source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF M.J.M. and T.T.B. State of Louisiana in the Interest of J.M., M.M. and T.B.
    Nos. 16-CA-652, 16-CA-653
    Court of Appeal of Louisiana, Fifth Circuit.
    March 15, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA IN THE INTEREST OF M.J.M. AND T.T.B., Jessica Coalter, Katherine Dowling
    COUNSEL FOR DEFENDANT/AP-PELLEE, SHENITA MARY ELIZABETH MITCHELL, Jennifer G. Womble
    Panel composed of Marc E. Johnson, Robert A. Chaisson, and Robert M. Murphy
   CHAISSON, J.

b The State of Louisiana, Department of Children and Family Services (“DCFS”), appeals the juvenile court judgment that denied its petition to terminate the parental rights of S.M., W.H., G.W., and C.B. to their children, M.M. and T.B. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The children involved in this termination proceeding are M.M., whose date of birth is September 15, 2001, and T.B., whose date of birth is February 27, 2003. S.M. is the mother of these two ■ male children; W.H. is the alleged father of M.M.; G.W. is the biological father of T.B, although C.B. is listed on the birth certificate as the father.

The two minor children, M.M. and T.B., first came to the attention of DCFS in September of 2012, when C.A., a friend of S.M.’s, contacted the agency to report that S.M. left the children with him and moved to Texas. C.A. had apparently agreed to keep the children temporarily with the understanding that S.M. would provide money for food and necessities. C.A. tried contacting • S.M. several times but was unsuccessful, and he thereafter requested that DCFS remove the children from his home. On September 24, 2012, the children were placed in the custody of DCFS, and the matter was set for a continued custody hearing. At the October 2, 2012 hearing, the juvenile court found that reasonable grounds existed to believe that the children were in need of care and that continued custody was necessary for their safety and protection.

On October 16, 2012, the Jefferson Parish District Attorney’s Office filed a petition pursuant to La. Ch.C. art. 606(A)(2) and (A)(3) seeking to have the children adjudicated in need of care as to their mother, S.M. The petition alleged Rthat “the children are victims of neglect” and “are without necessary food, clothing, shelter, medical care, or supervision because of the disappearance or prolonged absence of their parent.” At the November 13, 2012 adjudication hearing, S.M. stipulated that the children were in need of care, without admitting the allegations of the petition. The disposition hearing was conducted on December 11, 2012. The court determined that continued custody of the children was necessary and maintained their placement with their cousin, T.H., noting that the children were doing well. However, on January 11, 2013, M.M. and T.B. were removed from their placement with their cousin because she could not handle the children’s behavior. They were then placed in the certified foster home of Mr. and Mrs. P.

According to the reports in the record, the behavior of the boys improved once they were placed with Mr. and Mrs. P. While the experienced foster family embraced the boys, they also provided them with a structured environment, set forth rules and boundaries, and told them exactly what was expected of them in the home setting. At the review hearing on March 12, 2013, the court maintained the boys’ placement with Mr. and Mrs. P., noting that the boys were adjusting well and making progress behaviorally in the foster home. The court further observed that S.M. was working toward her case plan goals and had completed her mental health assessment, was taking her medication, had enrolled in parenting classes, and had maintained contact with her children. Subsequent reports showed the boys’ continued improvement. In particular, a report by their therapist, Dr. Danna Andrus, noted that since M.M. and T.B.’s placement with Mr. and Mrs. P., they both had shown measurable progress with their behavior, enjoyed the idea of being part of a family that is stable, secure, and consistent, and wanted to stay in their current placement. In addition, according to a report by DCFS, S.M. continued to make progress toward her case plan goals. She had completed her parenting ^classes, had visited with her children as scheduled, and wanted her children to return to her home.

In light of the mother’s measurable progress, the court, at the September 17, 2013 review hearing, returned the legal custody of M.M, and T.B. to their mother. The reports in the record, as well as the minute entry/judgment from the October 15, 2013 status hearing, suggest that S.M. continued to cooperate with DCFS and to comply with her case plan. In addition, the boys were apparently happy to be back with their mother. However, on January 16, 2014, DCFS filed a motion to set a status hearing based on a change of circumstances. In particular, the motion referenced S.M.’s failure to comply with a court order and failure to respond to the school’s attempts to contact her about the boys. The motion was granted and set for a hearing on January 21, 2014. After considering the testimony presented, the court treated the matter as an instanter hearing on a modification of disposition and ordered that M.M. and T.B. be placed in the custody of DCFS. It is noted that S.M. did not appear at this hearing despite efforts to notify her of the hearing date.

Pursuant to the court’s order, DCFS immediately filed a motion for modification of disposition alleging a change in circumstances. The motion alleged that S.M. allowed the children to have contact with C.A. against the court’s order and that S.M. had been unresponsive to the school’s request for assistance with M.M.’s academic and behavioral progress. At the January 23, 2014 modification of disposition hearing, the court maintained custody of M.M. and T.B. with DCFS and also ordered the mother, who was present, to fully comply with her case plan. After custody was placed with DCFS, the boys were returned to the certified foster home of Mr. and Mrs. P. and have remained there since that time.

| thereafter, the matter came for regular review hearings. The progress reports and minute entries/judgments in the record indicated that the two boys were happy with their placement with Mr. and Mrs. P., that M.M. continued to struggle academically and behaviorally and steps were being taken to address those issues, and that generally the boys’ behavior improved, and they were calmer, more settled, and happier. The reports further indicated that S.M. had made no progress on her case plan goals, and that while Mr. and Mrs. P. did not want to adopt the boys, they were willing to have the boys live with them permanently. In accordance with the information received, the juvenile court, at the review hearings, continued the children in the custody of DCFS. During these proceedings, the case plan goal had developed into placement in an alternative permanent living arrangement (“APLA”); however, in January of 2016, DCFS expressed its desire to change the case plan goal from APLA to adoption. At the January 19, 2016 review hearing, the juvenile court did not approve the plan of adoption and ordered DCFS to explore other case plan goals.

Thereafter, on February 19,2016, DCFS filed a motion for reconsideration of the ease plan goal and requested again that the court change the case plan goal from APLA to adoption. In the motion, DCFS maintained that adoption is the permanent plan that is in the best interest of the children. DCFS asserted that since reunification is not an option due to the mother’s total non-compliance with her case plan goals, adoption is the next preferred placement for the children pursuant to La. Ch.C. art. 702. Further, DCFS asserted that placement in the least restrictive, most family-like alternative permanent living arrangement is limited to children sixteen years of age or older and therefore is not an option in this case. The minute entry from the March 29, 2016 status hearing indicates that the court only approved the change in the case plan goal of adoption by Mr. and Mrs. P. and 1 Bnoted that it was not in the best interest of the children to be moved from Mr. and Mrs. P.

Ón May 19, 2016, pursuant to La. Ch.C. art. 1015, DCFS filed a petition to terminate the parental rights of S.M., W.H., C.B., and G.W. to their children, M.M. and T.B. The petition alleged that the children were abandoned by their parents, that the parents failed to comply with their case plans, and that there existed no reasonable expectation of significant improvement in the parents’ condition or conduct in the near future. The parties subsequently denied the allegations contained in the petition.

The matter came for hearing on September 12 and October 4,' 2016. Several witnesses testified at the hearings, and the court additionally took notice of the underlying child in need of care proceeding. S.M. was called as the first witness. She testified that she had knowledge of her case plan and told Elizabeth Frein, the case worker for DCFS, that she was interested in reunification and was willing to do whatever was necessary to get her two boys back. During her testimony, however, she admitted that she did not comply with her case plan. S.M. acknowledged that she has not seen her children in person in about two years but maintains regular contact with them through social media. She further testified that she has a job but has not paid any child support as required by her case plan. Additionally, S.M. completed one parenting class but never attended the Tulane Parenting Program to which she was referred. S.M. further acknowledged that she missed some court hearings. Although she stated that she could not take the boys until she found a bigger house, she now has a job, is able to do what is required of her, and would like an opportunity to work her case plan to be reunited with M.M. and T.B.

16Mrs. P., the foster mother, also testified at the termination hearing. According to Mrs. P., the boys have been in her home for about three years and are doing great. She has seen improvement with the boys since their placement with her. Particularly, with regard to M.M., he was very much out of control when he first moved into her home, but he is now much improved. Mrs. P. informed the court that she has been working with M.M. and his teachers, he goes to the doctor and takes his medication, and he was placed in self-contained classes at school. Mrs. P. explained to the judge that although she does not want to adopt or obtain legal guardianship of the boys, she is committed to these boys and is willing to keep both of them until they can go back home or be adopted. However, if neither happens, she is willing to keep them until they reach the age of majority. She further testified that the boys are stable and bonded to each other, that they feel safe and want to stay with her, and that, in her opinion, it would be devastating for the boys to be pulled from her home and placed in another foster home.

Ms. Frein, the DCFS social worker for the two boys, testified that, when she received the case in July of 2014, she contacted S.M. and discussed the case plan with her. According to Ms. Frein, S.M. seemed to understand the requirements and indicated that she was not interested in reunifying with the boys. Ms. Frein informed the juvenile court that S.M. has not complied with any aspects of her case plan. In particular, S.M. last visited with the boys in May of 2014, did not make parental contributions, did not attend the treatment and rehabilitation services offered by DCFS, did not maintain contact with DCFS, and did not attend court hearings.

In addition to testifying about S.M.’s non-compliance with her case plan, Ms. Frein testified about the placement options for the boys and expressed the opinion of DCFS that it is in the children’s best interest to be freed for adoption. She explained that reunification was not an option because none of the parents |7made any efforts to reunify or stated any intent to even wanting to reunify with the boys, that Mr. and Mrs. P. did not want to adopt or obtain legal guardianship of the boys, and that DCFS searched but was unable to find any relatives for adoptive placement. Ms. Frein acknowledged during her testimony that the boys are not interested in being adopted and that she would move the children from their current placement only if an adoptive home the boys were interested in was found. Ms. Frein further acknowledged that the boys were doing well with Mr. and Mrs. P. and that then-behavior and educational performance, especially M.M.’s, have improved. Further, she recognized that Mr. and Mrs. P. are providing the boys with a family-like, safe, and stable placement, that long-term foster care would not necessarily be a bad option for the boys, and that she is not opposed to working with the mother and referring her back to parenting classes and other services needed to complete her case plan.

Myrtis Fisher, an adoption specialist with DCFS, testified about adoption procedures in general and stated that by federal mandate, she now has to recruit adoptive families for children under the age of sixteen even if the children do not want to be adopted. However, she maintained that if the children felt uncomfortable, she would not force them to move into the prospective adoptive home. Ms. Fisher acknowledged that long-term foster care could be in the best interest of the child in certain circumstances.

Both boys also testified at the termination hearing. T.B. informed the judge that he likes living with Mr. and Mrs. P. and that they provide him with love, care, food, and shelter. He further told the judge that he wants to stay in his current placement, that he does not want to be adopted, and that he wants to have a relationship with his mom. M.M. likewise told the judge that he likes living with the P. family, that they provide him with everything he needs, and that he feels safe there. M.M. asserted that he has no interest in being adopted by anyone, he likes 1 shying with his brother in their current placement, and he wants to be able to communicate with his mom and possibly have visitation with her and his other siblings.

At the termination hearings, evidence was also taken regarding the boys’ fathers. With regard to W.H., the alleged father of M.M., the court-appointed curator served him with a letter and talked to him about the nature of the impending termination proceeding. He stated that he was not the child’s biological father, and he did not show up at the hearing despite being notified. Ms. Frein of DCFS also made regular attempts to contact W.H. but was unsuccessful until approximately two weeks before the hearing when she spoke to W.H.’s sister on the phone. Based on the address provided by his sister, Ms. Frein made further attempts to contact W.H. Although she was never able to personally speak to him, he left her a message to stop sending letters. When she then called his phone number, a woman answered and.told her not to call the number again. W.H. has had no contact with M.M. and has never provided him with any monetary support.

With regard to C.B., DNA testing proved that he was not T.B.’s biological father. He thereafter did not want any involvement in the case, and he had no contact with, nor provided any support to T.B. With regard to G.W., DNA testing proved him to be the biological father, of T.B.; however, he surrendered his parental rights.

After considering the evidence presented and the arguments of counsel, the juvenile court denied the State’s. petition to terminate parental rights. In so ruling, the juvenile court determined that the State proved by clear and convincing evidence the statutory grounds for termination of parental rights; however, the trial court thereafter found that termination was-.not in the best interest of the children. It is from this ruling that DCFS now appeals.

|nOn appeal, DCFS contends that the juvenile court committed reversible error in denying the petition for termination of parental rights based on a finding that adoption is not in the children’s best interest. DCFS asserts that the juvenile court’s finding was motivated by its desire to have APLA as a case plan for the children, which is not allowed by state or federal law for these children since they are under the age of sixteen. DCFS reasons that since reunification, guardianship; custody, and APLA are not possible case plans for the children, adoption is the only case plan in the best interest of the children, and therefore, the termination should have been granted in order to free the children for adoption. Further, DCFS contends that this court should review the. matter de novo because the juvenile court committed an error of law in believing that its denial of the termination petition could override the provisions of state and federal law that prohibit APLA as a case plan for children under the age of sixteen.' For the reasons that follow, we find no merit to the arguments of DCFS and accordingly affirm the judgment of the trial court that denied the petition to terminate parental rights.

DISCUSSION

La. Ch.C. art. 1015 provides the specific statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. In order to terminate parental rights, the court must find that the State has established at least one of the statutory grounds by clear and convincing evidence. La. Ch.C. art. 1035(A). Further, even upon finding that the State has met its evidentiary burden, a court still must not terminate parental rights unless it determines that to do so is in the child’s best interest. La. Ch.C. art. 1037(B); State ex rel. H.A.B., 10-1111 (La. 10/19/10), 49 So.3d 345, 368; State in Interest of A.V., 14-465 (La.App. 5 Cir. 10/29/14), 164 So.3d 853, 857, writ denied, 14-2489 (La. 2/27/15), 160 So.3d 963.

In this case, there is no question that the State proved the statutory grounds for termination , alleged in the petition. As noted by the juvenile court, the State | ipproved by clear and convincing evidence that since M.M. and T.B. were again taken into custody by DCFS in January of 2014, S.M. has failed to make any measurable progress on her case plan and has failed to both maintain significant contact with and provide support for M.M. and T.B. With regard to the fathers, C.B. and W.H., the State also proved by clear and convincing evidence that they failed to maintain any contact or pay any contributions toward the care of M.M. and T.B. As further noted by the trial court, M.M. and T.B. have been physically, emotionally, and financially abandoned by their parents.

We now turn our attention to the second and most important part of the inquiry in a termination proceeding, that being the best interest of the children. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parents 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. State ex rel. J.A., 99-2905 (La. 1/12/00), 752 So.2d 806, 811. 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. State in Interest of A. V., 164 So.3d at 856-57. According to La. Ch.C. art. 1037(B), the consideration of best interest of the child shall include consideration of the child’s attachment to his current caretakers.

The determination of best interest is within the discretion of the trial court and is made by the trier of fact considering the totality of the circumstances. State in Interest of T.J., 48,612 (La.App. 2 Cir. 9/11/13), 124 So.3d 484, 493, n.17. InWhether termination of parental rights is warranted is a question of fact, and a district court’s factual determination will not be set aside in the absence of manifest error. In applying the manifest error standard, an appellate court seeks to determine whether the record reflects the district court was clearly wrong. State ex rel H.A.B., 49 So.3d at 368; State in Interest of A.V., 164 So.3d at 857. Based on our thorough review of the record, we are unable to conclude that the juvenile court was clearly wrong in its finding that termination of parental rights was not in the best interest of these children.

It is evident from the juvenile court’s reasons for judgment that the best interest of the children were of paramount concern. In her extensive reasons for judgment, the juvenile court judge stated as follows:

M.M. is currently fifteen years old and his brother T.B. is thirteen years old. They have lived with the P. family for the vast majority of the last almost four years. Dr. Andrus describes the P. family as a “more professional therapeutic home where the parents are seasoned veterans in their craft as professional parents.” The P. family, however, does not wish to adopt the boys. Mrs. P. testified “I don’t want to adopt, but my home is open, loving and caring. And I want it to be that way so if the occasion arises that maybe one day they could go back home to their parents or someone came up to adopt them.. .but what I am all about is keeping them and loving them and nurturing them until this happens. And if it doesn’t happen, I get to keep them.
When the boys first came into DCFS custody in 2012, they were described as living a “nomadic lifestyle” and their cousin and initial placement asked that they be removed from her home because the boys were “so out of control” and not amenable to discipline. Both boys were struggling behaviorally and academically. The boys’ therapist since January of 2013, Dr. Andrus, consistently praised the P. family and the progress that the boys have -made behaviorally and academically while in their home. She noted that the P.’s “have created a behavior plan that works for both boys.”
During this time with the P. family, M.M.’s'behavior and scholastic performance has improved. Dr. Andrus noted that she has seen a “vast improvement” in M.M. since he was placed with the P.’s. | ^Throughout the history of this -ease, M.M. has struggled academically, however, since being placed with the P. family, he now receives special education services, was placed in a self-contained class room, his grades have “dramatically improved”, and he has passed the seventh grade. Since Mrs. P. took custody of M.M., she has noted that his behavior continues to improve as well. She testified on September 12, 2016 that at first, “M.M. was very much out of control and I’ve been working with him, his teachers, he goes to the doctor and he takes his medication and now he’s much improved.” She also testified that M.M. “has been taken out of the self-contained class for two classes.. . so he’s able to go out.. .with other kids so that’s a great improvement.”
[T.B.] ’s behavior has also improved since his placement with the P.’s. Dr. Andrus noted that [T.B.] “appears to be more in control of himself and less likely to misbehave in a defiant manner,” that she has seen “an improvement” in T.B., and that at the. P.’s house he was “involved in a new behavior management program that appears to keep him under control.” In April of 2015, Dr. Andrus also noted that T.B. was making “measurable progress in the schpol setting.” At the July 19, 2016 review hearing, it was noted that there had been no behavioral issues with T.B.
Since being placed with the P.’s in 2012 and again in 2014, both boys have made it clear that they feel safe in the P. household and they wish to stay there. Dr. Andrus reported that T.B. “stated repeatedly that he likes where he is living and he wished he could stay there.” She also noted that M.M. “appears to enjoy the stability of their family, he likes the fact that there is consistency in his life now and looks forward to living life on a schedule.” Dr. Andrus further opined that “both boys enjoy the idea of being a part of a family that is stable, secure, and one that provides consistency.” In 2015, Dr. Andrus noted that both boys “are comfortable in the P. household and feel that they are an active part of the family.” The boys have also repeatedly expressed their desire to remain with the P. family to their CASA advocate. Mr. Saxer’s reports to the court repeatedly related that “both boys are progressively calmer, more settled and happier [and that] without hesitation, each said that they wanted to live with Mrs. P.” In each of her repox-ts to the court, Dr. Andrus noted that in each of her sessions with the boys, they expressed their desire to remain with the P. family. Further, on September 12, 2016, both boys testified that they wish to remain with Mrs. P., and that they did not wish to be freed for adoption by anyone else.
... T.B. and M.M. have been faced with tremendous challenges in their lives. Over the past four years in their placement with the P. family they have matured and made significant progress academically and have worked to correct their negative behaviors. These strides perhaps would not have been made but for Mrs. P. and her family’s love, support, guidance, and stability. The boys are happy in the home, are doing better in school, and absolutely do not wish to be moved to another home.
| iaMrs. P. has stated repeatedly that while she does not wish to adopt the boys, she does wish to continue to love and nurture them in her home. The boys have repeatedly stated to their therapist, their CASA worker, their case worker, and the court that they wish to remain with the P. family. In his youth transition plan, which was filed for the record on March 29, 2016, M.M. stated that Mr. and Mrs. P. “help me with everything. They listen to me and support me. I want to live with them at least until I turn eighteen and then possibly after. I want to always maintain contact with them even when I am grown.” Mrs. P. has indicated that she will take care of the boys until they reach eighteen. It should also be noted that one reason Mrs. P. does not wish to adopt the boys is because she wishes to have the support of the state and the court, if necessary. Considering that both children have had behavioral issues in the past and that it took a court order to ensure M.M. was receiving the educational services to which he is entitled, Mrs. P.’s concerns are valid. It is in the best interest of the boys that their [sic] remains the possibility state involvement in their lives should they need further assistance, (emphasis in original)

In her reasons for judgment, the juvenile court judge focused on the.children’s attachment to the foster family, their continued improvement while in the care of Mr. and Mrs. P., and their desire to remain with the P. family. These factors are appropriate considerations in determining the best interest of the children. For example, in discussing the trial court’s best interest determination, the appellate court, in State ex rel. B.B., 11-252 (La.App. 3 Cir. 6/8/11), 67 So.3d 1268, 1274, writ denied, 11-1812 (La. 8/31/11), 68 So.3d 517, noted the ease worker’s testimony that two of the three children have remained together in the same foster care placement for two years, that the children were thriving and had bonded with their foster parent, and that the foster parent wanted to adopt them. Considering these factors, the appellate court determined that the record supported the trial court’s finding that termination of parental rights was in the children’s best interest. Likewise, in upholding the trial court’s best interest determination in State in Interest of T.J., supra, the appellate court considered in part the children’s attachment to their current caretakers. The court found that the evidence was sufficient to establish the termination of the father’s parental rights in favor of adoption by the children’s foster parents was in the children’s best interest. The 114 court noted that the children were in need of a permanent and loving home, that the children were bonded with each other, with their foster parents, and with the foster parents’ teenage daughter, that the children had lived in foster placement for two years at the time of the termination proceeding, and that the children were thriving in foster placement. Id., 124 So.3d at 493, n. 18.

Also, this court in State in Interest of A.V., 164 So.3d at 862, discussed the children’s relationship with their foster parents in determining that termination was in the best interest of the children. This court noted that the children had been out of the home and in the care of a foster family for three and one-half years. The record reflected the physical, behavioral, developmental, and nurturing deficits the children possessed upon entering state custody. All testimony and evidence indicated that the children were now flourishing with their placement in their foster home, physically, emotionally, and developmentally. The children’s foster mother testified at the hearing that she and her husband wished to adopt the children.

In these cases, the courts looked to the children’s attachment to their foster families and their progress in their placement to support a determination that termination was in the best interest of the children in order to free them for adoption by the foster parents who expressed a desire to adopt them. However, in this case, because of the unique set of circumstances, these factors support the juvenile court’s finding that the termination of parental rights is not in the best interest of M.M. and T.B. Specifically, these two children are older, want to'remain together, have bonded with the foster family, want to live with them, and have significantly improved behaviorally and academically while in their care. The foster parents have likewise obviously bonded with the children and are committed to keeping them until they reach at least the age of majority. Contrary to the previously discussed cases, the foster parents, for valid reasons, do not wish to adopt the two boys or obtain legal guardianship of them. The trial court |1sobviously considered all these circumstances in determining that termination was not in the best.interest of the children.

Considering the juvenile court’s intimate familiarity with all aspects of this proceeding, including the history of the case, the relationships and attachments between the parties, and the children’s progress since they were originally taken into state custody, and the extensive reasons for judgment that reflect that the juvenile court painstakingly considered the best interest of the children and the ramifications of the termination of parental rights on them welfare, we find no manifest error in its conclusion that termination of parental rights is not in the children’s best interest.

On appeal, DCFS also indirectly challenges the case plan goal of APLA in light of state and federal law that disallow APLA as a ease plan goal for children under the age of sixteen. We first note that DCFS appealed from the judgment of termination, and the boys’ case plan goals are not controlling of our determination of whether the juvenile court erred in denying the petition to terminate. Further, in this proceeding, DCFS developed, and the court adopted, the case plan goal of APLA before the change in the law that prohibited APLA as a permanent placement for children under the age of sixteen. Therefore, it was an acceptable case plan goal for the boys at the time it was implemented.

Accordingly, for the reasons set forth herein, we affirm the judgment of the juvenile court that denied the petition of DCFS to terminate the parental rights of S.M., W.H., G.W., and C.B. to their children, M.M. and T.B.

AFFIRMED

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, the initials of the parties will be used to protect the identity of the minors.

      . It is noted that J.M., a female child of S.M., was also taken into state custody at this' time. While she was a party in the child in need of care proceeding, she is not involved in the termination proceeding now being appealed.

      . La. Ch.C. art. 1004.1 provides: "The department shall file and pursue to judgment in the trial court a petition to terminate the parental rights of the parent or parents if the child has been in state custody for seventeen of the last twenty-two months, unless the department has documented in the case plan a compelling reason why filing is not in the best interest of the child.”

      . DCFS argues that this court should review the matter de novo because the juvenile court committed an error of law in believing that its denial of the termination petition could override the provisions of state and federal law that prohibit APLA as a case plan for children under the age of sixteen. We find no merit to this argument as the juvenile court applied the correct test in ruling on the petition to terminate parental rights. The fact that the law prohibits APLA as a case plan for these children is not dispositive of the best interest determination by the juvenile court.


author: Judge Terri F. Love JENKINS, J.,

text:
    Brian BALTHAZAR, et al v. HENSLEY R. LEE CONTRACTING, INC., et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc., et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc., et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc., et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc. et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc., et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc. et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc., et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc., et al
    NO. 2016-C-0920, NO. 2016-C-0921, NO. 2016-C-0922, NO. 2016-C-0923, NO. 2016-C-0924, NO. 2016-C-0925, NO. 2016-C-0926, NO. 2016-C-0927, NO. 2016-C-0928
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 2017
    Rehearing Denied March 28, 2017

      Jennifer N. Willis, Jennifer S. Martinez, WILLIS & BUCKLEY, APC, 3723 Canal Street, New Orleans, Louisiana 70119 and Gary J. Gambel, MURPHY, ROGERS, SLOSS, GAMBEL & TOMPKINS, One Shell Square, 701 Poydras Street, Suite 400, New Orleans, Louisiana 70139 and Antonio “Tony” Clayton Clayton, Frúge & Ward, 3741 Highway 1 South, Port Allen, Louisiana 70767, COUNSEL FOR PLAINTIFFS/RELATORS

      Elizabeth Smyth Rambin, Raymond J. Pajares, Milling Benson Woodard LLP, 68031 Capital Trace Row, Mandeville, Louisiana 70471 and Matthew D..Miller, Copeland, Cook, Taylor & Bush, 110 Sheffield Loop, Hattiesburg, Mississippi 39404, COUNSEL FOR DEFENDANTS/RESPONDENTS
    (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
   Judge Terri F. Love

11 Plaintiffs/Relators seek review of the trial court’s July 19, 2016 judgment granting Hensley R. Lee Contracting, Inc. and Tom Hayden (“Mr. Hayden”) (collectively “HRL”) partial summary judgment and dismissing with prejudice “all claims of racial discrimination, hostile work environment, intentional infliction of emotional distress, and all other claims based on racial animus, including those that fall under the Louisiana Unfair Trade Practices Act.” We find the motions for partial summary judgment do not address Plaintiffs’ claims as pled in their petition. Based on the circumstantial evidence presented and the need for additional discovery, we also find that genuine issues of material fact exist. Accordingly, we grant the writ, reverse the trial court judgment granting partial summary judgment, and remand the matter for proceedings in line with this Court’s writ disposition.

FACTS AND PROCEDURAL HISTORY

Plaintiffs allege the underlying facts as follows: In 2011, the Army Corps of Engineers set out bids for a levee project in Algiers. After the bidding process, the project was awarded to defendant Southern Services & Equipment (“SSE”), who subcontracted the job to defendant Hensley R. Lee Contracting, Inc. HRL then ^subcontracted part of the job to Plaintiffs’ employer, Titan Maintenance and Construction (“Titan”).

According to Plaintiffs, when HRL subcontracted with Titan, Defendants lacked Titan’s levee building experience. Titan worked for approximately one month on the project before it was terminated. Plaintiffs allege that Defendants used the time Titan was employed to procure Titan’s trade practices and plans as well as to learn the levee building skills needed to complete the project. Additionally, Plaintiffs claim that SSE and HRL racially harassed Plaintiffs, created a hostile work environment, prevented Plaintiffs from performing their work, and questioned their abilities and work performance. Furthermore, Plaintiffs contend that SSE and HRL’s actions were intended to drive Titan off the project. Without Titan, the proceeds from the levee project would be split between SSE and HRL, thereby increasing their individual profit shares. In fact, after the project was completed, the Army Corps of Engineers issued all payments on the contract owed to SSE, who in turn paid HRL. Titan, on the other hand, never received payment for its work.

Titan and Plaintiffs filed separate suits against SSE, HRL, and their owners which were later consolidated. The petitions alleged SSE and HRL acted “in collusion to drive [Titan]” off the levee project in violation of the Louisiana Unfair Trade Practices Act (“LUTPA”) and included claims of intentional infliction of emotional distress. Thereafter, HRL and Mr. Hayden filed separate motions for partial summary judgment for each plaintiff. Both parties argued that no genuine issue of material fact exists as to Plaintiffs’ claims of racial animus, including ^discrimination and hostile work environment. Opposing partial summary judgment, Plaintiffs averred that genuine issues of material fact remain given the pattern of discrimination and racially derogatory comments and slurs directed at Titan’s African-American employees. Plaintiffs also alleged that genuine issues of material fact remain regarding who among the principal parties worked for HRL and whether their conduct is attributable to HRL. The trial court found that Plaintiffs failed to demonstrate evidence of conspiracy or “gamesmanship” and granted partial summary judgment in favor of HRL and Mr. Hayden. Plaintiffs timely seek supervisory review of the trial court’s ruling.

STANDARD OF REVIEW

On appellate review, courts consider de novo the granting of summary judgment. Brunet v. Fullmer, 00-0644, p. 3 (La.App. 4 Cir. 1/10/01), 777 So.2d 1240, 1241. Appellate courts also use the same criteria that governs the trial court’s consideration of “whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Weintraub v. State Farm Fire & Cas. Co., 08-0351, p. 2 (La.App. 4 Cir. 10/29/08), 996 So.2d 1195, 1196-97, quoting Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638.

“[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). The party filing the summary judgment motion bears the burden of proof. La. C.C.P. art. 966(D)(1). “[I]f the mover will not bear the burden of proof at trial on the issue,” the mover need only “point out to the court |4the absence of factual support for one of more elements essential to the adverse party’s claim, action, or defense.” Id. “Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751, quoting South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La. App. 3rd Cir. 1991).

DISCUSSION

1. Failure to Address Plaintiffs’ Legal Claims

We begin by addressing a procedural aspect of HRL’s partial summary judgment motion. The basis for HRL’s request for partial summary, judgment fails to address the actual claim asserted in Plaintiffs’ petition. Plaintiffs’ petition asserts a claim for unfair trade practices and deceptive acts in knowing violation of LUTPA. The acts and practices that Plaintiffs argue were unfair and deceptive include allegations of racial discrimination and derogatory comments, creating a hostile work environment, and intentionally inflicting emotional distress. Plaintiffs aver that Defendants’ actions were unfair and deceptive within the meaning of LUTPA because they were carried out as part of a conspiracy to oust Titan from the levee project for Defendants’ economic benefit.

' Inexplicably, HRL fails to address Plaintiffs’ LUTPA claims and instead argues for partial summary judgment based on nonexistent employment law claims that Plaintiffs never raised. The record makes clear that Plaintiffs have asserted an action for unfair and deceptive trade practices. We find no evidence in the ^pleadings or procedural history that suggests otherwise. Therefore, we find as a procedural matter HRL’s argument is unsupported by the record.

We highlight this point to draw a distinction between Plaintiffs’ actual theory of recovery and HRL’s mischaracterization of Plaintiffs’ theory of recovery. HRL moved for partial summary judgment on grounds that Plaintiffs do not have claims for racial discrimination and hostile work environment because HRL was not their employer. Thus, the premise of HRL’s argument is Louisiana employment law. As Plaintiffs contend, HRL relies on the false assumption that Plaintiffs asserted an employment discrimination claim in a veiled attempt to achieve the dismissal of what is in fact evidence (not legal claims) of racial discrimination and hostile work environment.

Even if this Court were to assume that Plaintiffs raised an employment law claim, HRL’s argument is undermined by Plaintiffs’ admissions and HRL’s own actions. Plaintiffs willingly acknowledge that HRL was not their employer. Thus, had they alleged -an -employment law claim, Plaintiffs would have no reason, based on then-own admission, to oppose partial summary judgment. Likewise, HRL could have filed exceptions for no cause of action and/or right of action under state employment law instead of a motion for partial summary judgment. Yet, the only exceptions HRL filed were exceptions of no cause of action and/or right of action under LUTPA.

HRL’s motion marks the first time issues of employment law have been raised or argued. While summary judgment may be rendered only on those issues | fiset forth in the motion under consideration pursuant to La. C.C.P. art. 966(F), the motion itself does not dictate the nature of a petitioner’s claim or the theory of recovery upon which a petitioner seeks redress. Simply because HRL argued in their motion for the dismissal of issues of racial discrimination and hostile work environment under Louisiana Employment Discrimination Law, La. R.S. 23:301, et seq. (which may satisfy article 966(F)) that does not mean Plaintiffs have actually pled a 'cause of action -under La. R.S. 23:301 et seq.

We know of no statute or case law by which an argument raised in a summary judgment motion determines the nature of a petitioner’s claim. Rather, the “nature of a claim is determined by the pleadings in the case.” Cacamo v. Liberty Mut. Fire Ins. Co., 99-3479, p. 6 (La. 6/30/00), 764 So.2d 41, 46 (citing Jefferson v. Tennant, 107 So.2d 334 (La. App. 2nd Cir. 1958)). “[B]ecause our civil procedure is based on fact pleading, cf. [La. C.C.P. arts.] 854 and 891, the courts must look to the facts alleged to discover what, if any, relief is available to the parties.” Carter v. Benson Auto. Co., 94-158, p. 3 (La.App. 5 Cir. 9/27/94), 643 So.2d 1314, 1315. That is to say, “the [njature of a suit is determined by the facts stated in the petition and the intention of the petitioner in stating the facts.” Lindsey v. Caraway, 211 La. 398, 402, 30 So.2d 182, 183 (1947).

According to Plaintiffs, Defendants’ harassed, intimidated, and discriminated against Plaintiffs for the purpose of driving Titan off the levee project for Defendants’ economic benefit. In light of Defendants’ alleged conduct, Plaintiffs’ petition asserts claims of unfair and deceptive trade practices in violation of LUTPA and of intentional infliction of emotional distress. Further, Plaintiffs argued in their opposition to HRL’s motion and reiterated at the hearing that the nature of their claim arises under LUTPA as that was always their intent |7when stating the alleged facts in their petition. Again, Plaintiffs’ admission that HRL was not their employer further underscores that it has always been Plaintiffs’ assertion that this is an unfair trade practices case. Therefore, a finding that HRL’s motion properly raised issues of employment law to satisfy La. C.C.P. art. 966(F) and that the trial court addressed those issues in its judgment is irrelevant where Plaintiffs have not alleged employment law claims.

We find HRL’s request for dismissal of the racial animus and hostile work environment issues based on nonexistent employment law claims is error. Thus, granting partial summary judgment was incorrect. In that the motion fails to address Plaintiffs’ LUTPA claims, it is unresponsive and therefore, summarily denied.

2. Exclusion of Plaintiffs’ Factual Allegations

We address in this part what we find is a legal error in the trial court’s analysis on summary judgment. Plaintiffs allege HRL conspired with SSE to engage in certain unfair practices and deceptive acts which violated LUTPA. The trial court reasoned that “without actually having heard racially discriminatory language or experienced racially discriminatory conduct, plaintiffs are unable to meet their burden of proof that defendants HRL and Tom Hayden’s conduct violated LUTPA.” The trial court dismissed all claims involving racial animus under LUTPA (or otherwise) as a result. We find the trial court improperly conflates Plaintiffs’ legal claims with the factual allegations that support those claims.

It is true that racial discrimination'and hostile work environment are recognized legal theories of recovery subject to summary judgment dismissal; however, as previously explained, Plaintiffs have not asserted stand-alone causes 18of action under Louisiana employment law. Plaintiffs allege Defendants conspired to terminate Titan in knowing violation of LUTPA.

The inquiry on a motion for summary judgment where a petitioner alleges a LUTPA violation is whether defendant’s methods, acts, or practices were unfair or deceptive within the meaning of LUTPA. To prove that Defendants were not merely exercising permissible business judgment, Plaintiffs produced evidence of actions by Defendants which Plaintiffs claim' is tantamount to unfair or deceptive acts in the conduct of Defendants’ business operations within the scope of LUTPA. Thus, Plaintiffs’ allegations represent the evidentiary facts that support the alleged conspiracy to engage in deceptive acts that were intended to unfairly eliminate Titan as a competitor.

The racial animus, hostile work environment, and infliction of emotional distress were merely some of the means by which Defendants allegedly carried out their scheme to terminate Titan. In that the foregoing allegations embody only a portion of the methods Defendants used to remove Titan, Plaintiffs also offer other evidence. Specifically, Plaintiffs claim Defendants questioned their work performance and abilities, blocked their work progress, made unnecessary change orders, sent “bogus notices of corrective active action,” and instructed Plaintiffs to perform work in contradiction to project plans and industry-accepted standards. The collection of these practices, together, were intended to confuse, intimidate, interfere with production, cause delays within Titan’s crew, and ultimately cause Titan’s failure to comply with its sub-contract. Therefore, we find the factual allegations at issue in this writ (i.e. racial animus and hostile work environment) are simply component parts of Plaintiffs’ overarching claim that Defendants conspired and engaged in various deceptive acts which violated LUTPA.

|flIn light of our finding, we note the practical outcome of the trial court’s ruling. The trial court’s dismissal of Plaintiffs’ allegations of racial animus and hostile work environment in effect determines what evidence Plaintiffs may introduce at trial. In this way, the trial court’s ruling is more akin to a ruling on a motion in limine. The trial court’s ruling functions not to dismiss legal issues of racial animus and hostile work environment but to exclude the evidence of either at trial.

Nevertheless, summary judgment is a procedural vehicle for dismissing issues of law and/or fact that are not in dispute. A material fact, however, is not the same as a petitioner’s theory of recovery. A material fact supports a petitioner’s theory of recovery. “A fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Sutherland v. Alma Plantation, L.L.C., 15-1136, p. 4 (La.App. 4 Cir. 5/4/16), 193 So.3d 1178, 1181, writ denied, 16-1044 (La. 9/16/16), 206 So.3d 208 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751). The allegations of racial discrimination, hostile work environment, the questioning of Titan’s work performance and abilities, and the intentional slowing of Titan’s work progress are not separate theories of recovery. They are the operative facts Plaintiffs allege support their claim that Defendants conspired to unfairly terminate Titan. Plaintiffs contend that the existence of Defendants’ deceptive acts is essential to support their cause of action for damages under the applicable theory of recovery in this case—the knowing violation of LUTPA.

Insofar as its ruling addressed issues of fact, the trial court found no genuine issue of material fact existed as to the allegations of racial animus and hostile work | ^environment. Although the trial court’s ruling does not preclude Plaintiffs from pursuing their LUTPA claim with evidence of Defendants’ other alleged conduct, we find genuine issues of material fact remain as to HRL’s role in the alleged racial discrimination and hostile work environment. As explained in greater detail below, the trial court’s determination relied on its own credibility determinations and the weighing of testimony with respect to who represented and worked for HRL and HRL’s motivation and intent. Therefore, to the extent the trial court’s ruling also dismissed certain evidentiary proof of Plaintiffs’ LUTPA claims, we find the trial court committed legal error.

3. Issues of Material Fact

On supervisory review, we do “ ‘not give deference to the trial court’s judgment or its reasons therefor ... A trial court’s reasoning for granting a summary judgment may be informative, but it is not determinative of the issues to be resolved by this court.’” S. Louisiana Ethanol L.L.C. v. CHS-SLE Land, 14-0127, p. 7-8 (La.App. 4 Cir. 2/4/15), 161 So.3d 83, 88, writ denied, 15-0481 (La. 5/15/15), 170 So.3d 967, quoting, Jones v. Buck Kreihs Marine Repair, LLC., 13-0083, p. 1-2 (La. App. 4 Cir. 8/21/13), 122 So.3d 1181, 1183.

Conspiracy by itself is not recognized in Louisiana as an actionable claim. Prime Ins. Co. v. Imperial Fire & Cas. Ins. Co., 14-0323, p. 9 (La.App. 4 Cir. 10/1/14), 151 So.3d 670, 676 (citing Crutcher-Tufts Resources, Inc. v. Tufts, 07-1556, p. 3 (La.App. 4 Cir. 9/17/08), 992 So.2d 1091, 1094). “The actionable element of a conspiracy claim is not the conspiracy itself but the tort the conspirators agree to perpetrate and actually commit in whole or in part.” Id.; Ames v. Ohle, 11-1540, p. 11 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, 393. Plaintiffs’ conspiracy claim as pled in their petition identifies HRL’s violation of InLUTPA as the underlying tort forming the basis for the alleged conspiracy. In Prime, this Court explained:

Proof of conspiracy can be by actual knowledge of both parties or overt actions with another, or can be inferred from the knowledge of the alleged co-conspirator of the impropriety of the actions taken by the other co-conspirator. . .The plaintiff must therefore prove an unlawful act and assistance or encouragement that amounts to a conspiracy. The assistance or encouragement must be of such quality and character that a jury would be permitted to infer from it an underlying agreement and act that is the essence of the conspiracy.

Id., 14-0323, p. 10, 151 So.3d at 677 (internal citations and quotations omitted)(emphasis added); also Thomas v. North 40 Land Development, Inc., 04-0610, p. 22 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, 1174.

Pursuant to LUTPA, it is unlawful to engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. La. R.S. 51:1405(A). Acts constituting unfair or deceptive trade practices are not specifically defined but are determined on a case-by-case basis. Prime, 14-0323, p. 12, 151 So.3d at 678. This Court has defined an “unfair trade practice” as one that is “unethical, oppressive, unscrupulous, or substantially injurious.” Bolanos v. Madary, 609 So.2d 972, 977 (La. App. 4th Cir. 1992). Acts which generally constitute unfair trade practices involve fraud, deception, misrepresentation, breach of fiduciary duty, or other unethical conduct. Action Revenue Recovery, L.L.C., v. eBusiness Group, L.L.C., 44,607, p. 9 (La.App. 2 Cir. 8/19/09), 17 So.3d 999, 1004. A critical factor in such cases is the defendant’s motivation, and the actions must have been taken for the purposes of harming the competition. Monroe Surgical Hosp., LLC v. St. Francis Med. Ctr., Inc., 49,600, 49,608, p. 29 (La.App. 2 Cir. 8/21/14), 147 So.3d 1234, 1250, writ denied, 14-1991 (La. 11/21/14), 160 So.3d 975. Additionally, the U.S. Fifth Circuit explained 112that “intent to eliminate the competition does not itself violate LUTPA. Rather,’ the statute forbids businesses to destroy each other through improper means.” Turner v. Purina Mills, Inc., 989 F.2d 1419, 1423 (5th Cir. 1993). Therefore, the question on summary judgment is whether the evidence is sufficient that a jury may disagree as to whether Defendants’ conduct was unfair, and deceptive within the meaning of LUTPA.

Plaintiffs contend that HRL, acting in collusion with all other defendants, embarked on a course of deceptive, unfair, and prohibited conduct with the intent to terminate Titan’s sub-contract in order to increase their profit margins. As Plaintiffs aver, “[t]he conduct perpetrated as a means to that end [is what] violated LUT-PA.” Specifically, it is alleged that Defendants conspired to create a hostile work environment through the intentional infliction of emotional distress and racial discrimination which would affect Plaintiffs’ ability to properly perform their job duties and allow HRL to terminate Titan’s subcontract.

In support of partial summary judgment, HRL argues that the deposition testimony reveals Plaintiffs cannot meet their burden of proving that HRL conspired with other defendants to intentionally inflict emotional distress, create a hostile work environment, and/or racially discriminate against Plaintiffs. HRL avers that there is no evidence that HRL or its employees engaged in racial discrimination, made discriminatory remarks, or participated in a scheme to push Titan off the levee project. In opposition, Plaintiffs contend deposition testimony proves genuine issues of material fact remain as to whether HRL conspired to create a hostile work environment through the intentional infliction of emotional distress and racial discrimination.

Based on the pleadings and supporting evidence, we find Plaintiffs | ^submitted sufficient evidence that at the very least warrants, further discovery before eonsid-eration of partial summary judgment. First, a genuine issue of material fact exists as to whether Leonard Stephens (“Mr. Stephens”) worked for HRL or represented HRL and whether his actions may be attributable to HRL. Seeond, HRL’s motivation is a critical factor in determining whether they intentionally engaged in deceptive conduct to terminate Titan’s subcontract. Considering the deposition testimony of HRL and Mr. Hayden (principal parties to the action) has not taken place, we find partial summary judgment is premature. We discuss both reasons within the context of the evidence presented.

A. Leonard Stephens and HRL’s Business Relationship

Plaintiffs allege evidence shows that Mr. Stephens worked for and/or represented HRL, and his actions (in addition to the actions of others) demonstrate the racial animus and hostile work environment to which Plaintiffs were subjected. HRL disputes this claim, arguing that references to Mr. Stephens do not create a genuine issue of material fact sufficient to overcome summary judgment because he did not work for HRL. Alternatively, HRL avers that even if Mr. Stephens worked/represented HRL, Plaintiffs cannot overcome summary judgment because they did not personally observe Mr. Stephens express any racial animus or use racially derogatory language.

Mr. Stephens testified that his company, L & L General Contractors, had a contract with HRL to maintain the staging area, which entailed maintaining the dirt stockpile and ensuring trucks and materials made it to the project area. Mr. Stephens believed that based on his contract with HRL, he and another HRL representative would be working at the project site; however, later HRL sent additional workers. Mr. Stephens testified that- he did not work for HRL.

[ uConversely, SSE understood Mr. Stephens worked for HRL. SSE president Mark Nunez testified that when he met with HRL to discuss its, participation in the levee project, HRL .was represented by Hensley Lee, J.J. Lee, and Mr. Stephens. SSE employee Mindy Airhart testified that she always understood Mr. Stephens worked for HRL because she was instructed to send him. corrective actions that needed HRL’s approval. Additionally, SSE’s project manager testified that he did not recall seeing L & L General Contractors listed as a subcontractor .of HRL. Neither Mr. Stephens, nor his company L & L General Contractors, had a contract with SSE or the Army Corps of Engineers. Titan also believed Mr. Stephens worked for HRL. Titan principals and Plaintiffs’ supervisors Darren Malbrough, Bradley Cooper, and Robert King, testified that Mr. Stephens told them that he worked for HRL. Titan’s owner/operator Mr. Malbrough testified that Mr. Stephens worked for HRL and spoke on their behalf.

With respect to Mr. Stephens’ conduct, Mr. Marlborough testified to having heard Mr. Stephens make racial slurs regarding African-Americans. Mr. Malbrough testified that he approached Mr. Stephens about the racial tension and project issues his company was experiencing. Mr. Stephens, as representative of HRL, responded, “[ejverybody should own one, shouldn’t they.” Mr. Malbrough stated that Mr. Stephens was referring to a “black man.” Likewise, Mr. Cooper testified that he also heard Mr. Stephens make a racially derogatory comment about one of Titan’s employees. Mr. Cooper recalled Plaintiff James “Mike” Long operating Mr. Stephens’ bulldozer and Mr. Stephens saying, “What’s that n***** doing running my equipment? There ain’t no n*****s running my s****.”

' HRL argues that because Plaintiffs did not personally observe Mr. Stephens make these comments, Plaintiffs may not rely on it as evidence in opposition to Impartial summary judgment. The fact that Plaintiffs did not observe Mr. Stephens make the racial slurs is of no moment. Plaintiffs contend that it is relevant circumstantial evidence of the racial animus and hostile work environment Plaintiffs allege. HRL helped facilitate. Therefore, we find the evidence sufficient to demonstrate material issues remain as to Mr. Stephens’ employ, his role in the levee project, and his alleged conduct.

B. Respondents’ Motivation and Intent

It is widely accepted that “summary judgment is not a substitute for a trial on the merits, and is inappropriate for judicial determination of subjective facts, such as motive, intent, good faith, knowledge, and malice.” Prime, 14-0323, p. 10, 151 So.3d at 677. Subjective facts like these call for credibility determinations and weighing of the testimony. Id. Further, it is “rarely appropriate' for the disposition of issues requiring a determination of the reasonableness of acts and conduct of parties under all the facts and circumstances of a case.” Id. (citing Greater Lafourche Port Com’n v. James Const. Group, LLC, 11-1548, p. 7 (La.App. 1 Cir. 9/21/12), 104 So.3d 84, 88). The underlying question in any unfair trade practices case is whether the defendant’s acts and conduct were reasonable.

Acts which constitute unfair trade practices generally involve fraud, deception, misrepresentation, breach of fiduciary duty, or unethical conduct. Action Revenue Recovery, 44,607, p. 9, 17 So.3d at 1004. HRL’s motivation and intent are critical factors in determining whether HRL’s conduct was unfair or deceptive and part of an underlying agreement to terminate Titan’s sub-contract. See Monroe Surgical Hosp., 49,600, p. 29, 147 So.3d at 1250 (finding motivation is a critical factor in LUTPA claims and the defendant’s actions must have been' taken for the purpose of harming the competition).

|1fiDue to the inherent difficulties of proving intent, an aggrieved party is not required to offer direct evidence of a defendant’s intent to deceive. Courts have held that the intent to deceive may be determined from the attending circumstances. Lacey v. Louisiana Coca-Cola Bottling Co., 452 So.2d 162, 164 (La. 1984). Likewise, a plaintiff may use circumstantial evidence to defeat a motion for summary judgment. Wood v. Becnel, 02-1730, p. 5 (La.App. 4 Cir. 2/26/03), 840 So.2d 1225, 1227; Florane v. Pendleton Memorial Methodist Hosp., 02-0165 (La.App. 4 Cir. 5/29/02), 822 So.2d 642; Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La. 2/29/00), 755 So.2d 226.

Granting partial summary judgment, the trial court reasoned that “without actually having heard racially discriminatory language or experienced racially discriminatory conduct, plaintiffs are unable to meet their burden of proof that defendants HRL and Tom Hayden’s conduct violated LUTPA.” We disagree. Evidence of racial animus is seldom blatant and obvious. In most instances, there is an attempt to conceal the discrimination with a pretext—an innocuous, nondiscriminatory reason for the adverse action. If the need for proof of direct racial discrimination were required, it would be virtually impossible for a plaintiff to present evidence of discrimination to a jury. Therefore, circumstantial evidence which gives rise to the inference of discrimination may be used to overcome summary judgment.

The same is true of the alleged conspiracy. Circumstantial evidence is sufficient if it gives rise to the inference that HRL conspired or was complicit in the actions taken by others to unfairly terminate Titan. In this case, the disposition 117of material fact issues requires a determination of the reasonableness of HRL’s action and/or inaction under all the facts and circumstances of this case. Prime, 14-0323, p. 10, 151 So.3d at 677 (citing Greater Lafourche Port, 11-1548, p. 7, 104 So.3d at 88).

Therefore, we disagree with HRL that Plaintiffs are unable to meet their burden of proof because they did not personally experience or witness racial animus. Testimonial evidence implicating Mr. Hayden as well as alleged employees and/or representatives of HRL indicates otherwise. Further, the. conduct of SSE and its employees is also relevant circumstantial evidence that creates an issue of material fact. Even if we were to conclude no genuine issue of material fact remains as to whether HRL actively contribute to the discrimination and hostilities Titan experienced, which we do not, an issue of material fact remains as to whether HRL was complicit in the alleged conspiracy. For both reasons, we find Plaintiffs submitted sufficient evidence from which a jury may infer that HRL participated or was complicit in the alleged conspiracy.

We note that Plaintiff Nathaniel White specifically testified to his encounter with Mr. Hayden. Mr. White’s supervisor instructed him to retrieve water from HRL’s side of the project because the pump on his truck was broken. Claiming Mr. White was driving too fast, Mr. Hayden stopped Mr. White’s truck and threatened to have him “run off the job.” Mr. Hayden continued, that his “black a** shouldn’t be over here anyway.” Mr. Hayden asked what Mr. White’s “black a**” was doing by the water tank.

| isAlthough “black” as an identifying adjective is not always evidence of racial animus, “it does not follow that the term, standing alone, is always benign. The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456, 126 S.Ct. 1195, 1197, 163 L.Ed.2d 1053 (2006). Even assuming Mr. Stephens did not work for or represent HRL, Mr. Hayden’s remark (at minimum) raises genuine questions of material fact of HRL’s part in the alleged racial discrimination and hostile work environment.

Mr. White also testified that HRL would routinely leave its trucks in the work area, taking the keys with them and preventing Titan from continuing its operations. Mr. White stated that after Titan was fired he was hired by HRL, and he no longer experienced any problems or encountered any racial issues. Mr. White testified that he “worked there long enough to know.. .as long as [Titan] w[as] there., .there was a problem.” The change of conduct following Titan’s departure is evidence from which a jury may infer that it was Defendants’ motive and intent to oust Titan and take its share of the benefits of the project.

Plaintiff Jarrod Burrle testified to overhearing and personally experiencing racial animus and hostility on the job. He testified to hearing SSE’s quality control officer Elliot Bordelon use the “n-word” while referring to Plaintiff Joseph Encalade’s brother. He also heard Mr. Bordelon tell another person that he had not “fired or ‘fed’ a ‘n-word’ in a long time.”

Similarly, Mr. Burrle attested that Mr. Stephens referred to him as “boy.” Mr. Burrle described one incident when his track’s gas tank began overflowing. | t ¡(After seeing what happened, Mr. Stephens responded to Mr. Burrle, “Boy, I should fire your a**, boy....Boy, you’re going to pick up all this trash around. If you don’t pick up this trash, I’m going to get rid of you’re a**.” Mr. Burrle testified that he reported the incident to Mr. Marlborough who later spoke to Mr. Stephens. Mr. Burrle stated, “at that point, [Mr. Stephens and Mr. Hayden] always had an eye towards me every time I come around there. At times they would just stand there and look at me like I’m stupid, like they were trying to intimidate me.”

Moreover, Plaintiffs testified that it was generally understood that Titan’s African-American employees were not to use the bathrooms or port-o-lets on the job site. Plaintiff Long testified that he overheard Mr. Bordelon state that he did not want any “n-word” using his bathroom. Plaintiff Tarik Lopez stated that Plaintiff Joseph Encalade told him that he was not allowed to use the bathroom in the trailer. Plaintiff Joshua White also stated he was told African-Americans could not use the port-o-let. Plaintiff Brian Balthazar testified that he used the trailer bathroom and the port-o-let, but later heard someone say that Mr. Bordelon did not want the “little ‘n-word’ ” using the trailer bathroom again. Plaintiff Balthazar also testified that Plaintiffs often resorted to relieving themselves outside.

Plaintiffs allege the harassment continued when Titan hired additional African-Americans and that Titan was pressured to perform work in an “improper, dishonest, and unsafe manner.” Plaintiff John Pecoraro testified that Mr. Bordelon often made mean and disgusting comments and that Mr. Bordelon demeaned and criticized him. He further claimed Defendants referred to Titan’s African-American employees as “n******.” He also indicated HRL confronted him about his job performance despite the fact that he remained on schedule and his work met industry standards. HRL “falsely accused him of inaccurate surveying.” | ^Thereafter, HRL hired another surveying company to check his work, whose results matched Plaintiff Pecoraro’s.

Additionally, Plaintiff Balthazar attested to the threatening atmosphere. On one occasion, Mr. Stephens nearly ran him over with a bulldozer. In his deposition testimony, he expressed his concern that Defendants would try to hit him with the bulldozer again and “bury” him. Defendants questioned the work and skill level of Titan’s African-American employees and instructed' them not to use equipment belonging to Defendants. Testimony also reveals Mr. Hayden falsely accused a plaintiff of dirt contamination and an HRL employee was told not to help Plaintiff Long push dirt on the job site.

In response to the growing hostility, Plaintiffs raised the issue of racial tension with their supervisors. Titan began holding meetings regularly with its crew to discuss “perseverance” in the face of the racial animus the crew experienced. Plaintiff White stated that “perseverance” was part of the crew’s “plan of action” on the levee project. Still, Plaintiff White stated that he could not escape the racially motivated conduct, slurs, and tensions on the job.

Plaintiffs assert that, on behalf of its employees, Titan’s principals complained about the hostile work environment and racial animus that developed. The petition claims and testimony reveals the complaints resulted in Mr. Bordelon allegedly making a number of racially inflammatory comments, including disparaging Titan’s principals for “taking up for a n*****.”

At a meeting between SSE and Mr. Stephens, Mr. Malbrough testified that Mr. Stephens told him that Titan needed to fire Mr. King and Mr. Cooper or HRL would terminate Titan’s sub-contract. Both men were subsequently terminated. SSE president Mr. Nunez testified that any decision to let Titan employees go was | ai the responsibility of HRL, not SSE. Mr. Nunez’s assertions also indicate that the firing of Mr. King and Mr. Cooper was HRL’s responsibility. As to Mr. Stephens’ insistence that Titan fire Mr. King and Mr. Cooper, Mr. Nunez stated that it was HRL that “needed to do something” to get on schedule.

Plaintiffs make several factual allegations that involve HRL, its employees, Mr. Stephens, Mr.' Hayden, and Mr, Bordelon of SSE including: attacks directed at African-American Titan employees; attacks directed at Caucasian “Northshore” Titan employees, and attacks directed at the actual levee work Titan performed. Moreover, the depositions of HRL, Mr, Hayden, and Mr. Bordelon have yet to take place.

At the very least, we find additional discovery warrants denial of partial summary judgment. See Fischer III, LLC v. Williams, 14-0492, p. 11 (La.App. 4 Cir. 12/17/14), 156 So.3d 1255, 1261 (denying summary judgment due to discrepancies found in the sub-leases and the need for more discovery). Plaintiffs expressly indicated in their opposition to partial summary judgment that discovery in this case was incomplete. This Court reviews summary judgment de novo, and the deposition testimony of HRL, Mr. Hayden, and Mr. Bordelon is relevant to the issues before the court on summary judgment. The core of Plaintiffs’ alleged conspiracy and LUTPA claims are issues of motive and intent, which are subjective facts that are rarely appropriate for judicial determination on summary judgment. Likewise, Plaintiffs’ LUTPA claims are fact-intensive and rest heavily on the conduct of all three actors. Moreover, there are several genuine issues of | ¡^material fact that cannot be resolved at this stage of the proceedings. Consequently, because the principal actors have yet to be deposed we find partial summary judgment inappropriate and remand for additional discovery warranted. Therefore, after review of the application in its entirety we find genuine issues of material fact exist as to HRL’s part in the alleged conspiracy to terminate Titan’s sub-contract in violation of LUTPA.

DECREE

Considering the unresponsive nature of HRL’s motion for partial summary judgment, the direct and circumstantial evidence presented, and the need for additional discovery, we find genuine issues of material fact. Therefore, we find the trial court erred in granting HRL’s motion for partial summary judgment. Accordingly, Plaintiffs’ writ application is granted; the trial court’s July 19, 2016 judgment granting HRL partial summary judgment is reversed; and the case is remanded for further proceedings in line with this Court’s disposition.

WRIT GRANTED; REVERSED AND REMANDED

McKAY, C.J., CONCURS IN THE RESULT

DYSART, J., DISSENTS FOR THE REASONS ASSIGNED BY JUDGE JENKINS

JENKINS, J., DISSENTS WITH REASONS

McKAY, C.J., CONCURS IN THE RESULT

|¾1 find that there ’are genuine issues of material fact that preclude the granting of summary judgment.

DYSART, J. DISSENTS FOR THE REASONS ASSIGNED BY JUDGE JENKINS.

JENKINS, J.,

DISSENTS WITH REASONS

|¾1 respectfully dissent from the majority!s conclusion that the trial court erred in granting the motions for partial summary judgment filed by Hensley R. Lee Contracting, Inc. and Tom Hayden (collectively, “the HRL Defendants”). I would grant the motion and dismiss all of Plaintiffs’ claims against the HRL Defendants based on racial discrimination, hostile work environment, intentional infliction of emotional distress, and ■ all other claims based on racial animus.

|aI first address the majority’s finding that the trial court incorrectly granted partial summary judgment because the HRL Defendants only sought dismissal of “nonexistent employment law claims that Plaintiffs never raised.”

In their motions for partial summary judgment, the HRL Defendants expressly sought dismissal of “all claims of racial discrimination, hostile work environment, intentional infliction of emotional distress and all other claims based on racial animus,” The HRL Defendants sought dismissal on two separate grounds. First, they argued that no genuine issues of material fact existed which would impose liability on them for any claims of race-based discrimination, hostile work environment, or claims of intentional infliction of emotional distress. Second, the HRL Defendants argued that Plaintiffs’ claims of racial discrimination and hostile work environment arising under the Louisiana Employment Discrimination Law, La. R.S. 23:301 et seg., should be dismissed because the HRL Defendants were not Plaintiffs’ statutory “employer.”

Under La. C.C.P. art. 966(F), “[a] summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.” Although a trial court cannot rule on issues not raised by the parties, I find that the HRL Defendants properly raised the issues of racial animus/racial discrimination/hostile work environment/intentional infliction of emotional distress in their motions for summary judgment, and the trial court properly addressed those issues in its judgment.

I next address the majority’s conclusion that the trial court committed legal error by dismissing “all claims based on racial animus under LUTPA (or otherwise)” because Plaintiffs’ race-based allegations are not “stand-alone causes of action” but rather “evidentiary facts, that support the alleged conspiracy to engage in deceptive acts” that violated LUTPA.

|4Under La. C.C.P. art. 966(E), “[a] summary judgment may be rendered disposi-tive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties.” Thus, the scope of summary judgment is not limited to causes of action, such as a violation of the LUTPA, but more broadly includes all theories of recovery.

I find that Plaintiffs’ factual allegations of racial animus constitute a theory of recovery under the LUTPA, which was properly subject to dismissal via a motion for partial summary judgment under La. C.C.P. art. 966(E). I note that the HRL Defendants did not move for partial summary judgment on Plaintiffs’ other theory of recovery under the LUTPL, which is based on the HRL Defendants’ alleged acts intended to disrupt and undermine Plaintiffs’ work, including (1) questioning Plaintiffs’ work performance and abilities; (2) making unnecessary change orders; (3) sending bogus notices of corrective action; and (4) ordering Plaintiffs to perform work contrary to the project plans and industry-accepted standards. At this point, that separate theory of recovery remains to be tried.

Next, I address the majority’s conclusion that genuine issues of material fact remain as to whether the HRL Defendants “conspired to create a hostile work environment through the intentional infliction of emotional distress and racial discrimination.” A review of the record shows that during their depositions, each Plaintiff was asked what acts of racial discrimination he saw with his own eyes or heard with his own ears—not what other people told him, but what he saw and heard. Each of the Plaintiffs was also asked if he was personally subjected to racial discrimination while working on the levee project. All of the Plaintiffs, with the exception of Nathaniel White, testified that they had not been personally subjected to racial discrimination by HRL or Mr. Hayden. One plaintiff, Nathaniel | ¡White, testified that he heard a single instance of racially offensive language directed toward him by Mr. Hayden.

I agree with the trial court that Plaintiffs, without actually having personally heard racially discriminatory language or experienced racially discriminatory acts by the HRL Defendants or, in the case of Nathaniel White, having heard only a single instance of racially offensive language—are unable to meet their burden of proof with respect to Plaintiffs’ race-based claims and claims of intentional infliction of emotional distress. See Hicks v. Central Louisiana Elec. Co., 97-1232 (La. App. 1 Cir. 5/15/98), 712 So.2d 656, 659 (finding that plaintiffs failed to sustain their initial summary judgment burden of establishing a prima facie case of racial discrimination/hostile work environment in part because “plaintiffs testified they had never been personally subject to racial slurs” or testified about only an “isolated” racially derogatory remark). For the same reason, I find that, even if Mr. Stephens were an employee of HRL rather than an independent contractor, Plaintiffs cannot satisfy their burden of proof.

I also agree with the trial court that Plaintiffs did not present sufficient summary judgment evidence to show that all of the defendants conspired to attack the Titan crew as a whole in a joint effort to drive Plaintiffs from the job site, which Plaintiffs argue would obviate the need for proof of direct racial attacks on Plaintiffs by the HRL Defendants.

And although Louisiana courts do recognize that summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, or malice, summary judgment may be granted on subjective intent issues where—as here— no genuine issue of material fact exists concerning alleged racially discriminatory conduct or intent. See Jones v. Estate of Santiago, 03-1424, p. 6 (La. 4/14/04), 870 So.2d 1002, 1006. Given that Plaintiffs simply did not come forward with evidence that creates an issue of material fact, I also find that the trial Rcourt did not im-permissibly weigh the evidence or make credibility determinations. See Selvage v. Gainey Transp. Serv., Inc., 03-0959, p. 4 (La. App. 4 Cir. 10/8/03), 859 So.2d 813, 816.

Finally, I disagree with the majority’s conclusion that the trial court erred in granting partial summary judgment because additional discovery is needed. A trial court’s decision to hear a motion for summary judgment where discovery is alleged to be incomplete is reviewed under an abuse of discretion standard. Rivarde v. City of New Orleans, 15-0655, p. 5 (La. App. 4 Cir. 3/9/16), 190 So.3d 400, 403, writ denied, 16-0670 (La. 5/27/16), 192 So.3d 744. There is no requirement that summary judgment be delayed until discovery is complete. Rivarde, 15-0655, p. 7, 190 So.3d at 405. Although the parties must be given a fair opportunity to carry out discovery, in order to delay a motion for summary judgment when it appears that there is no genuine issue of material fact, a party must show a “probable injustice.” Id. I find that Plaintiffs have not satisfied their burden, given that they did not ask the trial court for a continuance so that additional depositions could be taken, as permitted by La. C.C.P. art. 967(c), or even brief the issue in this court.

For the reasons assigned, I would affirm the trial court’s July 19, 2016 judgment granting the HRL Defendants’ motion for partial summary judgment, and dismiss, with prejudice, all of Plaintiffs’ claims of racial discrimination, hostile work environment, intentional infliction of emotional distress, and all other claims based on racial animus, including those falling under the LUTPA, against the HRL Defendants.

      . For ease of discussion, we refer to the named defendants of the consolidated cases collectively as "Defendants.”

      . For ease of discussion, we refer to HRL’s motions (in the plural) collectively in the singuiar tense.

      . HRL devotes significant portions of the motion arguing various aspects of employment law including citation to La. R.S. 23:303(A), notice requirement prior to filing suit against an employer, employment agency, labor organizations, and case summaries involving racial discrimination, hostile work environment, and intentional infliction of emotional distress in suits filed by employees against their employer.

      . Until the filing of the motion for partial summary judgment, at all stages of the present litigation HRL has acknowledged that Plaintiffs assert claims under LUTPA, including when HRL sought to remove the case to federal court. Moreover, Judge Engelhardt recognized in the order of remand that Plaintiffs’ petition set forth claims pursuant to LUTPA. Malbrough v. Hensley R. Lee Contracting, Inc. unpub., No. Civ. A. 12-1166, 12-1167, 2013 WL 160280, at *1 (E.D. La. 1/15/13).

      . Cf., Barbe v. A.A. Harmon & Co., 94-2423, 94-2424 (La.App. 4 Cir. 1/7/98), 705 So.2d 1210; McGee v. State, ex rel. DOTD, 00-2706 (La.App. 1 Cir. 3/28/02), 813 So.2d 625.

      . Notably, there is no evidence in the record that HRL attempted to resolve or address Titan’s concerns when it brought to HRL’s attention the issues of racial tension and hostility Plaintiffs’ experienced. Nevertheless, we find that HRL’s inaction, when coupled with evidence of the conduct of SSE and its employees, is sufficient evidence that a trier of fact may infer that HRL was complicit in the alleged conspiracy to drive Titan off the levee project for Defendants’ economic benefit.

      . See Ash, supra, 546 U.S. 454, 456, 126 S.Ct 1195 (2006) (noting whether language is evidence of racial animus courts may look to outside factors to determine speaker’s meaning).

      . As of the time of the hearing on the motion HRL, Mr. Hayden, and Mr. Bordelon had not been deposed, Plaintiffs stated in their opposition that the delay was the result of unavoidable scheduling conflicts and Mr. Bordelon’s failure to provide the parties with his availability for purposes of scheduling his deposition.