author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Ronald Keith SUMLER, Appellant
    No. 52,160-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018
    LOUISIANA APPELLATE PROJECT By: Edward K. Bauman, Lake Charles, Counsel for Appellant
    ROBERT S. TEW, District Attorney, C. DOUGLAS WALKER, Assistant District Attorney, Counsel for Appellee
    Before MOORE, COX, and STEPHENS, JJ.
   MOORE, J.

Ronald Keith Sumler appeals as excessive his sentence of six years at hard labor after his guilty plea to simple arson. His attorney has filed an Anders brief and motion to withdraw, alleging that he could find no nonfrivolous issues to raise on appeal. For the reasons expressed, we grant the motion to withdraw and affirm Sumler's conviction and sentence.

On March 22, 2016, the 48-year-old Sumler called his 25-year-old ex-boyfriend to say he was going to burn down his (the boyfriend's) apartment, where the two of them had been living together until recently. When the boyfriend arrived at the eight-unit apartment building on Northeast Drive, his unit was indeed in flames. Neighbors had seen Sumler ride away on a bicycle, and one of them detained him at a nearby gas station until police arrived. Sumler waived his Miranda rights and admitted to Monroe Police Department Officer Vanburen that he entered the apartment through a window, put gasoline on the couch, and set the place on fire because of issues he was having with the ex-boyfriend. According to the police report, several people in the apartment building had to be treated for smoke inhalation, and according to the presentence investigation report (PSI), seven of the eight units sustained smoke damages totaling $120,000.

Sumler was charged with aggravated arson, La. R.S. 14:51, and simple burglary of an inhabited dwelling, La. R.S. 14:62.2, arising from the fire at the Northeast Drive apartment, and with aggravated criminal damage to property, La. R.S. 14:55, arising from an incident in January in which he rammed his car into the same ex-boyfriend's prior apartment, on Selman Drive, causing $30,000 in damages.

At a hearing in May 2017, the state announced it had reached a plea agreement with Sumler: he would plead guilty to the responsive charge of simple arson, with damages exceeding $500, La. R.S. 14:52 B, and no agreement as to sentence. In exchange, the state would drop the other two charges and file no habitual offender bill. The court advised Sumler of his rights under Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ; he waived them and gave a factual statement admitting all elements of the offense. He offered that his love affair with the victim "went bad" and he had been "drinking all day" before setting the fire that night. The court accepted his guilty plea.

At sentencing, in November 2017, the court reviewed Sumler's PSI report: he was a fourth-felony offender with two priors for simple possession of cocaine (but not for distribution) and various misdemeanors. Defense counsel admitted that Sumler had a drug problem for a time, but has been clean since 2013. The court sentenced Sumler to six years at hard labor, and imposed no fine.

Defense counsel filed a motion to reconsider sentence, which the trial court denied, and a motion for appeal, which the court granted, assigning the case to the Louisiana Appellate Project.

Counsel from the Louisiana Appellate Project has filed an Anders brief and motion to withdraw, advising that after a conscientious and thorough review of the trial record he could find no nonfrivolous issues to raise on appeal. Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ; State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 ; State v. Benjamin , 573 So. 2d 528 (La. App. 4 Cir. 1990). The brief outlines the procedural history of the case and Sumler's plea agreement; it also gives a "detailed and reviewable assessment" of whether the appeal is worth pursuing in the first place, State v. Jyles , supra . Counsel submits that the bill of information did not specify which grade of simple arson was charged, but the higher grade was clearly stated at the Boykin hearing (for damage that exceeds $500, a sentence of not less than two nor more than 15 years at hard labor and a fine of not more than $15,000), La. R.S. 14:52 B. Thus he concedes any deficiency in the bill of information was harmless, State v. Fuller , 48,663 (La. App. 2 Cir. 12/11/13), 130 So.3d 960. Counsel also verified that he mailed copies of his brief and motion to Sumler, in accordance with Anders , Jyles , and Benjamin , supra . This court extended Sumler's pro se briefing deadline; he filed no brief.

The state has filed a brief agreeing that there are no nonfrivolous issues to raise on appeal.

This court has reviewed the entire record and finds no rulings or issues on which to base an appeal. The record shows full compliance with Boykin and with La. C. Cr. P. art. 556.1, and a factual basis for the plea. Moreover, the midrange sentence is not constitutionally excessive; Sumler was a fourth-felony offender who benefited significantly from the dismissal of two charges and the waiver of the habitual offender bill. The six-year sentence does not shock the sense of justice and is not grossly disproportionate to the seriousness of the offense.

We note that the trial court did not impose the mandatory fine of not more than $15,000, making the sentence illegally lenient. Because the state has not requested modification and Sumler is not prejudiced, this court will not remand for resentencing. State v. Fuller , supra ; State v. Jack , 51,428 (La. App. 2 Cir. 6/21/17), 224 So.3d 492, writ denied , 2017-1281 (La. 4/27/18), 239 So.3d 838.

For the reasons expressed, counsel's motion to withdraw is granted, and Sumler's conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.

      La. R.S. 14:52 B was subsequently amended to remove the two-year minimum sentence. 2017 La. Acts No. 281, § 1, effective August 1, 2017.


source: Caselaw Access Project

author: McCALLUM, J.

license: Public Domain

text:
    Diedra EMERSON, Plaintiff-Appellant v. WILLIS KNIGHTON MEDICAL CENTER, Defendant-Appellee
    No. 52,216-WCA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018 Rehearing Denied November 8, 2018
    DIEDRA EMERSON, Appellant In Proper Person
    LUNN, IRION, SALLEY, CARLISLE & GARDNER, By: Walter S. Salley, Counsel for Appellee
    Before COX, STEPHENS, and McCALLUM, JJ.
   McCALLUM, J.

In this Worker's Compensation case, the pro se appellant is Diedre Emerson ("Emerson" or the "plaintiff"), a former certified nurse assistant ("CNA") employed by Willis Knighton Health System ("Willis Knighton"). Emerson filed a Disputed Claim for Compensation describing her injury as follows: "Mental, Distress - Hyperventilation - Stroke like symptoms." The alleged injury occurred on October 1, 2016. After trial on the merits, the Worker's Compensation Judge ("WCJ") denied compensation on the grounds that Emerson failed to carry her burden of proof. For the reasons stated herein, we affirm.

FACTS

The parties stipulated that Emerson was an employee of Willis Knighton at the time of the alleged injury. Initially, she was a full-time employee, but later changed to part-time work to facilitate her going to nursing school. Her work schedule on the weekend in question was 7:00 p.m. to 7:00 a.m. on three consecutive nights - Friday, September 30, 2016, through Sunday, October 2, 2016. She worked on the cancer floor at Willis Knighton, which had a maximum capacity of 40 patients.

When Emerson arrived at work that Friday evening, she found that the prior shift had left much of their work undone, which would require her to do extra work. Specifically, she stated it was her responsibility to record the patients' vital signs upon arriving for work, but she could not because the patients were all "hollering for water." Additionally, the previous shift had left the lunch trays in the patients' rooms, and had not given the patients ice. She further testified that she could not get any of the nurses to help because they were all busy as well. Emerson also admitted that the situation was just more of the "same old, same old" thing, and that the day shift left their work for the night shift "numerous" times.

Upon learning that she would be responsible for the work allegedly leftover from the previous shift in addition to her immediate duty of taking vital signs of all the patients, she became "so upset... so upset...so mad." While she was taking vital signs, distributing ice, and helping patients to the bathroom, she felt "something loose-like, pop-like" in her head. Emerson admitted that "nothing happened physically" to cause the "pop" in her head.

After the "pop," Emerson "broke down and started crying." She did not feel pain, but felt "out of [her] body," light-headed, anxious, and as if she could not think. Emerson was with the charge nurse when this occurred, and the charge nurse summoned the house supervisor, who talked with Emerson and then reassigned her to a different floor for the night.

After her shift ended the morning of Saturday, October 1, 2016, Emerson went to the park and sat for a while in the hope that she would feel better by calming down. Once Emerson determined sitting in the park did not make her feel better, she went to the LSU Medical Center emergency room. She testified that, in the emergency room, she was still crying uncontrollably and reported having weakness in her left side. The medical records from that visit do not indicate that she complained of weakness on her left side. They indicate that her "chief complaint" was "nervousness" and "hyperventilation," and that she had difficulty sleeping as well as elevated blood pressure. Dr. Gregory Patek diagnosed Emerson with anxiety and "stress at work." He prescribed her Atarax and naproxen, and excused her from work until October 3, 2016.

Willis Knighton requires that employees who cannot work their shift give notice thereof a certain number of hours in advance. Emerson was allegedly tardy in calling Willis Knighton to give notice that she would miss one of her remaining shifts that weekend. She was, for that reason, fired on Monday, October 3, 2016.

Emerson also testified that she returned to the LSU Medical Center emergency room on November 29, 2016 - approximately two months after the incident for which she seeks workers' compensation. She was then diagnosed with a stroke and a blockage in her right carotid artery. Emerson testified that it is undetermined whether the blockage is from a blood clot or from plaque buildup.

The medical records from this visit contain the following narrative:

Diedre Emerson is a 50-year-old female with no significant medical history, presented with new onset of left-sided weakness since 11:00 AM today. She arrived at least 7 h after the onset of her symptoms. Patient c/o LUE and LLE weakness, inability to ambulate, report symptoms started after argument on the phone with family followed by panic attack. Symptoms are not improving. Patient reports similar event in October of current year and lasted for about one week, followed by complete resolution. Patient was told that she has HTN during her last PCP visit last year, she is currently not on treatment. She denies headache, vision changes, dizziness, LOC, chest pain or SOB. Neurology was consulted for possible CVA/TIA evaluation.

These records also reflect "Admission Diagnoses" of CVA (cerebral vascular accident); left-sided weakness; transient cerebral ischemia, unspecified type; as well as "Discharge Diagnoses" of right MCA territory stroke, and ANA positive. Her medical records from November 29, 2016, also indicate a "right ICA total occlusion per U/S carotid."

The WCJ denied Emerson's claims on the ground that Emerson failed to carry her burden of proof in that: (1) Emerson did not prove that she had an injury under section 1021(8)(a); (2) Emerson did not prove that her mental injury was caused by sudden, unexpected, and extraordinary stress related to the employment or that she was diagnosed with a mental injury by a psychiatrist or psychologist; and (3) even if Emerson did suffer a perivascular injury on October 1, 2016, she failed to prove that it was predominantly caused by work-related stress as opposed to a preexisting condition. Emerson admits that she has not consulted a psychologist or psychiatrist regarding the "injury" for which she now claims compensation.

In this appeal, Emerson, who is not represented by counsel, argues mainly that (1) she should be excused from having to prove that she was diagnosed with a mental injury by a psychiatrist or psychologist; and (2) she did have a transient ischemic attack (stroke ) while working at Willis Knighton on October 1, 2016.

DISCUSSION

Standard of review

Factual findings of a WCJ are subject to the manifest error standard of review; therefore, in order for a reviewing court to reverse a WCJ's factual findings, it must find that a reasonable factual basis does not exist and the record establishes that the factual findings are clearly wrong.

Lafayette Bone & Joint Clinic v. Louisiana United Bus. SIF, 2015-1303 (La. 6/17/16), 194 So.3d 1112 ; Dean v. Southmark Const. , 2003-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117.

Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State through Dep't of Transp. & Dev. , 617 So.2d 880, 883 (La. 1993) ; Dombrowski v. Patterson-UTI Drilling Co., 46, 249 (La. App. 2 Cir. 4/13/11), 63 So.3d 308. Accordingly, where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Henderson v. Nissan Motor Corp., 2003-606 (La. 2/6/04), 869 So.2d 62, 69, citing Stobart, supra.

Worker's Compensation Law

La. R.S. 23:1021(8) ("section 1021(8)") defines those injuries which entitle the employee to compensation when sustained under certain circumstances. Relevant in this case are "injury" under section 1021(8)(a); "mental injury caused by mental stress" under section 1021(8)(b); and "heart-related or perivascular injury" under section 1021(8)(e).

Injury. Section 1021(8)(a) defines the terms "injury" and "personal injury" as including "only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom." It further states: "these terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted." Id.

Emerson admitted that "nothing happened physically" to cause the "pop" in her head. The context indicates that in saying "nothing happened physically," she meant there was no physical violence or physical trauma that caused the pop. The WCJ asked Emerson whether she hit anything, anyone hit her, or if she had suffered a fall. In addition to stating that "nothing happened physically," Emerson denied each of these things. Accordingly, the WCJ was not manifestly erroneous in concluding that Emerson failed to prove entitlement to compensation under section 1021(8)(a).

Mental injury. Section 1021(8)(b) provides as follows:

Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.

Furthermore, section 1021(8)(d) provides:

No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

Thus, to establish entitlement to compensation for a "mental injury resulting from work-related stress," an employee must prove: (1) that he or she suffered a mental injury; (2) the mental injury was caused by a sudden, unexpected, and extraordinary stress related to the employment;

and (3) the mental injury was diagnosed by a licensed psychiatrist or psychologist in accordance with the criteria of the Diagnostic and Statistical Manual of Mental Disorders ("DSM-MD").

The WCJ found that plaintiff failed to prove that the mental injury was caused by "a sudden, unexpected, and extraordinary stress related to the employment." Emerson admitted that the day shift left their work for the night shift "numerous" times prior to October 1, 2016, and that the situation that day was just more of the "same old, same old" occurrences. Ms. Opal Darrett's testimony showed that the department of Willis Knighton in which the plaintiff worked had been understaffed for some time as of the date of the plaintiff's mental injury, and that the understaffing resulted in the plaintiff being overworked. It also showed that the plaintiff was anxious and stressed by this situation prior to October 1, 2016. Therefore, we find that the WCJ reasonably concluded that the plaintiff's work-related stress was "regular" as opposed to sudden, unexpected, and extraordinary.

Additionally, the WCJ determined that the plaintiff failed to prove that the mental injury was diagnosed by a licensed psychiatrist or psychologist in accordance with the DSM-MD. The plaintiff conceded in her testimony that she was not diagnosed by a psychologist or psychiatrist. There was no manifest error in these findings by the WCJ. This constitutes a separate and independent reason that the plaintiff's claim of a compensable mental injury must fail.

Heart-related or perivascular injury . Section 1021(8)(d) provides:

(e) Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

To establish entitlement to compensation for a "heart-related or perivascular injury" under paragraph (d) of section 1021(8), an employee must prove the following three elements: (1) that the employee suffered a heart-related or perivascular injury; (2) the physical work stress of the employee's job was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation; and (3) the physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the perivascular injury. The plaintiff must prove all of these elements by clear and convincing evidence.

Initially, we note that Ms. Emerson's medical records from her October 1, 2016, emergency room visit bear no indication that she was diagnosed with a heart-related or perivascular injury. Rather, she was diagnosed with only anxiety and stress. She was not diagnosed with a stroke until her November 29, 2016, trip to the emergency room, which was precipitated by a separate episode of symptoms. In the medical records from that incident, we find no official diagnosis stating that the October 1, 2016, incident was a "stroke," a "transient ischemic attack" or a "cerebral vascular accident." Thus, the WCJ could have reasonably concluded that Ms. Emerson failed to carry her burden of proving that she suffered a heart-related or perivascular injury while working for Willis Knighton. For this reason alone, the WCJ's finding that Emerson failed to prove entitlement to compensation under section 1021(8)(d) was not manifestly erroneous.

The WCJ focused on Ms. Emerson's failure to prove that the physical work stress, and not some other source of stress or preexisting condition, was the predominant and major cause of the perivascular injury. Ms. Emerson testified that in connection with her November 29, 2016, emergency room visit, the doctors determined that she had a carotid artery blocked by either plaque or a blood clot. Thus, the WCJ reasoned, even assuming that Ms. Emerson did suffer a heart-related or perivascular injury on October 1, 2016, it was predominantly caused by a preexisting condition rather than work stress. This constitutes a second reason that the WCJ committed no manifest error regarding section 1021(8)(d).

CONCLUSION

For the reasons assigned above, the decision of the WCJ is affirmed. Costs are assessed to Diedre Emerson in accordance with La. C.C.P. arts. 5186 and 5188.

AFFIRMED.

APPLICATION FOR REHEARING

Before Daniel Milton Moore III, Frances Jones Pitman, Jeff Cox, James Mark Stephens, and Jay Bowen McCallum, JJ.

Rehearing denied.

      Two witnesses who testified at trial, Opal Darrett and Carolyn Fletcher, corroborated Emerson's testimony that she often wound up being responsible for others' work and that she often worked in an understaffed situation at Willis Knighton.

      The context of this statement indicates that when she said "nothing happened physically," she meant there was no type of physical violence or physical trauma associated with the pop in her head. Specifically, the WCJ asked Emerson whether she hit anything, anyone hit her, or she had a fall. Emerson denied all of these things. However, she later asserted that it was overexertion which caused the pop in her head.

      Specifically, under the heading of "neurological," they report that Emerson was "negative for dizziness, facial asymmetry, weakness , lightheadedness and headaches." (Emphasis added). Additionally, in the "HPI Comments" section of the medical records, it states: "has adversarial relationship with the charge nurse at work. Has to go in front of hospital committee on Monday. Can't sleep and stressed about future as she is going to nursing school."

      Elsewhere in Emerson's medical records from her October 1, 2016, emergency room visit, under the heading of "final diagnoses," the following three items are listed: "generalized anxiety disorder"; "reaction to severe stress, unspecified"; "nicotine dependence, cigarettes, uncomplicated."

      She claims that this blockage was asymptomatic until the incident on October 1, 2016, and that, as of trial, she did not return to the condition she was in prior to that incident.

      In the medical records, the only assertion that the October 1, 2016, incident was a stroke is the following statement by occupational therapist Sharon Graff in the "Occupational Therapy Inpatient Initial Evaluation/plan of care": "Pt was Mod I with ADLs, attending nursing school and was a nurse tech for many years until the first 'TIA' in October." Graff's placement of quotation marks around TIA (transient ischemic attack ) could be reasonably interpreted as meaning that it was merely Emerson's opinion that the October 1, 2016, incident was a transient ischemic attack. Regardless, in view of the medical records as a whole, the statement does not constitute clear and convincing evidence that Emerson was diagnosed with a transient ischemic attack in connection with the October 1, 2016, incident.


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Steve E. BODINE, Appellant
    No. 52,205-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018 Rehearing Denied November 8, 2018
    THE LOUISIANA APPELLATE PROJECT, By: Chad Ikerd, By: Stephen E. Bodine, Sr., Counsel for Appellant
    JOHN FITZGERALD BELTON, District Attorney, A. SHAWN ALFORD, PENYA MARZULA MOSES-FIELDS, TRACY WAYNE HOUCK, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, WILLIAMS, and STONE, JJ.
   STONE, J.

The defendant, Steve E. Bodine, was convicted of aggravated rape, in violation of La. R.S. 14:42. He was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The defendant now appeals his conviction and sentence.

Bodine's appellate counsel has filed a motion to withdraw, together with a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there are no nonfrivolous issues upon which to base an appeal. For the following reasons, the motion to withdraw is granted, and Bodine's conviction and sentence are affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On September 9, 2013, Steve Bodine ("Bodine") was charged by bill of indictment for the aggravated rape of M.B., a victim under the age of 13 who is also Bodine's granddaughter. The offense was alleged to have occurred during 2005 and 2007. The defendant pled not guilty. Following a motion in limine , the trial court ruled that four other individuals would be permitted to testify that Bodine sexually assaulted them when they were minors, pursuant to La. C.E. art. 412.2. The trial court further ruled that Lois Bodine ("Lois"), Bodine's wife, would have to testify if called because the nature of the charges against Bodine statutorily waived spousal privilege.

A jury trial began on July 27, 2015. The victim, M.B., testified that Bodine forced her to have sex with him on multiple occasions while she visited him at his home when she was between the ages of 8 and 10 years old. Three other women testified that Bodine sexually assaulted them before the age of 10 years old. On July 29, 2015, the jury found the defendant guilty as charged of aggravated rape. Bodine filed a motion for new trial, which was denied by the trial court following a hearing on August 10, 2015. On August 10, 2015, the trial court sentenced the defendant to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.

On October 24, 2016, Bodine filed a motion for appeal, which was denied by the trial court as untimely. On May 15, 2017, Bodine filed an application for post-conviction relief, arguing that his trial counsel was ineffective. On August 3, 2017, following an application for supervisory review, this Court remanded Bodine's application for post-conviction relief to the trial court for consideration as a motion for out-of-time appeal. An out-of-time appeal was granted by the trial court on October 17, 2017.

The Louisiana Appellate Project was appointed to represent the defendant on appeal. This appeal followed, and the defendant's appellate counsel has filed an Anders brief and a motion to withdraw, alleging that he could find no nonfrivolous issues to raise on appeal. See Anders v. California , supra ; State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 ; State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176 ; and State v. Benjamin , 573 So.2d 528 (La. App. 4 Cir. 1990). Defense counsel also verified that he mailed copies of the motion to withdraw and his brief to the defendant, in accordance with Anders , Jyles , Mouton , and Benjamin , supra . Additionally, the state filed a brief with this Court agreeing that there are no nonfrivolous issues to raise on appeal.

On April 27, 2018, the defendant requested to review the appellate record and leave to file a pro se brief. On May 23, 2018, this Court issued an order holding the motion to withdraw in abeyance and extended the pro se briefing deadline to June 22, 2018. Because the record is confidential pursuant to La. R.S. 46:1844(W), a redacted version of the record was sent to Bodine on May 23, 2018. Bodine timely filed a pro se brief.

DISCUSSION

The defendant's pro se brief contains no assignments of error, but rather, is merely a listing of alleged errors in, and objections to, the record. Although U.R.C.A. Rule 1-3 states that this Court will review only issues "which are contained in specifications or assignments of error," because Bodine's pro se brief was timely filed, Bodine's complaints have been grouped and briefly reviewed, along with the record, for any discernable arguments.

Preliminary Examination

In one statement, Bodine complains that the trial court ruled that he was not entitled to a preliminary examination. La. C. Cr. P. art. 292 provides that the court shall order a preliminary examination in felony cases "unless the defendant has been indicted by a grand jury." When a grand jury indictment has been returned, a discretionary preliminary examination is limited to the perpetuation of testimony and the fixing of bail.

La. C. Cr. P. art. 296. In this case, since Bodine was in fact indicted by grand jury, a preliminary examination was only discretionary. Further, he fails to make a claim that it was necessary to perpetuate anyone's testimony and the record reflects that bail was set. Thus, Bodine was not prejudiced by not having a preliminary examination.

Ineffective Assistance of Counsel

Bodine argues he received ineffective assistance of trial counsel due to a mental defect of his court-appointed attorney, Robert Earle. Bodine cites to no evidence in the record to support his claim. Although Bodine asserts that Attorney Earle attempted to be relieved of the representation due to a mental defect, a review of the record reflects only that Attorney Earle requested such relief after Lois filed a bar complaint against him.

Bodine repeatedly asserts that Attorney Earle failed to call Robert Shoemaker as a witness for the defense. However, he does not provide any indication as to what testimony Shoemaker would have provided or why he was not called to testify.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court rather than by appeal. This is because post-conviction relief creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. However, when the record is sufficient, an appellate court may resolve this issue on direct appeal in the interest of judicial economy. State v. Nixon , 51,319 (La. App. 2 Cir. 5/19/17), 222 So.3d 123, writ denied , 17-0966 (La. 4/27/18), 239 So.3d 836. In the matter sub judice , Bodine's claim that Attorney Earle provided ineffective assistance is supported only by general, conclusory statements and allegations. Such general statements and conclusory allegations are insufficient to prove a claim of ineffective assistance of counsel. Thus, this would be more properly raised in a PCR application in the trial court.

Spousal Privilege

Bodine complains the trial court erred in ordering that his wife, Lois, would be forced to testify against him. The issue of Lois' testimony was litigated pretrial. She was given a grant of immunity in response to her assertion of Fifth Amendment rights. We find the trial court correctly ruled that, under La. C.E. art. 504(C)(5) and La. R.S. 14:403(B), Lois Bodine's spousal privilege was waived because the instant proceedings concerned the sexual abuse of a child.

Jurors

Bodine alleges that Patricia Farris, one of the jurors, was very good friends with one of the victims, and the trial court refused to remove her as a juror. However, Bodine makes no argument and provides no proof of his claim. The record reveals Farris admitted to knowing Lewis Jones and Lois Bodine, but none of the victims. Farris also stated that neither relationship was a close, personal one that would affect her ability to be impartial.

In addition, Bodine also complains that three jurors said they would need DNA to convict someone and that two jurors said that they would not. A review of the record shows that one of the potential jurors complained of was not seated on the jury and that all others stated they would follow the law as explained to them.

Finally, Bodine alleges that one juror had two family members who had been raped and one juror had volunteered at a group for women with sexual problems. Again, this complaint is merely a conclusory statement, with no accompanying argument or support in the record. All of Bodine's complaints are merely conclusory statements, with no argument or support.

Sufficiency of the Evidence

Bodine argues there was not sufficient evidence to convict him because the charges were based upon falsified evidence, and the alleged victim testified that she made up the accusations against him. Specifically, Bodine states he is actually innocent of the offense because medical records show that he "has been sexually impotent ever since July of 1989"; however, a review of the medical records contained in the record shows no such diagnosis. In another claim, he complains that M.B. testified that, during a staged phone call from M.B. to Bodine, an investigator was coaching her on what to say. Bodine notes that investigators admitted that they were unable to cause him to incriminate himself during that call. He makes no argument about the call, other than a conclusory complaint.

Additionally, Bodine asserts that Ricky Albritton, Chief of Police for Bernice, Louisiana, falsely testified that Bodine had served as a lieutenant, that M.B. testified that an incident occurred in Bodine's tack room while another witness testified that there was no barn or tack room on Bodine's property, that M.B. changed her testimony, and that M.B. admitted to using drugs.

The claims asserted by Bodine each focus on an alleged inaccurate statement made by a witness. Bodine appears to be asking this Court to assess the credibility of these witnesses and to reject their testimony in order to reverse his conviction. The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writs denied , 09-0310 (La. 11/6/09), 21 So.3d 297, 12-0717 (La. 9/12/12), 98 So.3d 305. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442 ; State v. Walker , 51,217 (La. App. 2 Cir. 5/17/17), 221 So.3d 951, writ denied , 17-1101 (La. 6/1/18), 243 So.3d 1064. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Brown , 51,352 (La. App. 2 Cir. 5/2/17), 223 So.3d 88, writ denied , 17-1154 (La. 5/11/18), 241 So. 3d 1013. Thus, in applying the Jackson standard, this Court declines to assess the weight and credibility of Bodine's allegations of inaccurate statements made by witnesses.

Error Patent

A review of the record in this matter revealed one error patent. The trial court failed to observe the 24-hour delay between the denial of Bodine's motion for new trial and the imposition of sentence. La. C. Cr. P. art. 873 provides that if a defendant is convicted of a felony, the sentence shall not be imposed until at least 24 hours after a motion for new trial is overruled, unless the defendant expressly waives the delay. However, this Court has consistently held that vacating a sentence for the failure to observe the 24-hour delay is not required if the error is harmless and no prejudice is shown. State v. Austin , 49,061 (La. App. 2 Cir. 7/16/14), 146 So.3d 716, writ denied 2014-2323 (La. 9/18/15), 178 So.3d 140.

In this case, there was sufficient delay between the date of conviction and the date of sentencing, there is no indication that the sentence was hurriedly imposed, and the sentence imposed was mandatory.

Thus, the same sentence would have been imposed regardless, and the failure to observe the 24-hour delay did not prejudice Bodine.

CONCLUSION

For the foregoing reasons, the motion to withdraw is granted, and Bodine's conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.

APPLICATION FOR REHEARING

Before Felicia Toney Williams,Daniel Milton Moore III, Shonda D. Stone - Writing, Jeff Cox, E. Joseph Bleich, JJ.

Rehearing denied.


author: BROWN, C.J.

text:
    IN RE: the Minors: Lina Nicole MCCAULEY, Vash Alexander McCauley, Kai Victor McCauley
    No. 52,206-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018 Rehearing Denied November 20, 2018
    PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, LLP, By: Donald Armand, Jr., Trey W. Carter, Shreveport, Counsel for Mover-Appellant, Centenary College of Louisiana
    GILLEY & GILLEY, By: Patricia A. Gilley, Shreveport, Counsel for Appellee, Deborah McCauley
    Before BROWN, STONE, and STEPHENS, JJ.
   BROWN, C.J.

Centenary College of Louisiana ("Centenary") and several of its police officers are the defendants in an action filed in federal court by Deborah McCauley on behalf of her three minor grandchildren. Ms. McCauley sought and obtained an ex parte order of provisional tutorship in the 1st J.D.C. to file the lawsuit, which seeks damages arising out of the death of her son, Marcus McCauley. Centenary has taken the instant appeal from the trial court's adverse ruling on Centenary's motion to vacate the provisional tutorship appointment of Ms. McCauley. For the reasons set forth below, we reverse the trial court's judgment and vacate the provisional tutorship appointment.

FACTS/PROCEDURAL BACKGROUND

Jennifer Spears and Marcus McCauley were married on May 3, 2009, and divorced on February 14, 2013. During their time together, they had three children: LNM, VAM, and KVM. In 2013, a Texas court granted Ms. Spears a divorce from Marcus on the grounds of cruelty and a felony conviction. The Texas court specifically found that Marcus had committed multiple acts of "family violence" against Ms. Spears and the children and issued a protective order. The court awarded Ms. Spears sole custody of the children and permanently enjoined Marcus from further contact with Ms. Spears and the children. Since that time, Ms. Spears has had sole custody of the children, and they lived in Texas before moving to Oklahoma.

Marcus died on November 20, 2014. On November 19, 2015, his mother Deborah McCauley filed an ex parte petition for appointment of provisional tutor in the 1st J.D.C. In her petition, Ms. McCauley alleged that this appointment was sought for the sole purpose of acquiring procedural capacity so that she could, on behalf of her minor grandchildren, file a civil suit for damages arising out of the death of the children's father. The trial court signed an ex parte order appointing Ms. McCauley as provisional tutor and her ex-husband Larry as provisional undertutor, and the federal suit against Centenary was filed in federal court the same day.

Centenary filed a motion to vacate the provisional tutorship on February 5, 2016. It was supported by an affidavit (attached to a supplemental memorandum in support of the motion) dated February 16, 2016, by Jennifer Spears, in which, inter alia , she attested that:

...
5.
I am aware that Deborah McCauley filed a petition in Caddo Parish Court to have herself appointed as "provisional tutrix" of my children. I was not contacted by Deborah McCauley or anyone on her behalf before that proceeding was filed and I received no notice of her intention to file it. Had I been contacted or notified, I would not have given Mrs. McCauley permission to file that proceeding or to attempt to take any action on behalf of my children.
6.
Sometime after that petition was filed, I was contacted by Patricia Gilley, who identified herself as the attorney of Deborah and Larry McCauley. Ms. Gilley informed me that Deborah McCauley had obtained the order of provisional tutorship and that she had filed a lawsuit against Centenary College and some of its security officers, alleging that those officers were legally liable for the death of Marcus McCauley. I told Ms. Gilley the following:
(1) I did not and do not authorize Deborah or Larry McCauley to seek any "tutorship" or to attempt to take any action on behalf of my children.
(2) I object to the order of provisional tutorship and would have objected before it was entered if I had been notified that the McCauleys were requesting the order.
(3) I desire that the order of provisional tutorship be vacated.
(4) I do not believe that the filing of any suit against Centenary College or its security officers is in the best interest of my children. In fact, I believe that such a suit is meritless. Marcus McCauley was violent and delusional. On more than one occasion, he stated to me that he wanted to "kill himself" by having a gunfight with the police.
(5) As the biological mother and sole person authorized to act on behalf of my children, I will not support such a suit and I desire that the suit already filed by Deborah McCauley, purporting to act on behalf of my children, be dismissed.
7.
I am now aware that the McCauleys have not vacated the order of provisional tutorship nor dismissed the lawsuit against Centenary and its officers.
8.
My position is still the same as described to Ms. Gilley[.]
...

The first hearing on the motion to vacate was held on June 27, 2016. The trial court heard oral argument, then set a follow-up hearing to allow time for the court to research the tutorship issue further. Both parties filed supplemental memoranda. The second hearing on the motion was held on July 18, 2016. The trial court heard additional argument, but again deferred ruling on the motion. The court acknowledged that the genuineness of Ms. Spears' affidavit and the truth of the statements made therein were undisputed, and that her position in opposition to the tutorship and suit was clear. However, the court advised the parties that it preferred to send an "order" to Ms. Spears via certified mail to require her to make an appearance or filing in the 1st J.D.C. proceeding restating the facts set forth in her affidavit.

The third hearing on the motion to vacate was held on October 5, 2017. At this hearing, the trial court stated:

In any event, as you all will recall, the last time we were in court I indicated I was going to send an order to the mother of the minor children and requested she notify the court as to her intentions. Also my understanding from the court return [was] that the order was not claimed, therefore we have no response [from] her.

The court then denied Centenary's motion to vacate for the sole reason that Ms. Spears' affidavit had been offered by Centenary and not Jennifer Spears herself. The court noted that its preference was for Ms. Spears to have made a personal appearance or filing in the ex parte proceeding in the 1st J.D.C. A judgment denying the motion to vacate was signed on November 14, 2017. Centenary filed the instant appeal.

DISCUSSION

According to Centenary, the trial court committed legal error in its refusal to grant the motion to vacate because Centenary, not Jennifer Spears herself, had filed the affidavit setting forth Ms. Spears' objections to continuation of Ms. McCauley's provisional tutorship. Centenary also urges that the trial court's refusal to vacate the provisional tutorship order violates Louisiana's tutorship law.

Ms. McCauley urges this Court to affirm the lower court's ruling, urging that the "shotgun approach" taken by Centenary to have her provisional tutorship set aside was properly rejected by the trial court.

La. C.C. art. 250, which provides for tutorship by nature, provides in part that, upon the death of either parent, the tutorship of minor children belongs of right to the other. La. C.C. art. 248 provides in part that tutorship by nature takes place of right, but the natural tutor must qualify for the office as provided by law.

La. C.C.P. art. 4061.1 provides in part:

(A)(1) Notwithstanding Article 4061, the natural tutor of a minor child may file an action for damages based on a delictual obligation without the necessity of qualifying as tutor pursuant to Article 4061 and without the necessity of qualifying as tutor pursuant to Article 4061 and without the necessity of filing a petition pursuant to Article 4031, if the natural tutor is ... the surviving parent of the minor child.
La. C.C.P. art. 683 provides in part:
(A) An unemancipated minor has no procedural capacity to sue.
(B) All persons having parental authority over an unemancipated minor must join as proper plaintiffs to sue to enforce a right of the minor, unless a joint custody implementation order otherwise applies. Nevertheless, with permission of the court, any person having parental authority may represent the minor whenever the other person having parental authority fails or refuses to do so. (Emphasis added).

Unemancipated minors lack judicial capacity, and, for that reason, cannot bring a tort action on their own. La. C.C.P. art. 683(A). In such a case, the action must be brought on their behalf by their legal representative, namely, a parent, if the children are subject to parental authority. La. C.C.P. art. 683(B) ; see also, Pisauro v. Silvia , 2016 WL 8730584 (W.D. La. 2016).

La. C.C.P. art. 4070 provides that, on the application of an interested person or on its own motion, pending the appointment of a tutor , the court may appoint a qualified person as provisional tutor of a minor, if such appointment is necessary for the welfare of the minor or for the preservation of his property . La. C.C.P. art. 4071 provides in part that a provisional tutor shall continue in office until his appointment is terminated by the court or until a tutor has been qualified . (Emphasis added). See also, Official Revision Comment (a) to La. C.C.P. art 3073, which further notes that the provisional tutor's job is to keep matters in the status quo pending the appointment and qualification of a permanent tutor.

La. C.C.P. art. 4234 provides in part:

The court may remove any tutor who is or has become disqualified ... or if such removal would be in the best interests of the minor. The court on its own motion may order, and on motion of any interested party shall order the tutor to show cause why he should not be removed from office. (Emphasis added).

Centenary argues that it is an "interested party" within the scope of La. C.C.P. art. 4234 as it is a defendant in the federal action filed by Ms. McCauley as provisional tutor on behalf of the minor children. We agree.

"Provisional" is defined as "[p]rovided for the time being to supply a place to be occupied in the end by some more permanent arrangement; temporary or conditional," and "temporary; preliminary; tentative; taken or done by way of precaution or ad interim." See Black's Law Dictionary (10th ed. 2014), and, https:thelawdictionary.org/provisional.

As its very name indicates, a provisional tutorship is not intended to be permanent, but is merely an interim or temporary appointment which is made until, as set forth above, the appointment is either terminated by the court or a tutor has been qualified. See , La. C.C.P. arts. 4070, 4071.

On November 19, 2015, the day before the children's tort claim arising out of their father's death allegedly would have prescribed, their paternal grandmother, Ms. McCauley, filed the instant tutorship proceeding seeking appointment as provisional tutor for the sole purpose of filing a tort claim in federal court on their behalf. Ms. McCauley was granted provisional tutorship, and she instituted the federal lawsuit on behalf of the minor children that same day.

Louisiana law is clear that Jennifer Spears, the only living parent of the minor children and their natural tutor, is the proper legal representative to pursue a tort action on their behalf. La. C.C. art. 250 ; La. C.C.P. arts. 683(B), 4061.1.

At the time of Ms. McCauley's appointment as provisional tutor, Ms. Spears' objections were unknown to the trial court. However, the uncontested facts set forth in Ms. Spears' affidavit, filed by Centenary in conjunction with its motion to vacate the provisional tutorship, establish that: Ms. Spears, the biological mother of the minor children, is their sole custodian and, under Louisiana law, their natural tutor; Ms. Spears was not notified of Ms. McCauley's ex parte tutorship proceeding or the federal lawsuit filed on behalf of Ms. Spears' children, and would have objected to both had she received notice thereof; and, Ms. Spears objects to both the provisional tutorship and the lawsuit, believing the tort suit to be without merit and contrary to the best interests of her minor children.

Pretermitting an analysis of the validity of the trial court's attempt to exercise jurisdiction over the out-of-state mother in order to have her "personally" voice her objections to continuation of the provisional tutorship, we find that Ms. Spears' affidavit is sufficient expression of her clear intent that the tutorship of Ms. McCauley be terminated. In fact, continuation of Ms. McCauley's provisional tutorship over Ms. Spears' objections constitutes an infringement upon her fundamental right as a fit parent to make decisions that affect the welfare and well-being of her minor children. See Troxel v. Granville , 530 U.S. 57, 73, 120 S.Ct. 2054, 2064, 147 L.Ed.2d 49 (2000), in which the Supreme Court observed that the Due Process Clause does not permit a state to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes that a "better" decision could be made. See also, Rice ex rel. CIR v. Cornerstone Hospital of West Monroe, L.L.C. , 589 Fed.Appx. 688, 691 (5th Cir. 2014).

We therefore reverse the trial court's judgment denying the motion to vacate filed by Centenary and vacate the order of provisional tutorship of Deborah McCauley.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is REVERSED. We hereby ORDER, ADJUDGE and DECREE that the ex parte order dated November 19, 2015, appointing Deborah McCauley as provisional tutor and Larry McCauley as under-tutor of the minor children LNM, VAM, and KVM is hereby VACATED. Costs of this appeal are assessed to Deborah McCauley.

APPLICATION FOR REHEARING

Before Felicia Toney Williams, Shonda D. Stone, James Mark Stephens, Jay Bowen McCallum, E. Joseph Bleich - Writing, JJ.

Rehearing denied.

      Marcus McCauley was shot and killed on the Centenary campus in a confrontation with Centenary law enforcement officers.

      La. C.C.P. art. 4061 provides that before a natural tutor enters upon the performance of his official duties, he must take an oath to discharge faithfully the duties of his office, cause an inventory to be taken or a detailed descriptive list to be prepared, and cause a legal mortgage in favor of the minor to be inscribed, or furnish security in the manner provided by law.


text:
    STATE of Louisiana IN the INTEREST Z.D.
    NO. 2017-CA-0616
    Court of Appeal of Louisiana, Fourth Circuit.
    October 10, 2018
   Leon Cannizzaro, DISTRICT ATTORNEY

Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY

J. Taylor Gray, ASSISTANT DISTRICT ATTORNEY

PARISH OF ORLEANS, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLANT/STATE OF LOUISIANA

(Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Regina Bartholomew-Woods)

ON REMAND FROM THE LOUISIANA SUPREME COURT

Judge Rosemary Ledet This child in need of care case is before us on remand from the Louisiana Supreme Court with instructions "to convert relator's appeal to an application for supervisory writs and consider the application on the merits." State in Interest of Z.D. , 17-2118 (La. 9/14/18), 251 So.3d 1086. As instructed, we convert the State's appeal to an application for supervisory writ, grant the writ, and, for the reasons that follow, deny relief.

BACKGROUND

On March 15, 2017, the Department of Children and Family Services ("DCFS") received a report that a two year old, Z.D., was being abused and neglected by his mother. An employee of DCFS, Tacarra Charles ("Ms. Charles"), investigated the report. As a result of her investigation, DCFS applied for and received temporary custody of Z.D. on April 4, 2017. The case was then set for a continued custody hearing on April 7, 2017. On April 7, 2017, the juvenile court ordered that Z.D. be continued in the custody of DCFS; ordered DCFS "to make diligent efforts to locate any relative that may be available for placement"; and reset the matter for a status hearing on April 13, 2017. On April 13, 2017, the juvenile court ordered the matter be set for a petition status on May 2, 2017.

On May 2, 2017, the State, through the Orleans Parish District Attorney's Office, filed a petition requesting that Z.D. be adjudicated a child in need of care as to both parents. As to Z.D.'s mother, the petition alleged abuse under La. Ch.C. art. 606(A)(1) and neglect under La. Ch.C. art. 606(A)(2). As to Z.D.'s father, the petition alleged neglect under La. Ch.C. art. 606(A)(2) and under La. Ch.C. art. 606(A)(3) that Z.D. was without necessary food, clothing, shelter, medical care, or supervision because of the prolonged absence of his father. The petition further alleged that Z.D.'s father was "incarcerated at Eastham Correction Facility in Lovelady, Texas; that he was thus "not available to provide for [Z.D.'s] medical, emotional, or housing needs"; and that he had "not made a plan for [Z.D.'s] care."

On June 6, 2017, the case proceeded to an adjudication hearing as to Z.D.'s mother; the hearing as to Z.D.'s father was jointly continued. At the conclusion of the hearing, the juvenile court adjudicated Z.D. a child in need of care as to his mother. The case was then set for June 27, 2017, for disposition as to Z.D.'s mother and for adjudication as to Z.D.'s father.

At the June 27, 2017 adjudication hearing, the State called one witness, Ms. Charles, who testified that Z.D.'s father was incarcerated in Texas; that his expected release date was 2027; and that his plan for Z.D.'s care appeared not to be feasible. At the conclusion of the adjudication hearing, the juvenile court found that the evidence offered by the State was insufficient and declined to adjudicate Z.D. a child in need of care as to his father. The State objected. This appeal followed.

We dismissed the State's appeal for lack of appellate jurisdiction. As noted at the outset, this matter is before us on remand from the Louisiana Supreme Court as a writ application.

DISCUSSION

A child in need of care proceeding must be commenced by the filing of a petition. La. Ch.C. art. 631. When the child has been taken into, and continued in, State custody, the petition must be filed within thirty days of the continued custody hearing. La. Ch.C. art. 632(A). The petition must set forth with specificity facts that show the child is a child in need of care, including the acts or omissions of either parent which caused or contributed to the child's condition. La. Ch.C. art. 634(A)(4).

The allegations in the petition must be proven by the State at an adjudication hearing. La. Ch.C. art. 659, et seq. If the child is in DCFS custody, the adjudication hearing must commence within forty-five days of the filing of the petition. La. Ch.C. art. 659(A). With DCFS's consent, the State may submit to the juvenile court for its approval an informal adjustment agreement. La. Ch.C. art. 628(B). If the juvenile court approves the agreement, the time limitations of La. Ch.C. art. 659 are suspended for the duration of the agreement. La. Ch.C. art. 630(B). If the child is in continued custody and no informal adjustment agreement is submitted and approved, the case must proceed to an adjudication hearing within forty-five days of the filing of the petition. La. Ch.C. art. 659(A).

If the case proceeds to an adjudication hearing, the State has the burden of proving the allegations in the petition by a preponderance of the evidence. La. Ch.C. art. 665. To carry that burden, the State must produce admissible evidence. La. Ch.C. art. 663(A) (providing that "the adjudication hearing shall be conducted according to the rules of evidence applicable to civil proceedings"); La. C.E. art. 1101(A)(1) (providing that "[j]uvenile adjudication hearings in non-delinquency proceedings [i.e. , child in need of care proceedings] shall be governed by the provisions of [the Code of Evidence] applicable to civil cases").

The standard of review of a juvenile court's judgment that a child is in need of care is as follows:

The trial judge is vested with great discretion and such a decision will not be reversed on appeal absent a showing of abuse of that discretion. State of Louisiana in the Interest of M.L. , 611 So.2d 658, 660 (La. App. 4 Cir.1992). It is well settled that an appellate court cannot set aside a juvenile court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. State in the Interest of S.M.W. , 2000-3277, p. 14 (La. 2/21/01), 781 So.2d 1223, 1233, citing In re A.J.F. , 2000-0948 (La. 6/30/00), 764 So.2d 47. In its manifest error review, it is important that the appellate court not substitute its opinion when it is the juvenile court judge who is in the unique position to see and hear the witnesses as they testify. Id.

State in Interest of S.T. , 14-0731, pp. 3-4 (La. App. 4 Cir. 1/28/15), 158 So.3d 944, 946 (quoting State in the Interest of D.S. , 04-0327 (La. App. 4 Cir. 7/28/04), 881 So.2d 764 ).

In this case, the record reflects that no informal adjustment agreement was submitted to the juvenile court. As a result, the case proceeded to an adjudication hearing. As the State concedes, "[t]he only evidence presented by the State at the [adjudication] hearing was the testimony of Investigator Charles"-which the juvenile court found consisted entirely of hearsay. Notably, the State does not dispute that Ms. Charles' testimony was hearsay. Instead, the State asserts that the juvenile court "exclude[ed] Investigator Charles's testimony as inadmissible hearsay." The State contends that, because a contemporaneous objection was not lodged as to Ms. Charles' hearsay testimony, the testimony was admissible and the juvenile court was required to consider it. Thus, the State contends, the juvenile court's exclusion of the testimony was contrary to the law, and the juvenile court erred in declining to adjudicate Z.D. a child in need of care as to his father.

The record does not support the State's assertion that the juvenile court excluded Ms. Charles' testimony. The juvenile court never ruled that Ms. Charles' testimony was inadmissible. To the contrary, the juvenile court noted that, although Ms. Charles' testimony was "all hearsay," there had been "[n]o objection to the testimony." Furthermore, the juvenile court's written judgment reflects that the juvenile court "consider[ed] the testimony of the witness taken under oath" before rendering judgment. Thus, contrary to the State's assertion, the juvenile court did not exclude Ms. Charles' hearsay testimony as inadmissible; rather, the juvenile court, after considering her testimony, found it to be insufficient to carry the State's burden.

Turning to the merits, the record before us does not support a finding that the juvenile court committed manifest error. At no point during the hearing did Ms. Charles testify that Z.D.'s father refused or unreasonably failed to supply Z.D. with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition. Nor did she testify that Z.D. was without necessary food, clothing, shelter, medical care, or supervision because of his father's incarceration.

Instead, Ms. Charles testified only that Z.D.'s father was in prison, where he would remain through 2027; that, through the warden of the prison where he was incarcerated, she was informed that he wished for his mother-Z.D.'s paternal grandmother-to assume custody of Z.D.; that Z.D.'s grandmother was equivocal regarding her willingness to assume custody of Z.D; and that Ms. Charles thereafter failed to communicate with Z.D.'s father regarding an alternate plan for Z.D.'s care. Thus, even if the juvenile court had entirely credited Ms. Charles' testimony, the testimony was still insufficient to carry the State's burden.

In any event, even when the State presents sufficient evidence to support a finding that a child is in need of care, it does not follow that the juvenile court is required to make such a finding. Instead, in determining whether a child is in need of care, a juvenile court "is vested with great discretion and such a decision will not be reversed on appeal absent a showing of abuse of that discretion. State in Interest of S.T. , 14-0731, p. 3 (La. App. 4 Cir. 1/28/15), 158 So.3d 944, 946. As one court has observed:

In cases involving the custody of children, the trial court is vested with a vast amount of discretion. Bagents v. Bagents , 419 So.2d 460, 462 (La. 1982). The trial court is in a better position to evaluate the best interest of a child because of its superior opportunity to observe the parties and the witnesses who testified at the trial. In re State Ex. Rel. Thaxton , 220 So.2d 184, 187 (La. App. 1 Cir.1969). As an appellate court, we must afford great deference to the trial court's decision, not only because of that court's better capacity to evaluate witnesses, but also because of the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Company , 283 So.2d 716, 724 (La. 1973). Thus, the trial court's decision will not be disturbed on review except in the clearest case of abuse of the trial court's great discretion. Bagents , supra .

State ex rel. A.R. , 99-0813, p. 8 (La. App. 1 Cir. 9/24/99), 754 So.2d 1073, 1077-78. Such discretion is essential to permit a court exercising juvenile jurisdiction to fulfill the purposes for which the Louisiana Children's Code, in general, and the articles governing child in need of care proceedings, in particular, were enacted.

Here, we cannot conclude the juvenile court abused its discretion. Our determination is supported by four considerations. First, adjudicating Z.D. a child in need of care as to his father would have worked no material change in Z.D.'s circumstances. Due to his father's incarceration, Z.D.'s mother was the de facto custodial parent. As a result of his mother's abuse, Z.D. was removed from his mother's custody and continued in DCFS custody throughout the proceedings. After Z.D. was adjudicated a child in need of care as to his mother, the juvenile court entered a disposition ordering that DCFS was to "provide for all of the needs of the minor child." The juvenile court specifically noted, however, that the goal of the case plan included reunification. Thus, adjudication of Z.D. as a child in need of care as to his father would not have transferred Z.D. to the State's custody; would not, in the short term, have altered the disposition; and may have proven unnecessary, if Z.D.'s mother demonstrated sufficient compliance to have custody returned to her.

Second, the consequences of finding Z.D. to be a child in need of care as to his father may have been significant-regardless of whether Z.D.'s mother regained custody. Under Louisiana law, a finding that a child is in need of care because a parent is incarcerated is a significant step toward termination of the parental rights of the incarcerated parent. Indeed, when, as in this case, the incarcerated parent is serving a sentence of at least five years of imprisonment, such sentence gives rise to a presumption in favor of termination.

Third, Louisiana courts have repeatedly expressed concern about child in need of custody judgments grounded in hearsay. The narrow time constraints imposed on the State in child in need of care proceedings does not relieve the State of its burden to offer admissible evidence. If the State required additional time to obtain such evidence, the State could have obtained an extension by seeking an informal adjustment agreement. The State, however, chose not to seek such an agreement. Under these circumstances, and given the nature of the interests at stake and the potentially significant consequences of a finding that Z.D. is in need of care as to his father, the juvenile court's decision not to base such a finding on evidence that consisted entirely of uncorroborated hearsay-the accuracy of which cannot be assessed-was reasonable.

Finally, the juvenile court's judgment is without prejudice. The jurisdiction of courts in child in need of care proceedings is continuous; and none of the events terminating such jurisdiction has occurred in this case. Thus, if Z.D.'s mother fails to regain custody, the State may resume proceedings to have Z.D. designated a child in need of care as to his father so that a plan for permanent placement may be pursued and implemented. Then, as previously, the juvenile court will have the discretion to determine whether such a result is in Z.D.'s best interest.

DECREE

For the foregoing reasons, the State's appeal is converted to an application for supervisory writ, the writ is granted, and relief is denied.

APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT; WRIT GRANTED; RELIEF DENIED

BELSOME, J., CONCURS IN RESULT

DYSART, J., DISSENTS WITH REASONS

BARTHOLOMEW-WOODS, J., DISSENTS WITH REASONS

BELSOME, J., CONCURS IN RESULT

Although I agree that the record does not contain a judgment of disposition, it is clear from the trial court's ruling that it dismissed the State's child in need of care petition, setting the matter for a case review hearing, and not a disposition hearing. Thus, I respectfully dissent as I find that the trial court erred in not finding Z.D. to be a child in need of care as to his father, J.B.

The purpose of Title 6, Child in Need of Care, of the Louisiana Children's Code is to protect children whose physical or mental health and welfare is substantially at risk of harm by abuse, neglect or exploitation. La. Ch.C. art. 601. The health, safety and best interest of the child are of paramount concern. Id.; see also, State in the Interest of D.A., 10-1040, p. 7 (La.App. 5 Cir. 6/14/11), 70 So.3d 960, 963. To reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and find that a reasonable factual basis does not exist, and further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, through DOTD, 617 So.2d 880 (La. 1993) ; State in the Interest of D.H., 04-2105, pp. 7-8 (La.App. 1 Cir. 2/11/05), 906 So.2d 554, 560.

After reviewing this record in its entirety and considering the best interests of Z.D., I find that it would not be a prudent use of judicial resources to require a disposition hearing prior to ruling on the merits of the child in need of care petition. This is especially true in light of the fact that Z.D.'s father, J.B., is incarcerated until 2027. I would therefore reverse the ruling of the trial court and find Z.D. to be a child in need of care as to his father, J.B.

I respectfully dissent from the result reached by the majority. I would find that the juvenile court abused its discretion, resulting in an adjudication that Z.D. is not a child in need of care. Specifically, the juvenile court held as it did after noting the State relied upon hearsay evidence to which there was no objection. While the majority opinion suggests that the record does not support the State's assertion that the court ruled such hearsay inadmissible, I disagree. The court, on its own, indicated that the testimony of Ms. Charles was "all hearsay" and further noted the lack of objection thereto. The court thereafter stated that individuals like Ms. Charles "may testify about what a parent said" when the parent speaks directly to them, but "not through a second person[,]" as was the case here. The court then concluded there was insufficient evidence. Although the court did not explicitly state that it was excluding such evidence, the court's comments clearly indicate, to me, that the court did not consider the hearsay testimony.

The law is clear that an "adjudication hearing shall be conducted according to the rules of evidence applicable to civil proceedings." La.Ch.C. art.663(A). The failure to object constitutes a waiver of the right to object to admissibility, and thereafter, the evidence may be considered and given probative effect. Guedon & Assocs., Inc. v. Haik , 533 So.2d 1256, 1260 (La.App. 4 Cir. 1988). I am unaware of any jurisprudence under the current circumstances wherein a trial court can supply or sustain an objection that was never offered. Accordingly, I would reverse.

      Because this matter involves a juvenile, we identify the juvenile by his initials and other persons by their relationship to the juvenile. See La. Ch.C. art. 412.

      The language of the petition does not track the language of the statutory provisions on which it purports to be based. See La. Ch.C. art. 606(A)(2) (setting forth as a ground for finding a child to be in need of care that "[t]he child is a victim of neglect"); La. Ch.C. art. 603(18) (defining neglect as the refusal or unreasonable failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition of the child, as a result of which the child's physical, mental, or emotional health and safety is substantially threatened or impaired"); La. Ch.C. art. 606(A)(3) (setting forth as a ground for finding a child to be in need of care that "[t]he child is without necessary food, clothing, shelter, medical care, or supervision because of the disappearance or prolonged absence of his parent"). Notably, "not [being] available" to provide for a child's needs is not among the grounds for finding a child to be in need of care.

      There are eight grounds for finding a child to be in need of care. See generally La. Ch.C. art. 606(A). Among them are abuse, neglect, and the failure to provide a child with necessary food, clothing, shelter, medical care, or supervision due to a parent's prolonged absence. See La. Ch.C. art. 606(A)(1)-(3).

      Ms. Charles did testify that, "to the best of [her] knowledge ... [Z.D.'s father] [was] not available to care for the food, clothing, and shelter or medical needs of [Z.D.]." As noted elsewhere in this opinion, however, whether a parent is personally "available" to provide for a child is irrelevant; the only relevant consideration is whether "[a] child is without necessary food, clothing, shelter, medical care, or supervision because of the disappearance or prolonged absence of his parent." While the juvenile court was entitled to infer from the fact of Z.D.'s father's incarceration that Z.D. was without such necessities, the juvenile court was not required to do so. See Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989) observing that "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong").

      Ms. Charles testified that when she spoke with Z.D.'s grandmother, she indicated that she was willing to take custody of Z.D.; later in the same conversation, however, the grandmother "recanted," citing her concern that Z.D. may not be her biological grandchild. Notably, however, there is no indication in the record that State subpoenaed Z.D.'s grandmother, who was not present, to appear so that she could be questioned under oath.

      With respect to child in child in need of care proceedings, the Louisiana Children's Code sets forth those purposes as follows:
      The purpose of [the Title governing child in need of care proceedings] is to protect children whose physical or mental health and welfare is substantially at risk of harm by physical abuse, neglect, or exploitation and who may be further threatened by the conduct of others, by providing for the reporting of suspected cases of abuse, exploitation, or neglect of children; by providing for the investigation of such complaints; and by providing, if necessary, for the resolution of child in need of care proceedings in the courts. The proceedings shall be conducted expeditiously to avoid delays in achieving permanency for children. This Title is intended to provide the greatest possible protection as promptly as possible for such children. The health, safety, and best interest of the child shall be the paramount concern in all proceedings under this Title.
      La. Ch.C. art. 601. Importantly, however, La. Ch.C. art. 601 cautions that "[t]his Title shall be administered and interpreted to avoid unnecessary interference with family privacy and trauma to the child, and yet, at the same time, authorize the protective and preventive intervention needed for the health, safety, and well-being of children" and specifically notes that "[t]his Title shall be construed in accordance with Article 102," which provides:
      The provisions of this Code shall be liberally construed to the end that each child and parent coming within the jurisdiction of the court shall be accorded due process and that each child shall receive, preferably in his own home, the care, guidance, and control that will be conducive to his welfare. In those instances when he is removed from the control of his parents, the court shall secure for him care as nearly as possible equivalent to that which the parents should have given him. These Code provisions shall be construed to promote the stability of the family and to secure simplicity in procedure, fairness in adjudication and administration, and the elimination of unjustifiable delay.
      La. Ch.C. art. 102. Thus, as the Children's Code makes clear, while the best interest of the child is a "paramount concern" in child in need of care proceedings; it is not the only concern that courts exercising juvenile jurisdiction should consider.

      Indeed, the State does not argue that the juvenile court abused its discretion. Indeed, the State fails to address the applicable standard of review. See La. Unif. R. Ct. App. 2-12.4(A)(9)(b) (requiring that "[t]he brief of the appellant shall contain ... for each assignment of error and issue for review, a concise statement of the applicable standard of review, which may appear in the discussion or under a separate heading placed before the discussion"). Instead, the State contends only that the juvenile court "erred" in declining to adjudicate Z.D. a child in need of care and limits its arguments in support of that contention to its erroneous assertion that the juvenile court improperly excluded Ms. Charles' hearsay testimony.
      In the absence of any particularized argument-citing any relevant facts or law-as to whether or how the juvenile court abused its discretion in declining to find Z.D. to be a child in need of care as to his father, the State arguably has abandoned this issue. See La. Unif. R. Ct. App. 2-12.4(A)(9)(a) (requiring that "[t]he brief of the appellant shall contain ... [the] appellant's contentions, with reference to the specific page numbers of the record and citations to the authorities on which the appellant relies"); La. Unif. R. Ct. App. 2-12.4(B)(4) (providing that "[a]ll assignments of error and issues for review must be briefed" and that "[t]he court may consider as abandoned any assignment of error or issue for review which has not been briefed").

      See La. Ch.C. art. 1004(D)(5) ("The department may petition for the termination of parental rights of the parent of the child when ... [t]he child is in foster care because the parent is incarcerated and termination is authorized by Article 1015(7) ); La. Ch.C. art. 1015(7) ("The grounds for termination of parental rights [include that] ... [t]he child is in the custody of the department pursuant to a court order or placement by the parent; the parent has been convicted and sentenced to a period of incarceration of such duration that the parent will not be able to care for the child for an extended period of time, considering the child's age and his need for a safe, stable, and permanent home; and despite notice by the department, the parent has refused or failed to provide a reasonable plan for the appropriate care of the child other than foster care.").

      La. Ch.C. art. 1036(E) (providing that, "[u]nder Article 1015(7), a sentence of at least five years of imprisonment raises a presumption of the parent's inability to care for the child for an extended period of time, although the incarceration of a parent shall not in and of itself be sufficient to deprive a parent of his parental rights").

      See, e.g. , State ex rel. D.H. , 04-2105, p. 16 (La. App. 1 Cir. 2/11/05), 906 So.2d 554, 565 (observing that "the trial court accorded apartment house gossip the status of reliable evidence in contravention of the mother's right of due process"); see also State, in the interest of Rotolo , 361 So.2d 468 (La. App. 4 Cir.1978) (rejecting that portion of the record deemed to be hearsay and grounding its decision to affirm in the credibility determination of the juvenile court as to the remaining record evidence); State, in the interest of Prestridge , 323 So.2d 868 (La. App. 2nd Cir. 1975) (finding that the juvenile court erred by grounding in inadmissible hearsay its finding that a child was in need of care).

      As one commentator has observed, "The serious and intrusive nature of child protection proceedings necessarily implicates fundamental constitutional rights, including the child's liberty interest in safety, health and well-being, and the parents' rights to custody and control of their children." Margot E. Hammond, Legal Representation in Child Protection Cases , 66 LA. B.J. 92, 93 (2018).

      La. Ch.C. art. 309(A)(1) (providing that "a court exercising juvenile jurisdiction shall have continuing jurisdiction over ... [c]hild in need of care proceedings pursuant to Title VI").

      La. Ch.C. art. 313(A) (setting forth the circumstances under which the jurisdiction of a juvenile court is terminated).