author: STONE, J. '

text:
    Jane NEWMAN, Individually and on Behalf of Clifton Newman, Deceased and Linda Canady, Henry Newman and Darrell Newman, Plaintiff-Appellants v. LSU HEALTH SCIENCES CENTER SHREVEPORT and Dr. Patrick Juneau, III, M.D., Defendant-Appellees
    No. 51,375-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 17, 2017

      SCHRUMPF LAW FIRM, By: Oliver Jackson Schrumpf, Counsel for Appellants, Jane Newman and .Clifton Newman (Deceased)
    NELSON & HAMMONS, By: John Layne Hammons, By: Annis Cornell Flournoy, Counsel for Appellants, Linda Canady, Henry Newman, & Darrell Newman
    SPECIAL ASSISTANT ATTORNEY GENERAL, By: Claude W. Bookter, Jr., By: D. Brennan Hussey, Counsel for Ap-pellee, LSU .Health . Sciences Center-Shreveport
    Before PITMAN, STONE, and COX, JJ.
   STONE, J. '

11 Jane Newman and her three adult children, Linda Canady, Henry Newman, and Darrell Newman, filed suit against Louisiana State University Health Sciences Center-Shreveport and Dr. Patrick Juneau, III, M.D., alleging that the hospital’s and doctor’s negligence caused the death of Clifton Newman. A jury found that neither the hospital’s nor the doctor’s actions breached the standard of care. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On March 30, 2009, Clifton Newman (“Newman”) was involved in a single-vehicle accident in Lake Charles, Louisiana. He was transported on a spine board with an Ambu Perfit Ace cervical collar neck brace (“C-collar”) to Christas St. Patrick Hospital. Radiographic imaging ‘ revealed Newman suffered from an unstable fracture of his neck. Newman was subsequently transported by ambulance to Lafayette General Hospital to the care of Dr. Patrick Juneau, III (“Dr. Juneau”), a board-certified neurosurgeon. Dr. Juneau evaluated Newman and determined he had a serious displaced fracture of the cervical spine. Dr. Juneau concluded the complexity of Newman’s spine injuries required neurosurgical intervention and that Newman should be treated at a definitive neurosurgical center. Dr. Juneau'called Louisiana State University Health Sciences Center in Shreveport (“LSUHSC”) to discuss Newman’s condition. It was ultimately decided that Newman should be transferred to LSUHSC. Newman remained in. the C-collar on the spine board and was transported to. LSUHSC by ground ambulance.

Upon arrival at LSUHSC, the on-call senior resident issued an order for' Newman to undergo a myelogram as well as an order stating "Miami J ^collar [at] all times” for Newman’s neck. At all times pertinent. to this matter, Newman remained in the C-collar that he was initially transported in. Newman was then transferred to the care of Dr. David E. Connor (“Dr. Connor”), a first-year neurosurgery resident. In order to accomplish the myelo-gram, Dr. Connor ordered Newman be turned from his back onto his stomach (“repositioning”). Due to the nature of Newman’s condition and supposed injury, it was critical that his neck remain immobile and not sustain any movement during the repositioning, to avoid a terminal spinal cord injury. Assisting with the repositioning were two radiologists, two intensive care unit nurses, and two radiology technicians. After the repositioning, Newman’s blood pressure significantly dropped and the myelogram could not be completed. Newman subsequently died hours later on April 1,2009.

Newman’s wife and children (“Plaintiffs”) filed a complaint and a medical review panel (“MRP”) consisting of three neurosurgeons was convened. The main contention in Plaintiffs’ complaint was that Newman was never placed in a Miami J collar (“Miami J collar”) as ordered. Plaintiffs further complained that Dr. Conner: 1) failed to give any written or oral instructions regarding proper medical management and repositioning of Newman; 2) failed to supervise or oversee the myelo-gram procedure; and 3) failed to supervise Newman’s neck as he was turned from his back to the prone position. On August 24, 2012, the MRP rendered a unanimous opinion wherein • it ■ found that neither LSUHSC nor Dr. Juneau breached the applicable standard of. care during their treatment of Newman. The MRP found Newman did not suffer from a traumatic fracture or any significant dislocation at the C6-C7 segment of his spine (“C6-7”); that Newman was [¿properly transported and turned with appropriate immobilization; and that there was no neurological deterioration as a result of the transport to LSUHSC. Additionally, the MRP found that the decision to turn Newman onto his stomach to perform the myelogram was proper procedure.

On November 14, 2012, Plaintiffs filed a medical malpractice lawsuit against LSUHSC and Dr. Juneau. On April 21, 2016, a jury found LSUHSC did not breach the applicable standard of care in its treatment of Newman. On May 2, 2016, Plaintiffs filed a motion for judgment notwithstanding the verdict (“JNOV”) and, alternatively, for a new trial. However, the trial court denied the motion. This appeal followed.

DISCUSSION

Plaintiffs argue the jury’s verdict wqs manifestly erroneous based on expert testimony and, therefore, the trial court was required to substitute its judgment for that of the jury. Specifically, Plaintiffs argue there was overwhelming evidence indicating LSUHSC breached the standard of care by allowing Dr. Connor,-a first-year neurosurgery resident, to oversee Newman, and by failing to place Newman in a Miami J collar.

A JNOV is warranted when the facts and inferences, viewed in the light most favorable to the party opposing the motion, are so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict; the motion should be granted only when evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. Peterson v. Gibraltar Sav. and Loan, 98-1601 (La. 06/18/99), 733 So.2d 1198; Atkins v. Louisiana Mut. Med. Ins. Co., 47,374 (La. App. 2 Cir. 11/07/12), 105 So.3d 781, writ denied, 2013-0341 (La. 04/01/13), 110 So.3d 586. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men, in the exercise of impartial judgment, might reach different conclusions, the motion should be denied. Anderson v. New Orleans Public Serv., Inc., 583 So.2d 829 (La. 1991); Atkins, supra. Simply stated, a trial court can grant a JNOV only when a jury’s verdict is one which reasonable people could not have rendered; if reasonable people could have arrived at the same verdict given the evidence presented to the jury, then a JNOV is improper. Atkins, supra; Jackson v. A.L. & W. Moore Trucking, 609 So.2d 1064 (La. App. 2 Cir. 1992).

The motion for a new trial requires a less stringent test than for a JNOV. A new trial may be granted in any case if there is good ground therefor. La. C.C.P. art. 1974. Whether to grant a new trial requires a discretionary balancing of many factors. Dowles v. Conagra, Inc., 43,074 (La. App. 2 Cir. 03/26/08), 980 So.2d 180; Gibson v. Bossier City Gen. Hosp., 594 So.2d 1332 (La. App. 2 Cir. 1991). Unlike the standard applicable to a motion for JNOV, the trial judge may evaluate evidence without favoring any party and draw his own inferences and conclusions. Perhaps the significant authority is the ability to assess the credibility of witnesses when determining whether to grant or deny the motion for new trial. Dowles, supra. The trial court’s discretion in ruling on a motion for new trial is great, and its decision will not be disturbed on appeal absent an abuse of that discretion. Id.

LTo establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794.

The jury’s finding in a medical malpractice case is subject to manifest error review; it cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La. 1993); Bailey v. Donley, 44,919 (La. App. 2 Cir. 12/09/09), 26 So.3d 987, 990-91. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and find that (1) a reasonable factual basis does not exist for the finding; and, (2) the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La. 04/03/02), 816 So.2d 270; Bailey, supra.

| fiExpert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha v. Ran, 2007-1726 (La. 02/26/08), 977 So.2d 880.

Where the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is most credible. Mistich v. Volkswagen of Germany, Inc., 1995-0939 (La. 01/29/96), 666 So.2d 1073, opinion reinstated on reh’g, 95-0939 (La. 11/25/96), 682 So.2d 239; Valentine v. Raeford Farms of La., LLC, 50,698 (La. App. 2 Cir. 08/15/16), 201 So.3d 325, 347, writs denied, 2016-1924, 1925 (La. 12/16/16), 212 So.3d 1171, 2016 WL 7638427, 7638429. A fact finder may evaluate expert testimony by the same principles that apply to other witnesses and has great discretion to accept or reject expert or lay opinion. Id. The reviewing court will give great deference to the conclusions of the trier of fact. Bailey, supra.

Plaintiffs began their case in chief by showing the jury the previously recorded video deposition of Dr. Juneau, the board-certified neurosurgeon who was on call the night of Newman’s car accident. In his deposition, Dr. Juneau stated that, “by simply examining Newman,” he could tell Newman had a serious spinal injury. Based on his review of the plane X-ray of the cervical spine, Dr. Juneau .said- there was calcification of Newman’s ligament which caused extreme stiffness in his spine. Dr. Juneau classified Newman as having a highly unstable fracture at the C6-7 but stated that the word “fracture” was being used loosely and that “unstable injury” was a more accurate assessment. Dr. Juneau also described what he believed to be 17an abnormal lesion at the C2 segment of Newman’s spine (“C2”). Dr. Juneau was unsure how Newman passed away, but stated that he knew Newman had a cardiac issue. Dr. Juneau revealed that Newman had a history of colon cancer, and was leaving a chemotherapy treatment at the time of his accident. Dr. Juneau further testified that Newman had a history of heart disease, hypertension, and had a pacemaker. Dr. Juneau conceded the MRP’s conclusion on the matter “makes a lot of sense.” He further testified that ordering the myelogram was absolutely necessary because an MRI was not possible due to Newman’s pacemaker.

Dr. Robert Hudgins (“Dr. Hudgins”), another board-certified neurosurgeon, testified that given the severity of Newman’s injuries, it was unreasonable for him to be placed in the care of a first-year neuro-surgical resident. According to Dr. Hud-gins, a board-certified neurosurgeon should have made decisions about Newman’s care and directed the myelogram procedure. Dr. Hudgins stated Newman suffered from a cardiac complication that arose from his blood pressure dropping during the repositioning. Dr. Hudgins opined that a C2 lateral puncture was more appropriate and safer than a myelo-gram, but admitted that he did not believe the decision to perform a myelogram was substandard care. Notwithstanding, he testified that there was no evidence in the medical record of any acute worsening of Newman’s condition until he was actually repositioned for the myelogram procedure. Dr. Hudgins also testified- that there was an “obvious” fracture at C6-7 despite the statement by the MRP that there was no traumatic fracture or significant dislocation at 06-7.

Heather Bradley (“Nurse Bradley”),' one of the 'registered nurses responsible for Newman’s care at LSUHSC and who assisted with the |srepositioning, testified that she received an order which stated “Miami J collar @ all times.” She admitted that not following the order for the Miami J collar would be a violation of the order. Nurse Bradley testified that Dr. Connor approved the myelogram procedure for Newman and gave the authorization for him to be placed on his stomach. Nurse Bradley could not recall if she or the other nurse had held Newman’s head during repositioning but knew definitively that one of them did. Additionally, Nurse Bradley stated she was surprised the MRP found there was no fracture at C6-7 because she had treated Newman as a patient with a broken neck.

Dr. Mardjohan Hardjasudarma (“Dr. Hardjasudarma”), a board-certified neuro-radiologist, was also present during the repositioning. Dr, Hardjasudarma testified that Newman had two' fractures—one was a fracture dislocation at the C6-7 level, and the other was a fracture of C2. Dr. Hardjasudarma stated that once Newman was positioned on his stomach, it was his job to perform the myelogram by injecting the contrast fluid into Newman’s back. Dr. Hardjasudarma testified that he had only injected.a small amount of the contrast into Newman when Newman’s blood pressure and other vital signs'started decreasing. The myelogram was stopped and Newman was placed on his back. Dr. Hardjasudarma also testified that there was no indication that the manner in which he injected the contrast for the myelogram was improper. He stated that if in this case the repositioning was done incorrectly, it could trigger a failure of the autonomous nervous system leading to a heart attack.

Dr. Rand M. Voorhies (“Dr. Voorhies”), a board-certified neurosurgeon who served on the MRP, also testified for LSUHSC. Dr. | gVoorhies expressed a desire to clarify the MRP’s opinion for the jury with regard to the fracture at C6-7. He testified as follows:

There was no fracture through the vertebral bones at C6 and C7. There was no fracture.through the actual bones. This particular patient had a very advanced form of—-let’s use the word arthritis ... It’s a relatively rare, very advanced form of arthritis which essentially leads to a calcification of all the ligaments ... so that a shell of calcium grew around the spine. Everything, therefore, very, very stiff and inflexible. There was, I believe a fracture through the ligament, the calcified shell, around the vertebrae. There was no actual fracture in the vertebral bones themselves at C6-7. Now, confusing the whole issue is there was a fracture at the base of C-2 ,.. That we believe was old and long-standing and had actually sort of healed over. So the clarification of the opinion of the panel is that there was a fracture through the ligament which was abnormally calcified .., This- patient had a very advanced form of arthritis and, as a result, the ligaments were calcified; - And what fractured was actually that ligament.

Dr. Voorhies conceded that the MRP’s opinion was seemingly incomplete, but reiterated for the jury that there was a fracture but that it was through the calcified ligament, and not through the actual bone of C6-7.

Dr. Voorhies further testified that it would not be a violation of the standard of care if the neurosurgical nurse held Newman’s head and neck during the repositioning for the myelogram, and stated he recommends such action from the nurse. He also stated that even if the head and neck are held with extreme caution, there can be fluctuations in blood pressure during the repositioning for someone with a neck injury. Additionally, Dr. Voorhies testified that, in his opinion, the standard of care does not require a neurosurgeon either to be present during the myelogram or to be holding the neck of a patient with a neck injury. Dr. Voorhies further explained that a C2 lateral puncture is an uncommonly performed procedure, and in Newman’s case was unsafe. Specifically, because Newman had a history of cancer, it was possible that the lesion at the C2 was a tumor. Moreover, a |inC2 lateral puncture would have required that the C-collar be removed, which would have increased the risk of complications.

Dr. Voorhies stated that because the term “Miami J” is so common, it is sometimes used as a synonym for a hard collar. He believed the chief resident was using “Miami J” in the more broad sense of a hard collar rather than suggesting that the C-collar that Newman was wearing be switched out for a collar bearing the Miami J'brand. He also stated that Nurse Bradley’s acknowledgment of the violation of the doctor’s order would not suggest there was substandard care by the nursing staff because he assumed there is no material difference between the two collars. Notwithstanding, Dr.-Voorhies conceded that if the Ambu Perfit Ace C-collar used on Newman, was significantly inferior to a Miami J collar, not following the order would have been substandard care.

Dr. Eric W. Wolf, II (“Dr. Wolf’), another board-certified neurosurgeon, was the last to testify at trial. Dr. Wolf made the following observation concerning whether a neurosurgeon should have been present during Newman’s repositioning:

While I think that [having a neurosurgeon present during repositioning of a patient] is probably a frequent occurrence, it is not in my opinion below the standard of care for one to be absent, provided that there are adequate staff familiar with the procedure at hand. And at the time this myelogram was performed, you had -two intensive care unit nurses, you had two radiology techs, and two radiology professionals.

Dr. Wolf further testified about the moments leading up to Newman’s death. He stated that, based on his review of the LSUHSC medical records, it took around 55 minutes from the time Newman was repositioned before his blood pressure began to decrease. Based bn the records of the preceding day, Dr. Wolf stated there had been a gradual downtrend in Newman’s overall blood | ^pressure prior to the myelogram. However, the decrease in blood pressure was exacerbated by the repositioning of Newman onto his stomach. Newman also had quadriparesis which further affected his cardiovascular system. Dr. Wolf pointed out that a progressive decrease in urine was noted in Newman’s records, which indicated his kidneys were not receiving adequate blood flow. According to Dr. Wolf, this was indicative of either lower blood pressure or lower blood volume. Dr. Wolf testified that, in his opinion, the tilting of Newman during the mye-logram procedure should have improved his blood pressure.

Dr. Wolf also opined that Newman was experiencing neurogenic shock prior to the myelogram. He stated this was “manifest by the progressive lowering of the blood pressures, requiring more and more fluids, more aggressive fluids.” Additionally, Dr. Wolf noted that Newman’s pacemaker was programmed at a pacer rate of about 62 beats per minute. He stated that, because of the pacemaker, Newman’s heart rate never had the opportunity to slow down. There was no autopsy done, but Dr. Wolf testified as to his belief of what caused Newman’s death:

My opinion is that there was no acute exacerbation of his spinal cord injury... I would contend that there was no worsening of his spinal cord injury as a result of the myelogram procedure. However, in the process of turning Mr. Newman in the prone position, I believe that he probably had a decrease in his cardiac index. His heart rate was not able to go up to compensate ... And so as a result of having a lower cardiac index, he was not able to develop the same amount of perfusion of his body organs, and that sort of produced a progressive worsening of his neurogenic shock. And so, you know, it’s tragic that this happened as a result of being turned to the prone position, but I think it’s an inescapable phenomenon because he would have had to be turned into the prone position to have this corrective surgery to stabilize his neck. So essentially it was a time bomb that just so happened to correspond with that procedures.

|i2In Dr. Wolfs opinion, it was probable that had Newman undergone surgery, he likely would have died at the time of the surgery.

The jury was presented with different, viable theories and opinions as to Newman’s condition and treatment. Dr. Juneau, Dr. Voorhies, and Dr. Wolf agreed that the myelogram was necessary. Although Dr. Hudgins testified that he believed the C2 lateral puncture would be a better procedure for Newman, he stated that the decision to do a myelogram was not substandard conduct. Dr. Voorhies and Dr. Wolf also agreed that the standard of care did not require a neurosurgeon to hold the head and neck of Newman during repositioning.

Likewise, the jury was also presented with varying opinions concerning the use of the term “Miami J”. Plaintiffs, however, offered no direct evidence that the senior resident intended for Newman’s C-collar to be removed and he be placed in the actual “Miami J” brand collar, or that the Miami J brand was even necessary. It would seem that if the Miami J brand was so superior to the C-collar worn by Newman, and was so imperative, it would have been placed on him in Lake Charles, before he was transported to Lafayette and thereafter to Shreveport.

The jury returned an 11-1 verdict in favor of LSUHSC, finding that Plaintiffs had not proven by a preponderance of the evidence that LSUHSC had breached the applicable standard of care in the treatment of Newman. After a complete review of this record, we find that it is possible that reasonable minds could disagree regarding the evidence presented, and the jury was not clearly wrong in reaching its verdict. Additionally, we find that the facts are not “so strongly and overwhelmingly in favor of Newman that reasonable men could not arrive at a contrary verdict.” We therefore find the | iatrial court did not err in denying the plaintiffs motion for JNOV, or in the alternative, new trial.

CONCLUSION

Considering the foregoing, the trial court’s judgment, rendered in accordance with the jury’s verdict, is hereby affirmed. We also affirm the trial court’s denial of Plaintiffs motion for JNOV, or in the alternative, a new trial. Costs of this appeal are assessed to appellants.

AFFIRMED.

      . Dr, Juneau was subsequently released as a defendant in the suit.

      . Pursuant to La. R.S. 9:2794(A), in a medical malpractice case, the plaintiff has the burden of proving:
      (1)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
      (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
      (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Kandie THOMAS, Appellant
    No. 51,364-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 17, 2017
    PHILIP A. LETARD, SR., Counsel for Appellant
    JOHN M. LANCASTER, District Attorney, WILLIAM R. BARHAM, AMANDA M. WILKINS, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, PITMAN, and GARRETT, JJ.
   PITMAN, J.

| defendant Kandie Thomas pled guilty to aggravated criminal damage to property and was sentenced to serve ten years at hard labor. She appeals, arguing that her sentence is excessive. For the following reasons, we affirm her conviction and sentence.

FACTS

On March 13, 2015, Defendant and her husband, Odis Wayne Thomas, were married, but separated. Defendant went to Mr. Thomas’s house to pick up the family dog and drove her vehicle through the back door of the house and into the living room area where Mr. Thomas was sitting. He ran out of the house and down the street and noticed Defendant was chasing him, so he hid. Responding police officers found Defendant in the backyard of the house, where she demanded that Mr. Thomas be arrested because he refused to give her the family dog. Officers placed Defendant under arrest, which she resisted. The officers located Defendant’s vehicle down the street from the house and observed two handguns inside. Mr. Thomas told the officers that the guns had been locked inside a closet in his house and that Defendant was not supposed to have any guns.

On March 26, 2015, the state filed a bill of information charging Defendant with one count of aggravated criminal damage to property in violation of La. R.S. 14:55 and one count of domestic abuse aggravated assault in violation of La. R.S. 14:37.7. In a separate bill of information, the state charged Defendant with one count of violation of protective orders in violation of La. R.S. 14:79. On April 29, 2015, Defendant entered a plea of not guilty.

|2On May 28, 2015, defense counsel filed a motion requesting a sanity commission. Counsel alleged that Defendant had a history of mental illness and that she may have been insane at the time she committed the offenses. The district court granted the motion and ordered that Defendant submit to evaluations by Dr. John C. Simo-neaux and Dr. Philip Scurria in order to determine her sanity at the time of the commission of the offenses. After conducting their evaluations, both doctors filed reports of their conclusions with the district court. Dr. Simoneaux reported that Defendant could stand trial and that it was more likely than not that she understood right from wrong at the time of the alleged offenses. Dr, Scurria concluded that Defendant was aware of her actions at the time she committed the offenses and that she is able to work with her attorney to prepare her defense. At a hearing on January 6, 2016, the district court ruled that Defendant was competent to assist in her defense and to stand trial.

On February 18, 2016, Defendant appeared in court to withdraw her prior not guilty pleas. The state noted that the parties agreed, with Judge Terry Doughty’s concurrence, that Judge James Stephens would hear and accept Defendant’s guilty plea and that Judge Doughty would preside over the sentencing. The state advised the district eourt that, in exchange for Defendant’s guilty plea as to the charge of aggravated criminal damage to property, it would dismiss the charge of domestic abuse aggravated assault and agree to a sentence cap. Following a guilty plea colloquy, the district court found that Defendant’s guilty plea was knowingly and voluntarily made, and it accepted her plea of guilty. Judge Stephens ordered a presen-tence investigation (“PSI”) report and noted that Judge Doughty would preside over sentencing. The state then advised the district court that |athe sentence agreement was for a sentence cap of ten years at hard. labor. The state then dismissed the charges of domestic abuse aggravated assault and violation of protective orders. Judge Stephens ordered those matters dismissed, but stated that he was “not executing the plea agreement, that will be for Judge Doughty to do.”

Defendant appeared for sentencing on March 9, 2016, before Judge Doughty. The district court stated that it had reviewed the PSI report, which detailed Defendant’s criminal history, consisting of two prior arrests for offenses against her husband. In July 2008, Defendant was arrested after discharging a handgun in the direction of Mr. Thomas. She was charged with aggravated battery and discharge of a firearm. She pled guilty to the reduced charge of aggravated assault and paid a fine, and the charge for discharge of a firearm was nolle prossed. On February 13, 2015—one month before the instant offense—Defendant was arrested for firing a handgun. Mr. Thomas told law enforcement officers that he was standing on a driveway and speaking to Defendant’s sister about company paperwork when Defendant came out of the house and pointed a gun at him and fired it. Defendant told , law enforcement that she fired the gun into the air over Mr. Thomas’s head because she wanted him to leave the area. Defendant was charged with aggravated assault with a firearm, and the charge was still pending when the PSI report was compiled.

In his victim’s statement in the PSI report, Mr. Thomas indicated that probation rather than incarceration would benefit Defendant. He explained that she needs long-term counseling and medication for her mental health issues. He noted that Defendant’s behavior had become worse within the past four to five years and explained that she has trouble controlling her Danger and. aggression and suffers from severe mood swings. He stated that she is manipulative and intelligent enough to use her words to control people and that she becomes aggressive when her manipulation fails to work. He further stated that he did not seek restitution for damage to the vehicle and the house and that he paid for the repairs from their joint banking account. He offered to help pay for Defendant’s treatment and stated that, if she attends counseling and takes her medication, she could be productive again.

In her statement for the PSI report, Theresa Smith, Defendant’s sister, stated that Defendant suffered from seizures and observed that her seizure medication, Kep-pra, caused her . to behave strangely. Ms. Smith noted that Defendant recently began taking lithium and that it had “made a big difference” in her behavior. Ms. Smith believed that the seizures, problems with medication and distress caused by the recent deaths of Defendant’s mother .and previous husband overwhelmed Defendant. She indicated that incarceration would not help Defendant and that probation would help her stay on her medication.

In her statement for the PSI report, Tracy Hanson, Defendant’s sister, reported that Defendant had never been a violent- person until her seizures began. Ms. Hanson noted that Defendant had benefited from taking lithium. She stated that incarceration would not. help Defendant because she needs to meet with a doctor on a regular basis. She opined that Defendant knew her actions were wrong, but that the stress in her life was more than she could bear.

In statements for the PSI report, Winnsboro Chief of Police George Wilhite recommended a “significant” hard labor sentence due to Defendant’s history of violence and his concern for the safety of the residents of |fiWinnsboro. Franklin Parish Sheriff Kevin Cobb recommended a “substantial” hard labor sentence considering Defendant’s past violent behavior and propensity for future violence and his concern for the residents of Franklin Parish.

At the sentencing hearing, Defendant’s husband and sister testified on her behalf. Mr. Thomas stated that he and Defendant had been married approximately 20 years, but that they were going through a divorce and were living separately at the time of the offense. He noted that, when Defendant drove her vehicle into his house, it stopped about 12 feet from where he was sitting. He testified that the firearms found in her vehicle were not in the vehicle when she drove into the house and that she took them from his house. After Defendant drove into the house, he did not stay and talk to her, but, instead, left to avoid further confrontation. He admitted he was afraid of what might happen. He also testified about two previous incidents involving Defendant. In 2008, Defendant discharged a firearm in his direction, but he believed that it discharged accidentally. He stated that, one month prior to the instant offense, Defendant shot a gun in his direction while he was several hundred feet away from her. He asked that the district court not incarcerate Defendant, but, instead, that she receive a sentence of probation so that she can receive medical treatment. He stated that he felt partially at fault for the incident that occurred because his infidelity triggered Defendant’s aggression. He noted that Defendant’s attitude had changed during her year of imprisonment. He also stated that he had ' not asked for restitution for damage to the house.

Ms. Smith testified that she works for the trucking company Defendant and Mr. Thomas own together. She recounted recent troubling |fievents in Defendant’s life, including that one of Defendant’s previous husbands passed away in the summer of 2014, that Mr. Thomas left her in November 2014, that Defendant attempted suicide in December 2014, that Defendant had several grand mal seizures, that their sister passed away in January 2015 and that Defendant’s other previous husband passed away three days later. She stated that those events led up to Defendant shooting a gun in her and Mr. Thomas’s direction in February 2015. She believed that Defendant was upset with the amount of time she was talking to Mr. Thomas and fired the gun to get their attention.

Ms. Smith further testified that, after Defendant began taking lithium in March 2015, two days before she was arrested, she noticed a “big change” in that Defendant was calmer in her responses to situations. She opined that Defendant’s actions were an attempt to get Mr. Thomas’s attention. She asked the court for leniency and that Defendant receive a sentence of probation, stating that she was concerned about Defendant’s health during incarceration and that Defendant would not receive the treatment she needs to continue improving.

Defendant testified on her own behalf and stated that she is 58 years old, has two daughters and six grandchildren. She admitted that, during her year of incarceration, she had considered her actions and she took full responsibility for them. She asked the court for leniency in sentencing so that she could have the opportunity to obtain the counseling and medication she needs to be a productive member of society, noting that she had learned to control her temper. She admitted that she had believed she could not live without Mr. Thomas and had abandonment issues, but that she has since learned that she is capable of living by herself.

|7The district court detailed Defendant’s social history, which included running away from home as a child and, at age 13, being placed in a reformatory school. She completed the tenth grade and then ran away from the reformatory school and became pregnant. She married the father of the child and had another child before divorcing. She married and divorced another man before marrying Mr. Thomas in 1996. She and Mr. Thomas owned a trucking company together. They separated in 2014. Defendant was diagnosed with having grand mal seizures in 2007, and she attempted suicide in 2014 with an overdose of Klonopin. She denied a history of drug or alcohol abuse.

As mitigating factors, the district court noted that Defendant is a 58-year-old first felony offender. It noted that she has a history of mental health issues, but a sanity commission determined that she was competent to stand trial. It stated that the victim, Mr. Thomas, does not want her to receive a prison senténce and did not seek restitution for the $17,200 worth of damage to the-house and vehicle.

The district court also detailed the applicable aggravating circumstances, stating that, although this was Defendant’s first felony conviction, she has committed three violent crimes against Mr. Thomas, any one of which could have killed him. It noted that two of the offenses occurred within a one-month period and that all of the offenses involved the use of a dangerous weapon, i.e., a gun or á vehicle. It further stated that Defendant has a significant anger control issue and noted that she did not show much remorse, other than saying that she has changed. It found that her actions resulted in a significant economic loss, i.e., $17,200 in damages.

| «Considering the three violent acts Defendant had committed, the district court did not believe that Defendant would likely respond to probationary treatment. It found that Defendant was in need of correctional treatment that can be provided in a custodial environment. It also noted that Defendant received a substantial benefit from the plea agreement, with a sentence cap of 10 years, rather than the statutory maximum of 15 years at hard labor. It stated that, absent the sentence cap,, it would have sentenced Defendant to more than 10 years.

Accordingly, the district court sentenced Defendant to 10 years at hard labor with credit for time served and recommended that she receive mental health treatment. It advised Defendant that she had 30 days to file a motion to appeal and two years to seek post-conviction relief.

On March 21, 2016, Défendant filed a motion to reconsider sentence. She argued that her sentence was excessive because the district court considered a charge that is still pending, i.e., the February 2015 aggravated assault with a firearm charge. She also noted that she was a first offender, that her husband was not injured and that her husband admitted that he contributed to her mental state due to his infidelity;

A hearing on Defendant’s motion to reconsider sentence was held on July 13, 2016. Mr. Thomas again testified on Defendant’s behalf and expressed that, his actions contributed to Defendant’s anger. The defense attorney advised the court that the February 2015 aggravated assault with a firearm charge had' not yet been resolved because those involved were waiting to learn of the outcome of this case. The district court noted that Defendant had tried to kill Mr. Thomas three times and that, regardless of Mr. Thomas’s contribution to angering Defendant, that did not justify | ¡(Defendant's actions of driving her vehicle into his house. It found no justification to reduce Defendant’s sentence and denied her motion.

Defendant appeals.

DISCUSSION

Review of Sentence

The initial inquiry in this case is whether Defendant is entitled to a review of her claim of excessive sentence, which was imposed in conformity with a plea agreement with a sentencing cap.

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. La. C. Cr. P. art: 881.2(A)(2). Where a specific sentence or a sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive if that right has not been specifically reserved. State v. Taylor, 44,205 (La. App. 2 Cir. 5/13/09), 12 So.3d 482. However, when the right to appeal has .been mentioned by the district court during the plea colloquy, even though there is an agreed sentence or sentence cap, the defendant’s sentence may be reviewed. Id.

Prior to Defendant’s guilty plea, the parties advised the district court that they had negotiated a plea agreement with a sentencing cap. During the guilty plea colloquy, the district court advised Defendant of her rights, including that she had a right to a trial by jury and, if convicted at that trial, would have the right to appeal her conviction. Defendant acknowledged that she understood that, by pleading guilty, she was waiving those rights.

At the guilty plea hearing, Defendant did not specifically reserve her right to appeal her sentencing; however, the district court did not advise her |inof this right. Accordingly, we will review the sentence. See State v. Brown, 50,138 (La.App. 2 Cir. 9/30/15), 181 So.3d 170.

Excessive Sentence

In her sole assignment of error, Defendant argues that the sentence imposed by the district court is constitutionally excessive. She contends that her upper-range sentence of 10 years serves no purpose, is nothing more than cruel and unusual punishment and is greatly disproportionate to the seriousness of her offense. She states that a lesser period of incarceration with treatment for her mental health issues better meets the needs of society. She argues that, by focusing on the seriousness of the offense, the district court failed to consider several mitigating factors, including her personal history and her emotional and physical health issues. She notes that her husband’s infidelity significantly contributed to her emotional breakdown and that she suffered from seizures, depression and emotional strain. She also points out that both her husband and sister testified about the significant change in her attitude as a result of new medication. She emphasizes that no one was injured as a result of her actions. She further contends that the district court erred in considering the February 2015 incident, which has not resulted in a conviction.

InThe state argues that the district court acted within its discretion when sentencing Defendant to 10 years’ imprisonment. It notes that the imposed sentence falls within both the statutory sentencing range of 1 to 15 years and within the 10-year sentence cap. It further notes that the district court heard testimony, 'reviewed the PSI report and adequately considered the aggravating and mitigating factors before imposing Defendant’s sentence. It also contends that the district court did not err in considering Defendant’s previous arrests because a defendant’s criminal history is a relevant element for a court to consider in sentencing. It argues that Defendant’s previous arrests are especially relevant because the incidents involved the same victim and similar circumstances of her use of violence and deadly weapons against her husband.

When reviewing an excessive sentence claim, the appellate court uses a two-prong test. First, the record must demonstrate that the trial court complied with La.-C. Cr. P. art. 894.1. The trial court is not required to list every aggravating and mitigating circumstance, but the record must reflect that it adequately considered the guidelines of La. C. Cr. P. art. 894.1. State v. Smith, 433 So.2d 688 (La. 1983). The trial court should consider the defendant’s personal history and prior criminal record, the seriousness of the offense, the likelihood that the defendant will commit another crime and the defendant’s potential for rehabilitation. State v. Jones, 398 So.2d 1049 (La. 1981). The trial judge is not .limited to a consideration of the defendant’s prior convictions but may properly review all of his prior criminal activity. State v. Russell, 40,526 (La.App. 2 Cir. 1/27/05), 920 So.2d 866, writ denied, 06-0478 (La. 9/29/06), 937 So.2d 851. The trial court is not required to assign any particular weight to any specific matters at | ^sentencing. State v. Quiambao, 36,587 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied, 03-0477 (La. 5/16/03), 843 So.2d 1130.

Second, the appellate court must determine if the sentence is constitutionally excessive. A sentence is excessive and violates La. Const, art. 1, § 20, if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La. 1980). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Id. ■ .r

A trial court has wide discretion in imposing a sentence within the statutory limits, and a sentence should not be set aside absent a showing of abuse of discretion. State v. Square, 433 So.2d 104 (La. 1983); State v. Black, 28,100 (La.App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied, 96-0836 (La. 9/20/96), 679 So.2d 430. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7; State v. Free, 46,894 (La.App. 2 Cir. 1/25/12), 86 So.3d 29.

Aggravated criminal damage to property is the intentional damaging of any structure, watercraft or movable, wherein it is foreseeable' that human life might be endangered, by any means other than fire or explosion. La. R,S. 14:55(A). Whoever commits the crime of aggravated criminal damage to property shall be fined not more than $10,000, imprisoned with or without hard labor for not less than 1 nor more than 15 years, or both. La. R.S. 14:55(B).

1 isln the case sub judice, the district court .complied with the requirements of La. C. Cr. P. art. 894.1 and considered aggravating and mitigating factors prior to imposing Defendant’s sentence. It thoroughly detailed her personal and criminal history, emphasizing its concern with Defendant’s violence, including two incidents within one month, and her use of dangerous weapons.

Defendant’s sentence of 10 years at hard labor is not constitutionally excessive'and is within the statutory range and sentencing cap. Although no one was injured as a result of the instant offense or the prior two incidents, Defendant’s violent actions show a pattern of behavior that threatens human life. Her history of mental health and anger issues does not justify her acts of violence. Further, Defendant benefited from the plea agreement because her potential sentence exposure was reduced by the sentence cap and the dismissal of the charges of domestic abuse aggravated assault and violation of protective orders.

Considering the facts of this case and Defendant’s criminal history, the sentence imposed by the district court is not grossly out of proportion to the severity of the crime and does not shock the sense of justice. The district court did not abuse its discretion in imposing this sentence.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Defendant Kan-die Thomas.

AFFIRMED.

      . We note that, at the conclusion of Defendant's sentencing hearing, the district court advised Defendant of tire time limitations in which to file an appeal and to seek post-conviction relief. In State v. Pullig, 44,606 (La.App. 2 Cir. 9/23/09), 22 So.3d 1043, and State v. Fizer, 43,271 (La.App. 2 Cir. 6/4/08), 986 So.2d 243, this court determined that the district court's advisement of time limitations for appeal after the imposition of the sentence did not influence the defendant's guilty plea and, therefore, precluded the defendant from seeking review of the sentence. These cases arc distinguishable from the case sub judies because, in State v. Pullig and State v. Fizer, the district court did not mention any appeal rights during the guilty plea colloquy. In the instant case, the district court did advise Defendant that, by pleading guilty, she was waiving her right to appeal her conviction.


author: KEATY, Judge.

text:
    STATE IN the INTEREST OF T.M.
    17-252
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2017
    Charlotte G. Bordenave, Public Defender’s Office, 215 West Saint Peter Street, New Iberia, Louisiana 70560, (337) 365-4006, Counsel for Appellant: T. M. (child)

      Walter J. Senette, Jr., Assistant District Attorney, Post Office Box 268, Jeanerette, Louisiana 70538, (337) 276-5603, Counsel for Appellee: State of Louisiana
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   KEATY, Judge.

| ¾After a hearing, T.M. and her mother were adjudicated a Family in Need of Services (FINS) based upon T.M.’s truancy from high school. She was placed in the custody of the State of Louisiana for one year, suspended, with supervised probation with the Office of Juvenile Justice (OJJ) for eighteen months with special conditions. T.M. appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Although the issue to be decided in this appeal appears to be res nova, the facts are generally not in dispute. On October 4, 2016, a FINS Petition was filed in Jeaner-ette City Court (hereafter the trial court), under La.Ch.Code art. 730, against E.H., the mother and caretaker of T.M., a fourteen-year-old female, because of T.M.’s truancy with twelve absences from school, of which all but one were unexcused. According to the petition, attempts had been made to assist and encourage the family to remedy the problem by all appropriate and available means, but to no avail. The petition further alleged that because T.M. was ungovernable and could not be controlled by her parent without posing a danger to herself or other family members, a mandatory conference was not appropriate in the matter.

An adjudication and dispositional hearing was held on February 1, 2017, where T.M. was represented by an attorney from the Iberia Parish Public Defender’s Office. At the start of the hearing, the State offered into evidence, as State’s Exhibit 1, T.M.’s record from Jeanerette Senior High School (JSH), showing that she had missed thirty-eight days during the current school year. While T.M.’s attorney indicated that she had no objection to the State’s exhibit, |2she sought to introduce into the record a document showing that T.M.’s mother had withdrawn her from JSH and enrolled her in an online homeschool program. Upon the admission of its sole exhibit into evidence, the State rested its case. T.M. then called as a witness James Russell, a school attendance officer employed by the Iberia Parish School Board (IPSB). After Mr. Russell was sworn in, but before any testimony was elicited from him, T.M.’s attorney made an oral motion to continue the matter without date on the ground that the matter was moot because of T.M. having transferred into a homeschool program. The State did not object to a continuance given the fact that T.M. and her family were already receiving FINS services through the district court. Nevertheless, the trial court denied the motion to continue.

T.M.’s attorney was then allowed to present her defense to the petition. Mr. Russell testified that Louisiana law allows a parent to remove their child from a traditional school and to enroll them in a homeschool program whereby the parent assumes responsibility for their child’s education. Mr. Russell explained that homes-chooled students remained subject to state-mandated testing, although he was unfamiliar with how (hey were monitored by the State. He was shown a document marked Defense Exhibit 1, which he identified as a letter dated January 20, 2017, welcoming T.M. to the Connections Academy (CA).

The State’s attempt to cross-examine Mr. Russell regarding T.M.’s school performance, attendance, and how he thought she would do in homeschooling was met by an objection from the defense regarding relevancy. The trial court sustained the objection on the basis that such testimony would be more relevant to the disposition if it were to adjudicate T.M. and her mom as FINS. The trial court [¡¡then questioned Mr. Russell about a December 14, 2016 letter in T.M.’s school record. Mr. Russell identified the letter as a notification to T.M.’s mother that the IPSB had held an administrative hearing to review T.M.’s welfare and school attendance and that it had upheld her suspension from JSH and placed her on probation for the remainder of the school year. When asked about the procedure for enrolling a student'into a recognized homeschool program, Mr. Russell confirmed that the State Department of Education had to approve a student’s entrance into such a program. Although he had no personal knowledge of whether the request for T.M. to enroll in the CA had been approved, Mr. Russell stated that he was unaware of any student having been denied such approval.

On redirect from the defense, Mr. Russell stated that as far as the IPSB was concerned, T.M.’s education was in the hands of her mother and the CA, and T.M. had the option of returning to the IPSB system regardless of how she did in the homeschool program. He agreed that in removing T.M. from the IPSB system, her mother “did not do anything that was not recognized by the State Education Board.” Upon re-cross, Mr. Russell stated that the JSH administration referred T.M. to FINS because of her lack of attendance and her unwillingness to attend class when she was at school. Thereafter, the defense entered “a stipulation into the record that the Iberia Parish School system took all the appropriate efforts to try to remediate the compulsory school attendance problem and was unsuccessful.” The defense then submitted the case for decision after insisting that there was no need to adjudicate T.M. a truant because she was no longer in school.

Upon consideration of the record, the testimony, and the exhibits, the trial court ruled in open court that the State had carried its burden of proving that T.M. was “in violation of the compulsory school attendance laws,” and it adjudicated T.M. a FINS child. Initially, the defense sought to delay the dispositional phase of |4the hearing; however, it later agreed to conclude the matter that day. The State recalled Mr. Russell to the stand to elicit his opinion as to a proper disposition in this case. He noted that because of T.M.’s unwillingness to attend class, her grades were not necessarily indicative of her academic abilities. While he had not received any information from T.M.’s mother as to her progress at the CA, based upon her school records, Mr. Russell stated that some of the “social emotional concerns” exhibited by T.M. in a large classroom setting might make that environment less conducive to her ability to learn. Accordingly, he believed that a homeschool setting might provide T.M. with the “academic nurturing” necessary for her to be able to learn. Mr. Russell noted that if T.M. did not do well in homeschooling, her mom could return her to the IPSB system. He further noted that if a student enrolled in an online program did not attain the required number of hours, that student would not be allowed to move on academically. On cross-examination by the defense, Mr. Russell confirmed that T.M.’s mother had the absolute choice under Louisiana law to remove her from the IPSB and enroll her in an acceptable homeschool program such as the CA.

The next witness called by the State was Christian LaGrange, T.M.’s former .counselor at JSH who had met with her on a regular basis to discuss her grades and attendance in order to help her with any accompanying social issues that were affecting her school performance. She agreed with Mr. Russell’s belief that T.M. had yet to show her true academic potential and that, given her lack of motivation to attend school, she was unable to say how T.M. would do with homeschooling. In response to questions posed to her by the defense, Ms. LaGrange agreed that there were many reasons why a student might not want to attend school and that she could not say that T.M.’s poor attendance ■record was due to her being lazy and/or her unwillingness to- do schoolwork. Ms. LaGrange also confirmed that ^according to her understanding of Louisiana’s educational law, T.M.!s mother had the absolute right to withdraw her from school and enroll her in a home study program.

Over the objection of defense counsel, the trial court sought recommendations from Ronald Rogers of the OJJ about what type of services his office could provide to T.M. Mr. Rogers stated that in a standard truancy casé, when a student is put on probation with the OJJ, his office would monitor the student’s grades, attendance, and behavior, along with examining the student’s family dynamics and providing appropriate counseling,, be it Functional Family Therapy (FFT) or Mul-ti-Systemic Therapy (MST). Mr. Rogers was then sworn in as a witness to give the parties an opportunity to question him under oath. In answer to a question posed to him by T.M.’s attorney, Mr. Rogers stated that he did not have an official recommendation regarding T.M. because this was not the type of case normally handled by his office. On cross-examination by the State, Mr., Rogers explained that his office would monitor T.M.’s online homeschool activities, provide her with counseling not duplicative of that she was already receiving, and report back to the trial court regarding her progress. On redirect, Mr. Rogers stated that he was not aware of his office ever having monitored a student who was adjudicated a truant and who was not on probation in a 'non-criminal matter.

After referencing the dispositional guidelines set out in La.Ch.Code arts. 779-781, the trial court made the following disposition from the bench:

I am persuaded from the educational records that exist on the child, as far as the function within the home is not able to receive an education as mandated an[d] required pursuant to Louisiana Law if the child remains in the home, and I am of the belief that disposition or removal of the child is necessary relative to same, I would place the juvenile in the custody of the State of Louisiana for a period of one (1) year in non-secure placement. However, for purposes of the Dispositional 1 (¡Hearing, the defense is suggesting that the child has withdrawn from the Iberia Parish Educational system and has entered into Connections Academy which is apparently a home school online virtual school program in an attempt to be able to provide this child with an education as required and mandated pursuant to State law. Um, the Court, for purposes, of considering dispositional guidelines in the programs that are offered is going to therefore suspend the placement of the juvenile for the period one (1) year with the Office of Juvenile Justice in a non-secure placement and place the juvenile on probation, supervised probation, with the Office of Juvenile Justice for a year and a half (1 1/2), subject to the following terms and conditions of the supervised probation, number one, I’m going to want the Office of Juvenile Justice to meet with the family weekly and.obtain reports from the online educational institution which show that the juvenile is in fact matriculating successfully within the online educational program, in the event that you are not able to meet with the juvenile on a weekly basis or provide those or obtain that information on a weekly basis, then I’m going [to] want the Court to be notified within fifteen (15) days if there are any potential violation of that specific condition of its probation.
In addition to that, I also believe that it’s necessary for the Office of Juvenile Justice to provide MST counseling services in the home.

The trial court ordered the OJJ to supply a probation officer to meet with T.M. and her family, in person, on a weekly basis. It also imposed a dusk-to-dawn curfew on T.M., and ordered her mother to ensure that T.M. was supervised by an adult if she left their home during her curfew.

T.M. appealed and is before this court alleging that the trial court erred: 1) in adjudicating her delinquent on the basis of truancy because she had been removed from the Louisiana public school system and enrolled in a state-sanctioned home study program and 2) in placing her under the supervision of the Office of Juvenile Justice (OJJ) for monitoring her school attendance when she was no longer attending school.

DISCUSSION

Louisiana law requires parents of children between the ages of seven and eighteen to send their children to school and to assure that their children regularly attend classes and refrain from being habitually tardy. La.R.S. 17:221. “Solely for 17purposes of compulsory attendance in a nonpublic school, a child who participates in a home study program approved by the State Board of Elementary and Secondary Education shall be considered in attendance at a day school.” La.R.S. 17:236(A).

Louisiana Children’s Code Article 730(1) provides that a family can be adjudicated in need of services when “a child is truant or has willfully and repeatedly violated lawful school rules.” The allegation of a FINS petition must be proven by a preponderance of evidence. La.Ch.Code art. 770. Although we have found no eases which directly state the appellate standard of review of a trial court’s ruling on a FINS petition, we find the following case instructive. In State in the Interest of D.M.G., 579 So.2d 525, 527 (La.App. 4 Cir. 1991) (footnotes omitted but substance of footnotes included in brackets), the fourth circuit stated:

The appellate standard of review, when a petition for delinquency is filed and a determination of delinquency is found, is the Jackson v. Virginia, [443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)] standard of “in the light most favorable to the prosecution”. State in the Interest of Rowland, 509 So.2d 779 (La.App. 2nd Cir.1987). However, when a petition for delinquency is filed but a determination of a CINS is found, the more rational standard of review would be that imposed by Arceneaux v. Domingue[, 365 So.2d 1330 (La.1978)] of clearly wrong or manifestly erroneous. We reach this conclusion based upon La.CJ.P. article 71 which mandates that nondelinquent proceedings be conducted according to the rules of Civil Procedure and article 73 which establishes the burden of proof in such cases to be by a preponderance of evidence.[]

Accordingly, we hold that the manifestly erroneous or clearly wrong standard of review is the appropriate appellate standard of review to apply in this matter.

After a family has been adjudicated in need of services, La.Ch.Code art. 779(A) gives a trial court authority to impose the following dispositional alternatives:

ls(l) Order the child to submit to counseling or to psychiatric or psychological examination or treatment.
(2) Order the child to cooperate in accepting particular services from any public institution or agency or from any private institution or agency willing and able to provide him with needed services.
(3) Place the child in the custody of a caretaker or other suitable person on such terms and conditions as deemed in the best interests of the child and the public.
(4) Place the child on probation on such terms and conditions as deemed in the best interests of the child and the public.
(5) Assign the child to the custody of a private or public institution or agency, except that the child shall not be placed in a correctional facility designed and operated exclusively for delinquent children, nor shall such facility accept the child.

In addition to the aforementioned dispositions, La.Ch.Code art. 779(A)(6) allows the trial court to “[m]ake such other disposition or combination of the above dispositions as the court deems to be in the best interests of the child and the public.”

At the dispositional hearing, the trial court can consider all evidence offered by the state, the child, and/or his caretaker, including evidence that “would not be admissible at the adjudication hearing.” La. Ch.Code art. 778. “The court shall impose the least restrictive disposition which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society.” La.Ch. Code art. 781. Moreover, “[t]he court shall not remove a child from the custody of his caretakers unless his welfare cannot, in the opinion of the court, be adequately safeguarded without such removal.” La.Ch. Code art. 780.

The Adjudication

In her first assigned error, T.M. argues that the trial court erred in adjudicating her “delinquent on the basis of truancy” because she had been lawfully removed from the Louisiana school system by her mother with the ^permission and approval of the State. T.M. also contends that the matter was moot because she was no longer at risk for being truant due to her withdrawal from JSH and her enrollment in CA, a state recognized and sanctioned homeschool program.

Initially, the State points out that this matter came before the trial court as a FINS petition rather than as a delinquency proceeding. With regard to the merits, the State contends that a juvenile and her family cannot escape the jurisdiction of a FINS court by choosing to be homes-chooled. In that regard, the State submits that while Louisiana’s compulsory attendance laws recognize that a child can be homeschooled, those laws do not allow a family to avoid being found in need of services. The State calls this court’s attention to a December 14, 2016 Risk Indicator Survey . completed by Ms. LaGrange, T.M.’s school counselor at the time, which showed that T.M. had excessive school absences, was not prepared, frequently failed to complete her homework, and had ,no desire to learn. The Survey also noted that T.M. was defiant, manipulative, and disruptive. More disturbingly, however, the Survey indicated that T.M. had a history of harming. herself and that Ms. LaGrange had to perform , a suicide assessment on her two months prior because T.M. indicated that “she wanted to die,” In a PINS Referral Report dated December 14, 2016, Ms. LaGrange noted that as of that date, T.M. had a total of thirty-nine absences and her grades were five Fs and one D. The report indicated that Ms. LaGrange had conducted multiple face-to-face and telephone conferences with T.M.’s parent and that she suspected that T.M.’s behavior might be related to a mental health issue.

One of the stated purposes of Title VII of the Louisiana Children’s Code, which pertains' to families in heed of services, is “to define self-destructive behaviors by the child and conduct by other family members which contribute to the child’s harm and which warrant court intervention In the family’s life so that | ^appropriate services to remedy the family’s dysfunction can be secured.” La.Ch.Code art. 726. The evidence showed that T.M. suffers from a broad range of educational, as well as emotional and social problems. Based on the record before us, we conclude that the State met its burden of proving that T.M. and her mother should be adjudicated a FINS. Thus, T.M.’s first assigned error lacks merit.

The Disposition

In her second assigned error, T.M. contends that because she was no longer enrolled in a ’ traditional school, the trial court’s disposition in this case should not have included the monitoring of her school attendance by the OJJ. In that vein, T.M. submits'that the disposition imposed by the trial court was overly onerous and burdensome and was not the least restrictive disposition available.'

Conversely, the State contends that the trial court followed the dispositional guidelines set out in the Louisiana Children’s Code. The State further points out that T.M. failed to produce any evidence regarding how the CA operated or its success rate. Likewise, the defense failed to present any witnesses, including T.M., to attest to why they believed'T.M. was likely to be successful in a homeschool environment, so as to justify a less restrictive disposition.

' The record is replete with T.M,’s propensities for not doing well in, much less attending, school. It also contains evidence that T.M. is a troubled teen whose family life needs to be monitored to protect her best interests, .After having reviewed the entire, record, including the testimony and evidence presented at the adjudication and dispositional hearing, we conclude that the trial court did not manifestly err or abuse its discretion in carving out .the least restrictive disposition given the specific facts presented .regarding the dysfunction of T.M. and her Infamily. See State in the Interest of A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d 1012.

DECREE

For the foregoing reasons, the judgment adjudicating T.M. a Family In Need of Services child and placing her on supervised probation with the Office of Juvenile Justice is. affirmed.

AFFIRMED.

      . The initials of the minor child and her mother are used to protect the minor’s identity. See Uniform Rules—Courts of Appeal, Rules 5-1, 5-2.

      . The letter was addressed to T.M. and her mother from Mr. Bruce Hoffmann, informing them that T.M. was in his homeroom and his math class and instructing them on how to download the software to participate in the CA.

      . The Code of Juvenile Procedure was repealed effective January 1, 1992. See now generally the Children’s Code.