author: LaROSE, Chief Judge.

text:
    Nicholas J. CARRION, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D14-2151
    District Court of Appeal of Florida, Second District.
    Opinion filed January 19, 2018

      Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
   ORDER RELINQUISHING JURISDICTION

LaROSE, Chief Judge.

Nicholas J. Camón appeals his judgment and sentence imposed after he pleaded guilty to lewd or lascivious conduct. See § 800.04(6)(a)(l), (6)(b), Fla. Stat. (2012). We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A), 9.140(b)(1)(A). The trial court erred in accepting Mr. Carrion’s plea without making an independent finding of competency or issuing a written order on competency. Therefore, we relinquish jurisdiction for sixty days, as we recently did in Moulton v. State, 230 So.3d 934, 42 Fla. L. Weekly D2434 (Fla. 2d DCA Nov. 15, 2017), and Cramer v. State, 213 So.3d 1028 (Fla. 2d DCA 2017), for the trial court to conduct a new competency hearing.

Factual Background

The State charged Mr. Carrion with two counts of sexual battery on a person less than twelve years old. See § 794.011(2)(a), Fla. Stat. (2012). His counsel filed a successful motion to appoint a committee of experts to evaluate and determine Mr. Carrion’s competency.

A psychiatrist and a psychologist evaluated Mr. Carrion. They filed their reports with the trial court. Both experts opined that Mr. Carrion was competent to proceed to trial. The hearing on Mr. Carrion’s competency was brief.

DEFENSE COUNSEL: Judge, Mr. Carrion’s competency reports came back. Both Doctors indicate that they believe that he is competent to stand trial. I can’t recall at this time and I can’t connect to my office computer to find out if we have a trial date. Do we have a trial date?
ASSISTANT STATE ATTORNEY: We do. It’s in October, Judge.
THE COURT: We’ll keep it set for trial. Thank you very much.
DEFENSE COUNSEL: Thank you. (Whereupon, the proceedings concluded.)

The trial court made no oral or written findings as to Mr. Carrion’s competency. Mr. Carrion’s counsel made no objection at the hearing.

Later, Mr. Carrion entered a negotiated plea of guilty to one count of lewd or lascivious conduct, a second-degree felony. See § 800.04(6)(a)(l), (6)(b). The trial court accepted Mr. Carrion’s plea and sentenced him to fifteen years in prison. Mr. Carrion did not file a motion to withdraw his plea. This appeal followed.

Analysis

Mr. Carrion argues for the first time that the trial court erred in accepting his plea without conducting a proper competency hearing or issuing an order regarding his competency.

A defendant has a procedural “due process right to an independent finding of competency” once a competency hearing is required. Golloman v. State, 226 So.3d 332, 335 (Fla. 2d DCA 2017) (citing Zern v. State, 191 So.3d 962, 965 (Fla. 1st DCA 2016)). “This right cannot be waived, and a trial court’s failure to make such a finding constitutes fundamental error.” Id. (citing Zern, 191 So.3d at 965). We may review the issue raised by Mr. Carrion for the first time on direct appeal. See Shakes v. State, 185 So.3d 679, 683 (Fla. 2d DCA 2016). Our review is de novo. See Presley v. State, 199 So.3d 1014, 1017 (Fla. 4th DCA 2016).

“[0]nce a trial court has reasonable grounds to believe that a criminal defendant is not competent to proceed, it has no choice but to. conduct a competency hearing.” Monte v. State, 51 So.3d 1196, 1202 (Fla. 4th DCA 2011). The trial court must make “an independent legal determination regarding whether the defendant is competent, after considering the expert testimony or reports and other relevant factors.” Shakes, 185 So.3d at 681 (citing Dougherty v. State, 149 So.3d 672, 678 (Fla. 2014)). When the trial court and parties agree, the trial court “may decide the issue of competency on the basis of written reports alone.” Dougherty, 149 So.3d at 679. The trial court may not rely on a stipulation that the defendant is competent, “even when the expert reports are in agreement as to the defendant’s competency.” Golloman, 226 So.3d at 335 (first citing Dougherty, 149 So.3d at 678; then citing Cramer, 213 So.3d at 1029). “[I]f a trial court finds that a defendant is competent to proceed, it must enter a written order so finding.” Dougherty, 149 So.3d at 678.

Here, the record does not indicate that the parties stipulated to having the trial court base its competency determination on the expert reports alone. Even with such a stipulation, the trial court never determined Mr. Carrion’s competency. At the competency hearing, the trial court did not indicate whether it reviewed the reports. Nor did it make an oral finding of competency. And, the trial court did not enter a written order of competency. The trial court erred in failing to make an independent competency finding and in failing to enter a written order of competency. See Dougherty, 149 So.3d at 678; Cramer, 213 So.3d at 1029.

Howevér, we are not compelled to vacate Mr. Carrion’s judgment and sentence at this time. See Fowler v. State, 255 So.2d 513, 515 (Fla. 1971); Cramer, 213 So.3d at 1029; Instead, we relinquish jurisdiction to the trial court for sixty days to conduct a new competency hearing. See Moulton, 230 So.3d at -, 42 Fla. L. Weekly at D2435 (relinquishing jurisdiction for the trial court to conduct a new competency hearing); Cramer, 213 So.3d at 1029 (same). Mr. Carrion must be present at the new competency hearing. See Sheheane v. State, 228 So.3d 1178, 1181 (Fla. 1st DCA 2017). At the competency hearing, a retroactive determination of competency may be possible and. legally permissible because there were two pre-plea psychological evaluations performed. Cf. Monte, 51 So.3d at 1203 (“[A] retroactive determination of competency may be possible and legally permissible because three pre-trial psychological evaluations, have in fact already been performed and the records associated with those evaluations may .remain available for review and consideration.”). See generally Presley, 199 So.3d at 1019 (explaining that a retroactive determination of competency is permissible if “there are enough expert and lay witnesses who examined or observed the defendant contemporaneous with the relevant stage of the proceeding and are available to offer pertinent evidence at a retrospective hearing”). “The parties may agree to the use of the previous evaluators’ written reports .... ” See Sheheane, 228 So.3d at 1181.

If the trial court finds Mr. Carrion “was competent at the time of the plea hearing, it must enter a nunc pro tunc order, and the judgment and sentence need not change.” See id. But if the trial court cannot make a retroactive determination or if it finds Mr. Carrion was incompetent at the time of the plea hearing, the trial court must allow Mr. Carrion to withdraw his guilty plea, so long as Mr. Carrion is presently competent, See Golloman, 226 So.3d at 335.

At the end of the relinquishment period, counsel for the parties shall file a status report with this court to indicate the outcome of the competency hearing and advising of the need for further proceedings.

Jurisdiction relinquished with directions.

VILLANTI and SALARIO, JJ., Concur.


source: Caselaw Access Project

author: Wetherell, J.

license: Public Domain

text:
    De Vanta Lamont JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4316
    District Court of Appeal of Florida, First District.
    January 22, 2018

      Andy Thomas, Public Defender, and M; J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney General, for Appellee. . .
   Wetherell, J.

The defendant raises four issues in this direct appeal of his judgment and sentence. We.affirm and write only to address the defendant’s argument that the trial court erred in disallowing his use of a peremptory challenge.

I

During jury selection, after defense counsel used a peremptory challenge on prospective juror 14, the prosecutor asked for a “race neutral reason” because “thé defense has used a strike on all four males that have been available for the panel.” In response, defense counsel stated:

my client indicated that he got a bad feeling from that person and ... he asked me to strike that person based on the fact that I didn’t as well have any thoughts regarding that he would be , positive for us. I felt like . that, would be an appropriate strike, but it was initiated by my client.

Then, after the trial court stated—-without objection from defense counsel—that “the bottom line is there is no reason other than [defense counsel’s] client doesn’t want him,” the prosecutor argued:

I don’t think that the case law supports a person saying I have a bad feeling. The state certainly couldn’t:get away with that, and so I do not believe that would be a valid basis for a strike, and so ... I would make my objection based upon the lack of reason provided.

The trial court agreed with the prosecutor and disallowed the challenge. As a result, prospective juror 14 served on the jury that convicted the defendant.

II

We review the trial court’s ruling on whether to allow a peremptory challenge for clear error. See Melbourne v. State, 679 So.2d 759, 764-65 (Fla. 1996).

The three-step procedure established by the Florida Supreme Court in Melbourne applies where, as here, a race- or gender-based objection to the use of a peremptory challenge is made. Id. at 764; Hayes v. State, 94 So.3d 452, 461 n.5 (Fla. 2012) (noting that although Melbourne involved a claim of race-based discrimination in the use of a peremptory challenge, the same procedure applies to claims of gender-based discrimination). Step 1 requires the objecting party to make a timely objection, show that the prospective juror is a member of a distinct group, and request that the trial court ask the proponent of the challenge to provide a reason for the challenge. Melbourne, 679 So.2d at 764. If these requirements are met, then step 2 requires the proponent of the challenge to come forward with a facially race- or gender-neutral reason for the challenge. Id. If the proponent does so, then step 3 requires the trial court to determine whether the proffered reason is pretextual or genuine. Id.

Here, although the prosecutor asked for a race-neutral reason for defense counsel’s use of a peremptory challenge on prospective juror 14, it is clear from the context of the request that he was actually seeking a gender-neutral reason because he pointed out that defense counsel had used preemptory challenges on all of the prospective male jurors on the panel. This objection was sufficient to satisfy step 1 of Melbourne and shift the burden to the defendant, as the proponent of the challenge, to come forward with a gender-neutral reason for the challenge.

The defendant did not meet his burden under step 2 of Melbourne because, consistent with the prosecutor’s argument below, it is well-established that simply having a “bad feeling” about a juror is not a race- or gender-neutral reason for a peremptory challenge. See Nowell v. State, 998 So.2d 597, 604 (Fla. 2008) (citing several cases for the proposition that “Florida courts have consistently rejected a general feeling or ‘dislike’ of a juror as a genuine race-neutral reason for exercising a peremptory challenge”). Likewise, the mere fact the defendant “doesn’t want” the prospective juror on the jury is not a race- or gender-neutral reason for a peremptory challenge. See Stanford v. State, 706 So.2d 900, 901 (Fla. 1st DCA 1998) (finding no error in trial court’s denial of peremptory challenge that was based solely on the “client’s wishes”). Accordingly, the trial court properly disallowed the peremptory challenge to prospective juror 14. See Melbourne, 679 So.2d at 764 n.7 (“If the explanation is not facially [gender]neutral, the inquiry is over; the strike will be denied.”).

Ill

For the reasons stated above—and because we find no merit in the other three issues raised on appeal—we affirm the defendant’s judgment and sentence.

Affirmed.

B.L. Thomas, C.J., and Winsor, J., concur.


author: PER CURIAM.

text:
    Luis Alberto BERMUDEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4361
    District Court of Appeal of Florida, Second District.
    Opinion filed January 26, 2018
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General Tallahassee, and Susan M. Shanahan, Assistant Attorney General, for Appellee.
   PER CURIAM.

Luis Alberto Bermudez appeals his judgments and sentences, entered after no contest pleas, for: (1) traveling to meet a minor in violation of section 847.0135(4)(a), Florida Statutes (2012); (2) unlawful use of a two-way communications device to facilitate the commission of a felony in violation of section 934.215, Florida Statutes (2012); (3) resisting an officer with violence in violation of section 843.01, Florida Statutes (2012); and (4) resisting an officer without violence in violation of section 843.02. He argues, among other things, that a conviction for both traveling to meet a minor and unlawful use of a two-way communications device violates the prohibition against double jeopardy. We agree and note that the State has conceded error on this issue. Because there is no indication in the record that these two crimes were committed other than as part of the same criminal episode, we reverse and remand for the trial court to vacate Mr. Bermudez’s judgment and sentence for unlawful use of a two-way communications device. See Batchelor v. State, 193 So.3d 1054, 1059 (Fla. 2d DCA 2016); Mizner v. State, 154 So.3d 391, 401 (Fla. 2d DCA 2014); Holt v. State, 173 So.3d 1079, 1084 (Fla. 5th DCA 2015). We affirm his convictions as to the other charges in all respects, and we affirm all other issues raised on appeal. We remand with instructions for the trial court to resentence Mr. Bermudez consistent with this opinion.

Affirmed in part, reversed in part, and remanded with instructions.

NORTHCUTT, KHOUZAM, and ' BADALAMENTI, JJ., Concur.


author: VILLANTI, Judge.

text:
    Justin WIRTH, a/k/a Justin Daniel Wirth, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2527
    District Court of Appeal of Florida, Second District.
    Opinion filed January 26, 2018
    Howard L. Dimmig, II, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, Bartow, for Appellant,
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Justin Wirth, a juvenile at the time of sentencing, appeals his judgment and sentences imposed for two counts of first-degree premeditated murder and one count of robbery with a firearm. We find no reversible error in Wirth’s convictions and affirm them without further comment. However, we agree with Wirth that he was sentenced to life for the robbery count without his sentence providing for a méan-ingful opportunity to obtain release in contravention of Graham v. Florida, 560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and section 921.1402(2)(d), Florida Statutes (2016). The State correctly concedes that, on this one count, Wirth was sentenced incorrectly. Accordingly, we reverse Wirth’s sentence for robbery with a firearm and remand for resentencing.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and SALARIO, JJ., Concur.


author: Per Curiam.

text:
    Leo PRICE, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-3646
    District Court of Appeal of Florida, First District.
    February 6, 2018
    Leo Price, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The amended petition seeking belated appeal is denied on the merits.

Jay, Winsor; and M.K. Thomas, JJ., concur.


text:
    William A. COOK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-144.
    District Court of Appeal of Florida, First District.
    February 6, 2018
    William A. Cook, pro se, Petitioner,
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

Jay, Winsor, and M.K. Thomas, JJ., concur.


text:
    Mark S. HUEBNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0274
    District Court of Appeal of Florida, First District.
    February 9, 2018
    Mark S. Huebner, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for all writs jurisdiction is denied on the merits.

Ray, Bilbrey, and Winokur, JJ., concur.


text:
    Jerry GALLION, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-5260
    District Court of Appeal of Florida, First District.
    February 9, 2018
    Jerry Gallion, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied on the merits.

Ray, Bilbrey, and Winokur, JJ., concur.


text:
    James MCGRIFF, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0335
    District Court of Appeal of Florida, First District.
    February 9, 2018
    James McGriff, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

Ray, Bilbrey, and Winokur, JJ., concur.


text:
    Calvin POWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0202
    District Court of Appeal of Florida, First District.
    February 9, 2018
    Calvin Powell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits,

Ray, Bilbrey, and Winokur, JJ., concur.


author: PER CURIAM:

text:
    STATE of Louisiana v. Dustin MANTIA
    No. 17-KK-0240
    Supreme Court of Louisiana.
    05/26/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF LAFOURCHE

PER CURIAM:

L Rehearing granted for the limited purpose of clarifying that the open-air canine sniff of the exterior of the vehicle in this matter comported -with Rodriguez v. United States, — U.S. -, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), because it was-conducted during a lawful traffic stop and not within a timeframe exceeding that reasonably necessary to conclude the matter for which the officer initiated the stop. See also Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005) (where lawful traffic stop was not extended beyond time necessary to issue warning ticket and conduct ordinary inquiries incident to such a stop, another officer’s arrival while stop was in progress and use of a narcotics-detection canine to sniff the exterior of the subject vehicle did not infringe on Fourth Amendment' rights). Moreover, the officer here was justified in performing an open-air canine sniff of the vehicle’s exterior once the officer observed defendant (a passenger in the vehicle) surreptitiously attempt to conceal a bag inside the passenger compartment which was within view from outside the vehicle. Cf. United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983) (external sniff of vehicle by narcotics canine not a search | ¿under Fourth Amendment). Under these circumstances, the trial court abused its discretion when it granted the motion to suppress the contraband discovered as a result of the canine alerting during the sniff search.


author: PER CURIAM CRICHTON, J.,

text:
    IN RE: Elise Marybeth LAMARTINA
    NO. 2017-B-0430
    Supreme Court of Louisiana.
    12/06/2017
   ATTORNEY DISCIPLINARY . . PROCEEDING.

PER CURIAM

| ¶ This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Elise Marybeth LaMartina, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we'find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 2006. In 2010, we suspended respondent from the practice of law for one year and one day, fully deferred, subject to a two-year period of unsupervised probation with conditions. In re: LaMartina, 10-0093 (La. 7/2/10), 38 So.3d 266 (“LaMartina I”). During the probationary period, however, respondent engaged in additional misconduct. She was, arrested for shoplifting on October 5, 2011 (stemming from the theft of $166.87 in merchandise from a Target store in Covington, Louisiana) and she was twice arrested on civil attachments issued in two civil cases in which she was the defendant. For these violations of the Rules of Professional Conduct, we revoked respondent’s probation and immediately made executory the previously deferred one year and one day suspension imposed in LaMartina-1. In re: LaMartina, 12-0892 (La. 5/25/12), 89 So.3d 1164 (“LaMartina [ 9II”). Respondent has not yet sought reinstatement from her suspension in LaMartina II. As such, she remains suspended from the practice of law.

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

FORMAL CHARGES

In January 2015, respondent was arrested for shoplifting hair dye, which was valued at $7.29, from a Rouses Supermarket in Mandeville, Louisiana. Respondent was ultimately charged with misdemeanor theft of goods. In October 2015, respondent pleaded guilty to this charge as well as the 2011 shoplifting charge previously discussed.

When the ODC received notice of respondent’s 2015 arrest, it sent her three separate letters requesting she provide a written explanation of her conduct. Two of the letters were sent via certified mail, and one letter was sent via regular mail. Only one of the letters was returned, unclaimed. Respondent never fíléd a written response to the ODC’s letters.

DISCIPLINARY PROCEEDINGS

In February 2016, the ODC filed formal charges against respondent, alleging that her conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(b) (commission of a criminal act that reflects adyersely on the lawyer’s honesty, trustworthiness, or fitness, as a lawyer). Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court |sRule XIX, § 11(E)(3), No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission on sanctions, the. hearing committee determined the factual allegations in the formal charges are deemed admitted and proven by clear and convincing evidence.. The factual allegations are further corroborated by the documentary evidence submitted by the ODC. The committee concluded that these facts establish respondent violated the Rules of Professional Conduct as charged.

The committee determined that respondent violated duties owed to the public and the legal profession. Her conduct caused actual harm to the store from which she shoplifted and to the legal profession. After considering the ABA’s Standards for Imposing Lawyer Sanctions,,.the committee determined that the baseline sanction is disbarment. . -

In aggravation, the committee found a prior disciplinary record, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and illegal conduct. The committee found no- mitigating factors present.

Under these circumstances, the committee recommended respondent be disbarred.

. Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation. Respondent made her first appearance in this matter at subsequent oral argument before a panel of the disciplinary board, where' she presented evidence in mitigation. Although she ■ alleged that she only first became I ¿aware of this matter on the morning of oral argument, she did not file a motion to' vacate the deemed admitted order. ■

Disciplinary Board Recommendation

After review, the disciplinary board found that the factual allegations in the formal charges have been deemed admitted and proven. The board also found that the hearing committee correctly applied the Rules of Professional Conduct.

The board determined that respondent intentionally violated duties owed to the public and the legal profession. Her conduct caused actual harm to the store from which she shoplifted, as well as to the legal system, the legal profession, and the attorney disciplinary system. Like the committee, the board determined that the baseline sanction is disbarment. The board also agreed with the aggravating factors found by the committee and agreed that no mitigating factors are present.

Turning to the issue of an appropriate sanction, the board noted that Louisiana case law contains little precedent for disciplining attorneys who are guilty of shoplifting. As such, the board looked to other states’ case law addressing similar misconduct. In particular, the board cited three cases decided by the Ohio Supreme Court. The.first case, Cincinnati Bar Ass’n v. Moore, 143 Ohio St.3d 252, 36 N.E.3d 171 (2015), addressed an attorney’s two instances of shoplifting, for which the Ohio. Supreme Court imposed a two-year suspension from the practice of law, with one year deferred, subject to conditions. The second case, Toledo Bar Ass’n v. Lockhart, 84 Ohio St.3d 7, 701 N.E.2d 686 (1998), addressed an attorney’s two shoplifting convictions as well as the attorney’s tampering with her second arrest record; for this misconduct, the attorney was suspended from the practice of law for two years, with one year deferred. In the last case, Cincinnati Bar Ass’n v. Fidler, 83 Ohio St.3d 396, 700 N.E.2d 323 (1998), an attorney was suspended from the practice of law for eighteen months, with twelve months deferred, for two shoplifting convictions. The board determined that Lin light of respondent’s : prior disciplinary record, a two-year suspension is the minimum sanction that should be imposed here.

Accordingly, the board recommended respondent be suspended from the practice of law for three years. The board also expressed its hope that respondent will seek the services of the Judges and Lawyers Assistance Program. Two board members dissented and would recommend disbarment.

The ODC filed an objection to the disciplinary board’s- recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b). Respondent failed to file a brief and therefore waived her right to oral argument; however, she did make an appearance on the day of oral argument, and she was permitted to present argument to the court.

DISCUSSION

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

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

The record in this deemed admitted matter supports a finding that respondent pleaded guilty to two shoplifting charges and failed to cooperate with the ODC in its investigation. In light of this misconduct, respondent has violated the Rules of Professional Conduct as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La. 1984).

Respondent intentionally violated duties owed to the public and the legal system, causing actual harm. We agree with the hearing committee and the disciplinary board that pursuant to the ABA Standards, the baseline sanction in this matter is disbarment. We also agree with the aggravating factors, and lack of mitigating factors, found by both the committee and the board.

Like the board, we found little guidance from this court’s prior jurisprudence addressing similar misconduct. However, the Ohio cases cited by. the board are persuasive in suggesting that a suspension is the appropriate sanction. Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for three years.

JjDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, the brief filed by the ODC, and oral argument, it is ordered that Elise Marybeth- LaMartina, Louisiana Bar Roll number 30583, be and she hereby is suspended from the practice of law for three years. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

CRICHTON, J.,

dissents and assigns reasons

hi disagree with the majority’s imposition of a three-year suspension in this matter, as I find respondent’s conduct, coupled with her lack of cooperation with and flippancy towards her disciplinary proceedings (a violation of, La. RPC Rule 8.1(c) itself), .warrants' disbarment. The committee and the board in this instance determined the baseline sanction is disbarment, and I find there is scant support for any downward departure from that recommendation. Not only are the aggravating factors in this case serious, but both the committee and the board found zero mitigating factors in respondent’s case. For these reasons, I would impose disbarment.


author: GUIDRY, Justice JOHNSON, Chief Justice, HUGHES, J.,

text:
    STATE of Louisiana IN the INTEREST OF C.F.
    No. 2017-CJ-1054
    Supreme Court of Louisiana.
    12/06/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF ST. JOHN

GUIDRY, Justice

| TThis is a proceeding to terminate parental rights involuntarily. The district court found clear and convincing evidence that supported at least one ground, for termination of parental rights, but it nevertheless concluded termination was not in the best interest of the child. For the reasons set forth below, we find the, district court was clearly wrong in finding that termination of the father’s parental rights was not in the best interest of the child. Accordingly, we reverse the judgment of the district court and render judgment terminating the rights of the father and allowing the child to be adopted.

FACTS AND PROCEDURAL HISTORY

The minor child, C.F., was born on December 22, .2006, to E.F., her mother, and C.F., Jr., her father. The mother died of natural causes on December 30, 2013. On June 9, 2014, the Department of Children and Family Services (hereinafter “DCFS”), received a report expressing concern for the child’s welfare, who was living with the father in the child’s paternal grandfather’s home in Kenner. Upon investigation, DCFS learned that C.F.’s mother was deceased and that C.F.’s father had a lengthy history of substance abuse and was reported to be passed out after smoking crack cocaine in the home while the minor child was in his care. On June 20, 2014, DCFS interviewed the father and reported that his behavior was ^disoriented and his speech slurred. DCFS reported that, during the interview, the father admitted to smoking crack cocaine ten days earlier while the minor child was asleep in the home. The .father thereafter made arrangements for C.F. to stay with his sister. For the following, six days, DCFS made several attempts to contact the father to transport him for random urine drug screenings and to refer him for substance abuse treatment. In light of the father’s alleged lengthy history of substance abuse and failure to cooperate with DCFS, the trial court granted an oral instanter order directing DCFS to take C.F. into its immédiate .custody.

On August 12, 2014, the, trial court adjudicated C.F. as a child in need of paré. The initial case plan goal for permanent placement for C.F. was reunification with a. concurrent goal of adoption. The father’s case plan required him to find and maintain. stable housing for a period of six months; contribute $25.00 .per month for C.F.’s care and support; participate in and complete agency-approved substance abuse classes; participate in mental health evaluations and therapy appointments; complete random drug screenings; participate in all court hearings and scheduled Family Team Conferences (“FTCs”); visit with C.F. as scheduled and provide nutritious snacks and age-appropiriate toys; and complete agency-approved parenting classes. ■

On September 10, 2015, DCFS filed a petition to terminate the father’s parental rights to C.F. specifying two grounds for termination: (1) abandonment pursuant to La. Ch. Code art. 1015(4), and (2) failure to comply with the case plan | ..¡pursuant to La. Ch. Code art. 1015(5), With regard to abandonment, DCFS alleged the father abandoned his daughter by failing to provide any significant contributions to C.F.’s care and support for a period of six months. With regard to the ground of failing to comply with the case plan, DCFS alleged the following particulars to support •termination of the father’s parental rights:

1) The father has failed to consistently attend court-approved scheduled visitations and communicate with the child;
2) He has not maintained a safe, sta- ’ ble home;
3) He has failed to keep the department apprised of his whereabouts and significant changes affecting his ability to comply with the case plan for services;
4) He has repeatedly failed to comply with the required program of treatment and rehabilitation services;
5) He lacks substantial improvement in redressing the problems preventing reunification;
6) Although the father attended a substance abuse treatment program he continues to have positive test results when screened for drugs; and
7) The conditions that led to the removal or similar potentially harmful conditions persist.

On September 29, 2016, the matter proceeded to trial on DCFS’s petition to terminate parental rights. At trial, Kyra Johnson, a child welfare specialist with DCFS, testified that she is the case tvorker assigned to C.F.’s case. She testified C.F. came into state custody on June 26, 2014, and had been placed in a certified foster home. She testified C.F. was previously placed into state custody in 2007, when her father admitted to using crack cocaine in C.F.’s presence and her mother, E.F., was discovered passed out in the home. Within the initial six-month period in the 2007 Lease, C.F. was returned to her parents’ custody, though the circumstances surrounding the child’s return are not contained in the instant record.

As to the father’s contributions to the care and support of C.F., Ms. Johnson testified that, at the time of trial, the father had made no payments in accordance with his case plan for' C.F.’s support. Instead, the father had provided some snacks during his visits with the child and had provided her with a cell phone.

With regard to compliance with the case plan, Ms. Johnson testified the father received a certificate of completion for the ordered parenting classes and weekly mental health sessions, which included comprehensive evaluations and one-on-one therapy sessions. Ms. Johnson testified the father had completed the required substance abuse program. However, as to satisfying his drug screens, there were some missed screenings, which resulted in automatic positive results pursuant to DCFS procedures, and some positive test results for opiates. Even though the father was warned that a missed drug screen would be deemed a positive outcome, he missed several drug screens prior to December 2015. Ms. Johnson testified the father also tested positive for opiates, but he had indicated to her he had been prescribed pain medication, and on one occasion he did provide proof of such. Ms. Johnson testified the father never tested positive for crack cocaine.

As to the missed screenings and positive test results, Ms. Johnson testified that, after the filing of the September 2015 petition to terminate, the father did not appear for his December 15, 2015 review hearing. At that hearing, the case plan goal was amended to adoption. The father missed his January and February- 2016 drug screens. Ms. Johnson testified she observed a noticeable difference in the father’s behavior in December 2015, and the beginning of 2016, believing he may have been still grieving the loss of his wife. After the filing of the petition to terminate, the father indicated to Ms. Johnson that he would surrender his rights to' C.F. He told [(¡her he felt everyone was “turning back on him” and no one was actually trying to help him get his daughter back. The father did appear for the remainder of the monthly drug screens in 2016, up to the date of trial in September 2016.

As to the father’s visitation with C.F., Ms. Johnson testified that, prior to December of 2015, the father was scheduled to visit with C.F. twice a month, but that he occasionally missed those visits, often not' warning DCFS that he would not be attending the visitation. Ms. Johnson testified that during the visits, the interaction between father and daughter was largely initiated by the daughter. Ms. Johnson testified the father was in an accident in March of 2016,. which required him to have multiple surgeries. She testified the father missed his monthly visitations with C:F. from March 2016 through July 2016, but while he may not have been mobile initially, he was likely mobile by June 2016. The father visited with- C.F. as scheduled in August and September 2016.

Regarding his income and housing, Ms. Johnson testified' the father receives $1,067.00 per month in social security benefits. She testified the father frequently moved around after C.F. entered state custody, living at times with his own father or his son. Most recently, in June 2016, the father leased a 4-bedroom home in West-wego, which provided space for C.F. and appeared operable with working utilities upon inspection. However, Ms. Johnson testified the father’s housing was deemed unsuitable by DCFS because he shared his home with his two adult sons and his daughter-in-law; who each have had open foster care cases. She also testified that one son, and possibly the daughter-in-law, were also signatories to the lease.

Ms. Johnson testified C.F. is very happy with.her foster care family, who is willing to adopt her. She testified C.F. has stated she does not want to be removed from her foster family and would like to be adopted by them. Ms. Johnson stated that C.F. had never indicated she wanted .to return to living with her father, and when | f,pressed, she would respond that she wanted to stay with her foster family. Ms. Johnson testified C.F. has been diagnosed with depression since June of 2016 at which time she began medication. C.F. is attending trauma therapy as she has suffered extreme distress from the loss of her mother. Ms. Johnson testified that, since June of 2016, C.F. has begun exhibiting improper behavior, has been caught stealing a package from, a neighbor’s porch, and has been untruthful. C.F. is enrolled in therapy and is receiving support and professional care to address her recent behavioral issues;

The father testified at trial he loves his daughter and he wants her to live with him. He denied continuing to use any illicit drugs and stated he has been, sober for approximately a year and a half. He admitted having smoked crack cocaine and that, following the death of his wife, he was in a bad place and went down the wrong path. He stated he is a recovering alcoholic and does not drink alcohol. He testified he is willing to continue substance abuse programs to show he is committed to remaining sober to regain custody of C.F.

The father explained he has been taking prescribed medications for “a long time,” since he broke his back when he was approximately twenty years old while working on the river. He testified he never informed his doctors he has had a substance abuse problem with crack cocaine,, saying his prior drug use was not related to his prescription for pain medication.

The father testified about his visitations with C.F., explaining that his daughter is suffering from the loss of her mother and has put up an “ice barrier” and that “one visit an hour a day is not even nearly enough to even start breaking through the ice barrier” to communicate with C.F. Se admitted he did not visit with C.F. from April to July 2016, explaining he had broken his hip and leg, was immobile for a period of time, and did not want C.F. to see him in that' condition. He acknowledged that j7C,F.’s foster parents are very-good people and that he has the “utmost respect” for them and what they have done for C.F. However, he testified he wants to be in C.F.’s life, because he is her father and loves her very much. -

With regard to housing, the father testified he resides with his two adult sons, who are C.F.’s siblings, and his daughter-in-law. He believed C.F. would benefit being with him and her siblings who’ understand her. He explained that he was -previously unable to' obtain stable housing because he is on a limited income and only began receiving his full social security benefit of $1067.00 per month in July of 2016. He acknowledged that, if he regained custody of C.F., he would receive additional benefits, totaling approximately $402.00 per month, to assist with housing and 'C.F.’s needs. Although he suggested he would be able to afford to live on his own with C.F., he otherwise indicated that he would continue to reside with his sons, who had lived with him most of their lives and whose assistance he needed. To his knowledge, his sons do not use drugs and he has never seen his sons use drugs in his home. He testified' that if his sons began using drugs in the home, he would have to contact the police and remove them from the home. Although he was aware that his sons and daughter-in-law had their own DCFS cases, he was not aware of the details.-

The father stated that, if he regained custody of C.F., he would like eventually to move back to Reserve, where C.F. is now living, so that C.F. could maintain contact with her friends and continue with her life there. He testified that his wife had wanted C.F. involved in the church and the community in Reserve and that he would do his best to make that happen. However, he conceded he could not afford to move to Reserve in the immediate future.

As for his failure to appear for drug screenings and to appear at his December 2015 review hearing, the father denied that he refused tests or failed to appear because he was on drugs. He explained he felt there was no need to take the drug Istests and continue with his case plan because he had discussed surrendering his rights with DCFS, The father expressed frustration with the September 2015 filing of the petition to terminate his parental rights so soon after he had completed substance abuse, mental health, and parenting courses. He testified that, at the time, he felt like he could not fight anymore.

After considering the evidence and argument of counsel, the district court denied DCFS’s petition to terminate the father’s parental rights. The district court first found DCFS had proved by clear and convincing evidence the father had abandoned the child. The court was persuaded by the case worker’s testimony that the father never paid any support for the child. The father did not offer any evidence to' the contrary, explaining only that his social security benefits had been substantially reduced until recently. The district court found the allegation of abandonment for failure to pay support under La. Ch. Code art. 1015(4)(b) was supported by the record. • •

As to whether the’ father complied with the case plan, the district court found that, by the time.the petition for termination was filed by DCFS in September 2015, the father had complied with the majority of the case plan requirements. The court reasoned that, according to the testimony of the case worker, by June of 2016, the only areas lacking in the father’s compliance were housing and financial support. The court noted the father had completed substance abuse treatment, mental health classes, and parenting classes. The district court also cited the, case workers’ testimony the father had appeared for most of his random drug tests and that the, results were mostly negative, with the exception of his testing positive for opiates from prescribed medication and missed screens. The district court also found the father had complied with his visitation schedule, except for the period of March to July of 2016, while the father was recovering from surgery for a hip injury. The ^district court found that, as of the date of the hearing, the father had secured stable housing for at least' three months. The district court found the-only issue was the father’s failure to pay support. Thus, the court found DCFS had failed to prove the father violated La. Ch. Code art. 1015(5).

Notwithstanding its determination that DCFS had proven by clear and convincing evidence the ground of abandonment for lack of financial support under La. Ch. Code art. 1015(4)(b), the court found termination, was not in the best interest of the child. The. district court acknowledged the State.had presented evidence that C.F.-is happy in her current placement, that she does not want- to be removed, that she wants to be adopted, and that she has never stated she wants to be returned to her father. The court noted C.F.’s age as nine years old, and acknowledged her wishes, but noted her wishes at this age could not form the basis for termination. The court, nonetheless, ■ acknowledged the child is in a home where all her neéds are being met and whose caretaker is interested in adopting her. But, the court' noted, there has been no allegation of abuse, despite' the concern of DCFS, and nothing inappropriate happened while the child was in her father’s care. The court also noted the child’s emotional and behavioral issues were likely related to the loss of her mother, suggesting she would require further counseling. Ultimately, the court found “in light- of these exceptional circumstances,”'that DCFS had failed to prove termination was in the child’s best interest because “[a]ny other result would be’ unfair to [the father], who has never been alleged to have abused [C.F.], and to the child herself.”

DCFS appealed, and a majority of the court of appeal affirmed. State in the Interest of C.F., 17-24 (La. App. 5 Cir. 5/31/17), 222 So.3d 179. The court of appeal agreed with the district court that DCFS had established by clear and convincing evidence a ground for termination of parental rights,-namely abandonment. Nevertheless, the majority found the district court had not manifestly erred in | ^determining that DCFS had failed to establish that termination of parental rights was in the child’s best interest. The court of appeal found that the father had complied with his case plan goals to complete substance abuse, mental health, and parenting courses. The court also found the father had consistent visitation with his daughter until his March 2016 accident, bringing the child snacks at each visit and attempting to engage in conversation with her. The court also noted the father’s love for his child and his desire to reunite with her.

.The court of appeal on the other hand also pointed to evidence supporting termination. .The court of appeal noted the father continues to reside in a home with his two adult sons, both of whom have also had open DCFS cases, contrary to the DCFS’s case plan requirement to maintain secure and stable housing for C.F.- Additionally, the court noted that, although the father has not tested positive for cocaine since C.F. has been in state custody, he has missed numerous, drug screenings and on several occasions tested positive for opiates. The court acknowledged the father has a prescription for narcotic pain medication, but it nevertheless noted the father’s lengthy use of narcotic medication in addition to the fact that he has not disclosed to his physicians who have prescribed the medication his history of crack cocaine substance abuse. The court reasoned this lack of disclosure could indicate the father continues to suffer from substance abuse issues that may require continued attention and may inhibit his ability to care for C.F. Notwithstanding that concern, the court of appeal majority could not say the district court had manifestly erred in denying DCFS’s petition to terminate the father’s parental rights, noting the district court did not transfer custody of the child to the father, but instead allowed her to remain in the care of her stable foster family.

We granted DCFS’s writ application to review whether the district court manifestly erred in finding that termination of the father’s parental rights and fallowing the child to be adopted was not in the best interest of the child. State in the Interest of C.F., 17-1054 (La. 8/30/17), 224 So.3d 979.

LAW AND ANALYSIS

The law on the termination of parental rights is well settled. The termination of parental rights is a two-pronged inquiry. First, the State must prove by clear and convincing evidence the existence of at least one ground for termination under La. Ch. Code art. 1015. La. Ch. Code art. 1035(A)(“The petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence.”); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Only after a ground for termination is found, the trial court must determine whether the termination is in- the best interest of the child. La. Ch. Code art. 1039; State ex rel. L.B. v. G.B.B., 02-1715 (La. 12/4/02), 831 So.2d 918, 922. La. Ch. Code art. 1037 provides as follows:

When the court finds that the alleged grounds set out in any Paragraph of Article 1015 are proven by the evidentia-ry standards required by Article 1035 and that it is in the best interest of the child, it shall order the termination of the parental rights of the parent against whom the allegations are proven. The court shall enter written findings on both issues. The consideration of best interests of the child shall include consideration of the child’s attachment to his current caretakers.

Both lower courts found that DCFS had established grounds for termination of the father’s parental rights under La. Ch. Code art. 1015(4)(b) based on his abandonment of his daughter, and the father does not directly contest that determination. DCFS asserts it also established the father failed to substantially comply with the case plan, as required by La. Ch. Code art. 1015(5), and that the district court manifestly erred in finding otherwise. We agree that the record does not support the district court’s finding that DCFS failed to establish this ground for termination of parental rights.

112La. Ch. Code art. 1015(5), relative to failure to complete a case plan goal of reformation within the time limit provides as follows: “Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable and permanent home.” The record does not support the district court’s finding that the father has substantially complied with his case plan, and it made no specific finding, nor could it on this record, that there was a reasonable expectation of significant improvement in the father’s condition or conduct in the near future, considering the child’s age and her need for a safe, stable and permanent home.

While the father’s participation in treatment and rehabilitation services was established, the court should have focused on whether he exhibited significant improvement in the conditions and conduct that caused the state to remove the child from the father’s care and custody. State in Interest of S.M., 98-0922 (La. 10/20/98), 719 So.2d 445. Lack of parental compliance with a case plan may be evidenced by one or more of the following under La. Ch. Code art. 1086, pertaining to proof of parental misconduct: ' .

(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability ■ to comply with the case plan for services.
. (4) The parent’s failure to contribute to the costs of the'child’s foster care, if ordered to do so by the court when approving the case plan.
11,<¾(5) The parent’s repeated failure to comply with the required program of . treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The' persistence of conditions that led to removal or similar potential potentially harmful conditions.

The district court manifestly erred in finding substantial compliance with, the case plan, because there is no evidence demonstrating improvement in remedying the problems preventing reunification and the persistence of conditions that led to removal or similar potentially harmful conditions. We agree with DCFS that, despite the father’s laudable efforts toward his case plan goals, such as attending the.substance abuse, parenting, and mental health sessions, the conditions that led to the removal or similar, potentially harmful conditions unfortunately persist, and there, is no basis in this record on which to conclude they will significantly improve in the near future.

. The case plan required the father to provide a safe and stable home for the child, but there is no evidence that such a home could be provided by the father in the near future. The father was advised that the child could not reside with the father’s adult children who had open DCFS cases of them own. At no .time, however, did the father obtain safe and stable housing - prior to the termination hearing, including at the point that the case plan goal was changed to adoption. The father was required to maintain housing that was safe, and appropriate for himself and his child. Since the child’s removal in June 2014, the father had been unable to secure such housing. Although the father leased a suitable home some three months prior to the termination hearing, the father’s two sons and his daughter-in-law also live in the home, all whom have open foster care cases with DCFS or have had their parental rights terminated. The father was made aware by the case worker that he would not be able to regain custody of his child if he lived with family members who have a|uhigtory of problems related to child protection. When the father moved into the home, he did not call thé case worker to let her know he obtained housing; instead, she found out that he had new housing when she called him to schedule a visit.

The record shows that during the time C.F. has been in foster care, the father lived with his two sons and daughter-in-law in Westwego or Waggaman. Prior to that, he lived with his father in Kenner for four'to five months, but he did not explain why he moved from that home. He briefly lived with a female friend for about a week ih Metairie. Before that, he lived with his son Christopher and his daughter-in-law Christina in Laplace. However, he and his family members were eventually evicted. Despite being advised that C.F. could not be returned to him- if he continued to live with his adult children, he continued to do so. Indeed, he testified that his sons have lived-with him most of their lives and that he would continue to allow them to do so, because they were not going anywhere. He also believed the child would benefit being around her brothers. He testified he needs to have his sons live with -him in order to be able to afford the housing he had at the time of-the hearing; in fact, the case worker- testified that one son, and possibly the daughter-in-law, were signatories- -to the lease. Troublingly, the father, though he claimed to be close , to his sons, was unaware of .the details or circumstances that led to their being the subject of open DCFS cases. His testimony was contradictory in that, while he claimed he would not live with the sons if the child were returned to him, he also testified that they were not going anywhere and he needed their income to enable him to live in that home. As to the sporadic nature .of his housing, the father testified he had lent someone some money that he did not get back, affecting, his ability to obtain housing. He also testified that it took him a lqng time to obtain full social security benefits for himself, another reason for the inability to obtain housing, and that he hoped to get $402 per month more if C.F. were to come back to live with him. Finally,, he testified | ^that he hoped to return to live with C.F. in the Reserve area, where she had connections with family, friends, school, and church, but he conceded there was no real prospect for doing so in the immediate future, acknowledging it could be several years before he could do so.

La. Ch. Code -art. 1036(D)(3) sets forth what may serve as evidence of a lack of reasonable expectation of significant improvement in the parent’s conduct in the near future,--, namely “Any, other condition or conduct that reasonably, indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon.expert opinion or based upon an established pattern of behavior.” Here, there is no reasonable expectation that the father will be able in the near future to provide adequate support for his child or to provide suitable, safe, and stable housing, given the child’s age and her need for a safe, stable, and permanent home. Accordingly, we find the district court manifestly erred in finding either that there was substantial compliance by the father with his case plan or, to the extent it considered the matter, that there was any reasonable chance for improvement in the near future.

We further find the district court erred in finding that termination was not in the best interest of C.F. Under La. Ch. Code art. 1001, the purpose of a termination of parental rights proceeding is to protect children whose parents are unwilling or unable to provide safety and care adequate to meet their physical, emotional, and mental health needs. In all' proceedings, the primary concern is to secure the best interest of the child if a ground justifying termination of parental rights is proved. Termination of parental rights is to be considered the first step toward permanent placement of the child in a safe and suitable home, and if possible, to achieve the child’s adoption.

| iñThe interests of the parent must be balanced against the child’s interest, but the child’s interest is paramount. State ex rel. J.A., 752 So.2d at 811. More than simply protecting parental rights, our judicial system must protect the child’s right to thrive and survive. State in Interest of S.M., 719 So.2d at 452. A child has an interest in the termination of rights that prevent adoption and inhibit' the child’s establishment of secure, stable, long term, continuous family relationships. Id. While the interest of a parent is protected in a termination proceeding by enforcing procedural rules enacted to insure that the parental rights are not thoughtlessly severed, those interests must ultimately yield to the paramount interest of the child. Id. Children have a right to live in a safe, secure environment and to be reared by someone who is capable of caring for them. State ex rel. J.M., 837 So.2d at 1247.

In our view, the district court focused on the lack of any allegations of abuse by the father and fairness to the father, rather than the best interest of the child. The record evidences the district court was clearly wrong in finding that termination of the father’s parental rights was not in the best interest of C.F. C.F.’s caregiver is committed to adopting her, and the caseworker testified it would be in the best interest of the child to be' freed, for adoption. The child has indicated consistently to the caseworker that she wants to live with the current caretaker and be adopted by her, but has never expressed any desire to live with her father. The father conceded that his daughter is in a safe place and is being well cared for. Although she has experienced some recent behavioral issues, the child is undergoing treatment for trauma over the loss of her mother and for depression] Although the father suggests this depression may be due to loss of his presence in her life,..there was no testimony that C.F.’s behavioral issues were due to her father’s absence. ,

The district court noted that it may decline to terminate parental- rights in-an exceptional case,- even after proof of a ground ■ for termination. However,, we do not 117find the record supports a finding that this case is exceptional. The child is happy in her foster placement, does not want to be placed in another home, and wants to be adopted. As the district court •acknowledged, by leaving the child' with the current caretaker, the child is in a home where all of her needs are met and whose caretaker is. desirous of adopting her. That the child might need additional counseling for the loss of her mother does not support a finding that it is in the child’s best interest to not free her for adoption, especially where she is in an adoptive home and does not want to leave. The child’s attachment to her current caretaker is a specific consideration in determining the best interests of the child. La. Ch. Code art. 1037(B).

Finally, as we explained earlier, there is no support in this record that the father will be able to provide a safe and stable home for the child in the immediate future. After twenty-seven months of reasonable efforts and services from the state, the record does not support a finding that the father has made substantial improvement in rectifying the problems preventing reunification. Where there is no reasonable expectation of reuniting the child with her parent, allowing the child to remain in foster care indefinitely, as the district court essentially does here, runs afoul of the state and federal mandates to further the best interests of the child. State ex rel. J.M., 02-2089, p. 9 (La. 1/28/03), 837 So.2d 1247, 1257. While adults can take years to improve their functioning, children are not granted the same amount of time, and them lives are significantly disrupted while the parents are attempting to deal with their own problems. State in the Interest of M.P., 538 So.2d 1112 (La. App. 4th Cir. 1989). Accordingly, for these reasons, we find the district court was clearly wrong in determining that termination of the father’s parental rights and freeing the child for adoption was not in the best interest of C.F.

^CONCLUSION

For the reasons set forth above, we find DCFS met its burden of proving abandonment pursuant to La. Ch. Code art. 1015(4) by clear and convincing evidence. We also find DCFS proved by clear and convincing evidence that the father failed to comply with the case plan pursuant to La. Ch. Code art. 1015(5), and that there was no reasonable expectation of significant improvement in the father’s condition or conduct in the near future, considering C.F.’s age and her need for a safe, stable, and permanent home. The district court manifestly erred in finding otherwise. We further find the record clearly established that it was in C,F.’s best interest to terminate the father’s parental rights, and to allow the child to be free for adoption. The district court was clearly wrong in concluding otherwise. Accordingly, we reverse the district court’s judgment and grant DCFS’s petition to terminate the father’s parental rights.

REVERSED

JOHNSON, Chief Justice,

additionally concurs and assigns reasons.

11While I agree in full with the majority opinion, I write separately to emphasize that both the federal government and the State of Louisiana do not intend for children to remain in foster care permanently, and the safety of children is paramount in making decisions about custody. See Adoption and Safe Families Act of 1997, 42 U.S.C.A. § 601, et seq.-, La. Ch. C. art. 601. Pursuant to the Adoption and Safe Families Act of 1997, states are mandated to establish “permanency plans” for children within the foster care system. The Act provides that such plans must demonstrate, inter alia, that the State make reasonable efforts to “preserve and reunify” the family. If such measures fail, the State is mandated to make reasonable efforts to place a child for adoption or with a legal guardian. See State ex rel. J.M., 02-2089 (La. 1/28/03), 837 So.2d 1247, 1256. This court has recognized that “[although our primary goal is to reunite the family, termination is appropriate to free the child for adoption if reunification is not possible. ‘Forcing children to remain in foster care indefinitely, when there is no hope of reuniting them with their families, runs afoul of the state and federal mandates to further the best interests of the child.’ ” Id. at 1256-57. In this case, C.F. has remained in foster care for more than three years. She is placed in a home where all of her needs are being met. She is placed with caregivers who want to adopt her and she wants to be adopted by them.

|2I agree with the majority that considering the best interests of the child requires this court to terminate C.F. Jr.’s parental rights. While I recognize this father made some efforts toward his case plan goals, those efforts were not sufficient to regain custody of his daughter. The fact remains that there has been no improvement in the father’s situation, and the conditions that led to C.F.’s removal persist. Most notable in my view is his failure to provide safe and suitable housing at any point during this case. While the physical condition of the housing he obtained in June of 2016 may be adequate for him, the father’s two sons and his daughter-in-law also live in the home, all of whom have open foster care cases or have had their parental rights terminated. This court certainly cannot return custody to the father while he lives in a home with his sons, whose own children cannot safely live with them.

The purpose of a termination of parental rights proceeding is to “protect children whose parents are unwilling or unable to provide safety and care adequate to meet their physical, emotional, and mental health needs, by providing a judicial process for the termination of all parental rights and responsibilities and for the certification of the child for adoption.” La. Ch. Code art. 1001. In this case, we do not question the father’s love for C.F. We recognize a bond exists between them and that C.F. Jr. desires a continued relationship with his daughter. However, the overriding concern must be the best interests of C.F. The record does not establish that the father’s circumstances have materially changed to demonstrate that it would now be in the best interests of C.F. for the father to retain his parental rights. This court cannot ignore the fact that the father has demonstrated an inability to care for his daughter. “Children have the right to live in a safe, secure environment and to be reared by someone who is capable of caring for them.” State ex rel. J.M., 837 So.2d at 1256. In this case, despite his efforts, I find the father is incapable of meeting the needs of his daughter and his parental rights must be terminated.

HUGHES, J.,

dissents with reasons.

11 Respectfully, I would defer to the judgment of the trial judge, who is in the best position to evaluate these difficult cases.

      . La. Ch. Code art, 1015(4), as written in 2015, provided as follows:
      4) Abándonment of the child by placing ' him in the physical custody of a nonparent, or the department or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
      ⅜ ' ⅜( # }¡i ⅜4

        (b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months;

      . La. Ch. Code art. 1015(5), as written in 2015, provided:
      Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child's age and his need for a safe, stable and permanent home.