author: GARRETT, J.

text:
    TOWN OF STERLINGTON, Robert Holtzclaw, Lucia Holtzclaw, and Jerod Cross, Plaintiffs-Appellants v. EAST OUACHITA RECREATION DISTRICT NO. 1, Defendant-Appellee
    No. 51,480-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 27, 2017

      C. BRYAN RACER, A.P.L.C., By: C. Bryan Racer, Counsel for Appellants
    STEPHEN TEW, Interim District Attorney, JAY B. MITCHELL, Assistant District Attorney, Counsel for Appellee
    Before BROWN, PITMAN, and GARRETT, JJ.
   GARRETT, J.

| iThis matter is before us as an expedited appeal, pursuant to La. R.S. 13:5128. The plaintiffs, Town of Sterlington and Lucia Holtzclaw, appeal from a trial court judgment denying their challenge to the proposed expenditure of ad valorem tax proceeds by the East Ouachita Recreational District No. 1 (“EORD”) to secure bonds and their request for an injunction prohibiting the issuance of the proposed bonds. For the reasons outlined below, we affirm the trial court judgment.

FACTS

On April 18, 1977, the Ouachita Parish Police Jury (“OPPJ”) created the EORD for the purpose of owning and operating playgrounds and other facilities and generally to engage in activities which would promote recreation and any related activity designed to encourage recreation and promote the general health and well-being of youths. Pursuant to those purposes, the EORD opened three recreational facilities, namely, Swartz-Lakeshore (“Swartz”), Osterland and Sterlington. The EORD derives its funding primarily from a property tax of 7.48 mills and the revenue it generates through the programs conducted at the facilities.

Ad Valorem Tax Renewal

On November 17, 2014, the OPPJ adopted a resolution approving a request by the EORD to hold a special election seeking voter approval for a special property tax (“ad valorem tax”) renewal proposition. The adlavalorem tax was to cover a purpose of constructing, improving, maintaining, operating and equipping the recreational facilities of the District.” The voters approved the tax on March 28, 2015. period of 10 years (2016-2025), for the

The EORD then moved forward with plans to upgrade the facilities, determining to upgrade one facility at a time. Osterland was the facility chosen for the initial upgrades due to its central location and the fact that it would cause the least disruption to game schedules during construction.

On September 26, 2016, the EORD adopted a resolution authorizing the issuance of limited tax bonds (“Bonds”), not to exceed $5,000,000,00, for the purpose of “constructing, improving and equipping recreational facilities of the Issuer within its jurisdiction,” payable from the ad valorem tax. Notice of the EORD’s actions was published in a local weekly newspaper on September 29, 2016. On October 3, 2016, the OPPJ adopted a resolution approving the issuance of the bonds.

Tourism Grant

On July 10, 2016, the EORD submitted an application for a capital improvement grant for both the Swartz and Osterland facilities with the Monroe-West Monroe Convention and Visitors Bureau (“CVB”), whose stated mission is “to attract conventions and tourists to the area.” The CVB 1 ¡¡offers grants for the purpose of developing the tourism industry in Ouachita Parish. The CVB is funded by hotel occupancy taxes, and grant applicants are required to demonstrate how the capital improvement “will be marketed to increase hotel occupancy.”

Within their application, the EORD indicated a hotel occupancy of “1000+ ” and stated that the completion of the project “will attract additional state, regional, and national tournaments to the community.” The EORD further stated that the project would “give us a much larger footprint in the sports tourism industry and draw thousands of new visitors each year.”

The following statements were also made by the EORD:

Last year we partnered with West Monroe Baseball and the Convention and Visitors Bureau to co-host a Dixie Boys State Tournament and a Girls World Series Tournament. These events drew thousands of visitors, with the girl’s [sic] tournament accounting for over 1,500 hotel nights during the tournament. The economic benefit for our community was tremendous.
The facility upgrades we are proposing would make the Ouachita Sports Complex the premier sports facility for our region. This premier facility will allow the East Ouachita Recreation District and the Convention and Visitors Bureau the opportunity to pursue large scale tournaments, thus making a huge economic impact on our community. These state-of-the-art facilities will also have a positive impact on the quality .of life for our local residents, as the complex has the ability to host a variety of sports events and activities throughout the year. Accordingly, within a few short years, the creation of the Ouachita Sports Complex will generate enough tourism dollars to more than offset the Convention and Visitor’s [sic] Bureau Investment. The economic impact of future tournaments will be substantial. A single large tournament will generate at least $500,000.00 for Northeast Louisiana.

The EORD requested the sum of $6,758,725.00, but was awarded a $1,000,000.00 grant on July 25, 2016, “to Complete 8 full 200 ft. Fields.” 14The Town of Sterlington also applied for a capital improvement grant of $350,000.00, for a new sports complex, but was denied.

On October 25, 2016, the Town of Ster-lington (“Sterlington”), along with Robert Holtzclaw, Lucia Holtzclaw and Jerod Cross (“Plaintiffs”), as taxpayers and residents of Ouachita Parish and parents of youths who participated in sports, filed this suit against the EORD challenging the validity of the bonds and, alternatively, seeking declaratory judgment and injunc-tive relief. Plaintiffs alleged that, pursuant to “public pronouncements,” the EORD intended to invest the bond proceeds in construction at the Osterland location for “the growth [of] sports tourism and youth travel baseball and softball events” (“travel ball”) and “the economic benefits of bringing participants from outside of the District.” Plaintiffs contended that sports tourism and economic growth were outside the purpose of the recreational district and that the dedicated tax was not intended to fund sports tourism. Plaintiffs alleged that, insofar as the bond proposition attempted to change the dedicated purpose of the tax, it was invalid.

Trial of this matter came before the court on an expedited basis on November 21 and 22, 2016, pursuant to La. Const. Art. 6, § 35, and La. R.S. 13:5125, et seq., pertaining to suits to determine the validity of governmental bonds.

| ^Evidence was presented on a variety of issues, including the usage of the facilities, the difference between “recreational ball” and “travel ball,” the 2015 tax renewal approval, the grant agreement with the local tourist bureau, the improvement and expansion plans, the 2016 bond resolution, a similar grant situation involving the CVB and the University of Louisiana at Monroe (“ULM”), and the plaintiffs’ rationale for instituting this litigation. Testimony was given by six witnesses: Scott Bruscato, an employee of the CVB who coached both recreational and travel ball and had played at all three facilities; Alana Cooper, the president/CEO of the CVB; Lucia Holtzclaw, a plaintiff; Jerry Edmondson, the vice-chairman of the CVB Board and chairman of the personnel committee; Vern Breland, the mayor of Sterlington; and Gene Crain, the executive director of the EORD. Numerous exhibits were introduced into evidence.

After hearing all of the testimony and considering the documentary evidence, the trial court issued astute and extensive written reasons for judgment and a signed judgment, rejecting the plaintiffs’ claims. The trial court made numerous uncontested findings of fact, the most relevant of which are quoted below:

• EORD encompasses all of Wards 1 and 2 of Ouachita Parish and those parts of Ward 10 outside the City of Monroe. EORD owns and operates three recreational facilities—Swartz, Osterland, and Sterlington—and provides various programs at these facilities, such as baseball, softball, basketball, and fitness programs.
• Even though the District’s two Dixie Youth franchises for baseball and softball are based at Swartz and Sterling-ton, the current fields at Osterland are used for a “wee ball” league, regular league games, games and tournaments involving the two Dixie Youth franchises, other Dixie Youth tournaments, the local middle school baseball league, other “travel ball” tournaments, and practices for various EORD league teams. In fact, Mr. Gene Crain, EORD’s Executive Director, ^testified that baseball and/or softball activities take place at Oster-land on a daily basis in season. Aso, two of Petitioners’ witnesses acknowledged having attended baseball or softball activities at Osterland.
• “Travel ball” involves teams organized by parents, coaches, and others specifically to play in local, regional, and even national tournaments sponsored by various organizations and are not affiliated with a recreation district. In contrast to recreational league baseball and softball, travel ball teams are not open to all youth but are comprised of selected players. Travel ball is played year-round, and tournaments are typically held on weekends (i.e. Friday, Saturday, and Sunday).
• Conversely, recreational league baseball and softball are open to all and are operated by the recreation district. Recreation league baseball/softball season usually lasts about three months, and its games are normally played on Monday, Tuesday, Thursday, and Friday.
• On March 28, 2015, the voters residing within EORD’s geographic boundaries voted to renew the property tax millage that supports the District. The stated purpose for the tax was “constructing, improving, maintaining, operating and equipping the recreational facilities of the District.”
• Upon securing a ten-year renewal of the tax, EORD moved forward with plans for needed improvements of its baseball and softball facilities. The Board determined that the cost of the desired upgrades would limit it to renovating only one facility at a time and decided to begin with Osterland due to its central location and ready accessibility to all District residents. It would also cause the least disruption to game schedules during construction.
• In addition, EORD decided to pursue a grant from the Monroe-West Monroe Convention and Visitors Bureau (CVB) as an additional source of funding.
• The CVB had retained a consultant, the Huddle Up Group or HUG, to make recommendations regarding the CVB’s efforts to develop so-called sports tourism in Ouachita Parish. HUG identified the intramural baseball/softball facilities at the University of Louisiana at Monroe as the best facility for hosting youth baseball/softball tournaments and identified Oster-land as an excellent overflow site due to its proximity to ULM.
b* Thus, EORD’s grant application to the CVB used language and terminology found in the HUG study in order to make EORD’s application more attractive and enhance the chances of receiving a grant.
• The CVB awarded EORD a $1 million grant to be used for capital improvements at Osterland.
• As a condition of this funding, EORD will be required to make Osterland available to host eight to twelve tournaments per year. These tournaments would be played almost exclusively on weekends, usually after EORD’s league season ends, and would rarely conflict with recreational league activities, At all other times, the upgraded facilities would be available for local leagues.
• By rule at least one EORD “host team” will play in every Dixie Youth tournament hosted at Osterland. It is also possible other EORD teams will qualify for a spot in such Dixie Youth tournaments. Additionally, because so many EORD players and coaches also participate in non-Dixie “travel ball” on weekends, it is likely that one or more teams with players and/or coaches from EORD will play in non-Dixie “travel ball” tournaments hosted at Osterland. It would be rare for a tournament played at Osterland not to include players, coaches, or spectators from EORD.
• EORD has not imposed a residency requirement for participation in the baseball and softball tournaments held at Osterland or its other facilities in the past, and it does not impose a residency requirement for participation in other activities at its recreation centers.

In its written opinion, the court determined that the “clear and unambiguous language” of the EORD’s tax proposition permits the EORD to construct and improve its recreational facilities and that the proposed improvements did not exceed what was authorized by the tax. The court further stated:

With these rules in mind, the Court finds La. R.S. 33:4563 in no way limits EORD to those actions which would only benefit residents of the District. Rather, EORD is directed to encourage recreation and promote the health and [well-being] of youths—not just those who happen to reside within EORD’s geographic boundaries who may participate in EORD supervised activities. The proposed improvements to the facilities at Osterland are clearly within EORD’s statutory ^authority. The Court notes there is no language in the statute which limits the benefits of EORD’s facilities to only youths living in the District. All agreed the improvements will benefit the youth living in the District as well as those beyond its boundaries. Any additional benefits in terms of sports tourism and economic development that may result are lagniappe. EORD’s actions are not ultra vires.

This appeal followed.

Law

Once citizens vote for a tax dedicated to one purpose, the tax cannot be used for a purpose other than that approved by the citizens. Any alteration of a prior dedication should also be by vote of the people. The act of presenting a proposition to the voters and the voters’ acceptance of same constitutes a covenant which should be respected and upheld. City of New Orleans v. Louisiana Assessors’ Ret. & Relief Fundi 2005-2548 (La. 10/1/07), 986 So.2d 1; Denham, Springs Econ. Dev. Dist. v. All Taxpayers, Property Owners, 2004-1674 (La. 2/4/05), 894 So.2d 325. The Louisiana Constitution (Art. 6, § 26) respects and upholds this most basic proposition and prohibits the diversion of taxes dedicated to a specific purpose to purposes other than those specified. City of New Orleans v. Louisiana Assessors’ Ret. & Relief Fund, supra.

La. Const. Art. 6, § 26 (B) provides for parish ad valorem taxes in relevant part as follows:

(B) Millage Increase Not for General Purposes. When the millage increase is for other than general purposes, the proposition shall state the specific purpose or purposes for which the tax is to be levied and the length of time the tax is to remain in effect. All proceeds of the tax shall be used solely for the purpose or purposes set forth in the proposition.

The Louisiana Supreme Court has consistently interpreted this article of the constitution to prohibit the use of dedicated and special taxes for | ^purposes other than those for which they were levied. City of New Orleans v. Louisiana Assessors’ Ret. & Relief Fund, supra. The starting point in the interpretation of constitutional provisions is the language of the constitution itself. East Baton Rouge Parish Sch. Bd. v. Foster, 2002-2799 (La. 6/6/03), 851 So.2d 985; City of New Roads v. Pointe Coupee Parish Police Jury, 2014-0179 (La.App. 1 Cir. 4/24/15), 167 So.3d 1038, writ denied, 2015-1023 (La. 9/11/15), 176 So.3d 1041.

It is a familiar principle that laws authorizing taxation or, in other words, authorizing a debt to be created against the taxpayer, or his property to be taken, without his consent, are in derogation of common rights, and therefore are to be strictly construed. Hemler v. Richland Parish Sch. Bd., 142 La. 133, 76 So. 585 (1917); Police Jury of Parish of Acadia v. All Taxpayers, 95-145 (La.App, 3 Cir. 3/29/95), 653 So.2d 94, unit denied, 95-1069 (La. 6/30/95), 657 So.2d 1032.

La. R.S. 18:1284 addresses the calling of an election for a special tax as follows:

A. The election shall be ordered by a resolution of the governing authority of the political subdivision which shall state the purpose for which it is called.
⅜ ⅜ ⅜
C. If the purpose of the election is to authorize the levy or increase of a special tax, the resolution and the proposition submitted to the voters shall state the rate, object, and purpose for which the tax is to be levied or increased; the estimated amount reasonably expected to be collected from the levy or increase of the tax for one entire year at the time it is proposed; and, if it is to be limited as to duration, the number of years it is to run. If the purpose of the election is to authorize an increase of a tax, the resolution and the proposition shall also state the rate increase. The contents of any proposition or resolution relative to the issuance of general obligation bonds shall be as provided in Subsection B of this Section.

|inLa. R.S. 39:704 discusses the use of proceeds of a special tax as follows:

The proceeds of any special tax shall constitute a trust fund to be used exclusively for the objects and purposes for which the tax was levied. The records of the taxing authority shall clearly reflect the objects and purposes for which the proceeds of the tax are used.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9; La. R.S. 1:4; Denham Springs Econ. Dev. Dist., supra.

Discussion

Plaintiffs raise two issues in brief. They first argue that the trial court erred in finding that the tax dedication purpose for the “constructing, improving, maintaining, operating and equipping the recreational facilities of the District” permitted the EORD to expend the tax proceeds for sports tourism, including travel ball. Plaintiffs also argue that the tax proposition did not authorize the EORD to expend tax revenue to provide services to individuals outside of the district.

After our comprehensive review of the evidence, we discern no error in the trial court’s well-reasoned ruling. It is undisputed that the designated purpose for both the ad valorem tax and bond resolution was the constructing, improving, maintaining, operating and equipping of the recreational facilities of the EORD. The evidence also established that the EORD will use the bond proceeds for the construction and improvement of the Ost-erland facility. Such improvements will benefit the residents of the district, as well as expand the events the facility already hosts, including both recreational and travel ball. The testimony established that the travel lnball games will not interfere with the recreational ball events or the EORD’s other use of the facilities. Contrary to plaintiffs’ argument, travel ball, as a form of baseball and softball, is still recreational. And like all forms of recreation, travel ball and the tournaments it creates bring in increased numbers of people to the locations where the events take place. The testimony also established that better facilities bring in more people. Thus, the natural progression of expanding and improving the facilities will be increased activity and the number of people those events bring. The utilization of the facilities will be maximized by all of these events.

The evidence shows that for travel ball, and any other form of baseball and softball, tourism is an ancillary benefit or “lagniappe,” as aptly noted by the trial court. This reality, however, does not change the foundational characteristic of travel ball as a recreational activity. The fact that the EORD maximized the advantages available to it regarding the tourism aspect of travel ball and had the foresight to apply for tourism funds should not preclude it from utilizing the tax proceeds for the improvement of the recreational facilities in keeping with their stated purpose. A contrary holding, taken to its logical extreme, would prevent the tax proceeds from being used for any purpose because, as the testimony established, any improvements in the facilities, even for the limited purpose of local events, such as the Dixie Youth Tournament, would foster tourism.

Likewise, because the Osteiiand facility is a public use facility and the tax designation in no way limits the use of the funds to prevent such public use, we find no merit to plaintiffs’ second argument that the tax dedication limits use of these facilities to only members of the EORD. The public nature of the facilities dictates otherwise. The testimony established that 112recreational events like Dixie Youth and World Series Tournaments are already being hosted at the Osterland location. These tournaments, like those in travel ball, bring in large numbers of people from outside the district. To prevent such use of these facilities by the general public, inside and outside of the district, would be inconsistent with the already-sanctioned use of the facilities, violate the public use nature of the facilities, and inject into the tax dedication a limitation which was not included within the designation.

For these reasons, we find no merit to plaintiffs’ contentions and agree with the well-reasoned opinion of the trial court. We affirm the judgment rendered below. Costs of this appeal are assessed to plaintiffs in the amount of $324.50.

AFFIRMED.

      . Although an alderman of Sterlington, Holtzclaw appears in her individual capacity,

      . The OPPJ was authorized to create recreational districts within its parish under La. R.S. 33:4562. The object and purposes of the recreation districts are set forth in La. R.S. 33:4563.

      . The ballot indicated that this tax was "a renewal of an existing tax presently authorized through 2015,” that was reasonably expected to generate $1,554,144.00 in its first year.

      . These bonds were issued in accordance with La. R.S. 39:1430, which authorizes public entities to issue revenue bonds for any authorized purpose.

      . La. Const. Art. 6, § 35 requires at least one publication of the resolution authorizing the issuance of bonds in the official journal of the political subdivision or, if there is none, in a newspaper having general circulation therein. Any person in interest may contest the legality of the resolution for 30 days after the date of the publication.

      .The CVB hired Huddle Up Group ("HUG”) to make recommendations regarding the development of sports tourism in Ouachita Parish. To that end, on November 17, 2015, HUG presented a "Sports Tourism Strategic Planning Project Executive Summary.”

      . The EORD also requested the sum of $7,200,000.00 for the Swartz Recreation Center and established that it had $3,600,000.00 on hand dedicated to the project.

      . Sterlington was planning to build a sports complex and had sufficient funds to match the $350,000.00 requested.

      . Upon their failure to appear in prosecuting the case, Robert Holtzclaw and Jerod Cross were involuntarily dismissed from the suit. The EORD also withdrew exceptions of no right of action and no cause of action prior to trial.

      .Certain issues raised by Plaintiffs—equal protection, whether the EORD exceeded the scope of its statutory authority, and the EORD's alleged failure to properly publish the tax election results—are not before this court on appeal.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellant v. Daryl Martise NELSON, Appellee
    No. 51,009-KW
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 1, 2017

      ROBERT S. TEW, District Attorney, Counsel for Appellant
    ELLEN R. EADE, Assistant District Attorney, KEVIN H. JOHNSON, Counsel for Appellee
    Before WILLIAMS, LOLLEY and CARAWAY (Ad Hoc), JJ.
   WILLIAMS, J.

liThe defendant, Daryl Nelson, was charged by bill of information with possession of marijuana with intent to distribute, possession of cocaine with intent to distribute, and possession of a firearm by a convicted felon. The district court granted the defendant’s pretrial motion to suppress evidence seized from his vehicle. The state sought supervisory review of the trial court’s ruling and this court granted the writ to the appellate docket as to the suppression of evidence seized from defendant’s vehicle. For the following reasons, we recall the writ, deny the state’s application in part and affirm the suppression of the evidence.

FACTS

The record shows that on the morning of July 22, 2015, a confidential informant advised Officer Scotty Sadler, of the Monroe Police Department Metro Narcotics Unit, that defendant was in possession of a large amount of narcotics. After participating in a previous drug investigation, Officer Sadler was familiar with defendant and his residence at 117 Selman Drive. The informant reported that, on the previous night, defendant had displayed more than 4 ounces of crack cocaine and more than 2 pounds of marijuana while attempting to make a sale and that the narcotics remained in defendant’s home. The informant also provided a description of the vehicle driven by defendant and the name of the other drug dealer to whom the drugs were offered for sale the night before. Based on this information, Officer Sadler submitted to the district court an affidavit in support of a search warrant stating that the house at 117 Selman was identified as defendant’s residence and had been used to facilitate drug sales.

| aAfter obtaining the search warrant, Officer Sadler went to the residence accompanied by Officer Kris Fulmer to conduct surveillance in preparation for the execution of the warrant. Officer Heckard, another member of the Monroe Police Department Metro Narcotics Unit, set up surveillance behind the residence. Shortly after their arrival, the officers observed a vehicle matching the description provided by the informant pull into the driveway of 117 Selman. The vehicle remained at the house for a few minutes, then left. As the car passed Officers Sadler and Fulmer, they recognized the driver as defendant with an unidentified passenger in the vehicle. The officers contacted DEA Agents Zordan and Cowan, who were nearby in a vehicle with lights and a siren, to stop defendant. Agent Zordan had previously participated in the execution of a search warrant at defendant’s residence that resulted in his arrest on a narcotics charge. Officer Sadler wanted to make the stop far enough away from the residence so that no other possible target would be alerted to the police presence and impending search. The defendant’s vehicle was stopped approximately one mile from the residence.

After defendant exited his vehicle, he was detained by Officer Sadler and advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Officer Fulmer moved defendant’s vehicle from the roadway. The officers detained defendant at the location of the traffic stop for approximately five to ten minutes to allow the SWAT team time to secure the house. Defendant was driven to the residence by Agent Zordan and Officer Fulmer drove defendant’s vehicle to the house. While in defendant’s car, Officer Fulmer observed a bag on the front floorboard and |stouched it with his hand. Defendant had not consented to Officer Ful-mer’s operation of his vehicle.

Officer Sadler later testified at the preliminary exam that after returning to the house he again advised defendant of his Miranda rights, requested permission to search his vehicle and that defendant consented to the search. During the search, a bag of marijuana and a handgun were found in defendant’s vehicle. As a result of the residence search, police seized marijuana, cocaine, digital scales, Pyrex dishes used to cook crack cocaine, and approximately $10,000 in cash. Following the search of his residence, defendant was taken to the Metro Narcotics Unit office, was advised of his Miranda rights and made a statement to officers. Defendant was then arrested and charged with possession of marijuana with intent to distribute, possession of cocaine with intent to distribute, and possession of a firearm by a convicted felon.

Prior to trial, defendant filed numerous motions, including a motion to suppress evidence seeking the exclusion of any statements made to officers and all property seized from his vehicle and residence. Defendant argued in part that he had not given free and voluntary consent to the search of his vehicle, and that all evidence seized as a result of that search should be suppressed. He also moved for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), on the ground that the search warrant affidavit included an intentional false statement. The state opposed the defendant’s motions, alleging that he had voluntarily consented to the search of his vehicle after being advised of his Miranda rights and that he failed to show an intentional false statement was made.

14At the hearing on the motion to suppress, defense counsel argued that at the time defendant’s vehicle was stopped, he was improperly detained by officers and his vehicle was not mentioned in the search warrant. The defense stated that at the time of the alleged consent to the vehicle search there were approximately 19 to 28 armed officers present. Defendant testified that while he was being detained, he merely told the officers that they had already been in his vehicle when he was asked for permission to conduct a search.

Officer Sadler testified that at the house, he advised defendant of his Miranda rights and requested permission to search his vehicle. Sadler stated that defendant was nonchalant and commented that it did not matter what he said because the officers would get a warrant and search the vehicle anyway. Another state witness, Agent Co-wan, testified that he witnessed Officer Sadler advise defendant of his rights, heard Officer Sadler request permission to search the vehicle, and heard defendant’s consent to the search. Agent Zordan testified that he did not recall Officer Sadler’s recitation of rights, but that he heard Officer Sadler’s request to search the vehicle and defendant’s consent. All three officers testified that defendant was calm and relaxed throughout their contact with him.

After the hearing on the motion to suppress, the district court rendered an oral decision finding that the search warrant was legally sufficient and that all evidence seized from the residence was admissible, that the initial stop of defendant’s vehicle was valid and that the defendant’s statements to police following the searches of his house and car were admissible. However, based upon the “totality of the circumstances,” the district court determined that defendant had not voluntarily given consent to the search of | Khis vehicle and as a result all evidence seized from the ear must be suppressed. The court also granted defendant’s request for a Franks hearing.

The state then filed a writ application seeking review of the trial court’s decision excluding evidence from the vehicle and granting a Franks hearing. This court granted the writ, ordering that the issue of suppression of evidence seized from the defendant’s vehicle be docketed for appeal and reversing the trial court’s approval of a Franks hearing. State v. Nelson, 51,009 (La. App. 2d Cir. 7/1/16).

DISCUSSION

The state contends the police validly detained defendant at the time of the traffic stop. The state argues that the detention of defendant was permissible because he was a target of the search warrant for his house and police had reasonable suspicion to make the traffic stop.

The right of each individual to be secure in his person, house, papers and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Art. I, Sec. 6 of the Louisiana Constitution. Under the Fourth and Fourteenth Amendments, a search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception allows police officers executing a search warrant to detain the occupants of the premises while a proper search is conducted. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Because police conducting a search have authority to detain absent a particular suspicion that a person is involved in criminal activity, a spatial constraint defined by the immediate vicinity of the premises to be searched is required Infer detentions incident to the execution of a search warrant. Bailey v. United States, 568 U.S. 186, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013).

The factual situation in Bailey, supra, is very similar to that of the present case. In Bailey, officers conducting surveillance of an apartment in preparation for a search saw two men leave the building, get in a car and drive away. The officers stopped the vehicle approximately one mile away. They found keys during a pat-down search of Bailey. Both men were handcuffed and driven in a patrol car to the apartment, in which the search team had found illicit drugs. The men were arrested and police discovered that the key found on Bailey unlocked the door of the apartment. Bailey filed a motion to suppress the key and statements that he made to officers at the stop. The trial court found that the stop was justified as a detention incident to the execution of a search warrant under Summers. In the alternative, the couit found that the detention was supported by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In Bailey, the U.S. Supreme Court found that the Fourth Amendment exception for detention incident to the execution of a search warrant is limited to the immediate vicinity of the search premises and did not apply where Bailey was detained at a point beyond any reasonable understanding of the immediate vicinity of the premises. The court stated that because detention is justified by the interests in executing a safe and efficient search, the decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place. The court noted that if officers elect to defer the detention until later, the lawfulness of the detention is controlled by other standards, including'a brief stop for questioning under Terry or an arrest based on probable cause.

17Pursuant to Bailey, we find that the police officers in this case did not have authority to stop defendant based upon the search warrant because they failed to detain him within the immediate vicinity of the premises to be searched. Nor was the detention justified under Terry. Even if, as the state contends, there was reasonable suspicion to stop defendant’s car based on what the officers had seen at the house, after the stop any such suspicion did not develop into probable cause and defendant was not arrested. Instead of being questioned, defendant was frisked, handcuffed and placed in a police vehicle. Thus, the circumstances show that defendant was not stopped for questioning under Terry, but was immediately detained for the return to his residence. As acknowledged by Officer Sadler, defendant was told he was being detained because there was a “search warrant at his house and that we needed to go back to his house while the search was being conducted.” Consequently, the record supports a finding that the evidence removed from defendant’s vehicle was derived from an unreasonable seizure of his person and must be suppressed. The state’s argument lacks merit.

Even if a detention is unreasonable, a valid consent to search cures any Fourth Amendment violation that may have occurred. United States v. Kelley, 981 F.2d 1464 (5th Cir. 1993). Thus, although we have found that defendant’s detention was illegal, we must also review the issue of consent.

The state contends the district court erred in granting defendant’s motion to suppress the evidence seized from his vehicle. The state argues that this evidence should not be excluded because defendant, while being detained, voluntarily consented to the search of his vehicle with full knowledge of his right to refuse the request.

RAs previously stated, the United States and Louisiana Constitutions prohibit unreasonable searches and seizures and a warrant based on probable cause is normally required for a valid search. Another exception to the warrant requirement is a search conducted pursuant to validly given consent by a person possessing authority to consent. Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Raheem, 464 So.2d 293 (La. 1985). Valid consent must be (1) free and voluntary, in circumstances that indicate the consent was not the product of coercion, threat, promise, pressure or duress that would negate the voluntariness; and (2) given by someone with apparent authority to grant consent, such that the police officer reasonably believes the person has the authority to grant consent to search. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

The question of whether consent to a search was “voluntary” or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. Schneckloth, supra; State v. Sera, 43,704 (La.App. 2d Cir. 10/29/08), 997 So.2d 707. Oral consent to search is sufficient and written consent is not required. State v. Shed, 36,321 (La.App. 2d Cir. 9/18/02), 828 So.2d 124, writ denied, 2002-3123 (La. 12/19/03), 861 So.2d 561. The state has the burden of proving that the consent was freely and voluntarily given. Schneckloth, supra. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge to prove effective consent. Schneckloth, supra.

|9A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. LSA-C.Cr.P. art. 703(A). A trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent abuse of that discretion. State v. Thompson, 2011-0915 (La. 5/8/12), 93 So.3d 553; State v. Lee, 2005-2098 (La. 1/16/08), 976 So.2d 109, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008). When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference and may not overturn those findings unless there is no evidence to support those findings. Thompson, supra; State v. Wells, 2008-2262 (La. 7/6/10), 45 So.3d 577. If evidence was derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Benjamin, 97-3065 (La. 12/1/98), 722 So.2d 988.

This court has previously considered the issue of whether an accused’s consent to a search was validly given. In State v. Kendrick, 35,233 (La.App. 2d Cir. 12/5/01), 804 So.2d 719, writ denied, 2002-0562 (La. 11/1/02), 828 So.2d 563, a vehicle was stopped for a traffic violation by police. After learning that the vehicle was an overdue rental, the officers requested consent to search the vehicle. The investigating officer testified that the driver “looked at [the vehicle], she looked at the consent list, she looked at me and she said, just go ahead and look.” In contrast, the driver testified that the officer informed her that she “had the right to either sign [the consent form] or he could search anyway.” She then told the officer to go ahead. In its consideration of the motion to suppress, the trial court was [ inable to see, hear and evaluate the credibility of the officers and the driver. Faced with conflicting testimony on whether the driver verbally consented to the search, the trial court made a credibility determination in favor of the officers. This court affirmed the finding that the statements of the driver constituted voluntary consent to search the vehicle.

In Sera, supra, the accused was a passenger in a truck that was stopped by officers on the highway. The driver was asked to consent to a search of the vehicle after being informed of his right to refuse the search and his right to suspend the search at any point. The driver consented to the search and cocaine was found in the truck. This court affirmed the trial court’s denial of the motion to suppress based upon the officer’s testimony that the driver understood his rights and gave consent to the search.

In the present case, defendant’s vehicle was stopped because of the search warrant issued for his residence. Officer Sadler testified that, when consent was requested, defendant “just kind of shrugged it off. It was like go ahead, I don’t caret.]” The defendant denied consenting to the search and testified that when asked for consent he responded that “he was already in [the] car,” because one of the officers drove his vehicle back to the residence from the location of the stop. Agents Cowan and Zordan testified that defendant consented to the search and did not object to having the vehicle searched. Officer Sadler stated that he did not inform defendant of his right to refuse consent to search because “any reasonable person would understand” that he could say no.

Agent Cowan testified that he did not see an officer apply any type of physical or verbal pressure toward defendant when requesting consent to search his vehicle. However, defendant asserted that he was concerned for [nhis wife at the time of the search and believed that she might be arrested. Defendant testified that at the time consent to search his vehicle was requested, he was in handcuffs, had been driven back to his residence by officers, advised of his Miranda rights, and that there were approximately 20 armed officers present. He stated that, while the officers did not have them weapons pointed at him, the weapons were not holstered.

Although the state argues that defendant’s calm demeanor and failure to object to the search were evidence of his consent, his demeanor, while part of the circumstances to be considered, does not, in and of itself, prove that he freely and voluntarily consented to the search of his vehicle. In the cases of Kendrick and Sera, the trial court made a credibility determination in deciding a motion to suppress. The district court has wide discretion in assessing credibility and a reviewing court should not disturb the trial court’s ruling on a motion to suppress absent abuse of that discretion. Thompson, supra,

Although the officers in this case testified that defendant verbally consented to the search, Officer Sadler stated that when asked for consent, defendant “made the comment, he was like, it don’t matter what I say[.]” The defendant asserted that he did not give explicit consent to the search of his car. The trial court considered the circumstances of the detention and evaluated the credibility of the witnesses in making the determination that defendant did not give free and voluntary consent to the search. Based upon the conflicting testimony and the factual situation shown in this record, we cannot say the district court abused its discretion in granting defendant’s motion to suppress the evidence seized as a result of the search of his vehicle. The state’s argument lacks merit.

I ipThe state’s brief raises three issues, search incident to arrest, the vehicle exception to the warrant requirement, and inevitable discovery, as alternative bases for the warrantless search of defendant’an car. U.R.C.A. Rule 1-3 provides that an appellate court “will review only issues which were submitted to the trial court.” These issues were not submitted to the trial court and are not reviewable on appeal. Even if considered by this court, none of the issues would provide justification for the search of the defendant’s vehicle.

Once a police officer makes a lawful custodial arrest of a vehicle’s occupant, the Fourth Amendment allows the officer to search the vehicle’s passenger compartment as a contemporaneous incident of arrest, even when an officer does not make contact until the person arrested has already left the vehicle. Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009); Thornton v. U.S., 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004). In this case, the state admitted that, at the time of the stop and his detention, defendant was not under arrest. Further, defendant was not arrested until after the search of the residence and car, so the search of his vehicle could not have been incident to his arrest.

Another exception permits the warrantless search of a vehicle based upon the vehicle’s mobility, an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear, even if a warrant is not actually obtained. Thus, if a vehicle is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits police to search the vehicle without more. Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996). Here, unlike the cases of Labron and Dyson, there was no showing that police saw defendant place drugs in the car or had received information that drugs were being transported in the vehicle. Thus, the state did not demonstrate probable cause to believe that the car contained contraband as a basis for a warrantless search.

The doctrine of inevitable discovery provides that, if the evidence sought to be excluded would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered. Lee, supra. The State bears the burden of proving by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means. Lee, supra; State v. Vigne, 2001-2940 (La. 6/21/02), 820 So.2d 533. Citing State v. Brumfield, 560 So.2d 534 (La. App. 1st Cir. 1990), the state argues that, had no consent been given, defendant’s vehicle would have been secured as evidence of a crime, inventoried, and the illegal items inevitably found. In Brumfield, because the vehicle could not be legally driven away and its ownership was not ascertainable at the time defendant was taken into custody, the police had the right to impound the vehicle and inventory its contents. Here, however, the record indicates that if not for the improper detention of defendant based on the search warrant for the house, then the vehicle would not have been present on the premises or available for impoundment by police. Thus, the state failed to show that the items inevitably would have been discovered by other lawful means.

This court granted the state’s writ application to review the district court’s ruling granting in part the defendant’s motion to suppress evidence, After reviewing the record and the applicable law, we cannot say the district 114court erred in granting the defendant’s motion to suppress evidence seized from his vehicle. Consequently, the assignment of error lacks meiit.

CONCLUSION

For the foregoing reasons, the writ is recalled, the state’s application is denied in part and the district court’s ruling granting the defendant’s motion to suppress evidence seized from his vehicle is affirmed.

AFFIRMED.


author: PITMAN, J.

text:
    STATE of Louisiana, Plaintiff-Appellee IN the INTEREST OF N.B., I.B. and P.B.
    No. 51,374-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 15, 2017

      HUDSON, POTTS & BERNSTEIN, L.L.P., By: Jan P. Christiansen, Counsel for Appellant, Clarissa H. Hammond
    STEPHEN TEW, Interim District Attorney, JOHNNY L. SANDERS, II, Assistant District Attorney, KEESHA M. BOR-DELON, Counsel for Appellee, State of Louisiana, the Dept, of Children and Family Services
    LEGAL SERVICES OF NORTH LOUISIANA, By: James E. Patton, II, Danka Angele Benjamin, Counsel for Appellees, N.B., I.B. and P.B.
    VaRHONDA EUGENIA BURRELL, Counsel for Russell Flowers
    NICHOLAS BRISTER, Pro Se
    Before MOORE, LOLLEY & PITMAN, JJ.
   PITMAN, J.

I,Clarissa Hector Hammond appeals the judgment of the juvenile court which ruled that the goal of the case plan, regarding three of her children who had been removed from her care, should be permanently changed from reunification to a primary goal of adoption. For the following reasons, we affirm.

FACTS

On June 3, 2015, the Department of Children and Family Services (“DCFS”) received a report of a fatality involving a five-year-old female, hereafter, B.B. Her mother, Appellant, reported to law enforcement that her child had fallen from a tree into the Ouachita River and that she had been unable to retrieve the child. When authorities arrived and took the child to the hospital, neither the child nor her mother was wet. Russell Flowers, the man with whom Appellant lived, and the father of Appellant’s youngest child, P.B., was performing cardiopulmonary resuscitation (“CPR”) on B.B. CPR was continued by EMS until they reached the hospital, but B.B. was never revived. Authorities who questioned Appellant and Flowers at the family home concluded that the facts, as conveyed by the parties, were inconsistent with the evidence.

B.B.’s autopsy revealed that she did not drown, but, instead, had died from blunt force trauma to the head and lower extremities, which appeared to have been inflicted by a belt. Flowers was charged with second degree murder of B.B. Subsequently, Appellant was also charged with second degree murder of her child. The charges against both are still pending.

| ^Appellant is the mother of three other children, N.B., age seven; I.B., age five; and P.B., age two. Her former husband, Nicholas Brister, is the father of N.B. and I.B. and also the father of B.B,

On July 6, 2015, Ashlee Green of the DCFS filed an affidavit in support of an instanter order which stated that the State had received a report of alleged neglect/lack of adequate supervision, death by abuse and bruises concerning B.B. and the allegation of lack of supervision of N.B., I.B. and P.B. The surviving three children had bruises and otherwise showed signs of abuse and neglect. The affiant stated that there was good cause to remove the children from the custody of the parent/caretaker pending the completion of the investigation and the filing of reports to the district attorney. The instanter order was issued, and the three children were placed in the temporary custody of DCFS.

A Court Appointed Special Advocate (“CASA”) was appointed to represent the children. At a hearing to continue custody with the DCFS, Flowers stipulated to custody being maintained without admitting to the allegations against him, as did Appellant and Nicholas Brister. The court found that remaining in DCFS custody was in the best interests of the children, and they were eventually adjudicated as children in need of care.

The three children were originally placed in separate foster homes; however, according to the record, two of the children are now placed together in one home. The primary goal of their case plans was reunification, with a secondary goal of adoption. DCFS prepared a case plan for Appellant, which included domains for parenting, housing, income, mental health, substance abuse, visitation and domestic violence, and she began complying with the plan.

| ^Approximately a year after the children were placed in foster care, DCFS issued a recommendation that a change be made in the goal of the case plan from reunification to adoption. A report was written by DCFS to the trial court on June 1, 2016, and by the CASA on June 3, 2016, in anticipation of a permanency hearing, which was held on July 14, 2016.

At the permanency hearing, Yernata Delmore, a case worker for DCFS, reviewed Appellant’s case plan and stated that, as to housing, Appellant had moved several times while the case was pending. After leaving Flowers’ home, she lived with her parents and then moved to another house in West Monroe as a roommate with Tammy Jo Hammond.

In November 2015, Appellant married Lindsay Hammond, who is the daughter of her former roommate Tammy Hammond. She did not reveal her marriage to the DCFS prior to her family team meeting on December 9, 2015. She and her wife moved to a three-bedroom, two-bath home that is located in a quiet neighborhood. The home has adequate food and utilities. Ms. Del-more testified that Appellant’s housing history caused the agency concern because it appears she is unstable and moves frequently. Also, her new wife has a drug history.

Ms. Delmore further testified that Appellant had undergone a psychological assessment with Dr. James Pinkston, who stated he could find no evidence of psychological impairment or maladaptive personality trait sufficient to preclude her from parenting her three young children. In November 2015, Appellant began treatment with Dr. Beatrice Tatum to address grief and loss issues associated with the death of her daughter, as well as the loss she experienced due to the removal of her surviving children from her care. She also began parenting and domestic violence treatment 14with Dr. Tatum, which is ongoing. Dr. Tatum has informed the DCFS that Appellant is cooperating with the case plan and is still undergoing counseling. She is making progress, but has not completed the program. Appellant has agreed to random drug screens, and each screen has been negative.

Ms. Delmore also testified that the DCFS amended Appellant’s case plan to include her new wife and stated that it was concerned with the wife’s extensive criminal history, which includes numerous drug charges, simple battery, issuing worthless checks, simple criminal damage to property, theft and probation violations. The wife was referred to parenting classes and agreed to drug screens, all of which have been negative. The DCFS also received documentation showing that the wife had completed substance abuse outpatient counseling at New Day Recovery. Her mental health assessment showed that she did not need services at that time. Ms. Delmore stated that Appellant’s wife is financially stable, pays the rent on the home and earns sufficient money to support Appellant and her children

When questioned about the children and whether they were thriving in their foster homes, Ms. Delmore testified that, after the initial placement of the children in three separate homes, N.B. was eventually placed in the same foster home as P.B., and them foster parent has indicated that she would like to adopt them. LB.’s foster parents have also indicated that they would be willing to adopt her should she became available for adoption. Ms. Del-more stated that the children were flourishing in their foster homes, that the foster families were in touch with each other so that the children were able to spend time with their siblings and that “this is about the greatest case as far as placement and matching.”

|BWhen asked about the paramount obstacle preventing reunification and in favor of adoption as a permanent plan, Ms. Del-more responded that the criminal charge of second degree murder against Appellant was still pending and her life appeared to be unstable. She also expressed concern about Appellant’s wife’s extensive criminal history. She stated that she was uncertain if Appellant had informed Dr. Pinkston, who had performed the mental health evaluation, that she had prescriptions for Klo-nopin, Trazodone and Cymbalta. She also discussed with the court a medical report for Appellant’s hospitalization in April 2016 that showed she was also taking OxyCon-tin.

The juvenile court ruled that the permanent case plan should be changed from reunification to a primary goal of adoption. It. noted that the CASA report, dated June 3,2016, is detailed and that it corroborated Ms. Delmore’s testimony concerning how well the children were doing in their current placement. It stated that the focus of the hearing was to determine the most appropriate permanent plan for the children, considering their health and safety to be paramount. It also stated that, “This is .not about what the parents want.... It is all about the children and what is in their best interest.” While it recognized Appellant’s participation and cooperation in her case plan, it noted the one thing she had not done was to resolve the criminal charge against her of second degree murder. It also stated that that “one thing” is a major thing and the reason the children came into care.

The juvenile court further stated that it needed to see significant measurable progress, but Appellant’s life “is still pretty chaotic.” She has gone from one relationship to another and has not been in a stable relationship for more than six months. She is still working on issues with |J>r. Tatum and there is no timetable for when that program will be completed. Significant issues related to her mental health, domestic violence and parenting still remain, and she is now married to someone with a history of substance abuse. It also stated that questions remain regarding Appellant’s medical history and use of medications and, particularly, whether OxyContin was prescribed for her.

The juvenile court also found that the DCFS’s evidence was overwhelming and that the children were flourishing in their foster homes in a way they were not at the time they came into custody. For those reasons, it found that the permanent plan most appropriate for them is the goal of adoption.

Appellant filed this appeal, claiming that she has substantially completed her case plan and that it is manifestly erroneous for the juvenile court to change the plan’s goal from reunification to adoption.

DISCUSSION

Appellant argues that La. Ch. C. art. 702 requires the trial court to determine the permanent plan for the child that is the most appropriate and in the best interest of the child. The only two options are reunification with the parent and adoption. In order for reunification to remain the permanent plan, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care. A reasonable expectation of reformation is found to exist if the parent has cooperated with the state officials and has shown improvement, although not all of the problems that exist have been eliminated.

[ 7Appellant argues that she has done everything the DCFS has asked of her. She reiterates all the progress she has made and claims to have a stable home with a stable spouse and notes that Dr. Pinkston found she was capable of parenting her children. She asserts that Dr. Tatum was also positive and opined that she was progressing in that treatment. She also argues that there was no evidence to show that she had tried to hide any drug use from any of her treating physicians. She contends that her wife should not be considered a negative factor since she also was complying with the case plan prepared for her by the DCFS.

Appellant challenges the juvenile court’s ruling on the basis that the sole issue for consideration was that the criminal charge of second degree murder is still pending. She contends that she will be acquitted of that charge and that it was error for the juvenile court to have changed the plan goal from reunification to adoption without allowing her the time necessary to resolve this issue. Because she has completed the majority of the case plan, she claims she has made significant measurable progress toward achieving its goals. Therefore, she argues, the juvenile court’s judgment is in error and should be reversed.

The DCFS argues that the issue in these cases is always the best interest of the child and the standard for making that determination is found in La. Ch. C. art. 702, which states that the child’s health and safety will be the paramount concern in the determination of a permanent plan. More than simply protecting parental rights, the judicial system is required to protect the child’s rights to thrive and survive.

The DCFS also argues that, in a manifest error review, it is important that the appellate court not substitute its own opinion when it is the juvenile |scourt that is in the unique position to see and hear the witnesses as they testify. If the juvenile court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even if it is convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently.

The DCFS further argues that the juvenile court had realistic concerns with the progress Appellant had made in the year since her child’s death and the fact that the charge of second degree murder against her is still pending. For these reasons, it argues that the juvenile court’s judgment should be affirmed.

La. Ch. C. art. 702 concerns permanency hearings and states in pertinent part as follows:

B. The court shall conduct a permanency hearing within nine months after the disposition hearing if the child was removed prior to disposition or within twelve months if the child was removed at disposition, but in no case more than twelve months after the removal. Permanency reviews shall continue to be held at least once every twelve months thereafter until the child is permanently placed or earlier upon motion of a party for good cause shown or on the court’s own motion.
C. The court shall determine the permanent plan for the child that is most appropriate and in the best interest of the child in accordance with the following priorities of placement:
(1) Return the child to the legal custody of the parents within a specified time period consistent with the child’s age and need for a safe and permanent home. In order for reunification to remain as the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care.
(2) Adoption.
|flE. Except as otherwise provided in Article 672.1, the court shall determine whether the department has made reasonable efforts to reunify the parent and child or to finalize the child’s placement in an alternative safe and permanent home in accordance with the child’s permanent plan. The child’s health and safety will be the paramount concern in the court’s determination of the permanent plan.

The juvenile court is required to determine the permanent plan for the child that is most appropriate and in the best interest of the child. La. Ch. C. art. 702(C). Two placement priorities include reunification, or the return of the child to the legal custody of the parents within a specified time period consistent with the child’s age and need for a safe and permanent home, and adoption. In order for reunification to remain the permanent plan for the child, the parent must be complying with the ease plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care. La. Ch. C. art. 702(C)(1); State in Interest of P.B., 49,668 (La.App. 2 Cir. 12/17/14), 154 So.3d 806. The child’s health and safety is the paramount concern in the court’s determination. La. Ch. C. art. 702(E); State in Interest of P.B., supra. More than simply protecting parental rights, our judicial system is required to protect the children’s rights to thrive and survive. State in the Interest of S.M., 98-0922 (La. 10/20/98), 719 So.2d 445.

To reverse a juvenile court’s permanency plan determination, an appellate court must find from the record that the juvenile court’s finding is clearly wrong or manifestly erroneous. State in Interest of P.B., supra; State, ex rel. H.M. v. T.M., 44,446 (La.App. 2 Cir. 5/6/09), 12 So.3d 409; State ex rel. S.D. v. D.M.D.B., 36,406 (La.App. 2 Cir. 8/14/02), 823 So.2d 1113; State ex rel. J.B. v. J.B., Jr., 35,846 (La. App. 2 Cir. 2/27/02), 811 So.2d 179.

In State in Interest of P.F., 50,931 (La. App. 2 Cir. 6/22/16), 197 So.3d 745, this court stated as follows:

In a manifest error review, it is important that the appellate court not substitute its own opinion when it is the juvenile court that is in the unique position to see and hear the witnesses as they testify. [State in the Interest of N.C., 50,446 (La.App. 2 Cir. 11/18/15), 184 So.3d 760)]; [State ex rel. L.M.,] 46,078 (La.App. 2 Cir. 1/26/11), 57 So.3d 518. Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the juvenile court. Id. If the juvenile court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Although we concede that Appellant has made some progress in the case plan con-fected for her by the DCFS, we find no manifest error in the ruling of the juvenile court in changing the goal of the case plan from reunification to adoption. The best interest of the children is the paramount consideration; and, as the juvenile court indicated, the parent’s desires are not the court’s main concern.

Ms. Delmore’s testimony affirmed that the DCFS was still concerned about Appellant’s unstable life since she had moved several times after the death of her child. After leaving Flowers, who is also charged with the second degree murder of her child, she married another person who had an extensive criminal history. Although her wife appears to be financially stable and can, according to Ms. Delmore, afford to support Appellant and her children, her criminal history remains a concern in the issue of the children’s safety.

| ^Although Appellant has been attending counseling with Dr. Tatum, the doctor has informed the DCFS that she has not completed her case plan and that she still needs work in the areas of grief counseling, parenting and domestic violence counseling. Dr. Tatum has recommended family counseling “in the future,” but did not specify when in the future that counseling would be advisable. The children must also be ready for family counseling; as of the time of the hearing, they were not.

Of most importance, Appellant still has a second degree murder charge pending against her. Despite her claim that she is certain she will be acquitted, that remains to be seen. In the meanwhile, her children have been in foster care since July 2015, and they are thriving in that situation. In fact, both the foster mother of N.B. and P.B., and the foster parents of I.B., have indicated that they would like to adopt the children if that becomes a possibility. Ms. Delmore informed the juvenile court that she has never been more satisfied with child placements than in this case and that all of the children’s needs are being met.

Considering the children’s health and safety as the paramount concerns in its determination of the permanent plan, the juvenile court found it was in the best interest of the children to change the goal of the plan from reunification to adoption. Based on the foregoing facts, we find no manifest error in that judgment.

CONCLUSION

For the reasons stated herein, we affirm the decision of the juvenile court in favor of the Department of Children and Family Services, and against Clarissa H. Hammond, changing the permanent case plan goal in this |12matter from reunification with the parents to adoption. Costs in this court are assessed to Clarissa H. Hammond.

AFFIRM.


author: MOORE, J.

text:
    Shirley Ann MARZELL, Jacqueline R. Marzell, and Monique P. Marzell, Plaintiffs-Appellants v. CHARLYN ENTERPRISES, LLC, d/b/a Charlyn Rehabilitation & Nursing Center and The Hanover American Insurance Company, Defendants-Appellees
    No. 51,209-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 15, 2017

      OFFICE OF ANTHONY J. BRUSCA-TO By: Anthony J. Bruseato, RAYMOND LEE CANNON, LLC By: Raymond L. Cannon, Counsel for Appellants
    YOUNG, RICHAUD & MEYERS LLC By: Robert J. Young, III, LAW OFFICES OF ROBERT D. FORD By: Robert D. Ford Counsel for Appellees
    Before MOORE, STONE and COX, JJ.
   MOORE, J.

| ¶ Shirley Ann Marzell and her two daughters, Jacqueline and Monique, appeal a summary judgment that dismissed their claims against American Safety & Indemnity Company (“ASIC”), a long-term care facilities and general liability insurer, based on the automobile exclusion in ASIC’s policy covering Charlyn Enterprises LLC, d/b/a Charlyn Rehabilitation and Nursing Center, in Tallulah. We affirm.

Factual and Procedural Background

Ms. Marzell was a resident of Charlyn. According to the pleadings, she required a lot of attention, as she was obese, diabetic, on dialysis and confined to a wheelchair. On July 19, 2010, Charlyn personnel intended to drive her to the dialysis center. They rolled her wheelchair out to a lift van, placed the wheelchair on the lift platform and started to raise her into the van. However, something went wrong, and the wheelchair rolled off the lift platform, dropping Ms. Marzell to the ground. The back of her head struck the pavement, causing serious injuries.

Ms. Marzell and her daughters filed this suit against Charlyn and its auto liability carrier, Hanover, in June 2011. They alleged that Charlyn’s employees failed to properly maintain and secure the van lift and the wheelchair; the daughters alleged loss of consortium. They also alleged that they were concurrently filing a request for a medical review panel (“MRP”) against Charlyn.

Charlyn urged an exception of prematurity, as it was a qualified healthcare professional and entitled to the process of the MRP; nevertheless, discovery continued.

| Jn August 2013, the Marzells amended their petition to add ASIC, Charlyn’s long-term care facilities and general liability carrier.

Shortly after this, the Marzells settled with Hanover, the auto liability carrier. According to ASIC, Hanover paid a settlement of $750,000, of which the plaintiffs placed $365,000 in a special needs trust for Ms, Marzell. The Marzells then dismissed Hanover, specifically reserving their rights against Charlyn and ASIC.

The MRP rendered its opinion in July 2014, finding that Charlyn did not deviate from the standard of care in its handling of Ms. Marzell. The Marzells amended their petition again, this time to dispute the MRP decision and reiterate that Charlyn employees failed to use an appropriate wheelchair to load her into the van.

Motion for Summary Judgment

ASIC raised two defenses: the plaintiffs failed to notify them of the claim during the “claims made” period, and the automobile exclusion applied to the claim. In February 2016, it filed the instant motion for summary judgment, urging only the automobile exclusion, which provided:

SECTION IV. EXCLUSIONS
G. * * * This insurance does not apply to any “claim” or “suit” arising out of or related to:
⅜ ‡ ‡
(bb) Aircraft. Automobile, or Watercraft
“bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “automobile” or watercraft owned or operated by or rented or loaned to'any “Insured”. Use includes operation and “loading or unloading”.

Elsewhere, “loading or unloading” is defined as “the handling of property: * * * while it is. being moved from an ‘automobile’ to the place where it is finally delivered, but ‘loading or unloading’ does not include the [^movement of property by means .of a mechanical device * * * that is not attached to the * * * ‘automobile.’”

ASIC showed that in their supplemental and amending petition, the Marzells alleged the “placement of the wheelchair in the van was not an unexpected or unnatural use of the vehicle” and thus essentially conceded “the use of the van was a critical component of the incident giving rise to” Ms. Marzell’s injuries. In support, ASIC attached copies of the original and amending petitions, a copy of its “Long Term Care Facilities Liability (Claims Made and Reported) Policy” and of Hanover’s “Business Auto” policy.

The Marzells opposed the motion, offering no summary judgment evidence to refine or amplify the allegations of their petition. Instead, they argued that the accident occurred because of many acts of negligence (failure to comply with policy and procedure in moving a patient in a wheelchair outside the facility,' failure to have two employees assist in loading Ms. Marzell into the van, leaving her unattended, using an improper wheelchair for a patient her size, etc.), in addition to the use of the automobile. They contended that even though use of the van was excluded from coverage, these other acts of negligence or malpractice were covered, making summary judgment improper.

The court heard arguments in March 2016 and rendered a 20-page written opinion granting ASIC’s motion for summary judgment. After setting out the facts of the accident, procedural history, policy provisions and plaintiffs’ allegations, the court applied the “substantial factor” and “flow from the use” test laid out in Carter v. City Parish Gov’t of E. Baton Rouge, 423 So.2d 1080 (La. 1982), and Edwards v. Horstman, 96-1403 (La. 2/26/97), 687 So.2d 1007. The court noted Second Circuit cases that applied Carter and Ediuards to claims of negligent supervision or entrustment to absolve a homeowners’ or GCL carrier, Otwell v. State Farm, 40,142 (La. App. 2 Cir. 10/26/05), 914 So.2d 100; Oaks v. Dupuy, 26,729 (La.App. 2 Cir. 4/5/95), 653 So.2d 165, writ denied, 95-1145 (La. 6/16/95), 655 So.2d 335. The court concluded that loading or unloading a patient into the van was a “common and essential element in each theory of liability” and thus constituted “use” of the automobile. Finding the exclusion applied, the court rendered judgment dismissing ASIC.

Legal Principles

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002; Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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 B(2). Appellate courts review motions for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Peironnet v. Matador Res. Co., 2012-2292 (La. 6/28/13), 144 So.3d 791; Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La. 1991).

|fiThe interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved on motion for summary judgment. Bernard v. Ellis, 2011-2377 (La. 7/2/12), 111 So.3d 995; Cutsinger v. Redfern, 2008-2607 (La. 5/22/09), 12 So.3d 945. Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and enforce reasonable conditions on the policy obligations they contractually assume. Id. A court should grant the motion for summary judgment only when the facts are taken into account and it is clear that the provisions of the insurance policy do not afford coverage. Id.; Reynolds v. Select Props. Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180. The applicability of a policy exclusion may be resolved by summary judgment. Bonin v. Westport Ins. Corp., 2005-0886 (La. 5/17/06), 930 So.2d 906; Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04), 870 So.2d 1002; Pritchard v. Shelter Ins. Co., 42,832 (La.App. 2 Cir. 2/27/08), 978 So.2d 502, unit, denied, 2008-0694 (La. 6/6/08), 983 So.2d 917.

In order for conduct to constitute “use” of an automobile, that conduct must be essential to the defendant’s liability and the specific duty breached by the insured must flow from use of the automobile. Edwards v. Horstman, supra; Otwell v. State Farm, supra; Mahlum v. Baker, 25,876 (La. App. 2 Cir. 6/24/94), 639 So.2d 820.

Discussion

By them sole assignment of error, the Marzells urge the district court erred in finding the automobile use exclusion of ASIC’s policy applicable to exclude coverage for Ms. Marzell’s injury. They contend the injury resulted from two separate and unrelated acts of negligence: selecting an improper | ¿wheelchair for a patient of Ms. Marzell’s weight, and operating the lift without a second employee present to secure the wheelchair. The first act, they submit, had absolutely nothing to do with the use of an automobile: “If the lift van had been a mile away and Ms. Marzell had been sitting on the sidewalk when she turned to wave, the wheelchair still would have tipped over backwards.”

They do not contend that the policy is ambiguous. Instead, they urge a strict reading of the exclusion (“Use includes operation and ‘loading or unloading’.”) and the definition of “loading or unloading” (“means the handling of property”). They argue that by negative implication, “use of an automobile” does not include loading and unloading persons, so loading Ms. Marzell into the van could not be the kind of “loading or unloading” contemplated by the exclusion.

While they concede the formulation of Edwards v. Horstman, supra, they argue that if liability arises from two sources, “a non-auto related incident as well as an auto related occurrence,” then the mere fact that one source is excluded under a policy does not render the coverage ineffective if the other source of liability is included, citing Johns v. State Farm, 349 So.2d 481 (La. App. 3 Cir. 1977). They contend that selecting the wrong kind of wheelchair was the true source of the accident and unrelated to the use of the van, like selecting the wrong kind of strap to tie down lumber that fell out of a truck and was not excluded from a CGL policy in Young v. E & L Lumber Co., 392 So.2d 136 (La. App. 1 Cir. 1980), or selecting a fragile rope to pull down a tree was not excluded from an auto policy in Vogt v. Hotard, 144 So.2d 714 (La. App. 4 Cir. 1962). The exclusion cannot apply when use of the vehicle “was only incidental to the theory of liability alleged by the plaintiff,” Fleniken v. Entergy Corp., 1999-3023 (La.App. 1 Cir. 2/16/01), 790 So.2d 64, units denied, 2001-1269, -1295 (La. 6/15/01), 793 So.2d 1250, 1252.

Finally, they contend insurance policies should be read to extend coverage rather than deny it. The ASIC policy, they argue, is clearly intended to cover medical malpractice, and Louisiana’s Medical Malpractice Act specifically includes “loading and unloading a patient,” La. R.S. 40:1229 A(3). They feel that to apply the automobile exclusion in this case would negate the malpractice coverage.

In ruling on the motion for summary judgment, the court must take into account the facts as they apply to the policy exclusion. The Marzells’ original petition (against Charlyn and its auto liability carrier) alleged liability for “failing to properly maintain and secure the van lift and wheelchair.” The amended petition, which added ASIC as a defendant, alleged that the Charlyn employee left her on the elevated lift, walked to the side of the van, opened the sliding door, got in, and went to the rear of the van to pull the wheelchair in; at this point, Ms. Marzell turned to wave to someone, but her weight shifted causing her to fall backwards off the lift. On these facts, the only possible conclusion is that the accident flowed from getting Ms. Marzell into the lift van, a normal use of the automobile. While the Marzells have theorized that the accident could have happened a mile away from the van, they introduced no summary judgment evidence to show that the wheelchair was defective or inappropriate for Ms. Marzell, or that anything other than the use of the lift van caused this fall. This record | ^supports the conclusion that the accident arose out of the use of the automobile.

The policy defines “use,” in part, as “loading or unloading,” and defines “loading or unloading” as the “handling of property,” which might suggest that getting a person into an automobile would not be “loading or unloading.” However, the full definition of “use” is “operation and ‘loading or unloading,’ ” and getting in and out of a car is an inevitable and integral part of operating it. Moreover, “use” is a broad, catchall term designed to include “all uses of the vehicle not falling within the terms ‘ownership’ or ‘maintenance,’ and involves simply employment for the purposes of the user.” Bernard v. Ellis, supra. We do not adopt the Marzells’ creative, yet strained, reading of the policy.

For the same reasons, we are unpersuaded by the rope cases, which have often been found outside the automobile use exclusion, such as Vogt v. Hotard, supra, Jones v. State Farm, supra, Young v. E & L Lumber, supra, and Patterson v. Stephenson’s Tree Serv. LLC, 47,702 (La.App. 2 Cir. 2/27/13), 110 So.3d 614, rev’d on other grounds, 2013-0684 (La. 5/24/13), 126 So.3d 1271. Tying down a load or pulling down a tree may not be integral to the use of an automobile; getting oneself in or out of the vehicle surely is.

Finally, we recognize the Marzells’ appeal to the purpose of insurance and the rule of broad construction in favor of coverage. However, their effort to recast ASIC’s policy as one for “malpractice” is not correct; the policy is for long-term care facilities and general liability. While there is overlap, it is not entirely a malpractice policy. The Marzells have made an eloquent case for malpractice, including negligent performance of loading or [ 9unloading a patient, La. R.S. 40:1299 A(3), and for Charlyn’s primary liability. This is not, however, the issue before us. The question is whether the conduct was excluded from the coverage of ASIC’s policy. The conduct fits the automobile use exclusion, and we are aware of no case holding the exclusion is contrary to statute or public policy. We therefore find that there is no genuine issue of material fact and that ASIC is entitled to judgment as a matter of law.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by Jacqueline R. Marzell and Monique P. Marzell.

AFFIRMED.

      . ASIC also alleged that Ms. Marzell passed away in May 2015, but her daughters have not amended their petition to add a survival action.

      . In fact, the only specific information was an incident report filed by Charlyn and Hanover as an attachment to their exception of prematurity. In this, Ms. Marzell’s attendant, Ms. Manuel, wrote, “the lifter flap had fell [sic] down.”