author: HOLDRIDGE, J.

text:
    Robert L. LUCIEN, Sr. a/k/a Roba, Inc v. Attorney Robert J. CARTER and his Insurers, ABC Insurance Company
    2017 CA 1069
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered May 31, 2018
    Robert L. Lucien, Sr., New Orleans, LA, Plaintiff/Appellant, Proper Person
    Robert J. Carter, Greensburg, LA, Attorney for Defendant/Appellee, Robert J. Carter
    BEFORE: HIGGINBOTHAM, HOLDRIDGE AND PENZATO, JJ.
   HOLDRIDGE, J.

Plaintiff, Robert L. Lucien, Sr., appeals a judgment sustaining a declinatory exception raising the objections of improper service and improper citation and a peremptory exception raising the objection of no right of action in favor of defendant, Robert J. Carter, and dismissing the lawsuit with prejudice. For the following reasons, we affirm the judgment in part, reverse the judgment in part, and amend the judgment to dismiss the lawsuit without prejudice.

FACTUAL AND PROCEDURAL HISTORY

On June 6, 2016, Mr. Lucien filed a petition seeking damages for wrongful seizure of property against Mr. Carter, an attorney who represented property owners James B. and Mona Lackman Courtney in a lawsuit filed against the Courtneys by Mr. Lucien's company, Roba, Inc. According to the allegations of the petition, Mr. Lucien and his company purchased more than 60 acres of property from the Courtneys in 1980. The Courtneys later sold a plot of land to another purchaser, who erected a road across property Mr. Lucien claimed he owned, spurring the first lawsuit filed by Mr. Lucien against the Courtneys. The Courtneys were represented by Mr. Carter in that lawsuit; however, in a second lawsuit filed by Mr. Lucien against the Courtneys to correct title, Mr. Carter no longer represented the Courtneys. Mr. Lucien alleged that at some point in the litigation, Mr. Carter filed a demand for attorney's fees, court costs, and reimbursement against Mr. Lucien, obtained judgments from the 21st Judicial District Court, and obtained a writ of seizure and sale for Mr. Lucien's property, causing it to be advertised and set for Sheriff's sale. Mr. Lucien filed a petition to declare the judgments obtained by Mr. Carter to be null and void. The request for relief was denied by the trial court. Thereafter, Roba, Inc. appealed the judgment of the trial court dismissing the nullity action and awarding Mr. Carter attorney's fees.

In Roba, Inc. v. Courtney, 2014-1091 (La. App. 1st Cir. 8/28/15), 2015 WL 5657359 (unpublished), another panel of this court reversed the judgment in favor of Mr. Carter, finding that Mr. Carter was not a party to the lawsuit. This court remanded the matter to the trial court for further proceedings.

In the instant lawsuit, Mr. Lucien asserted claims for damages against Mr. Carter based on Mr. Carter's actions in allegedly filing unlawful pleadings, obtaining an unlawful writ of seizure and sale of Mr. Lucien's property, and obtaining an illegal judgment against Mr. Lucien for which he did not have standing to obtain. Specifically, Mr. Lucien sought to recover: (1) damages for emotional distress; (2) reimbursement of all legal fees and costs paid to two different attorneys hired to defend the unlawful judgments as well as costs for expenses incurred therein; (3) damages for humiliation as a result of the unlawful seizure of his property; (4) damages for civil rights violations under 42 U.S.C. 1983 ; and (5) punitive damages.

In the June 6, 2016 petition, Mr. Lucien asked that Mr. Carter be served at a post office box in Greensburg. On December 19, 2016, more than six months after the lawsuit was filed, Mr. Lucien provided the Clerk of Court with another address for Mr. Carter at 23 S. Main Street D in Greensburg. On December 27, 2016, the St. Helena Parish Sheriff's Office served Mr. Carter with citation.

On December 29, 2016, Mr. Carter filed a declinatory exception raising the objections of improper service and insufficiency of citation. He alleged that although the petition was filed by Mr. Lucien on June 6, 2016, proper service was not requested until December 27, 2016, more than ninety days after the petition had been filed, in violation of La. C.C.P. art. 1201(C). Mr. Carter also filed a peremptory exception raising the objection of no right of action, in which he asserted that Mr. Lucien was not a party to the lawsuit brought by Roba, Inc. against the Courtneys, and therefore, had no right of action to file this lawsuit against Mr. Carter. Finally, Mr. Carter sought to recover attorney's fees and costs under La. C.C.P. art. 863 for having to file the exceptions when the petition was "factually unsound."

Following a hearing, the trial court granted Mr. Carter's declinatory and peremptory exceptions raising the objections of improper service and improper citation and no right of action, dismissing the lawsuit with prejudice. In written reasons for judgment, the trial court explained that it granted the declinatory exceptions upon finding that the mailing of a document for service of process to a post office is insufficient, improper service. The court further stated that it agreed Mr. Lucien did not have a valid cause of action against Mr. Carter. Lastly, the trial court declined to award Mr. Carter attorney's fees for having to defend the claim through the exceptions, but did order that Mr. Lucien pay all costs of the proceedings.

Mr. Lucien appealed, asserting that the trial court erred in ruling that he did not have a right of action for unlawful seizure and in ruling that his request for service and citation was insufficient. Mr. Carter answered the appeal, seeking an award of damages for frivolous appeal.

DISCUSSION

Louisiana Code of Civil Procedure article 925 provides that objections which may be raised through the declinatory exception include the objection of insufficiency of citation and insufficiency of service. An objection to the failure to request service of citation on the defendant within the time prescribed by La. C.C.P. art. 1201(C) is an objection to the sufficiency of the service of process. La. C.C.P. art. 925. We shall first determine whether the trial court properly granted Mr. Carter's declinatory exception objecting to the sufficiency of the request for service of process and whether the request was timely made in accordance with La. C.C.P. art. 1201(C).

Proper service on the defendant is essential in ordinary proceedings, and without it, all proceedings are absolutely null. La. C.C.P. art. 1201. The necessity for a plaintiff's timely request of service is fundamental and warrants strict compliance, just as the fundamental requirements for filing an action must be strictly followed. Johnson v. Brown, 2003-0679 (La. App. 4th Cir. 6/25/03), 851 So.2d 319, 326.

Louisiana Code of Civil Procedure article 1201(C) provides that "[s]ervice of the citation shall be requested on all named defendants within ninety days of commencement of the action." (emphasis added) A defendant may expressly waive the requirements of La. C.C.P. art. 1201(C) by a written waiver. Furthermore, the requirements of La. C.C.P. art. 1201(C)"shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinatory exception of insufficiency of service of process specifically alleging the failure to timely request service of citation".

Proper service of citation requires that the defendant be served by either personal or domiciliary service. La. C.C.P. art. 1231. Personal service is made by tender of the citation or other process to the person being served. La C.C.P. art. 1232. Domiciliary service is effected when the citation or other process is left by the proper officer at the "dwelling house or usual place of abode" of the person to be served, with a person of suitable age and discretion residing in the domiciliary establishment. La. C.C.P. art. 1234.

Louisiana Code of Civil Procedure Art. 1672(C), entitled "Involuntary Dismissal," states as follows:

A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

Pursuant to La. C.C.P art. 1672(C), the trial court was required to make an initial determination of whether Mr. Lucien properly requested service upon Mr. Carter within the time prescribed by La. C.C.P. art. 1201(C). See Burgo v. Henderson, 12-332 (La. App. 3rd Cir. 2/9/13), 106 So.3d 275, 280. The requirement that service on the defendant be requested within the 90-day time period prescribed by La. C.C.P. art. 1201(C) requires an accurate request for service upon the proper agent of the defendant. Barnett v. Louisiana State University Medical Center-Shreveport, 02-2576 (La. 2/7/03), 841 So.2d 725, 726. The record demonstrates that Mr. Lucien only requested service on Mr. Carter within the 90-day period at a post office box address and did not provide a physical address for which Mr. Carter could be served with citation either by personal service or by domiciliary service until six months after the lawsuit had been filed. Therefore, Mr. Lucien failed to request proper service of citation on Mr. Carter within, the time prescribed by La. C.C.P. art. 1201(C), and the trial court correctly sustained Mr. Carter's declinatory exception asserting the objection of insufficiency of service of process.

Upon sustaining Mr. Carter's declinatory exception objecting to sufficiency of service of process, the trial court was obligated by La. C.C.P. art. 1672(C) to dismiss Mr. Lucien's lawsuit without prejudice, unless good cause was shown why service could not be requested, in which case the court could order that service be effected within a specific time. Louisiana courts strictly construe La. C.C.P. art. 1672(C)'s good cause requirement. Barnett, 841 So.2d at 726 ; Jones v. Iberville Parish Council, 2012-0391 (La. App. 1st Cir. 11/2/12), 111 So.3d 83, 85.

During the trial court's hearing on Mr. Carter's motions, Mr. Lucien claimed that Mr. Carter had been served at the post office box previously and insisted that in St. Helena Parish, nearly all (90%) of post office boxes are physical addresses. In not ordering that service be effected within a specified time, the trial court obviously found that Mr. Lucien failed to demonstrate good cause why proper service could not have been requested in the prescribed time period. We find no error in this determination. Mr. Lucien's mere confusion regarding Mr. Carter's proper address for service of process did not provide a sufficient basis for good cause.

Upon finding that Mr. Lucien did not properly request service on Mr. Carter within the 90-day time period set forth in La. C.C.P. art. 1201(C) and upon concluding that Mr. Lucien failed to demonstrate good cause why such service could not be requested in that time frame, the trial court was required to dismiss the action without prejudice in accordance with La. C.C.P. art. 1672(C). Instead, the trial court went further and ruled on the declinatory exception of insufficiency of citation and the peremptory exception of no cause of action, and upon granting both the declinatory and peremptory exceptions, dismissed Mr. Lucien's lawsuit with prejudice. However, the declinatory exception objecting to the insufficiency of citation and the peremptory exception of no right of action became moot upon the trial court's granting of the declinatory exception of insufficiency of service of process as La. C.C.P. art. 1672(C) requires that the action shall be dismissed without prejudice. (emphasis added) Since Mr. Lucien's case should have been dismissed without prejudice by the trial court upon sustaining the declinatory exception filed by Mr. Carter pursuant to La. C.C.P. art. 1672(C), it was not necessary for the court to rule on the remaining exceptions since Mr. Carter's suit was effectively dismissed and was no longer viable.

ANSWER TO APPEAL

Mr. Carter answered Mr. Lucien's appeal to request an award of attorney's fees for a frivolous appeal. Damages for frivolous appeal may be awarded pursuant to La. C.C.P. art. 2614; however, because the statute is penal in nature, it must be strictly construed. Courtney v. Fletcher Trucking, 2012-0434 (La. App. 1st Cir. 12/21/12), 111 So.3d 411, 419. Appeals are favored, and damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay or that the appealing party does not seriously believe in the position advanced, even though the appeal lacks serious merit. American Supply Co. of Morgan City, Inc. v. Tara Alyene, Inc., 470 So.2d 459, 460 (La. App. 1st Cir. 1985). The slightest justification for an appeal precludes damages for frivolous appeal. Courtney,Id. Because we have granted partial relief to Mr. Lucien, although on different grounds than he advanced in his brief, we decline to award attorney's fees in this case.

CONCLUSION

For the reasons set forth above, we affirm the judgment of the trial court insofar as it granted the declinatory exception raising the objection of insufficiency of service of process, and we amend the judgment to dismiss the lawsuit without prejudice. In all other respects, the judgment appealed from is reversed. All costs of this appeal are assessed one-half to appellant, Robert L. Lucien, Sr., and one-half to appellee, Robert J. Carter.

AFFIIRMED IN PART; REVERSED IN PART; AMENDED TO DISMISS THE LAWSUIT WITHOUT PREJUDICE.

      While the trial court in its reasons for judgment stated that the service on Mr. Carter was not proper, the exception raising the objection of insufficiency of service of process raised by Mr. Carter alleges that proper service was not requested upon him in accordance with La. C.C.P. art. 1201(C).

      Mr. Carter's declinatory exception was labeled "improper service" rather than "insufficiency of service of process."

      The purpose of the requirement that the plaintiff must effect service of process within ninety days of filing suit is to ensure that the defendant receives notice of the suit within a reasonable time after it has been commenced. See Morgan v. Investment Cars Unlimited, Inc., 37,052 (La. App. 2nd Cir. 4/9/03), 843 So.2d 580, 583.

      Mr. Carter could have waived his exception raising the objection of insufficiency of service and allowed the trial court to rule on his peremptory exception. The record does not reflect that Mr. Carter waived his exception.

      If the court had properly ruled on the other exceptions, Mr. Lucien would have had an opportunity to amend his petition in accordance with La. C.C.P. arts. 932 and 934. Because his suit was dismissed without prejudice in accordance with La. C.C.P. art. 1672(C), no amendment is allowed.


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    Elizabeth Mary Toups HARREL, Plaintiff-Appellee v. Jason Carr HARREL, Defendant-Appellant
    No. 52,248-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018
    BOOTH, LOCKARD, POLITZ, & LeSAGE, L.L.C. By: Nyle A. Politz, Shreveport, Counsel for Appellant
    BOWERS LAW FIRM, LLC By: Gary A. Bowers, Shreveport, Counsel for Appellee
    Before BROWN, MOORE, and COX, JJ.
   BROWN, C.J.

The father has appealed from a trial court judgment declining to modify a May 2013 consent judgment based upon the court's finding that the father failed to prove a material change in circumstances warranting a change in the custody arrangement set forth in the parties' consent judgment. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL BACKGROUND

The parties to this appeal are former spouses. They were married on November 25, 2004, separated on October 20, 2012, and divorced by judgment rendered December 16, 2013. The parties have three minor children. By a consent judgment entered on May 14, 2013, the parties were awarded joint custody, with the mother being named domiciliary parent and the father being given "reasonable visitation" of alternating weekends, every Thursday evening for three hours, eight hours on Father's Day, and all holidays to be agreed upon by the parties. Also in this judgment, the parties "waived the necessity of a Joint Custody Implementation Plan ('JCIP') and find same to be in the children's best interest, but reserve their right to have one set in the event that either [parent] desires same, without having to prove a change in circumstances." The mother was represented by counsel at the time of the parties' agreement, while the father appeared in proper person.

On June 24, 2015, the father filed a Petition for Rule Nisi for Entry of Shared Time Joint Custody Implementation Plan and to Modify Support, which was set for hearing on August 31, 2015. At this hearing, the mother sought and was granted the appointment of an La. R.S. 9:331 mental health professional, whose report and recommendation were issued on March 28, 2016. On April 13, 2016, the mother filed a Motion for Authorization to Conduct Independent Psychiatric Evaluation of the father pursuant to La. C.C.P. art. 1464. The trial court granted this request on April 28, 2016, and signed an order to that effect on May 16, 2016. The physician initially appointed, Richard Williams, was seriously injured in an accident in August 2016 and died in October 2016 before beginning the evaluation. The mother filed a Motion and Order to Substitute Psychologist Sally Thigpen on November 3, 2016, and this order was granted. Dr. Thigpen issued her 39-page report on January 30, 2017.

The trial, which consisted of ten nonconsecutive days held over the course of approximately three and one-half months, concluded on June 2, 2017. The trial court found that the father failed to prove a material change in circumstances warranting a change in the custody arrangement as set forth in the May 2013 consent judgment or that such a modification was in the best interest of the parties' children and declined to modify the consent judgment. The trial court issued its oral reasons on September 26, 2017. A written judgment and a Judgment Appointing a Parenting Coordinator were signed on October 31, 2017, the same date that the JCIP was implemented. The father has appealed.

DISCUSSION

On appeal, the father has raised three assignments of error. Specifically, he argues that the trial court erred in: (1) requiring him to prove a change in circumstances in order to have a JCIP set; (2) failing to enter a JCIP that allowed the father substantial time with the children; and, (3) finding that the examination of him by Dr. Sally Thigpen pursuant to La. C.C.P. art. 1464 was an evaluation of "the parties."

The mother urges this Court to affirm the judgment of the trial court. The mother points out that: (1) the father did not seek implementation of a JCIP consistent with the agreed-upon custodial arrangement set forth in the parties' May 2013 consent judgment, but instead requested a substantial increase in his custodial time far beyond that contemplated by the parties in their May 2013 consent judgment; (2) the father failed to prove his entitlement to an equally shared custody arrangement, i.e., he failed to demonstrate that there has been a material change in circumstances since the May 2013 consent judgment warranting such an increase (or that said change was in the best interest of the children); and, (3) the trial judge weighed and evaluated the testimony and evidence of the mental health experts, and the record supports the judge's determinations regarding the weight to be given to the expert testimony in this case.

Because it is more logical to do so, we will address the third assignment of error first.

Expert Testimony

Questions of credibility and the weight to be given to expert testimony are to be resolved by the trier of fact. Lasyone v. Kansas City Southern Railroad, 00-2628 (La. 4/3/01), 786 So.2d 682; Williams v. Board of Supervisors of University of Louisiana System , 48,763 (La. App. 2d Cir. 2/26/14), 135 So.3d 804, writ denied , 14-0666 (La. 5/2/14), 138 So.3d 1249. The weight to be given to expert testimony depends on the facts on which it is based as well as the professional qualifications and expertise of the expert. Meany v. Meany , 94-0251 (La. 7/5/94), 639 So.2d 229 ; Fuqua v. Fuqua , 46,118 (La. App. 2d Cir. 1/26/11), 57 So.3d 534. A fact-finder may accept or reject the opinions expressed by an expert, in whole or in part. Green v. K-Mart Corp., 03-2495 (La. 5/25/04), 874 So.2d 838 ; Davis v. Foremost Dairies, 45,835 (La. App. 2d Cir. 2/16/11), 58 So.3d 977, writs denied, 11-0568, 11-0538 (La. 4/25/11), 62 So.3d 97, 98.

The following is excerpted from the trial court's oral reasons for judgment:

The Court heard the sworn testimony and was able to make credibility determinations based upon the testimony and the Court's personal observation of the witnesses as they testified.... Based upon the testimony, the exhibits, and the Court's credibility determinations, review of the facts, the Court's insight is as follows ...
The Court first focused on the testimony of the Court-appointed expert, Dr. Mark Vigen. Dr. Vigen was appointed as the Court's expert[;] however, there was a report rendered from Dr. Vigen and Dr. Lobrano ... on March 28, 2016. Of concern to the Court was the testimony from Dr. Vigen when he ultimately acknowledged the deficiencies in the entire process of composing the report. He testified standard operation and procedure would have been for them to request the medical records for [the father]. He said, "If we had to do it over, we would have requested his medical records to review before generating the report."
Dr. Vigen and Dr. Lobrano in their testimony admitted that they reviewed the medical records of [the father] after the report had been rendered.... Dr. Lobrano testified, quote, "I wish we had done a more thorough exploration of his psychiatric history. I believe we could have done a better job with that." ...
Dr. Sally Thigpen, on the other hand, reviewed the records of three of the psychiatrists ... and the therapist Ms. Rebecca Warren. She also performed psychological testing on [the father] and reviewed depositions that had previously been taken in the case. Again, Dr. Thigpen rendered a 39-page opinion, an assessment of the parties.
The Court again reviewed those medical records and opined that the doctors and therapists who provided treatment to [the father] all rendered recommendations to him on how to manage and cope with his generalized anxiety disorder. However, in those medical records there wasn't a consistent routine on who was prescribing what medication and whether [the father's] mental stability was being managed at the time in light of all that was going on in his life in terms of the divorce, the separation, his time with the children, et cetera. It was clear from evidence that was submitted that this process was having an [e]ffect on his mental stability. The fights with [the mother], the text messages, the email exchange echo the Court's assessments....

The record does not show an abuse of the trial court's discretion in this case. The trial court did not base its conclusions and findings of fact solely upon the testimony of Dr. Thigpen, but instead, as the judge specifically noted in her reasons for judgment, she took into consideration all of the evidence, including the testimony of the parties, as well as the medical records and recommendations of all mental health professionals involved. This assignment of error is without merit.

Custody/Visitation

There is no merit to the father's first assigned error, which is that the trial court erred in requiring him to prove a change in circumstances to have a JCIP established.

It is undisputed that there was no JCIP at the time of the parties' consent agreement in May 2013. This, however, was done per the parties' agreement at that time. Regarding the father's periods of physical custody of the parties' children, the May 2013 consent judgment did not set any specified visitation during holidays (except for Father's Day) or summer vacations, but provided that "all holidays [were to] be agreed upon by the parties." As the record shows, the parties, having attempted for several years to fashion their own schedule for the non-specified holidays and summer months, were unable to do so without significant conflict and stress. By its terms, the May 2013 consent judgment necessarily envisioned that the father's periods of physical custody with the children would be more than the specifically provided for two nights every other weekend, three hours one night per week, and eight hours on Father's Day.

By providing that a JCIP would be set upon either party's request, which, as noted above, would contain the specified visitation periods from the May 2013 consent judgment as well as additional periods of physical custody with the father during holidays and summers, the parties did not agree to a modification of custodial time beyond these specific times "without having to prove a change in circumstances." As such, the father's request for 50/50 custody, which in fact sought a significant change from the parties' custodial agreement as set forth in the May 2013 consent judgment, was correctly treated by the trial court as a request for modification of custody, not simply a request for additional time to be set forth in a JCIP.

The primary consideration in any child custody determination is the best interest of the child. La. C.C. art. 131 ; Chandler v. Chandler , 48,891 (La. App. 2d Cir. 12/13/13), 132 So.3d 413. Every child custody case must be viewed based on its own particular facts and relationships involved, with the goal of determining what is in the best interest of the child. Mulkey v. Mulkey , 12-2709 (La. 5/7/13), 118 So.3d 357 ; Chandler, supra .

In most child custody cases, the trial court's determination is based heavily on factual findings. Mulkey , 118 So.3d at 368. Child custody decisions are reviewed under the abuse of discretion standard. Leard v. Schenker, 06-1116 (La. 6/16/06), 931 So.2d 355. The determination of the trial judge in child custody matters is entitled to great weight, and her discretion will not be disturbed on review absent a clear showing of abuse. Id. The court of appeal cannot simply substitute its own findings for that of the trial court. Mulkey, supra .

When, as in the instant case, the underlying decree is a stipulated or consent judgment (i.e. no evidence of parental fitness was taken by the court), the moving party has the burden of proving that a material change in circumstances has occurred since the original custody decree was entered, and that the proposed modification is in the best interest of the child. Evans v. Lungrin , 97-541 (La. 2/6/98), 708 So.2d 731 ; McMellon v. McMellon , 49,313 (La. App. 2d Cir. 7/23/14), 161 So.3d 769.

In support of his argument that the trial court erred in failing to award him 50/50 custody of the children, the father urges that the evidence at trial established the following circumstances which had changed substantially from the May 2013 consent judgment to the trial in 2017:

(1) Both parties had remarried and introduced new spouses and new minor children into the "global family dynamic."
(2) The father moved out of his mother's condominium and into a residence a few minutes away from the mother's home.
(3) The father's employment had changed with the addition of new partners which allows him the flexibility to arrange his call and vacation schedule to no longer conflict with his custodial schedule.
(4) All three children consistently express their desire to spend a lot more time with their father and want to exercise shared time in both households.
(5) The father was in a substantially better place psychologically in 2017 than he was in May 2013.

The father did not support his argument as to any of these changed circumstances with specific citations to the trial record, although in her brief, the mother did so. We will briefly address the first four, since the trial court obviously found the evidence on them to fall well short of constituting changes in circumstances that warranted consideration.

(1) It is undisputed that both parties have remarried, and that both have created blended families that include new minor children. In his concurrence in Shaffer v. Shaffer, 00-1251 (La. App. 1st Cir. 9/13/00), 808 So.2d 354, 360, writ denied, 00-2838 (La. 11/13/00), 774 So.2d 151, Justice Weimer, then serving on the First Circuit, observed that "[l]ife changes may occur, but if the changes do not have an effect on the welfare of the child, then no change in custody is justified." See, Stroud v. Stroud , 43,003 (La. App. 2d Cir. 12/14/07), 973 So.2d 865. The parents' remarriages and the creation of new family dynamics since the May 2013 consent judgment constitute a change in circumstances for everyone involved. However, the introduction of new people in one's life is not an unexpected consequence of a divorce. Montalvo v. Montalvo , 02-1303 (La. App. 3d Cir. 4/17/03), 854 So.2d 902, 908. As in Stroud, supra, there is no evidence in this case that the parties' remarriages and the creation of new "global family dynamics" have materially affected the welfare of the children.

(2) The father moved to a new house close to the mother's home. Changes in residences, like the introduction of new people, are often expected consequences of divorce. Montalvo, supra . There was no evidence introduced in this case to show that the father's relocation of his residence had a material effect on his children to support a change in the custodial arrangement set forth in the parties' consent judgment. See, Tinsley v. Tinsley , 16-0891 (La. App. 1st Cir. 1/18/17), 211 So.3d 405, 415.

(3) The father's changed work schedule. A parent's change in employment and work schedule can constitute a change that materially affects a child's welfare. See, Mulkey, 118 So.3d at 366. In the instant case, the father testified that he had more flexibility with his schedule. However, he conceded that the schedule he was working at the time of trial was similar to the schedule he worked in May 2013, when the consent judgment was rendered. The mother testified that the father has always had flexibility with his schedule, but failed to exercise his custodial times under the May 2013 consent judgment because of conflict with his call schedule. She also stated that he refused to alter his call schedule to alleviate the conflict. Dr. Lobrano opined that the father "wasn't taking advantage of all the visitation that he was being offered," and was not acting consistently with someone "begging for fifty-fifty custody." This factor does not constitute a change in circumstances warranting modification of custody.

(4) All three children have expressed a desire to spend more time with their father and have shared time in both households. La. C.C. art. 134(9) provides that the reasonable preference of a child, if the court deems the child to be of sufficient age to express a preference, is a factor that may be considered by the court in determining the best interest of the child. However, such a preference is not, of itself, a material change in circumstances affecting the child's welfare. See, Stroud, supra ; Lunsford v. Lunsford , 545 So.2d 1279 (La. App. 2d Cir. 1989) ; Monteleone v. Monteleone , 591 So.2d 1228, 1235 (La. App. 4th Cir. 1991).

Drs. Lobrano and Thigpen opined that the parties' children (aged 11, 9, and 6 as of trial) were not of a sufficient age or maturity level to express a custodial preference. Dr. Lobrano also had concerns that the children were being told by the father to say or do things to be hurtful to the mother. Dr. Thigpen's review of the records and documentary evidence in this case led her to opine that the children had been coached, but not by their mother. The children did not testify at trial. Their counselor, Sandra Frith, stated that the children expressed in "words well beyond their age their desire to have a 'fifty-fifty custody' with both parents," and that the oldest child related to her that the father talked to the children about the custody proceedings. The trial court did not err in failing to factor into consideration the children's preference in this case.

(5) The father was in a "substantially better place psychologically" in 2017. In its oral reasons for judgment, the trial court found that:

In this case the record as a whole does support that both [parents] have love and affection and emotional ties to their children. Both [parents] have the capacity to give [their children] love, affection and spiritual guidance, and [are] very capable of providing for all of the children's material needs. With more work and the assistance of a parenting coordinator[,] they will both be able to consistently foster the children's relationship with the other parent and both of them will work on their parenting responsibilities.
[The father] is an intelligent man who worries and ruminates over small details. He is a loving father to all three of his children and he wants to be a great parent. However, this Court is concerned with the emotional and mental stability of [the father]. All of the treating physicians in this case recommended that [the father] would benefit from ongoing counseling. No evidence was introduced to date that [the father] has a current treatment plan to help him cope and manage his generalized anxiety disorder. Pursuant to Louisiana Civil Code Article 134(7), the mental and physical health of each parent is a factor in this case that the Court must take into account. The evidence is overwhelming and cannot be overlooked.
Given the totality of the evidence that was submitted, the Court does not feel that there was a material change in circumstance and that it warrants changing the judgment that was in place from May 14, 2013.

After considering extensive evidence and testimony, both lay and expert, introduced by the parties over the course of this ten-day trial, the judge found that the father had failed to show that there had been the requisite material change in circumstances or that it was in the best interest of the children that the custodial arrangement agreed to by the parties in the May 2013 consent judgment be modified. Having reviewed the voluminous record in its entirety, we find no error or abuse of discretion on the part of the trial court.

In his next assignment of error, the father alleges that the trial court erred in failing to enter a JCIP that allowed him substantial time with the children.

Louisiana Revised Statute 9:335(A)(2)(b) provides that, to the extent feasible and in the best interest of the child, physical custody should be shared equally. Yet when the trial court finds that a decree of joint custody is in the best interest of the child, the statute does not necessarily require an equal sharing of physical custody. Yerger v. Yerger , 49,790 (La. App. 2d Cir. 2/27/15), 162 So.3d 603 ; Langford v. Langford , 49,080 (La. App. 2d Cir. 4/9/14), 138 So.3d 101 ; Chandler, supra . Substantial time rather than strict equality of time is mandated by the legislative scheme. Yerger, supra; Semmes v. Semmes , 45,006 (La. App. 2d Cir. 12/16/09), 27 So.3d 1024.

Absent the showing of good cause, the court must render a joint custody implementation order when joint custody is decreed. La. R.S. 9:335(A)(1). The implementation order shall allocate the time periods during which each parent shall have physical custody of the child is assured of frequent and continuing contact with both parents. La. R.S. 9:335(A)(2)(a) ; Yerger, supra .

The implication of La. R.S. 9:335 is that most joint custody decrees will invariably result in children primarily residing with one parent more than the other. Langford, supra; Stephenson v. Stephenson , 37,323 (La. App. 2d Cir. 5/14/03), 847 So.2d 175. In the instant case, the JCIP judgment rendered by the trial judge on October 31, 2017, will give the father approximately 80-90 "overnight" visitations, as well as 52 midweek half-day visitations.

The father's only complaint with the JCIP was that it failed to give him 50/50 shared physical custody, which we have addressed above. We observe that in this case, the trial court's JCIP meets the goal of joint custody, which is to assure that the father, who is the non-domiciliary parent, will have frequent, regular, and continuing contact with the children. Langford, supra . See also, Moreau v. Moreau , 15-0564 (La. App. 4th Cir. 11/18/15), 179 So.3d 819. This assignment of error is without merit.

CONCLUSION

For the reasons set forth above, the trial court's October 31, 2017, custody judgment and Joint Custody Implementation Plan are affirmed. Costs of this appeal are assessed to defendant, Jason Carr Harrel.

AFFIRMED.

      Before the trial, the parties agreed to bifurcate the matters of custody/visitation and support, as the issue of the father's entitlement to a reduction in support would be rendered moot by an adverse ruling on his request for 50/50 shared physical custody.

      The trial court in its October 31, 2017, custody judgment also dismissed a Reconventional Demand filed by the mother seeking modification of the custodial arrangement to sole custody and adjudication of the father as being in contempt of court for his failure to attend court-ordered anger management classes. The mother neither appealed nor answered the father's appeal.

      While the trial court makes one mistaken reference to Dr. Thigpen's assessment as having been of "the parties," a complete reading of the Court's oral reasons for judgment belies the argument urged by the father that the judge believed that Dr. Thigpen had assessed the parties rather than the father.

      There was no appeal from the October 31, 2017, Judgment Appointing a Parenting Coordinator by either party, so it has become final by operation of law.


author: STEPHENS, J.

text:
    STATE of Louisiana IN the INTEREST OF A.L.D. and. L.S.D.
    No. 52,239-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018 Rehearing Denied July 16, 2018
    DANIEL TOMLIN WILSON, Counsel for Defendant Appellant C.K.D.
    GEORGE E. HARP, Shreveport, Counsel for Defendant Appellee N.M.L.
    Mental Health Advocacy Service by DANA M. RAUSCH, Counsel for Plaintiff Appellees A.L.D. and L.S.D.
    KIMBERLY S. SMITH, Counsel for Plaintiff Appellee State of Louisiana DCFS
    Before BROWN, GARRETT, and STEPHENS, JJ.
   STEPHENS, J.

CKD, the father of the minor children ALD and LSD, appeals a judgment of the Caddo Parish Juvenile Court, Louisiana, terminating his parental rights. For the following reasons, we reverse the trial court's judgment and remand with instructions.

FACTS

On May 4, 2016, the minor child ALD was removed from the home of his mother, NML. ALD's biological father is CKD, the appellant in this appeal. Initially, it was alleged that NML and CKD were using methamphetamine and other drugs, as well as engaging in domestic abuse of each other. This behavior, along with a chaotic lifestyle, made NML and CKD unable to provide a safe and appropriate environment for the minor child. Additionally, ALD, who was one year old at the time, tested positive for methamphetamine during the course of the investigation.

On May 31, 2016, the Department of Children and Family Services for the State of Louisiana ("DCFS") filed its petition in which it alleged that ALD was a child in need of care ("CINC"). On June 10, 2016, during the course of these proceedings, NML gave birth to LSD, also CKD's child. At the trial on July 13, 2016, the parents stipulated that ALD was in need of care. The parents were drug-tested, and both tested positive for methamphetamine. LSD, a one-month-old infant, also tested positive for methamphetamine. On August 23, 2016, DCFS filed its petition regarding LSD, and that child was adjudicated a CINC.

DCFS developed a plan for rehabilitation of the parents, which was approved by the trial court. The case plan called for CKD to obtain safe and stable housing, complete random drug testing and substance abuse treatment, obtain a legal source of income, and successfully attend and complete parenting classes and anger management. Notably, from the commencement of the case, both NML and CKD had ongoing problems with substance abuse. In fact, as late as November 2017, CKD tested positive for cocaine and drug metabolites.

Attempting to maintain the children with family members, DCFS initially placed the children with CKD's mother, DD. In May 2017, DCFS received reports that CKD (and maybe NML) were also living with DD, and that perhaps DD was using drugs while caring for the children. NML, DD, and CKD were all drug-tested, and CKD's test came back positive for methamphetamines, cocaine, benzodiazepines, and marijuana. DD's drug-test was positive for benzodiazepines, cocaine, and marijuana. Unfortunately, both the children tested positive for methamphetamines and cocaine at that time. As a result, DCFS removed the children from DD's home and placed them in foster care.

Afterwards, according to testimony at the trial, NML was incarcerated and CKD's location became unknown to DCFS. The department maintains that between May and November 2017, CKD was noncompliant with his case plan: he made no contributions to the children's care, stopped visiting them, and made no effort for services. DCFS attempted to contact him at his last known address, but the house appeared abandoned. His family claimed not to know his whereabouts.

DCFS filed a petition to terminate both parents' parental rights on October 9, 2017. NML filed a motion to grant guardianship to her uncle, Dan Linnell, and the matters were consolidated for a December 11, 2017, trial. During a two-day trial, the trial court heard testimony and considered evidence on both issues, and ultimately entered judgment denying NML's motion and terminating both NML's and CKD's parental rights. The trial court stated that CKD's parental rights were terminated pursuant to La. Ch. C. art. 1015(6). CKD filed a timely motion for new trial, which was denied. Only this appeal by CKD ensued-neither NML nor the children appeal the judgment.

DISCUSSION

In related assignments of error, CKD argues the trial court erroneously determined that DCFS proved its case for terminating his parental rights on the basis of La. Ch. C. art. 1015(6) and in the best interest of the children. Specifically, CKD argues that in order to successfully terminate his parental rights under art. 1015(6), DCFS had to prove three elements: (1) it had been one year since the children had been removed; (2) there had not been substantial compliance with the case plan for services; and, (3) there is no reasonable expectation of significant improvement in his condition or conduct in the near future. CKD concedes one year has elapsed since the children were removed from his custody; however, he argues that he has complied with several aspects of his case plan, which in the totality of circumstances, amounts to "substantial parental compliance" on his part. He also argues that DCFS failed to prove he lacked a reasonable expectation of significant improvement. He also maintains that DCFS failed to prove that termination of his parental rights was in the children's best interest. Considering the particular facts of this case, we agree.

Whether termination of parental rights is warranted is a question of fact, and a trial court's determinations will not be set aside in the absence of manifest error. State in Interest of T.P. , 51,172 (La. App. 2 Cir. 11/16/16), 209 So.3d 1015 ; State in Interest of C.V.W. , 48,166 (La. App. 2 Cir. 4/10/13), 113 So.3d 1202.

To terminate parental rights, the state must meet the onerous burden of proving one of the statutory grounds for termination set forth in La. Ch. C. art. 1015 by clear and convincing evidence. Here, the pertinent factor considered by the trial court is contained in subsection (6), which states:

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

Additionally, La. Ch. C. art. 1036 provides, in pertinent part:

C. Under Article 1015(6), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent's failure to attend court-approved scheduled visitations with the child.
(2) The parent's failure to communicate with the child.
(3) The parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
(4) The parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan.
(5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent's lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
D. Under Article 1015(6), lack of any reasonable expectation of significant improvement in the parent's conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

(Emphasis added.)

Proof by clear and convincing evidence requires a showing that the existence of the disputed fact is highly probable, meaning more probable than its nonexistence. State in Interest of T.P., supra. Once a ground for termination is established, the trial court may terminate parental rights if termination is in the best interest of the child. La. Ch. C. art. 1037(B) ; State in Interest of J.M.L. , 47,201 (La. App. 2 Cir. 4/11/12), 92 So.3d 447.

A parent who professes an intention to exercise his or her parental rights and responsibilities must take some action in furtherance of the intention to avoid having those rights terminated. State in Interest of C.S. , 49,955 (La. App. 2 Cir. 3/18/15), 163 So.3d 193.

The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parent to be terminated. As such, the primary concern of the courts and the state remains to secure the best interest of the child, including termination of parental rights if justifiable grounds exist and are proven. State ex rel. K.G. , 2002-2886 (La. 3/18/03), 841 So.2d 759 ; State in Interest of C.V.W., supra.

Notably, as stated by the Louisiana Supreme Court in State ex rel. J.A., 1999-2905 (La. 1/12/00), 752 So.2d 806, 811 :

The State's parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens. The potential loss to the parent is grievous, perhaps more so than the loss of personal freedom caused by incarceration.

Initially, we note the lack of precise reasoning by the trial court for this drastic action in terminating CKD's parental rights. It stated that:

[I]n this case [it] does find that the evidence warrants a termination of parental rights as to each of the ... children as to each of the parents. The state has established by clear and convincing evidence that the state is entitled to termination of ... [CKD's] rights and the reciprocal rights to their parents.
And the Court also finds particularly that termination of the parental rights in respect of ... [ALD] and [LSD] is in each of those children's best interest.

When asked for the specific grounds for the termination, the trial court only reasoned, "With respect to father, it is under 1015(6)." The trial court did not make any credibility determinations or analysis of the evidence for our benefit.

We find that the facts of this case are directly analogous to those in State ex rel. H.A.S. , 2010-1529 (La. 11/30/10), 52 So.3d 852. In that case, the state had obtained custody of the children based on allegations of neglect, sexual abuse, and longstanding and chronic substance abuse. Ultimately, the trial court terminated the mother's parental rights, because she had not substantially complied with her case plan and had no reasonable expectation of significant improvement of her condition or conduct in the near future. Specifically, the mother had failed to submit to psychological counseling and had tested positive for drugs 13 out of 17 random drug screens. Two doctors testified at the termination hearing-both describing profound psychological disorders and substance abuse, but concluding that the mother was engaged in her treatment. The appeal court reversed the parental termination and reinstated the mother's parental rights, effectively reuniting her with the children. State ex rel. H.A.S. , 2009-1530 (La. App. 3 Cir. 6/2/10), 38 So.3d 1278. Upon review, the Louisiana Supreme Court reversed the appeal court as far as the reunification, but also agreed that parental termination was not in the children's best interest and that the state had not proven the mother lacked a reasonable expectation of significant improvement in her conduct in the near future. State ex rel. H.A.S. , 52 So.3d at 862. The supreme court ordered strict instructions for the furtherance of the proceedings in the trial court in light of the reversal. Id.

Here, considering State ex rel. H.A.S., supra , we conclude DCFS did not meet its burden of proving the elements required under La. Ch. C. art. 1015(6) by clear and convincing evidence. Regarding CKD's "substantial" compliance with his case plan, probably the most serious aspect would be his substance abuse, as in State ex rel. H.A.S., supra . CKD testified that he completed "phase one" on Active Recovery regarding his substance abuse. At the time of the hearing, he was back at Active Recovery as an outpatient receiving services for parenting, anger management, and substance abuse. A DCFS case worker also testified that CKD was compliant with her requests for random drug tests, a specific component of his case plan. While CKD's condition is of great concern, we do not believe the trial court gave enough emphasis to the progress CDK has made toward being drug-free, particularly his "substantial" compliance. Clearly, CDK has not disregarded the issue. In taking random drug screens and pursuing consistent substance abuse treatment, CDK is exhibiting substantial effort to overcome his habit and substantially comply with his case plan. As to providing a home for the children, it is evident that the house appeared in disarray and disrepair when a DCFS case worker visited. However, the house has belonged to his family for some time, which weighs in his favor, and he has stated he knows it must be improved. Again-he made an effort forward in this regard and has not totally disregarded the case plan's requirements. Some consideration should be made for an attempt to comply, especially where such a drastic action is in consideration. Finally, he had worked seven months for a house foundation repair company, but had recently secured permanent employment, which he expressed was the desire of the court. All of these actions, although admittedly not perfect adherence, were in furtherance of his case plan and show an attempt to comply. Notably, the statute does not require "perfect parental compliance," but "substantial parental compliance."

We note that assessment of whether there is a reasonable expectation of significant improvement in the parent's condition in the near future should be made in light of the purposes stated in La. Ch. C. art. 1001, particularly that the proceedings shall be conducted expeditiously to avoid delays in resolving the status of the parent and in achieving permanency for the children. See State ex rel. L.R.S. , 38,812 (La. App. 2 Cir. 6/23/04), 877 So.2d 1040. However, here there was not clear and convincing evidence at trial to indicate that there was no reasonable expectation of significant improvement in the father's condition or conduct in the near future, particularly considering the length of time involved. We note expressly in the short period of time these proceedings have been ongoing, CKD has made a concerted effort to obtain more reliable employment. He has also made efforts to attain secure housing for the children, in a house that has been in his family for some time. Finally, while not altogether or consistently successful, he appears to be working at his substance abuse problem. We feel that his efforts are more positive in nature and tend to show a more positive trend than negative. It is not as if he made no improvement in his condition; thus, it is more reasonable than not that he would make significant improvement in the future. Additionally, there was no expert testimony offered by the state tending to show CKD has no possibility of improvement. With no articulated specific reasons by the trial court on this issue, we must determine its conclusion was manifestly erroneous.

We also note that although the children have not appealed the termination, their appellate counsel has appeared and argued that the trial court was manifestly erroneous in its judgment. Counsel argues that the children are bonded with their father, who has made strides towards preserving the parent-child relationship. It is the position of the children's appeal counsel that termination in this case was premature, and the termination is not in their best interest.

Pursuant to La. Ch. C. art. 1039 :

If the court finds that the alleged grounds are not proven in accordance with the evidentiary standards set forth in Article 1035 or if the court finds that termination of parental rights is not in the best interests of the child, it shall enter written findings on both issues and may:
(1) Dismiss the petition.
(2) Reinstate the parent to full care and custody of the child.
(3) If the child has been previously adjudicated as a child in need of care, reinstate that proceeding pursuant to Title VI.
(4) Upon a showing of sufficient facts, adjudicate the child in need of care in accordance with Title VI.
(5) Upon a showing of sufficient facts, adjudicate the family in need of services in accordance with Title VII.
(6) Make any other disposition that is in the best interest of the child.

Thus, considering the foregoing and the extreme nature of the termination of parental rights, we conclude DCFS did not prove by clear and convincing evidence that termination of CKD's parental rights was warranted. Further, considering the record before us, we are constrained to reverse the trial court's judgment. The trial court erred in terminating CKD's parental rights based on a lack of substantial compliance with his case plan and no reasonable expectation of significant improvement in his condition or conduct in the near future. We reverse the termination of CKD's parental rights pursuant to the mandate by the Louisiana Supreme Court in State ex rel. H.A.S., supra , but remand the proceeding to the trial court for further proceedings. DCFS shall maintain custody of the children, the CINC proceeding will be reinstated, and the children will remain placed with their great-uncle, Dan Linnell. A case plan will be implemented, with continued focus on CKD's substance abuse, housing, and steady employment. Although CKD's parental rights are reinstated as of now, he must strictly comply with the trial court's orders and the case plan of DCFS for the future well-being of his young children.

CONCLUSION

For the foregoing reasons, the trial court's judgment terminating the parental rights of CDK is reversed and remanded with instructions for further proceedings in accordance with this opinion.

REVERSED AND REMANDED, WITH INSTRUCTIONS.

APPLICATION FOR REHEARING

Before Brown, Garrett, Stone, Cox, and Stephens, JJ.

Rehearing denied.

      NML has three additional children, GP, AP, and, TP, who were removed from the home as well. GP and AP are the children of Terry Pittman, who at the time of these proceedings was serving sentences in the Louisiana State Penitentiary for one count of indecent behavior with juveniles, one count of molestation of a juvenile under the age of 13, and one count of pornography involving juveniles. The third child, TP, was initially a part of these proceedings, but was later to be determined the biological child of another man, and DCFS's custody to that child was vacated on October 20, 2016.

      Notably, a copy of the case plan originally was not made part of the appeal record. Because the trial court took judicial notice of the case plan at the termination hearing, this court requested the appeal record be supplemented with a copy of the judgments and case plan associated with the CINC proceeding.

      The trial court also considered NML's parental rights as to GP and AP, who were in the custody of their paternal grandparents. Her parental rights to those children were terminated as well in the same proceeding.

      At the time of that case, the legal standard articulated in La. Ch. C. art. 1015 was contained in subsection (5) of the article.


author: STONE, J.

text:
    STATE of Louisiana IN the INTEREST OF C.B.
    52,245-JAC 52,246-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Monroe, Counsel for Appellant, C.B.
    JAMES E. STEWART, SR., District Attorney, DAVID M. NEWELL, Homer, TOMMY J. JOHNSON, Shreveport, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, STONE, and MCCALLUM, JJ.
   STONE, J.

The defendant, C.B., was adjudicated delinquent on one count of aggravated battery in violation of La. R.S. 14:34 and two counts of aggravated assault with a firearm in violation of La. R.S. 14:37.4. C.B. was ordered to serve one year in a non-secure program for aggravated battery and one year in a non-secure program for each count of aggravated assault with a firearm. The trial court ordered the dispositions for aggravated assault with a firearm to run concurrently with one another and consecutively with the disposition for aggravated battery. On appeal, C.B. argues there was insufficient evidence to adjudicate him as a delinquent and that his dispositions are excessive. For the following reasons, we affirm C.B.'s adjudications and dispositions.

FACTS AND PROCEDURAL HISTORY

On October 25, 2017, 15 year-old C.B. was involved in a physical altercation with K.J. C.B. was arrested and subsequently charged with one count of aggravated battery in violation of La. R.S. 14:34 and two counts of aggravated assault with a firearm in violation of La. R.S. 14:37.4. Thereafter, C.B. was adjudicated delinquent on all counts. On January 22, 2018, the trial court ordered C.B. be committed to the Louisiana Office of Juvenile Justice ("OJJ") to serve one year for aggravated battery and one year each for the two counts of aggravated assault with a firearm. The trial court ordered the dispositions for aggravated assault with a firearm run concurrently with each other and consecutively with the disposition for aggravated battery. On appeal, C.B. argues the evidence was insufficient to prove he committed an aggravated battery or aggravated assault with a firearm. C.B. also argues the dispositions imposed are harsh and excessive.

DISCUSSION

Sufficiency of Evidence

The standard of appellate review for a sufficiency of the evidence claim under Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. See also State v. Carter , 42,894 (La. App. 2 Cir. 1/09/08), 974 So.2d 181, writ denied , 08-0499 (La. 11/14/08), 996 So.2d 1086. This 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. 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, 837, writ denied , 2009-0310 (La. 11/6/09), 21 So.3d 297.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied , 09-0372 (La. 11/6/09), 21 So.3d 299. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette , 43,032 (La. App. 2 Cir. 2/13/08), 975 So.2d 753. 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. Not only does the standard of review in Jackson , supra , apply to juvenile delinquency adjudicatory hearings, but our state constitution mandates that we determine, after reviewing the record evidence, whether the juvenile court was clearly wrong in its fact findings. Id.

In order for the court to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. La. Ch. C. art. 883. In a juvenile case, the reviewing court is constitutionally compelled to review both facts and law. La. Const. art. V, § 10 (A) and (B). However, the reviewing court must recognize that the juvenile judge observed the conduct and demeanor of the witnesses and was in the best position to determine credibility and weigh the evidence. State In Interest of D.R. , 50,594 (La. App. 2 Cir. 2/24/16), 188 So.3d 1116, 1120. Therefore, this Court grants great deference to the juvenile court's factual findings and credibility determinations and assessment of the weight of particular testimony. Id.

A battery is the intentional use of force or violence upon the person of another. La. R.S. 14:33. Aggravated battery is a battery committed with a dangerous weapon. La. R.S. 14:34. A "dangerous weapon" includes any "instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm." La. R.S. 14:2(A)(3). As a matter of law, a gun, or firearm, is a dangerous weapon. See State v. Bonier , 367 So.2d 824 (La. 1979).

To convict a defendant of aggravated assault with a firearm, the state has to prove the defendant made an attempt to commit a battery, or intentionally placed the victim in reasonable apprehension of receiving a battery by the discharge of a firearm. State v. McCoy , 45,090 (La. App. 2 Cir. 4/14/10), 34 So.3d 1145. A discharge of the firearm is not an element of the offense. State v. Lafleur , 16-467 (La. App. 3 Cir. 1/4/17), 209 So.3d 927, writ denied , 17-0808 (La. 1/29/18), 235 So.3d 1104. (See also La. R.S. 14:37.4, which the Louisiana Legislature amended in 2012 to exclude the phrase "by the discharge of" and added the word "with," thereby eliminating the element of "discharge" of a firearm. 2012 La. Acts No. 320, § 1.)

During the adjudication hearing, L.P. testified that on October 25, 2017, he and K.J. were sitting in a friend's backyard when C.B. and another young man, E.M., walked up to them. L.P. stated C.B. brandished a gun but he and K.J. were not afraid because they knew the gun was a "dud" and did not function properly. L.P. described the gun as a .38 semi-automatic silver gun with clear tape on the handle. He stated he knew this because C.B. had shown him the gun a week earlier and told him it was a .38. L.P. also claimed C.B. told him there was no chamber in the gun and it did not work.

L.P. testified C.B. and E.M. walked away but returned and C.B. began punching K.J. L.P. stated that during the fight, he saw C.B. hit K.J. in the head with the gun, and he heard K.J. yell out that he had gotten hit with the gun. L.P. testified that K.J. had a mark on the side of his head. L.P. recalled that after the fight, C.B. ran off with the gun. L.P. also stated that there were no poles, bricks or anything other than grass where the fight took place.

Chad McCoy ("McCoy"), L.P.'s father, testified he received a call from his son so he went to the Wilkinson Terrace Apartments. Upon his arrival, he observed C.B. threatening a young lady with a "little small, black handgun." McCoy indicated he saw K.J. bleeding from the head and that K.J. told him C.B. had hit him in the head with a gun. According to McCoy, C.B. was gone by the time the police arrived.

W.C1. and W.C2., C.B.'s 13-year-old twin brothers, testified at trial. W.C1. testified he saw the fight between C.B. and K.J. from his sister's bedroom window. W.C1. claimed he saw punching, but did not see a gun. When asked by the trial court "who threw the first punch," W.C1. indicated he "clearly" saw K.J. start the fight.

W.C2. corroborated most of W.C1.'s testimony including the notion that he did not see anything in anyone's hand during the fight. W.C2. admitted that when the fight started he was in the living room and did not have a clear view. W.C2. also admitted that after the fight began, he ran outside to assist his brother in fighting K.J.

D.J. testified that she, her two sisters, A.R. and J.R., and their mother were home when a friend informed them that E.M. had been involved in a fight. D.J. stated that she, her sisters, and their mother walked outside where they encountered C.B. D.J.'s mother asked C.B. about the fight and, according to D.J., C.B. had no explanation, but instead resorted to yelling and talking about D.J.'s uncle, calling him a "sissy" and a "fag." The girls began defending their uncle to C.B. and eventually the group started arguing. D.J. recalled that at some point during the argument, C.B. pulled a gun from his side, pointed it at her and her sisters, and said he would shoot her and the "whole projects up." D.J. stated she felt threatened and feared for her life so she and her sister called the police. She described the gun as having "something white wrapped around it" and "a hole in the top where the bullets go."

A.R. corroborated much of D.J.'s testimony and described the gun as "a real gun...a little gun with like a white piece on it[.]" A.R. stated C.B. pulled the gun from his side when they were arguing about her uncle, but he did not fire it.

C.B. also testified during the adjudication hearing. C.B. explained that he was walking in the fire lane on the evening of October 25, 2017, when his friend, E.M., approached him and told him K.J. was bragging about having sexual intercourse with C.B.'s best friend's 15-year-old sister. C.B. claimed he viewed the girl as his own sister so he decided to confront K.J. C.B. admitted starting the fight with K.J. but denied having a gun. C.B. testified that he punched K.J. and, when K.J. fell, he hit his head on a clothesline pole. C.B. conceded to being involved in a verbal altercation with D.J., A.R., J.R., and their mother, but adamantly denied having a gun during the altercation. C.B. also alleged one of the girls put her hand on his shoulder and "got in his face," but claimed he simply moved her hand and walked away.

Officer J. Couch ("Officer Couch") of Shreveport Police Department testified that he responded to a battery call at the Wilkinson Terrace Apartments and, upon his arrival, spoke with K.J. He testified that K.J. stated he had been in a fight, and he observed a laceration on K.J.'s head. Witnesses at the scene told him that during the altercation, a gun was used to hit K.J. in the head. The witnesses identified C.B. as the person who hit K.J. Officer Couch indicated D.J., A.R., J.R., and their mother approached him and reported that C.B. pointed a gun at them. Officer Couch stated he looked for a gun but did not find one.

The trial court noted that C.B. admitted starting the fight and found credible the testimony that C.B. had a gun. The trial court determined W.C1.'s testimony was not credible because W.C1. clearly lied when he said K.J. had thrown the first punch despite C.B.'s admission that he was the one who started the fight. Likewise, the trial court did not afford much weight to W.C2.'s testimony, finding that because W.C2. tried to join the fight, he could have easily missed seeing the gun. With no evidence directly contradicting L.P. and McCoy's testimony that C.B. had a gun, the trial court adjudicated C.B. delinquent on the charge of aggravated battery of K.J. The trial court also found credible the sisters' testimony that C.B. threatened them with a gun and adjudicated C.B. delinquent on two charges of aggravated assault with a firearm.

We find the evidence, viewed in a light most favorable to the prosecution, supports C.B.'s adjudication as delinquent for aggravated battery and aggravated assault with a firearm. A witnesses testified they observed C.B. with a handgun when he admittedly initiated the fight with K.J. L.P. saw C.B. hit K.J. on the head with a gun. The record reflects K.J. sustained a laceration to the side of his head from an object. The only testimony that C.B. did not have a gun was C.B.'s own self-serving testimony and that of his twin brothers who simply stated they did not see C.B. with a gun. The record contains more than sufficient evidence to support the reasonable conclusion that C.B. was armed with a handgun which he used to strike K.J. on the head. With no credible evidence to the contrary, the trial judge was reasonable in finding C.B. delinquent of the charge of aggravated battery.

Likewise, D.J. and A.R. both testified C.B. was armed with a gun, which he brandished at them as the group was verbally sparring over the girls' uncle. Both girls described the gun and no evidence was presented contradicting their testimony. The state carried its burden of proving C.B., armed with a dangerous weapon, placed the girls in apprehension of being shot.

In arguing the evidence is insufficient, C.B. contends that even if there was a gun, the gun was inoperable and cannot be considered a dangerous weapon that is capable of causing death or great bodily harm or placing another in reasonable apprehension of receiving a battery. "The use of an inherently harmless object in a manner that creates circumstances likely to produce death or great bodily harm results in the inherently harmless object being a dangerous weapon within the provisions of La. R.S. 14:2(3) and 14:64." State v. Levi , 259 La. 591, 250 So.2d 751, 754 (1971) ; State ex rel. W.H. , 10-1418 (La. App. 4 Cir. 4/6/11), 62 So.3d 839. Courts have treated an inoperable gun similarly to a toy gun in this analysis. State ex rel. W.H., supra . In order to find that a toy pistol is a dangerous weapon within the provisions of La. R.S. 14:2(3) and 14:64, the trier of fact must consider the manner in which the defendant used the toy pistol and the effect this use had upon the victim. State v. Kemp , 39,358 (La. App. 2 Cir. 3/11/05), 896 So.2d 349, 357, writ denied , 2005-0937 (La. 12/9/05), 916 So.2d 1052 ; State ex rel. W.H., supra . See also State v. Green , 409 So.2d 563, 565 (La. 1982). When considering the first prong, the manner of use, of this two-prong test, the court must decide if "the interaction between the offender and the victim created a highly charged atmosphere." Id. When considering the second prong, the effect of use, the court must decide if there was a danger of serious bodily harm resulting from the victim's fear for his life. Id.

Whether the gun at issue was operable is not determinative. So long as the weapon was used by C.B. in such a way as to excite fear and apprehension in D.J. and A.R., it is considered a dangerous weapon under the law. Furthermore, there was no evidence presented that the girls had any knowledge about the capacity of the gun to actually fire. Therefore, the facts support the conclusion that even if it was an inoperable gun, the manner in which it was used and the effect it had on the victims was enough to classify it as a dangerous weapon within the language of La. R.S. 14:2(3) and 14:64. Therefore, we find there was a reasonable basis for the trial court's finding C.B. delinquent of two counts of aggravated assault with a firearm.

Excessive Dispositions

C.B. argues the dispositions imposed by the trial court are constitutionally harsh and excessive considering the nature of the case and because he is not among the worst offenders. In particular, C.B. opposes the consecutive nature of the sentences. La. Ch. C. art. 898 requires that "[n]o disposition shall remain in force for a period exceeding the maximum term of imprisonment for the felony forming the basis for the adjudication." Nevertheless, a sentence within the statutory limit may violate a defendant's constitutional right against excessive punishment. State ex rel. J.A. , 46,649 (La. App. 2 Cir. 8/10/11), 73 So.3d 981 ; State v. Sepulvado , 367 So.2d 762 (La. 1979). A sentencing judge does not possess unbridled discretion to impose a sentence within statutory limits, regardless of mitigating facts. La. Const. art. I, § 20. Paragraph D of La. Ch. C. art. 901 lists the mitigating factors for the trial court's consideration in fashioning an appropriate disposition for a juvenile and states the grounds, while not controlling the discretion of the court, shall be accorded weight in the determination of suspension of the disposition or probation.

In State in the Interest of T.L. , 674 So.2d 1122 (La. App. 2 Cir. 5/8/96), this Court stated that the judge adjudicating a child delinquent should impose the least restrictive disposition consistent with the circumstances of the case, the needs of the child, and the best interest of society. In any review of an adjudication of delinquency for constitutional excessiveness, the appellate court must first ascertain whether the lower tribunal took cognizance of the circumstances of the case, the needs of the child, and the best interest of society, and whether the record reflects an adequate factual basis for the commitment imposed. State ex rel. J.A., supra . The test to be used in deciding whether the sentence imposed was excessive requires consideration of whether the sentencing judge took cognizance of the guidelines' criteria and whether the sentence was too severe in light of the circumstances and the juvenile's background. Absent a showing of manifest abuse of this wide discretion, the disposition in a juvenile delinquency proceeding will not be set aside as constitutionally excessive. Id.

In advance of C.B.'s disposition hearing, Officer Leasa Stephens ("Officer Stephens"), C.B.'s probation officer, prepared a predisposition report. In Officer Stephens' report, she recommended that C.B. be committed until his 21st birthday based on C.B.'s disruptive and disobedient behavior during his time in detention. Officer Stephens indicated she did not believe C.B. took the trial court's authority seriously based on his fighting, use of vulgar language, inappropriate comments, and sexual comments to female staff at the detention center.

The trial court noted that C.B. had already served an unusually lengthy time of 60 days in detention. He indicated that he had initially been inclined to release C.B. on time served with strict conditions of probation. However, after learning of C.B.'s behavior while in detention, the trial court became convinced C.B. did not warrant a lenient disposition and explained:

He did not seem to learn anything while being held in detention. He did not seem to learn that you obey authority figures, wherever you might find them. He did not seem to learn basic fundamental principles of respect for others, whether they're in authority or not. Some of the language he used about female staff is inexcusable and indicates a deep seeded disrespect, if not hatred of, females. That is very worrisome.

The trial court also expressed concern for C.B.'s family in the event of his release. The trial court indicated the apartment complex manager was planning to evict the family if C.B. returned due to his possession of a firearm on the property. Consequently, the trial court committed C.B. to the OJJ for one year for each count of aggravated assault with a firearm, to run concurrently, and one additional year for aggravated battery, to run consecutively to the aggravated assault dispositions.

This Court finds the dispositions rendered by the trial court were well tailored to the facts in this case. C.B. committed serious offenses by beating K.J. with a gun and then threatening others with the gun. The trial court described the length of the imposed detention ordered as unusually harsh; however, he expressed grave concern over C.B.'s poor behavior, violent reactions, and crude insults to women during his 60 days in detention prior to disposition. Regarding the consecutive nature of the disposition, the trial court stated there were two distinct incidents here, with a period of time in between during which C.B. could have calmed down and considered his actions. In support of its decision to run the dispositions consecutively, the trial court stated the following:

The Court understands the nature of the timing of those offenses, but they were completely separate incidents, in that C.B. had the opportunity to deviate from his behavior and he did not. So I think it justifies considering them as two separate incidents.

In cases involving multiple offenses and sentences, the trial court has limited discretion to order that the multiple sentences are to be served concurrently or consecutively. When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory, and consecutive sentences under those circumstances are not necessarily excessive. State v. Hebert , 50,163 (La. App. 2 Cir. 11/18/15), 181 So.3d 795. It is within the court's discretion to make sentences consecutive rather than concurrent. State v. Robinson , 49,677 (La. App. 2 Cir. 4/15/15), 163 So.3d 829, writ denied , 15-0924 (La. 4/15/16), 191 So.3d 1034.

The trial court clearly believed the two incidents were unrelated enough to warrant two consequences and the record supports such conclusion. Notably, the trial court did not to impose the maximum exposure as recommended by the probation officer. Considering C.B.'s senseless acts of striking his peer with a gun during a fight which he provoked and threatening others who posed no danger to him with that same gun, we find C.B.'s dispositions are not severe in light of the circumstances, and the trial court was not manifestly erroneous in its imposed dispositions.

CONCLUSION

For the aforementioned reasons, C.B.'s adjudications and dispositions are affirmed.

AFFIRMED

      In order to maintain confidentiality of the proceedings, as required by La. Ch. C. art. 412 and U.R.C.A. Rule 5-2, minors are referred to by initials.

      These appeals were consolidated by this Court.