author: HANS J. LILJEBERG, JUDGE

text:
    Kelly W. BOESCH v. Deborah Sylvester BOESCH
    NO. 16-CA-526
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, KELLY W. BOESCH, Phyllis C. Coci
    COUNSEL FOR DEFENDANT/AP-PELLEE, DEBORAH SYLVESTER BOESCH, Kristyl R. Treadaway
    Panel composed of Jude G. Gravois, Robert M. Murphy, and Hans J. Liljeberg
   HANS J. LILJEBERG, JUDGE

| tin this child custody proceeding, the father appeals the trial court’s judgment granting the mother’s Rule to Modify Child Custody and awarding the parties joint custody, with the mother named as the domiciliary parent. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The parties, Kelly Boesch (“Kelly”) and Deborah Boesch Corb (“Deborah”), were married on February 26, 2000. During their marriage, the parties had two children: Christian, born January 28, 2003; and Jaden, born April 1, 2005. Kelly filed for divorce in January of 2008, and a judgment of divorce was rendered on March 20, 2009.

After a custody evaluation was performed, the parties entered into a consent judgment on December 16, 2008, which provided that the parties would have joint custody of the children, with both parents designated as co-domiciliary parents. Under their agreement, the children would live with the father, Kelly, and the mother, Deborah, would have visitation on her days off from work. Deborah was on active duty with the United States Air Force at that time.

On November 30, 2009, the parties entered into a second consent judgment, which provided that upon Deborah’s release from the military, the parties would continue to have joint custody of the children, with both designated as co-domiciliary parents, but with the parties having 50/50 shared custody on a week-to-week basis.

On May 13, 2013, Deborah filed a Rule to Modify Child Custody, asserting that there had been a material change in circumstances to justify a custody modification, and that the shared physical custody schedule was no longer in the best interest of the children. In her pleading, Deborah requested that she be ^designated as the primary domiciliary parent and that the children reside with her, subject to visitation with Kelly every other weekend.

Deborah set forth several assertions in support of her claim that a material change in circumstances had occurred. She noted that she was no longer in the military, had remarried, and was a stay-at-home mom, with much more time to care for the children, assist with their medical needs and hygiene, and provide a balanced diet. She claimed that she provided the children with a stable environment, whereas Kelly allowed the children to live in chaos and watch excessive television, which resulted in their failure to complete homework and caused stress and confusion for the children. Deborah further asserted that the parties’ son, Christian, had started exhibiting behavioral problems at school, including bullying, which she believed was correlated with Kelly’s “lack of parenting skills and poor example.” She further raised issues pertaining to the children’s hygiene during their time with Kelly. Finally, Deborah set forth several reasons why Kelly “makes it impossible” to co-parent the minor children, including that Kelly is hostile and bitter over then-divorce and her remarriage, that Kelly refuses to administer Christian’s allergy medicine, and that the parties cannot agree on a primary physician for the children, as well as other issues.

On May 30, 2013, Kelly filed an Opposition to Deborah’s Rule to Modify Child Custody, arguing that no material change in circumstances had occurred since the November 30, 2009 consent judgment. He further asserted that he and the children are “very bonded” and that he provides a stable and loving home for them. Kelly also denied failing to appropriately attend to the children’s hygiene and homework, and he denied allowing them to watch excessive amounts of television. Finally, in his opposition, Kelly asserted that Deborah wants him to medicate Christian when he is not sick, Deborah’s husband threatens the children |awith corporal punishment, and Deborah does not foster a relationship between him and the children.

On June 7, 2013, the parties agreed to have Gail Pesses, M.S.W., L.C.S.W., perform an updated custody evaluation. On December 9, 2013, Ms. Pesses completed her updated evaluation, recommending that the parties should have joint custody, with Deborah designated as the domiciliary parent. She recommended that the children live primarily with Deborah and have visitation with Kelly every other weekend from Thursday after school until Sunday night, and on Tuesdays after school when he has not had visitation the weekend before. Ms. Pesses made several additional recommendations pertaining to medical treatment, a holiday schedule, and other issues.

On January 31, 2014, the domestic hearing officer recommended that the court adopt Ms. Pesses’ recommendations until there was a ruling on Deborah’s Rule to Modify Custody. This became an interim order of the court.

On June 24, 2014, Deborah filed a Motion for Updated Child Custody Evaluation, which was granted by the trial court. Thereafter, on March 26, 2015, Deborah filed a Motion to Set Custody Trial and Amended Rule, requesting sole custody of the children for the reasons previously asserted and also alleging:

1) Kelly was still refusing to medicate Christian, which resulted in Christian having to go to Children’s Hospital for exacerbation of his allergy symptoms.
2) Kelly discussed parenting conflicts with the children’s pediatrician in front of Christian. Kelly taped his conversation with the pediatrician, and when the doctor found out she had been secretly recorded, she refused to treat the children any longer.
3) Deborah has attempted to use the parenting coordinator to select a new pediatrician, but Kelly refuses.
4) Christian has been having behavioral problems at school, and he was reported to the state as a bully.

|/Trial on the change of custody matter was held on July 28 and 29, 2015, and October 1 and 21, 2015. At trial, Gail Pess-es, the court-appointed custody evaluator, was accepted as an expert in social work and child custody evaluations. Ms. Pesses stated that Deborah and Kelly have “very little effective non-confrontational communication.” She testified regarding different areas of conflict, including arguments about sharing school information, the allergy medicine dispute, the children’s relationship with and name for Deborah’s husband, and others. Ms. Pesses testified that Kelly thinks Deborah and her husband, John Corb, want Kelly out of the children’s lives, but Ms. Pesses does not think that is true. She testified that both children indicated that their parents’ households are very different. Ms. Pesses testified that both children expressed things they liked about both parents and things they wished each parent would do better.

Ms. Pesses testified that she believes both parents have contributed to the parenting conflict. She believes that Kelly goes to extremes when he is angry by speaking to the children about parenting conflicts, the court proceedings, and what he thinks about Deborah’s requests, which in turn causes more conflict. Ms. Pesses indicated that the children are put in the middle which pressures them and can cause them to feel less secure and worry. She testified that this can contribute to Christian’s acting out at school, though many factors could be involved.

Ms. Pesses opined that the present custody situation was “miserable to everybody” and that they were “stuck” and unable to move forward with the children’s needs. She stated that Kelly puts his needs before the children’s and he is unable to control his anger and jealousy, which prevents rational solutions to co-parenting dilemmas and serves as a dangerous model for the children, especially Christian. While Ms. Pesses testified that neither party wants to hurt the children, |5she believes that joint custody with Deborah as the domiciliary parent is in the best interest of the children.

Lynette Duhe, who was accepted as an expert in psychology and counseling, testified that she provided counseling to Christian in 2012 and again in 2014. She testified that she did not think the shared custody arrangement was negatively impacting Christian and that limiting time with Kelly could negatively impact Christian. However, she also noted that she had to speak with the parties about the amount of tension between them and how it was affecting Christian. Ms. Duhe believes that Kelly minimizes Christian’s behavioral problems, and she thinks Deborah needs to revise her fears about Christian being disturbed or it could become a self-fulfilling prophecy.

Alicia Pellegrin, an expert in psychology and child custody evaluations, performed psychological evaluations of the children. Dr. Pellegrin testified that Deborah and Kelly are polarized in how they view the children, the situation, and each other’s parenting skills. She testified that Jaden is well-adjusted and “happy go lucky.” However, she found Christian to be socially and emotionally immature, with anger issues and without good coping skills. She believes Christian does not know how to express his anger appropriately, resulting in the trouble he has had at school. However, she stated that it is hard to know the severity of his issues, because the parents provide completely different narratives. Deborah thinks Christian has serious problems, whereas Kelly thinks he is emotional and high energy, but within normal limits. Dr. Pellegrin recommended therapy for Christian and that Kelly and Deborah work on their relationship, stating that she believes “at least some of what was going on with Christian and contributing to his acting out was the animosity between his parents and the very different ways that he is viewed by mom and by dad.”

IfiDr. Alan Klein, an expert in psychology, testified that he conducted a psychological evaluation of Kelly. He believes that Kelly has anger management problems and a problem with figures of authority. He did not find anything that he believes would compromise Kelly’s ability to parent when the children are in his care, but he stated that it is another issue when dealing with Deborah. Dr. Klein testified that the parties have a vitriolic and contentious co-parenting relationship, and he believes the dynamics of their relationship affect their ability to co-parent.

Daniel Perez, a teacher and coach at the children’s school, testified regarding Christian’s behavior problems. He believes Christian’s behavior is not intended to be mean or aggressive; rather, he thinks Christian is acting out for attention and because he wants to be socially accepted. Mr. Perez believes that both parents have shown care, advocacy, and support for the education of the children.

Deborah Corb testified about issues involving co-parenting with Kelly, as well as issues with Christian’s medication and school behavior. She testified about an incident at the children’s school during which Kelly referred to her as a “psycho” in front of Christian and other people. Deborah also referred to incidents in which the parties have argued over the children’s shoes and Kelly referred to her as a “liar” in front of the children. Deborah testified that Kelly involves the children in the parties’ issues and he has told them that Deborah is being unfair. She stated that there has been an ongoing problem with telephone access, and she testified regarding emails and other communications between the parties about telephone issues. Deborah stated that she wanted a phone schedule so that Kelly could speak to the children directly instead of speaking to her, but Kelly would not agree to a phone schedule and would often put her on speakerphone when she called the children. Deborah also testified regarding conflicts with Christmas visitation. She stated that Kelly often puts the children in the middle and she is “constantly addressing it through emails with Kelly.”

17Peborah also testified that Christian’s medication has been a big source of contention between the parties. She stated that the children’s former pediatrician, Dr. Reed, diagnosed Christian with allergic rhinitis. Christian’s medical records were admitted into evidence, and Deborah testified regarding Christian’s medical issues, which are primarily associated with his allergies. Deborah stated that Dr. Reed prescribed two medications for Christian, to be taken daily. Dr. Reed indicated that they could “see about weaning him off the medication” if he did not have symptoms for at least three weeks. Deborah indicated that Kelly does not give Christian his medication daily because he does not believe Christian needs medicine when he does not have symptoms.

Deborah testified that Dr. Reed indicated that she would no longer be the children’s pediatrician as of August 15, 2014, after Deborah informed her that Kelly had recorded a conversation between Dr. Reed and Kelly. She stated that at the time of her testimony, July 29, 2015, she and Kelly were still unable to agree on a pediatrician for the children and she has had to go to Children’s Hospital for Christian’s medication and any issues the children have had. Deborah testified that she has gone to the children’s school to give Christian his medication during the weeks they are in Kelly’s custody, in order to make sure that Christian is regularly medicated. She testified that Dr. Reed indicated that there are risks of developing asthma if allergic rhinitis symptoms are not controlled. Deborah testified about difficulties in the parties’ communication about Christian’s medication and on one occasion, Christian was “double-medicated” or given his medication by both parties on the same day.

Deborah also testified about Jaden’s issues with pinworms, which she claims were caused by Kelly not requiring the children to bathe regularly when in his custody. Jaden’s medical records were also admitted into evidence.

|sFinally, Deborah testified that while the children have good grades, she has had to give additional effort during her custody time to make up for their lack of preparation during Kelly’s custody time. Deborah also testified regarding the numerous behavior reports Christian has received at school since 2010. She testified that she gives structured discipline to hopefully prevent inappropriate behavior, but Kelly has not provided appropriate discipline in response to Christian’s behavior reports.

Kelly Boesch testified that he and Deborah had a good co-parenting relationship before Deborah got remarried. He stated that after Deborah’s remarriage, the children would tell him negative things that were said about him by Deborah and John, including that Deborah had to divorce him because Kelly did not believe in God. Kelly testified that the children stated that Deborah and John told them to call John “dad” and gave the children Bibles from “mom and dad.” Kelly believes that Deborah and John were trying to turn the children against him. Kelly also testified that the children told him John threatened to give Christian “a really bad spanking.” According to Kelly, Deborah would not answer the phone when he called to discuss these issues, and he admitted leaving “not-too-nice” messages for her.

Kelly further testified that before Deborah remarried, whatever the children were wearing when they went to the other’s custody, they would wear when they returned. However, Kelly asserted that after Deborah remarried, she repeatedly refused to return the shoes he bought for Jaden, and Deborah would send Jaden in “disgusting” shoes for boys. He stated that he previously had phone contact with the children almost every day, but after Deborah’s remarriage, she tried to restrict him to a call schedule. Kelly also testified regarding a family reunion that he wanted the children to attend, but Deborah would only agree for her and John to Rbring the children to Kelly’s family reunion for an hour, with Deborah and John present.

Kelly testified that Christian’s medication became an issue after Deborah’s remarriage. He testified that at some point after speaking with Dr. Reed, he started medicating Christian daily, but Deborah would get the prescription and only give him two phis for the weekend because she went to school every day to give him his medication. Kelly did not agree with sending the medication in Christian’s backpack, because it was dangerous and against school policy. He also testified that he gave Christian his medication one day and, after he took it, Christian told him he had already gotten his medication from his mother that day. In Kelly’s opinion, the medication does not work for Christian, and he has allergy symptoms during certain times of the year whether he is on medication or not. Kelly testified that he has begged Deborah to pick another doctor with him but she had refused.

Kelly also testified that Christian has been in counseling since he was little because Deborah always thinks something is wrong with him. He testified that after Dr. Pellegrin recommended therapy for Christian, Deborah would not agree to any of the therapists he recommended. Kelly also testified regarding the children’s academic performances and issues he has had receiving report cards and other information. Finally, Kelly testified that he believes the children like the shared custody arrangement and that it is in the best interest of the children to continue this arrangement.

On October 28, 2015, in open court, the trial judge rendered a judgment granting the Rule to Modify Custody and ordering joint custody, with Deborah designated as the domiciliary parent. The judge ordered that the children would primarily reside with Deborah and that Kelly would have physical custody of the children on alternating weekends from Friday after school until 6:00 p.m. on Sunday evening. Kelly would also have the children every Wednesday until 7:00 hnP.m. The holiday schedule would remain unchanged and each party would have two weeks of uninterrupted vacation with the children in the summer. The judgment further provided that Deborah would select the children’s medical and dental providers and inform Kelly of the same. The parties would follow the recommendations of the children’s doctors regarding administration of medicine or treatments, and Christian would continue in therapy. The judgment ordered that Kelly would have telephone contact with the children two days per week on the days he does not exercise physical custody. The lengthy judgment provided other various orders as well.

Kelly filed a Motion for New Trial, which was denied by the trial court on March 15, 2016. Kelly appeals.

LAW AND DISCUSSION

On appeal, Kelly argues that the trial court erred in modifying the child custody order from 2009, because there was no material change in circumstances, which is required to support a modification of custody. He contends that the issues in this case do not rise to the level of change needed for a change in custody. Kelly argues that while the parties have engaged in instances of “petty behavior,” the testimony and evidence did not show that the 7/7 shared custody arrangement was having a negative impact on the children.

Deborah responds that the trial court did not err in finding that there was a material change in circumstances affecting the welfare of the children. She notes that the trial court found that Kelly sees his rights before his children’s and that his assertion of rights negatively impacts the children. She claims that Kelly’s actions, particularly refusing to medicate Christian, show that he cannot be trusted to act in the children’s best interests and not be ruled by his emotions as they relate to Deborah. Deborah claims that taking the evidence as a whole, the trial court Inproperly found a material change in circumstances and modified custody in accordance with the children’s best interests.

The primary consideration in a determination of child custody is the best interest of the child. La. C.C. art. 131; McCaffery v. McCaffery, 13-692 (La.App. 5 Cir. 4/9/14), 140 So.3d 105, 115, writ denied, 14-981 (La. 6/13/14), 141 So.3d 273. The best interest of the child rule applies in actions to change custody as well as those to initially set it. Id.; Gray v. Gray, 11-548 (La. 7/1/11), 65 So.3d 1247, 1258.

For a parent seeking a change in a custody arrangement, the burden of proof differs depending on whether the prior custody award was made by a considered decree or a stipulated decree. Silbernagel v. Silbernagel, 10-267 (La.App. 5 Cir. 5/10/11), 65 So.3d 724, 728. A stipulated custody decree is one in which “the parties consent to a custodial arrangement, and no evidence of parental fitness is taken.” Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 738. A considered decree, on the other hand, is “an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children.” Id.

In the present case, the prior custody decree from 2009 was a consent judgment and, thus, it was a stipulated custody decree. The party seeking to modify a stipulated custody decree bears the burden of proving by a preponderance of the evidence that: 1) there has been a material change in circumstances since the prior custody decree was entered; and 2) the proposed modification is in the best interest of the children. Evans, 708 So.2d at 738; Silbernagel, 65 So.3d at 728.

Every child custody case must be viewed within its own peculiar set of facts and circumstances. McCaffery, 140 So.3d at 116; Connelly v. Connelly, 94-527 (La.App. 1 Cir. 10/7/94), 644 So.2d 789. The trial judge is in the best position to ascertain the best interest of the child within each unique set of circumstances, McCaffery, 140 So.3d at 116. However, the best interest of the child is not the first consideration when one seeks a modification of custody. Cedotal v. Cedotal, 05-1524 (La.App. 1 Cir. 11/4/05), 927 So.2d 433, 437. A trial court should first ascertain whether a change in circumstances materially affecting the welfare of the child has occurred. Id. Although life changes may occur, a change in custody is not justified if the changes do not have an effect on the welfare of the child. Mizell v. Stone, 15-244 (La.App. 3 Cir. 12/9/15), 181 So.3d 842, 851.

In the present case, the trial court did not make a finding regarding a material change in circumstances and thus, pre-termitted the first prong of the two-pronged material change/best interest test. Thus, we must consider the question of a material change in circumstances de novo based on our review of the record. See Evans, 708 So.2d at 735; and Bonnette v. Bonnette, 15-239 (La.App. 4 Cir. 2/17/16), 185 So.3d 321, 330, writ denied, 16-663 (La. 5/20/16), 191 So.3d 1072.

In Bonnette, 185 So.3d at 330, the Fourth Circuit noted that the courts of this state have found a material change in circumstances under a variety of circumstances, such as communication problems between the parties, the interstate move of a parent, the child’s reaching school age, the child’s stated desire to live with a particular parent, as well as a parent’s remarriage and corresponding improved living situation. In Bonnette, 185 So.3d at 330, the Court found that a material change in circumstances occurred as a result of the father’s remarriage and establishment of a permanent household, and the change of dynamics of the parents’ relationship following the prior stipulated custody decree.

haln Harvey v. Harvey, 10-1338 (La.App. 3 Cir. 3/9/11), 56 So.3d 467 (unpublished), writ denied, 11-719 (La. 4/29/11), 62 So.3d 117, the mother challenged the trial court’s judgment which altered the custody arrangement between the parties. She argued that the trial court’s stated reasons for finding a material change in circumstances—that the parties do not communicate well—was neither a change in circumstances nor a sufficient change to alter the custody arrangement. The Third Circuit affirmed the trial court’s finding of a material change in circumstances, noting that the parties’ filing of several contempt orders in two years showed a pattern of communication problems and other issues showed.an escalation of the problems between the parties.

In the present case, based on our de novo review, we find that a material change in circumstances has occurred since the prior 2009 stipulated custody decree, namely Deborah’s remarriage and the parties’ subsequent decline in communication and effective co-parenting.

On November 30, 2009, the prior consent judgment on custody was rendered. In May of 2012, Deborah remarried. Although Kelly contends that there has been no material change in circumstances since the 2009 consent judgment, he testified at trial that he and Deborah co-parented well before Deborah remarried and then, “everything changed.” Although there were some issues before, the record reflects that the parties have been unable to effectively communicate since Deborah’s remarriage. Christian’s medication became a particularly strong point of conflict, and his parents’ lack of communication led to him receiving twice the recommended dose of medication on one occasion. Further, since Deborah’s remarriage, there have been conflicts regarding telephone contact, shoes, Christmas visitation, and several other issues. The children have clearly been put in the middle of their parents’ conflicts. The parties could not even agree on a | upediatrician for the children for an extended period of time, resulting in all medical concerns, including medication requests, being presented to Children’s Hospital.

Dr. Klein testified that Kelly has anger issues and that the dynamics of his relationship with Deborah affect his ability to co-parent. Gail Pesses testified that Kelly and Deborah have very little effective communication. She believes that Kelly thinks he can do whatever he wants when it comes to the children, but the children’s needs should come before his needs. Ms. Pesses further opined that Kelly’s inability to control his anger and jealousy prevents rational solutions to co-parenting dilemmas and serves as a dangerous role model for the children, especially Christian.

Of particular concern is Christian’s behavior at school. The record reflects that Christian has received numerous behavior reports for incidents involving various behavior, including kicking, grabbing, teasing, blocking, pushing, punching, and scratching other children. The record shows that the parties have inconsistent approaches to discipline, prevention of further inappropriate conduct, and counseling. Further, although the children have received mostly good grades, there was testimony about issues regarding the children’s homework and test preparation, and their teachers have noted inconsistent effort and performance at times.

Because the record shows that there has been a material change in circumstances since the 2009 consent judgment, the next question to be addressed in a change of custody matter is whether a modification of custody is in the best interest of the children. Kelly did not cite as error the trial court’s finding that a change in custody was in the best interest of the children. Rather, he focused on his claim that there has been no change in circumstances. Nevertheless, considering the factors set forth in La. C.C. art. 134 for determining the best interest of the children, along with the testimony, evidence, and the | ^recommendations of the court-appointed custody evaluator, we find no error in the trial court’s finding that a change of custody was in the best interest of the children.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment, rendered on October 23, 2015 and signed on December 2, 2015, awarding joint custody to the parties with Deborah designated as the primary domiciliary parent.

AFFIRMED

      . Ms. Pesses had previously performed a custody evaluation in the case in 2008.

      . The trial court stated that it felt compelled to make a change in custody due to the parties’ inability “to parent together, to make decisions together, and to make this work together,” but she did not indicate that this was a material change in circumstances.

      . Citing Harvey v. Harvey, 10-1338 (La.App. 3 Cir. 3/9/11), 56 So.3d 467, writ denied, 11-719 (La. 4/29/11), 62 So.3d 117.

      . Citing Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731.

      . Citing Shaffer v. Shaffer, 00-1251 (La.App. 1 Cir. 9/13/00), 808 So.2d 354, writ denied, 00-2838 (La. 11/13/00), 774 So.2d 151.

      . Citing Wages v. Wages, 39,819 (La.App. 2 Cir. 3/24/05), 899 So.2d 662.

      . Citing Pizzolato v. Hihar, 02-53 (La.App. 5 Cir. 6/26/02), 822 So.2d 835; and Hebert v. Blanchard, 97-550 (La.App. 3 Cir. 10/29/97), 702 So.2d 1102.


source: Caselaw Access Project

author: MURPHY, J.

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF A.M.C.
    NO. 16-CA-615
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Jessica Coalter
    COUNSEL FOR MINOR/APPELLEE, A.M.C., Rodney B. Hastings, Josephine Vanderhorst
    COUNSEL FOR DEFENDANT/APPELLANT, AD.C., Fontella F. Baker

      COUNSEL FOR DEFENDANT/AP-PELLEE-2ND APPELLANT, M.R.C., Kevin L. Ambres
    Panel composed of Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst
   MURPHY, J.

iJfhe district court rendered judgment in this case on the petition of the Department of Children and Family Services (“DCFS”), terminating the parental rights of the mother, A.C., and the father, M.C., to the minor child A.M.C. A.C. and M.C. appeal from that judgment. For the reasons that follow, we affirm.

A.M.C. was born on March 16, 2014, and is the minor child of A.C. and M.C. On February 18, 2016, DCFS filed a petition to terminate A.C.’s and M.C.’s parental rights, alleging that they had abandoned A.M.C. and that their rights should be terminated under La. Ch.C. art. 1015(4) and/or (5). The petition also asserted that it was in A.M.C’s best interest to be freed for adoption.

Following a hearing on June 23, 2016, the court found that DCFS had established grounds for termination under La. Ch.C. art. 1015(5). Specifically, the court noted that: 1) A.M.C. had been removed from her parents’ custody for over one year; 2) there had not been substantial parental compliance, and; 3) there was no reasonable expectation that the parents’ condition of a diminished capacity to understand how to properly care for A.M.C.’s special medical needs would improve in the near future. Additionally, the court found that being freed for adoption was in AM.C.’s best interest considering that the prospective adoptive parent knew how to operate AM.C.’s medical equipment and administer medication, and the prospective adoptive parent is related to one of A.M.C’s parents and “would likely continue to foster a relationship between [A.M.C] and her biological parents.” The court rendered judgment on August 26, 2016, terminating the parental rights of both parents. It is from this judgment that A.C. and M.C. appeal.

|aIn their first assignment of error, A.C, and M.C. argue that the trial court erred in finding that they had not substantially complied with the case plan. In their second assignment, it is argued that the trial court committed manifested error and/or abused its discretion in finding that termination of parental rights was in A.M.C.’s best interest. Conversely, DCFS argues that while A.C. and M.C. apparently made some effort toward the case plan goals, their efforts were not sufficient to improve their “situation.” Furthermore, DCFS contends that the trial court did not err in finding that the termination of parental rights was in A.M.C.’s best interest.

In its petition to terminate, DCFS asserted that after A.M.C. was taken into the State’s custody on September 16, 2014, the court approved a case plan for services to return A.M.C. to her parents, but that neither parent had substantially complied with the case plan. With respect to A.C., the petition alleged the following:

1. The mother has failed to attend all court-approved scheduled visitations with the child.
2. The mother has failed to consistently keep the Department apprised of her whereabouts and significant changes affecting her ability to comply with the case plan for services.
3. The mother has failed to contribute to the court ordered costs of the child’s care.
4. The mother has failed to complete and demonstrate significant measurable progress in all required programs of treatment and rehabilitation services.
5. The mother lacks substantial improvement in redressing the problems preventing reunification.
6. The conditions that led to the removal or similar potentially harmful conditions persist.
7. The mother has failed to establish housing safe and appropriate for herself and her child.
8. The mother has not provided the agency with an appropriate care plan.
9. The mother has not attended all FTC’s, court hearings, medical appointments and all other appointments in regards to her child.
10. The mother has not attended, participated and successfully completed parenting education classes.
11. The mother has not learned the skills necessary to address the child’s special medical needs.

laThe petition alleged identical grounds as to M.C. and, in addition, alleged that M.C. had “failed to submit to either a mental health assessment or a substance abuse assessment; he had a positive drug screen as recently as October, 2015.”

At the termination hearing on June 23, 2016, it was first noted for the record that neither A.C. nor M.C. were present, and that service on both parents had been verified. The court also took judicial notice of the child in need of care proceedings underlying the termination. The first witness, Katrina Price, testified that she was a child welfare specialist for DCFS assigned to A.M.C. and her parents since February 18, 2015. A.M.C. came into care after medical staff at Children’s Hospital became concerned that A.M.C.’s parents had limited cognitive ability that prevented them from operating the oxygen machine that A.M.C. used to breathe and that they also could not operate the sleep apnea monitor that A.M.C. was required to have for medical purposes.

Ms. Price further testified that A.M.C’s parents were ordered to complete a case plan. Since the implementation of the plan, A.C. made no “parental contributions” or child support payments toward A.M.C., nor did A.C. provide food, clothing, or “other necessities” to A.M.C. A.C. was given “liberal visits” with A.M.C., yet had only seen A.M.C. twice in 2016, as of the date of the hearing, and “four to six times” in the prior year. Ms. Price explained that A.C. saw A.M.C. only when dropping off her other child, L.C., to the same caretaker who watched A.M.C. A.C. did not keep DCFS informed of her whereabouts at all times, and also did not provide current contact information. At the time of the hearing, Ms. Price had just learned that A.C. and M.C. had moved into a trailer, but A.C. could not provide any documentation as to whom the trailer was leased. In a visit to the parent’s apartment, Ms. Price could smell marijuana in the home. There were also | ¿concerns that A.C.’s mother, who was identified by A.C. as someone who would help care for A.M.C. if returned to her parents, appeared to be intoxicated “most of the time.” A.C. did not attend all “FTC” meetings, missed three court hearings, and did not attend medical appointments with A.M.C., even though she was offered transportation. A.C. did attend parenting classes from April of 2015, through November of 2015, but was terminated from that program due to “limited cognitive capacity.” A.C. had not learned the skills necessary to address A.M.C.’s special medical needs which, at the time of the hearing, consisted of multiple daily breathing treatments, and regular doctor visits with different specialists. A.C. had never met with AM.C.’s team of specialists to learn what AJVLC.’s needs are, or how to operate the medical equipment.

With regard to M.C., Ms. Price testified that he was ordered to complete a case plan as well. Similar to A.C., M.C. did not contribute to A.M.C.’s support or provide necessities for her. He visited A.M.C. twice in 2016 and approximately “four to six times” in 2015. M.C. did not keep the department informed of his whereabouts at all times, and also changed his phone number. M.C. did not maintain stable, safe, or appropriate housing during the course of the case. According to Ms. Price, M.C. failed to provide DCFS with a plan for care if A.M.C. were returned to him. Similar to A.C., M.C. did not attend all “FTCs,” missed three court hearings, and had not attended A.M.C.’s medical appointments. He did not complete parenting classes and was terminated from the program. M.C. had not learned the skills necessary to address A.M.C.’s special medical needs. He also did not complete a psychiatric assessment. While M.C. did enroll in treatment for substance abuse three times, he consistently dropped out after attending a single session. He did not complete all of the required random drug screens. Ms. Price concluded that M.C. had not made substantial improvement in addressing the problems preventing reunification.

lBMs. Price opined that A.M.C.’s life would be at risk if she were returned to her parents, because they would not be able to tell if she was having an asthma attack and did not know how to administer A.M.C.’s medications. A.M.C. came into care on September 1, 2014. She resided with A.C.’s maternal cousin in an adoptive placement. It was Ms. Price’s opinion that A.M.C. was doing well, and her caretaker was ensuring that A.M.C. made all of her appointments with her specialists. It was the opinion of DFCS that it was in A.M.C’s best interest to be freed for adoption.

On cross-examination, Ms. Price explained that A.C.’s and M.C.’s parenting classes were terminated because of their limited cognitive capacity. M.C. had a total of eight positive drug screens. A.M.C. was two years old at the time of the hearing. Her original diagnosis was that she had “premature lungs” and a hole in her heart. She used an “oxygen tank machine” and a “sleep apnea monitor,” and took several prescription medications. Ms. Price stated that A.M.C. had improved since being placed with a caretaker. Based upon the information she had gathered from different professionals, Ms. Price believed that A.C. and M.C. did not have the ability to provide for A.M.C.’s needs.

On additional cross-examination, Ms. Price clarified that there was a difference between the “original oxygen machine” and the nebulizer currently used to treat A.M.C.’s asthma condition. A.M.C.’s parents did not understand how to mix her medications together. The information that M.C. did not visit frequently came from A.M.C.’s caretaker. A.M.C.’s parents were comfortable with A.M.C.’s caretaker, who used to provide transportation for A.C. and M.C. M.C. did complete a mental health assessment, but failed to make an appointment for I.Q. testing with a psychiatrist. A.C. did not have to take a mental health assessment or undergo psychiatric testing because she had previously been diagnosed with “an | Rintellectual disability with a moderate diagnosis.” On October 2, 2015, M.C. tested positive for methamphet-amines, amphetamines, and marijuana. Ms. Price explained that the typical parenting class lasts nine to twelve sessions, but that A.C. and M.C. attended 30 because they were not grasping the concepts being taught. Both parents knew about the termination hearing that was set, and neither one indicated to Ms. Price that they would not attend. Ms. Price was questioned about changes in the plan that took place over time and asked whether A.C. was in compliance regarding requirements for a mental health assessment, a substance abuse assessment, parenting classes, stable housing, a “care plan,” and learning how to care for A.M.C.’s medical needs. Ms. Price stated that A.C. did not provide her with a current address, did not “keep the agency informed of medical, emotional, and physical needs,” had not learned to care for her “medically-fragile child” including recognizing signs and symptoms of illness and mixing medications, and could not comprehend the lessons taught in parenting classes. M.C. told Ms. Price’s supervisor on one occasion that he would not pass a drug screen that day because he had smoked “weed.” Ms. Price testified that A.C. had identified her mother as a possible person to assist in taking care of A.M.C., however, her mother was unable “to administer the oxygen machine” or “tend to [AM.C.’s] medical needs.” Ms. Price indicated that if A.C. had kept her scheduled visits at the DCFS Office, then Ms. Price would have shown her how to use A.M.C.’s medical equipment.

Next, Cynthia Miller was called to testify. She stated that she was A.M.C.’s foster parent, and was also a cousin to A.C. A.M.C. had been in Ms. Miller’s care from approximately the time she was three months old until the time she was two years old. At the time of the hearing, A.M.C. had special medical needs and required “close attention” on a daily basis, including breathing treatments and medication. While A.M.C.’s parents had visited her at Ms. Miller’s home, they did |7not “come often.” When they did come over, A.C. would “just sit there and watch television,” and M.C. would go into the freezer and “get some food to cook.” The parents had visited approximately one time in 2016, as of the date of the hearing. Ms. Miller testified that she was committed to adopting A.M.C. “as soon as possible.”

On cross examination, Ms. Miller explained how A.M.C.’s nebulizer and oxygen machine were operated. She tried to teach A.M.C.’s parents how to use the nebulizer, but A.C. did not want to do it.

CASA supervisor, Stacy Ashmore, testified that A.M.C.’s parents had not been cooperative with the ease plan, or visited A.M.C. CASA’s recommendation was that A.M.C. be freed for adoption, and stay in her current placement.

Ivy Matthew testified that she was the CASA volunteer for A.M.C. In the two months prior to the hearing, she observed A.M.C. and her family. Ms. Matthew had not seen A.M.C. with her parents, but did see her in the home of Ms. Miller. Ms. Matthew concluded that A.M.C. appeared to be “well adjusted” and “energetic.” Based on her interaction with A.M.C., her recommendation was for A.M.C. “to stay with Ms. Miller.”

The trial court’s judgment terminating A.C.’s and M.C.’s parental rights was rendered on August 26, 2016. In its reasons for judgment issued on the same date, the trial court wrote, in relevant part:

The minor child, [A.M.C.], was born prematurely on March 16, 2014, weighing only one pound nine ounces. Due to her premature birth, the child was required to remain hospitalized for several months following her birth. When she was ready to be discharged on or about August 29, 2014, her parents could not be reached, as they had no telephone or transportation. Subsequently, they were located and it was discovered that [A.C.] could not read. Medical professionals were concerned about the parent’s cognitive abilities because [A.M.C.] had been born with Bronchopulmonary Dys-plasia, which required her to be discharged with home oxygen and various medications. Attempts were made to train both parents and the maternal Isgrandmother to operate the equipment and administer the child’s medication, but were unsuccessful. According to hospital personnel, due to their inability to read or write, neither of them were competent to properly care for the child’s special medical needs.
From the inception of these proceedings up to the present date, there has never been any allegation of abandonment by either of these parents. The minor child was placed in State’s custody before she was ever released from the hospital. Accordingly, the petition of the state for termination of parental rights under section 4 [of La. Ch.C. Article 1015] is denied.
Considering the record of these proceedings, particularly the evidence presented herein, it is the opinion of this Court that the state has established by clear and convincing evidence the elements of La. Ch.C. Article 1015 (5). First, [A.M.C.] was removed from her parents’ custody more than one year ago, September 16, 2014 to be exact. Second, despite the parents’ best efforts, there has not been substantial parental compliance. Specifically [M.C.] and [A.C.] have:
• Not attended all court-approved visitation with [A.M.C.];
• Failed to keep the department apprised of their whereabouts. The agency learned of their latest move through other persons. They also learned of [A.C.’s] attempted suicide through others;
• Failed to establish appropriate housing for themselves and the child. They recently moved in with other people, one of which had a history with the agency;
• Failed to provide appropriate care plan. The couple offered the help of [A.C.’s] mom, however, she, like [M.C.] and [A.C.], could not learn how to operate the machine and administer the child’s medication;
• Failed to successfully complete parenting classes. The parties attended more classes than usually required, but they were suspended after about thirty sessions because the couple could not grasp the information;
• Failed to attend all court hearings, one FTC and all [A.M.C.’s] doctor visits;
• Failed to demonstrate significant progress, show substantial improvements, or eliminate any of the conditions that led to the child’s removal in the first place.
Third, there is no reasonable expectation that the parents’ condition will improve in the near future.
This Court further finds that termination of the parental rights herein is in [A.M,C.’s] best interest. The “purpose of involuntary termination is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care,” Considering the child's special medical needs, it is apparent that neither [M.C.] nor [A.C.] is capable of properly caring for their | sdaughter. The child is in a home where her medical needs are being property addressed. Her current caretaker knows how to operate the breathing equipment and administer the child’s medication. Ms. Miller is interested in adopting [A.M.C.] She is related to one of the parents, has a good relationship with both of them, and has and would likely continue to foster a relationship between [A.M.C.] and her biological parents.
Finally, it is noteworthy that the parents, [M.C.] and [A.C.] did not appear at the termination hearing. As noted, they were aware of the court date and had been offered transportation. No reason was given for their absence. Their 'no-show' from the proceedings, is very possibly a recognition by them of their inability to care for their daughter.

In State ex rel. J.A, 99-2905 (La. 1/12/00), 752 So.2d 806, the Louisiana Supreme Court discussed termination of parental rights proceedings, as follows:

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship, State in Interest of Delcuze, 407 So.2d 707 (La.1981). However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. Lehman v. Lycoming County Children’s Serv.’s Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982); see also State in the Interest of S.M., 98-0922 (La. 10/20/98), 719 So.2d 445, 452. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. See, e.g., State in the Interest of S.M., 719 So.2d at 452; State in the Interest of A.E., 448 So.2d 183, 186 (La.App. 4 Cir.1984); State in the Interest of Driscoll, 410 So.2d 255, 258 (La.App. 4 Cir.1982).
The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance , of that relationship in an involuntary termination proceeding. 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 11 (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. La. Child. Code art. 1001. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including 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.

In this case, the State based the petition for termination on La. Ch.C. art. 1015(5) and (6), which provide:

The grounds for termination of parental rights are:
(5) Abandonment of the child by-placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child’s parent continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
(6) 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.

The State only needs to establish one ground under La. Ch.C. art. 1015 upon which to base the termination of parental rights, and must prove those elements by clear and convincing evidence. State ex rel. J.A, 99-2905, p. 9 (La. 1/12/00), 752 So.2d 806, 811; State ex rel J.T.C., 04-1096, p. 12 (La. App. 5th Cir. 2/15/05), 895 So.2d 607, 615, writs denied, 05-0466 (La. 4/8/05), 899 So.2d 11; La. Ch.C. art. 1035(A); La. Ch.C. art.1037. In addition, the trial judge must also find that the termination is in the best interest of the child. State ex rel. J.A., 99-2905 at 9, 752 So.2d at 811; La. Ch.C. art. 1037. The appellate court reviews a trial court’s findings as to whether parental rights should be terminated according to the manifest error standard. State ex rel. K.G., 02-2886, p. 4 (La. 3/18/03), 841 So.2d 759, 762.

In the instant case, the record establishes that A.M.C.’s premature birth left her with a host of physical difficulties which required the use of life sustaining medical equipment and the administration of exact doses of medications throughout the day, every day. Upon her discharge from the hospital, A.M.C.’s parents could not be found, at which time her circumstances came to the attention of the State. The initial goal for A.M.C. and her parents was reunification, not adoption. Testimony and evidence provided at the termination hearing demonstrated either a disinterest or unwillingness on the part of M.C. and A.C. to actively support A.M.C. through her illness while in foster case, despite being provided every opportunity to do so. It was not disputed at the hearing that M.C. and A.C. did not attend a single doctor’s visit with A.M.C. It was also not disputed that M.C. and A.C. had only visited A.M.C. a small number of times while she was in foster care. While the process of reunification was ongoing, however, A.M.C. was in the care of a foster parent who was able to aptly provide for her medical needs, and who also tried unsuccessfully to involve the parents in A.M.C.’s care as well.

| i2As discussed above, evidence was presented at the termination hearing that M.C. and A.C. failed to comply with several objectives of the case plan. Most notably, evidence established M.C. and A.C. were unable to learn how to operate the medical devices and administer the medications that A.M.C. relies upon daily. The record supports an uncontradieted finding that a degree of cognitive impairment or a “diminished capacity” exists in both parents which prevents them from comprehending the necessary information for A.M.C.’s medical care, with no reasonable expectation of significant improvement with respect to that impairment. It was also uncontradicted that A.C.’s mother, who was identified as a potential caregiver for A.M.C., also was unable to learn the necessary routines to address A.M.C.’s illnesses. While M.C. and A.C. argue that they “substantially demonstrated effort” in trying to comply with their case plan, they presented no evidence or testimony to refute the allegations that they had, in fact, failed to successfully complete the plan’s objectives of eliminating major obstacles to A.M.C.’s care, as found in the multiple instances identified by the trial court. We 113find no support for the parent’s assertion that the trial court “committed manifest error in applying a stricter standard than set by the Children Code in requiring COMPLETE compliance” with the case plan. [Emphasis as in the original.] To the contrary, the record shows that the trial court applied the correct standard of “substantial parental compliance” set forth in La. Ch.C. art. 1015(6).

More than simply protecting parental rights, our judicial system is required to protect the children’s rights to thrive and survive. State in the Interest of S.M., supra. In this case, the record demonstrates that A.M.C.’s physical and medical needs must be, by necessity, the highest priority of her caretakers. The evidence established that M.C. and A.C. demonstrated an unwillingness or inability to provide adequate care for the physical and emotional needs of A.M.C., despite being given multiple opportunities to do so. When given an opportunity to attend A.M.C.’s medical appointments and to ask questions concerning her care, M.C. and A.C. failed to do so. There is no evidence that M.C. and A.C.’s ability to care for A.M.C. has improved since DCFS became involved in this case after her parents left her alone at Children’s Hospital’s Neonatal Intensive Care Unit. A.M.C. has resided in the same placement, and her foster mother has expressed her desire to continue to care for A.M.C. indefinitely. Of the greatest importance, A.M.C. has received consistent medical treatment at her current placement, which is necessary for her best interest.

Accordingly, for the foregoing reasons, we do not find that the trial court was manifestly erroneous in finding that the best interest of A.M.C. will be served | uby terminating M.C. and A.C.’s parental rights and certifying A.M.C. for adoption. The judgment of the trial court is affirmed.

AFFIRMED

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, the initials of the minor and family members involved will be used to protect the child’s identity. State Dept. of Soc. Services, ex rel. S.S., 07-165 (La.App. 5 Cir. 9/25/07), 968 So.2d 199, 200.

      . Counsel for the State correctly notes on appeal that the actual grounds argued for termination were La. Ch.C. art. 1015(5) and (6).

      . Both in the petition and at trial, it was explained that A.M.C.'s medical problems resulted from a premature birth and included a condition known as Bronchopulmonary Dys-plasia.

      . Records from the hospital demonstrate the concern that doctors and nurses had expressed over A.M.C.’s parents inability to properly care for her, in spite of two "room-in trials” at the hospital. It was specifically observed that M.C. and A.C. failed to provide necessary nutrition and also had "significant difficulties drawing and administering the correct dose of medications." It was also stated that "there are serious concerns as to recognition of future change in clinical status as demonstrated by the family sleeping through the apnea monitor going off... ” The doctor who authored the note concluded that, "we feel it is unsafe to allow [A.M.C.] to be discharged with the family at this time.”

      . La. Ch.C. art. 1036(D) provides, in relevant part:
      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.

      (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.
      While no expert testimony was presented on the issue of cognitive impairment of the parents, we find that the record contains sufficient support to establish a pattern that M.C. and A.C. repeatedly failed to learn the medical information necessary to adequately care for A.M.C.

      . While a parent’s cooperation with the State to meet the goals of a case plan is taken into account for the purpose of determining “substantial compliance,” Louisiana courts have determined that this effort must result in a demonstrated improvement. As noted by the Louisiana Supreme Court in State ex rel. S.M., 98-0922 (La. 10/20/98), 719 So.2d 445, 450:
      Prior to August 15, 1997, there was no statutory guidance in determining whether the parent had shown "reformation” sufficient to preserve family reunification as a viable option to termination of parental rights. However, after reviewing the jurisprudence, we established the test in State in Interest of L.L.Z. that "a reasonable expectation of reformation is found to exist if the parent has cooperated with state officials and has shown improvement, although all of the problems that exist have not been eliminated.'' 620 So.2d [1309] at 1317 [La. (1993)] (emphasis added). Utilizing our statement in State in Interest of L.L.Z. as a springboard for elaboration, several appellate courts have held that "reformation” means more than mere cooperation with agency authorities. More importandy, reformation of the parent is shown by a "significant, substantial indication of reformation ... such as altering or modifying in a significant way the behavior which served as a basis for the state's removal of a child from the home.” State in Interest of EG, 95-0018 (La.App. 1 Cir. 6/23/95), 657 So.2d 1094, writ denied, 95-1865 (La. 9/1/95), 658 So.2d 1263; see State in Interest of J.M., 30,302 (La.App. 2 Cir. 10/29/97), 702 So.2d 45, writ denied, 97-2924 (La. 2/6/98), 709 So.2d 736; State in Interest of T.D. v. Webb, 28,471 (La.App. 2 Cir. 5/8/96), 674 So.2d 1077; State in Interest of BJ, 95-1915 (La.App. 1 Cir. 4/4/96), 672 So.2d 342, writ denied, 96-1036 (La. 5/31/96), 674 So.2d 264; State in Interest of GA, 94-2227 (La.App. 1 Cir. 7/27/95), 664 So.2d 106; see also State in Interest of Four Minor Children, 585 So.2d 1222 (La.App. 2 Cir. 1991). Furthermore, the jurisprudence has held that "[a] parent who professes an intention to exercise his or her parental, rights and responsibilities must take some action in furtherance of the intention to avoid having those rights terminated.” State in Interest of J.M., 702 So.2d at 49; see also State in Interest of D.T. v. K.T., 29,796 (La.App. 2 Cir. 6/18/97), 697 So.2d 665.


author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Jasmond L. MARTIN
    NO. 16-KA-601
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, JASMOND L. MARTIN, Jane L. Beebe
    Panel composed of Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson
   CHEHARDY, C.J.

JjOn appeal, defendant’s appointed appellate counsel has filed an Anders brief on defendant’s behalf, asserting there is no basis for a non-frivolous appeal. For the following reasons, we affirm defendant’s conviction and sentence.

Facts and Procedural History

Because defendant entered a guilty plea, the underlying facts were not fully developed in the record. Nevertheless, on July 10, 2013, the State filed a bill of information alleging that, on or about July 14, 2012, in Jefferson Parish, defendant violated La. R.S. 14:60 in that he committed aggravated burglary of 2042 Rue Racine St., Marrero, Louisiana, 70072, belonging to Nicole Anderson and/or Jaynesisha Dorsey. Defendant was arraigned on July 11, 2013, and pled not guilty.

On August 18, 2014, defendant withdrew his plea of not guilty and tendered a plea of guilty as charged. The State agreed not to file a bill of information alleging that defendant was a multiple offender. Afterward, on that same date, the trial judge sentenced defendant to imprisonment at hard labor for twenty-five years to run concurrently with any and all other sentences.

On August 5, 2016, defendant filed an Application for Post-Conviction Relief (APCR) arguing that his sentence was excessive, that his counsel was ineffective, and that his counsel failed to file a motion for appeal. On August 9, 2016, the trial judge construed defendant’s pleading as a motion for an out-of-time appeal and granted it. This appeal follows.

Anders review

Under the procedure adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court | ^record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal,” Anders, 386 U.S. at 744, 87 S.Ct. 1396, so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal lais wholly frivolous. Bradford, 95-929, at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Discussion

Defendant’s appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel states that the appellate record reflects that there is no ruling of the trial court to be challenged. She further states that this was not a Crosby plea, and there were no pre-trial motion hearings subject to this appeal.

Appellate counsel notes that she considered whether to raise the issue of coercion of the plea, but was compelled to conclude that such a claim would be frivolous based on the appellate record presented. She further notes that she also considered the claim of excessiveness of the sentence but felt such a claim would be frivolous.

Appellate counsel provides that the trial court reviewed defendant’s plea, went through a proper colloquy with him, and informed him of his sentencing exposure in the plea colloquy. Therefore, she submits that, as the appellate record now stands, the sentence of twenty-five years with credit for time served would not be regarded as constitutionally excessive or made under false representation.

The State responds that the brief filed by appellate counsel shows a conscientious and thorough review of the procedural history of the case with references to the record for convenience of this Court. It further responds that | ¿appellate counsel has “cast an advocate’s eye” over the record and determined there were no non-frivolous issues to raise on appeal. The State asserts that appellate counsel, therefore, has conformed with and followed the procedures set forth in Anders and Jyles and should be granted permission to withdraw.

The State indicates that the trial court fully explained to defendant the ramifications of pleading guilty and foregoing a trial. The State also indicates that the trial court clearly explained the charge and the sentence defendant was facing. It further indicates that defendant entered into a fair plea agreement, which was explained to him by his trial counsel. The State notes that the trial court fully explained defendant’s right to appeal and that defendant indicated he understood and agreed to these explanations. It further notes that there is nothing else in the record that would suggest a non-frivolous issue to be raised on appeal.

Appellate counsel has filed a motion to withdraw as attorney of record, which states that she has prepared an Anders brief and that she has notified defendant of the filing of this motion and of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an An-ders brief had been filed and that he had until December 7, 2016, to file a pro se supplemental brief. As of the date of submission, defendant has not yet filed a brief.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. First, the bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the offense charged. It also sufficiently identified defendant and the crime charged. See La, G.Cr.P, arts. 463-466.

Second, as reflected by the minute entry and commitment, defendant appeared at each stage of the proceedings against him, including his arraignment, | ^guilty plea, and sentencing. As such, we find that there are no appealable issues surrounding defendant’s presence.

Third, defendant pled guilty in this ease. Generally, when a defendant pleads guilty, he waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and review of such defects either by appeal or post-conviction relief is precluded. State v. Turner, 09-1079 (La.App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Here, defendant entered an unqualified guilty plea, and therefore, all non-jurisdictional defects are waived.

No rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976). Although defendant filed a motion for preliminary hearing that was not ruled upon prior to his guilty plea, defendant waived that motion by pleading guilty without raising the issue that his pre-trial motion was neither heard nor ruled upon by the trial court. See State v. Corzo, 04-791, p. 2 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

Also, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

Our review of the record reveals no constitutional infirmity or irregularities in defendant’s guilty plea. The record shows that defendant was aware he was pleading guilty to aggravated burglary. Defendant was also properly advised of his Boykin rights. On the waiver of rights form and during the colloquy with the trial court, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. On the waiver of rights form, ^defendant initialed next to each of these rights and signed the form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood the rights he was waiving by pleading guilty.

Further, during his guilty plea colloquy and in the waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty plea and that he was satisfied with the way his attorney and the court handled his case. Defendant was also informed by the waiver of rights form and during the colloquy of his minimum and maximum sentencing exposure and of the actual sentence that would be imposed upon acceptance of his guilty plea. After the colloquy with defendant, the trial court accepted defendant’s plea as knowingly, intelligently, freely, and voluntarily made.

With regard to defendant’s sentence, it was imposed in accordance with the plea agreement. This Court has consistently recognized that La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Moore, 06-875 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46, writ denied, 09-2046 (La. 8/18/10), 42 So.3d 394. In addition, defendant’s sentence falls within the sentencing range set forth in the statute. See La. R.S. 14:60. Further, the plea agreement was beneficial to defendant in that he received a twenty-five-year sentence to run concurrently with his other pending sentences when he could have received a thirty-year sentence to run consecutively to those sentences. Additionally, the State agreed not to multiple bill him as a second felony offender, which would have increased his sentencing exposure.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify 17any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, we affirm defendant’s conviction and sentence.

Errors patent

Pursuant to La. C.Cr.P. art. 920, this Court has reviewed the record for errors patent and found no errors that require correction. State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990).

Decree

For the foregoing reasons, we affirm defendant’s conviction for aggravated burglary and his sentence of twenty-five years.

AFFIRMED.

      , In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

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

      . State v. Crosby, 338 So.2d 584 (La. 1976).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: WINDHORST, J.

text:
    STATE of Louisiana v. Ryan Joseph MODICA
    NO. 16-KA-604
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017
    COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Bridget A. Dinvaut, Orenthal J. Jasmin
    COUNSEL FOR DEFENDANT/APPELLANT, RYAN JOSEPH MODICA, Gwendolyn K. Brown
    Panel composed of Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst
   WINDHORST, J.

| defendant, Ryan Joseph Módica, pled guilty to one count of introducing or possessing contraband into a municipal, parish prison, or jail, in violation of La. R.S. 14:402E. In accordance with the plea agreement, the trial court sentenced defendant to six years with the Department of Corrections and ordered that his sentence run concurrently with any other sentence he was serving. After the denial of his pro se motion for reconsideration of sentence, defendant requested an appeal, alleging he was wrongfully sentenced to six years when the maximum penalty authorized by statute was five years. For the reasons that follow, we affirm defendant’s conviction and sentence.

Because defendant pled guilty, the facts were not fully developed at trial. However, in the bill of information, the State alleged that on or about March 4, 2015, defendant violated La. R.S. 14:402E in that he possessed or introduced or attempted to introduce contraband into the premises of a municipal or parish prison or jail; or sent, took, or gave or attempted to send, take, or give any contraband to an inmate of a municipal or parish prison or jail. During preliminary examination, Deputy Glenn Steadman testified that after defendant turned himself in at the St. John Parish jail and had proceeded through “booking,” marijuana was found in his shoe during the “pat down.” During defendant’s plea colloquy, he was told he was “charged with introducing or possessing cannabinoids in the parish prison, in violation of 14:402 .E [.sic ].”

In his only assignment of error, defendant argues that his sentence is illegally excessive. He contends that the statute for which he was convicted, La. |?R.S. 14:402, only authorizes a maximum penalty of five years. He argues that since he was sentenced to six years, his sentence exceeds the statutory mandate and must be corrected. Further, defendant avers that his sentence is constitutionally excessive because his sentence is over the maximum statutory limit, which should be considered grossly disproportionate and should shock this Court’s sense of justice. He alleges that the trial court erred in imposing an illegal and excessive sentence, and requests that it be vacated and a legal sentence be imposed.

La. C.Cr.P. art. 881.2 A(2) provides that a “defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This Court has consistently recognized that La. C.Cr.P. art. 881.2 A(2) precludes a defendant from seeking review of a sentence to which the defendant agreed prior to pleading guilty. See State v. Stevenson, 00-1296 (La.App. 5 Cir. 01/30/01), 778 So.2d 1165, 1166. However, under La. C.Cr.P. art. 881.2 A(l), the defendant may seek review of a sentence which exceeds the maximum sentence authorized by the statute under which the defendant was convicted. The record reflects that defendant was sentenced in accordance with a plea agreement that was set forth in the record at the time of the plea. However, because defendant claims that his sentence exceeds the maximum sentence authorized by the statute in question, we find that the issue raised by defendant on appeal is properly before us.

La. R.S. 14:402 E makes it unlawful to introduce, possess or send contraband into, within or from any municipal or parish prison or jail. According to La. R.S. 14:402G, the penalty for a violation of La. R.S. 14:402 E is a fine of not less than two hundred fifty dollars and not more than two thousand dollars, and imprisonment with or without hard labor for not more than five years. However, La. R.S. 14:402 G further provides that when the contraband at issue is a controlled dangerous substance, whoever is convicted of introducing or possessing such (¡¡contraband into a municipal or parish prison or jail “shall be punished in accordance with the penalties for the distribution of the controlled dangerous substance provided in R.S. 40:961 et seq.”

The guilty plea form in the instant matter reflects that defendant pled guilty to La. R.S. 14:402 E(5), introducing canna-binoids in the parish prison, and therefore the applicable sentencing range is set forth in La. R.S. 40:966 B(3), which provides the penalties for distribution of marijuana:

... a substance classified in Schedule I which is marijuana, tetrahydrocannabi-nols, or chemical derivatives of tetrahy-drocannabinols, or synthetic cannabi-noids shall upon conviction be sentenced to a term of imprisonment at hard labor for not less than five nor more than thirty years, and pay a fine of not more than fifty thousand dollars.

Although defendant argues that his five-year sentence exceeded the statutory maximum, his argument is misplaced as the applicable statutory provisions provide for a sentence of at least five years with a maximum sentence of thirty years. Defendant was informed of the applicable sentencing range in the guilty plea form and again during the plea colloquy. Defendant received a sentence of six years imprisonment, well within the statutory provisions. Accordingly, we find that defendant’s sentence did not exceed the maximum sentence authorized by the statute under which defendant was convicted. This assignment of error is without merit.

We have reviewed the record for errors patent according to the mandates of La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990), and find none which require our corrective action.

The record reflects that the trial court failed to impose the mandatory fine provided by La. R.S. 14:402 and La. R.S. 40:966. Therefore, defendant received an illegally lenient sentence. While finding the omission of the imposition of a |4fine in such cases to be error, this Court has, as a matter of discretion pursuant to La. C.Cr.P. art. 882, declined to correct an illegally lenient sentence based on the defendant’s indigent status. See State v. Campbell, 08-1226 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, 1081, writ denied, 09-1385 (La. 2/12/10), 27 So.3d 842. In the present case, defendant is indigent as indicated by his representation by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases. Due to defendant’s indigent status, we decline to remand this matter for imposition of the mandatory fine.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED

      . Defendant was charged in a bill of information with introducing into or possessing contraband in a municipal, parish prison, or jail, in violation of La. R.S. 14:402 E (count one); and with possession of synthetic marijuana, in violation of La. R.S. 40:966 C (count two). Pursuant to the plea agreement, count two was dismissed.

      . At the same time, defendant pled guilty to one count of second degree battery in violation of La. R.S. 14:34.1 and was sentenced to four years with the Department of Corrections to run concurrently with the sentence in the instant case. Defendant also filed an appeal from that guilty plea and sentence, which was affirmed by this Court. See State v. Modica, 16-320 (La. App. 5 Cir. 02/08/17) — So.3d —, 2017 WL 511868.


author: COLEMAN, JUSTICE,

text:
    MISSISSIPPI DEPARTMENT OF CORRECTIONS v. Benjamin COOK
    NO. 2015-CA-01724-SCT
    Supreme Court of Mississippi.
    02/09/2017

      ATTORNEYS FOR APPELLANT: ANTHONY LOUIS SCHMIDT, JR., OFFICE OF THE ATTORNEY GENERAL, BY: DARRELL CLAYTON BAUGHN
    ATTORNEY FOR APPELLEE: BENJAMIN M. COOK (PRO SE)
    BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
   COLEMAN, JUSTICE,

FOR THE COURT:

¶1. The Circuit Court of Sunflower County directed the Mississippi Department of Corrections to issue Benjamin Cook (pro se) a parole case plan under Mississippi Code Section 47-7-3.1(1), which went into effect on July 1, 2014. The Department of Corrections appeals, arguing that Cook is not entitled to a parole case plan because he was convicted and sentenced prior to July 1, 2014. The sole issue on appeal is whether Cook, a parole-eligible inmate convicted and sentenced prior to July 1, 2014, is entitled to a parole case plan under Section 47-7-3.1(1). Because the Court held in Fisher v. Drankus, 204 So.3d 1232 (Miss. 2016), that a parole-eligible inmate convicted and sentenced prior to July 1, 2014, was not entitled to receive a parole case plan under Section 47-7-3.1(1), we reverse and render.

FACTUAL BACKGROUND

¶2. Cook is an inmate in the custody of the Mississippi Department of Corrections (MDOC). On August 11, 1994, Cook pleaded guilty to murder and was sentenced to life in prison. Cook had his first parole hearing on July 8, 2013, and was denied parole. On May 4, 2015, Cook was denied parole for the second time, and Cook’s next parole hearing date was set for May 4, 2017. On July 1, 2015, Cook submitted a grievance through the Administrative Remedies Program (ARP). Cook stated that he was a parole-eligible inmate and requested that the MDOC issue him a parole case plan in accordance with Section 47-7-3.1.

¶3. On July 7, 2015, the MDOC issued a first step response denying Cook’s request. The MDOC’s response provided: “House Bill 585 states that all offenders who are [parole] eligible, are to be issued a case plan at admission effective 7/1/2014. However, this Bill is not retroactive and only applies to offenders sentenced on or after 7/1/2014. Offenders who were eligible for Parole before 7/1/2014 will continue to be considered for Parole Docket and be reviewed by the Parole Board.” Cook appealed the decision and proceeded to step two of the ARP. On July 24, 2015, the MDOC issued a second step response, denying Cook’s appeal. The MDOC’s second step response provided: “House Bill 585, states a ca[s]e plan will be made on [] parole eligible offenders sentenced on or after July 1, 2014. This Bill is not retroactive and only applies to offenders sentenced on or after July 1, 2014. Offenders who were eligible for parole before July 1, 2014 will continue to be considered for Parole via a Parole docket and be reviewed by the Parole Board.”

¶4. On August 19, 2015, Cook filed a “motion for judicial review” in the Circuit Court of Sunflower County. Cook requested that the circuit court order the MDOC to prepare and issue him a case plan. Cook argued that all parole-eligible offenders are entitled to a case plan under House Bill 585 regardless of their date of parole eligibility. The MDOC filed a response and admitted that Cook was parole-eligible. The Department of Corrections also admitted that House Bill 585 provided for case plans for inmates sentenced from July 1, 2014, forward, but it argued that the law was not retroactive. The MDOC argued that inmates sentenced prior to July 1, 2014, were not eligible for parole case plans under House Bill 585 and moved to dismiss the case with prejudice.

¶5. On October 19, 2015, the circuit court found that Cook was entitled to a case plan and ordered the MDOC to issue Cook a parole case plan in accordance with Section 47-7-3.1. On November 5, 2015, the MDOC timely filed a notice of appeal.

ANALYSIS

A. Standard of Review

¶6. The decision of an administrative agency will be reversed only if the decision (1) was unsupported by substantial evidence; (2) was arbitrary and capricious; (3) beyond the power of the administrative agency to make; or (4) violated the complaining party’s statutory or constitutional right. Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 606 (¶ 14) (Miss. 2009). “An agency’s interpretation of a rule or statute governing the agency’s operation is a matter of law that is reviewed de novo, but with great deference to the agency’s interpretation.” Id. at 606 (¶ 15). “However, if an agency’s interpretation is contrary to the unambiguous terms or best reading of a statute, no deference is due.” Id. at 607 (¶ 16). “An agency’s interpretation will not be upheld if it is so plainly erroneous or so inconsistent with either the underlying regulation or statute as to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” Id.

B. Section 47-7-3.1

¶7. “During the 2014 legislative session, the Legislature enacted comprehensive criminal justice reform legislation, known as House Bill 585, which amended numerous statutes related to parole and sentencing!.]” Sinko v. State, 192 So.3d 1069, 1075 (Miss. Ct. App. 2016). Cook argues that Section 47-7-3.1(1), which was created through the enactment of House Bill 585, requires the MDOC to develop and issue him a case plan because he is a parole-eligible inmate. Section 47-7-3.1 provides:

(1) In consultation with the Parole Board, the department shall develop a case plan for all parole eligible inmates to guide an inmate’s rehabilitation while in the department’s custody and to reduce the likelihood of recidivism after release.
(2) Within ninety (90) days of admission, the department shall complete a case plan on all inmates which shall include, but [be] not limited to
(a) Programming and treatment requirements based on the results of a risk and needs assessment;
(b) Any programming or treatment requirements contained in the sentencing order; and
(c) General behavior requirements in accordance with the rules and policies of the department.
(3) The department shall provide the inmate with a written copy of the case plan and the inmate’s caseworker shall explain the conditions set forth in the case plan.
(a) Within ninety (90) days of admission, the caseworker shall notify the inmate of their parole eligibility date as calculated in accordance with Section 47-7-3(3);
(b) At the time a parole-eligible inmate receives the case plan, the department shall send the case plan to the Parole Board for approval.
(4) The department shall ensure that the case plan is achievable prior to inmate’s parole eligibility date.
(5) The caseworker shall meet with the inmate every eight (8) weeks from the date the offender received the case plan to review the inmate’s case plan progress.
(6) Every four (4) months the department shall electronically submit a progress report on each parole-eligible inmate’s case plan to the Parole Board. The board may meet to review an inmate’s case plan and may provide written input to the caseworker on the inmate’s progress toward completion of the case plan.
(7) The Parole Board shall provide semiannually to the Oversight Task Force the number of parole hearings held, the number of prisoners released to parole without a hearing and the number of parolees released after a hearing.

Miss. Code Ann. § 47-7-3.1 (Rev. 2015).

¶8. In Drankus, the Court reversed a circuit court’s order directing the MDOC to issue a case plan to Michael Drankus, a parole eligible inmate, who had been convicted and sentenced prior to July 1, 2014. Drankus, 204 So.3d at 1233 (¶ 1). The Drankus Court determined that the MDOC’s interpretation of Section 47-7-3.1 was reasonable and not inconsistent with the language of the statute and ascertainable legislative intent. Id. at 1235 (¶ 9). The Court recognized that Section 47-7-3.1 contains operative mandates which indicate that the section’s parole case plan directive was intended to apply prospectively. Id.

¶9. Specifically, subsection (2) provides that the MDOC shall complete a case plan for all inmates within ninety days of an inmate’s admission. Miss. Code Ann. § 47-7-3.1(2). Paragraph (a) in subsection (3) provides that a caseworker shall notify the inmate of his parole eligibility date within ninety days of the inmate’s admission. Miss. Code Ann. § 47-7-3.1(3)(a). The Court noted that provision could not be met in Drankus’s case, since he was admitted into the MDOC’s custody in 1987. Drankus, 204 So.3d at 1235 (¶ 10). The Court also noted that subsection (4)’s mandate that the MDOC shall ensure that the case plan is achievable prior to an inmate’s parole eligibility date was indicative of the MDOC’s interpretation that Section 47-7-3.1 was intended to apply prospectively. Miss. Code Ann. § 47-7-3.1(4). The Court concluded that Section 47-7-3.1 did not apply to Drankus because the statute does not clearly and unequivocally express an intention for retroactive applicability. Drankus, 204 So.3d at 1236 (¶¶ 14-15). Like Drankus, Cook, a parole-eligible inmate convicted and sentenced prior to July 1, 2014, is not entitled to a parole case plan under Section 47-7-3.1.

CONCLUSION

¶10, Because, pursuant to our holding in Drankus, Cook is not entitled a parole case plan under Section 47-7-3.1(1), we reverse the judgment of the Sunflower County Circuit Court and render judgment here.

¶11. REVERSED AND RENDERED.

WALLER, C.J., RANDOLPH, P.J., KITCHENS, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. KING, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Under Mississippi Code Section 47-7-3(1), Cook was eligible for parole after serving ten years of his life sentence for murder and ten years of his consecutive twenty year sentence for armed robbery. See Miss. Code Ann. § 47-7-3(1) (Rev. 2015).

      . Mississippi Code Section 47-7-2 defines a "parole case plan" as "an individualized, written accountability and behavior change strategy developed by the department in collaboration with the parole board to prepare offenders for release on parole at the parole eligibility date. The case plan shall focus on the offender’s criminal risk factors that, if addressed, reduce the likelihood of reoffend-ing.” See Miss. Code Ann. § 47-7-2 (Rev. 2015).

      .Section 41-7-3.1, which became effective on July 1, 2014, was created through the passage of House Bill 585. See Miss. Code Ann. § 47-7-3.1 (Rev. 2015).