she was told that that couldn’t be — that no one could help her.
| aIt was a constant recitation of all the things that other people had done wrong and how, basically, that there was nothing particularly wrong with herself, as a person or as a mother.

Dr. Legarde testified that P.A.A. never acknowledged the abuse or showed remorse for what had happened. P.A.A. speculated that they could have been abused; she also speculated that her daughters had initiated some form of sexual activity. Dr. Legarde felt that P.A.A. was always more upset about the effects of this situation as it related to her rather than the effects on her children. He further said that he felt P.A.A. only attended therapy in an attempt to follow DCFS rules. He felt that P.A.A.’s inability to acknowledge what had occurred did not bode well of E.R.S.’s safety in the home in the future. Dr. Legarde opined that it was inadvisable to return the children to P.A.A.’s custody based on his sessions with her.

Christine Dugas, a licensed clinical social worker, was also qualified as an expert. She treated E.R.S. beginning in November 2011 through March 2013. Dugas testified that therapy ended with a positive outcome. She said that E.R.S. never recanted any of the allegations regarding W.T. Dugas testified that E.R.S. loves her grandmother with whom she is placed and expresses a desire to remain in her grandmother’s home. Dugas said that E.R.S. is demonstrating a positive adjustment both at home and school.

P.A.A. testified that treatment at Tyler Mental Health began in February 2013. She said that she is taking Paxil for anxiety and depression. P.A.A. testified that in her sessions with Dr. Legarde she refused to “admit something I didn’t do.” Regarding the allegations in 2007, of nine-year-old W.T. inappropriately touching O.A., P.A.A. testified: “And I proceeded in the room and I found [W.T.] with his finger in [O.A.] and I — just lost it. I didn’t know what to think, what to do.” 11ftP.A.A. claims that she brought O.A. to a hospital and spoke with a detective from the St. Martin Sherriffs Department, who told her there was nothing they could do until W.T. was ten years old. P.A.A. said that she talked with some therapists over the phone, got a book to review with three-year-old O.A., and acted as a “buffer between my girls and my son.” Regarding W.T.’s return home following his release, P.A.A. stated:

We have discussed that if [W-T.] came out, even after completing the sexual offender program, he would be on a probationary period first, where we would obtain a camper. We would obtain a separate residence to where I could stay with [W-T.] one week and he [presumably J.A.S.] could stay with E.R.S. in our trailer house and on the next week, I would — we would, like rotate. He would go and stay with [W-T.] while I would be E.R.S. at the trailer.

P.A.A. testified that she had no knowledge of the allegations made in June 2011, and that they resulted because she made up the allegations and told them to her cousin to see if her cousin would file a complaint with DCFS. P.A.A. claims that the cousin continually harassed her and made up allegations so that P.A.A.’s kids would be taken away and in retaliation for the $606.00 in child support that the cousin’s boyfriend had to pay P.A.A.

On cross-examination, however, the following exchange occurred:

Q. [P.A.A.], is it your testimony — and I just want to be clear, is it your testimony that in — with regards to this most recent allegation of sexual abuse, that you told [your cousin] that you saw your son on top of your daughter to get her to make a false allegation to DCFS? Is that your testimony?
A. Yes, ma’am.
Q. Okay. So is it your — you’re aware that the girls — the allegation turned out to be true? I mean, the girls were, in fact, raped by your son; are you aware of that?
|nA. Unfortunately, yes.

She further admitted that in 2007, she found W.T. with his finger inserted in then-three-year-old O.A.’s vagina. She claimed that no one would help her and that she did not know what to do because “this is a situation you never normally in as a parent.” However, she admitted that she was molested as a child and her mother did nothing except tell her not to tell anyone. P.A.A. denied telling her daughters not to tell anyone about the abuse. She further claimed that, although she sought therapeutic help for W.T. after he molested three-year old O.A., no one would help him.

Regarding placement of W.T. with his biological father, P.A.A. testified that was not an option because W.T.’s father is a convicted sex offender. In fact, P.A.A. testified that W.T.’s biological father molested his and P.A.A.’s older daughter who was removed from P.A.A.’s custody long ago. W.T. was not old enough to talk at the time, but P.A.A. concedes that it is possible that he was molested also. P.A.A. said that she was “surprised” that W.T.’s abuse had escalated from the time of the 2007 incident to the 2011 incident. Later she testified that the girls told her that they had been molested only one time at her house but several times at their grandmother’s house. Further, when P.A.A. was asked if she believed what her daughters reported, she said, “I believe it to a certain point, but do I believe some of it was coached? Yeah.”

B.B., the maternal grandmother of E.R.S., denied having any knowledge of the molestation until the 2011 incident. B.B. said that she would allow E.R.S. to visit with her mother if she were awarded custody.

112Compliance with Case Plan

The parents argue that they substantially complied with the State’s case plan. It is true that they did complete some aspects of the case plan. They have maintained adequate and stable housing. However, we find that there is nothing “safe” about a young girl residing in this home. The parents have repeatedly shown their inability to protect their young daughters from abuse in their own home. We further find P.A.A.’s “plan” for W.T.’s release, i.e., to live separate and apart in a camper nearby, to be unlikely to occur or to prevent W.T. from abusing E.R.S. As part of the case plan, the parents were to allow DCFS three monthly visits in the home, but P.A.A. continually refused to let DCFS workers in to visit.

It appears that J.A.S. has a stable income from his employment while P.A.A. remained unemployed. However, the parents failed to submit the requested employment verification and proof of income as required in their case plan. The parents failed to make the monthly child support payments, although it is true that they brought gifts and supplies to the visits.

The parents submitted to psychological evaluations, but the mother, in particular, initially failed to heed any of the psychologist’s advice maintaining that it was DCFS’s fault that she could not obtain services. Although P.A.A. finally began treatment with Dr. Legarde, she made no progress whatsoever in her treatment and instead constantly complained about the injustices she was suffering at the hands of DCFS. Finally, the parents completed anger and parenting classes as required and also regularly attended visitations with E.R.S.

Not only did the parents fail to complete their case plan, we find no error in the trial court’s finding that there is no reasonable expectation of significant improvement or reformation and that it was in the best interest of E.R.S. to be | ^released for adoption. Following the State’s case plan is meaningless if the parents continue to deny that the behavior that caused the removal in the first place occurred in the face of overwhelming evidence to the contrary. Thus, we move on to the second prong of our analysis.

Reasonable Lack of Expectation of Significant Improvement

Louisiana Children’s Code Article 1086(D) states:

Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

The parents argue that there is a reasonable expectation of reformation. Louisiana Children’s Code Article 1036(C) illustrates the considerations that the trial court takes in determining whether there is a reasonable expectation of reformation. In re S.M., 98-922 (La.10/20/98), 719 So.2d 445. Mere cooperation with DCFS is inadequate; the parents must show improvement over time even if all of the problems that caused the removal have not been eliminated. Id. This requires that the parents significantly modify the behavior that caused the removal. Id.

The parents’ limited completion of some portions of their case plan does not warrant the return of E.R.S. to their home. Dr. Legarde discontinued therapy | l4because he did not feel that P.A.A. was making any progress. The parents, P.A.A. particularly, has yet to make any significant strides in protecting her daughters from sexual abuse from W.T. After the first round of abuse in 2007, P.A.A. failed to protect E.R.S. from the escalating sexual abuse by W.T. in 2011. Both parents knew about the abuse and did nothing. P.A.A.’s testimony that she invented the story of witnessing W.T. and O.A. having intercourse is simply not credible. P.A.A.’s attitude with DCFS and in court give no indication that she has made any progress in realizing her culpability or that she will be capable of preventing the abuse from occurring in the future. She continues to deem herself a victim of the system rather than note the substantial effect of W.T.’s behavior on E.R.S.

Further, she has failed to consistently treat her mental health issues. P.A.A. argues that she has shown significant improvement in her personality disorder since she began taking Paxil in March 2013. Unfortunately, that is too little, too late. None of P.A.A.’s behaviors indicate a reasonable expectation of significant improvement in her failure to protect E.R.S. or of reformation in understanding her failure to protect her daughter. The parents, P.A.A. in particular, have a long history of being unable to provide for their children’s most basic needs.

The parents’ pattern of behavior, including P.A.A.’s failure to protect E.R.S., along with J.A.S’s inaction and lack of involvement, indicates that there is no reasonable expectation of significant improvement or reformation. Moreover, we are convinced that the trial court did not err in finding that it is in E.R.S.’s best interest that she be freed for adoption based on the testimony of foster care workers and mental health experts. E.R.S. has stabilized in the foster home and is doing well in school. Further, E.R.S. has spent the majority of her short life in the care of the foster home she is currently placed in.

^CONCLUSION

The trial court did not manifestly err in finding that it would be in the best interest of E.R.S., who has spent the majority of her life in foster care, to be released for adoption. Costs of this appeal are assessed to the parents, P.A.A. and J.A.S.

AFFIRMED.

      . Pursuant to Uniform Rules-Courts of Appeal, Rule 5-2, initials are used throughout to protect the identity of the minor.

      . On the day of her release, as part of a plea agreement on the charge of accessory after the fact to aggravated incest, P.A.A. pled guilty to obstruction of justice and received a sentence of five years' probation.

      . As noted earlier, P.A.A. and the cousin both have children by the same man.