author: KYZAR, Judge.

text:
    STATE IN the INTEREST OF R.J., R.T., and R.A.T.
    18-332
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018
    Dmitrc I. Burnes, Burnes, Talley & Talley, 711 Washington Street, Alexandria, LA 71301, (318) 442-4300, COUNSEL FOR APPELLANT: R.D.T. (mother)
    Guy R. Lain, 1721 Carter Street, Vidalia, LA 71373, (318) 336-8611, COUNSEL FOR APPELLEE: Louisiana Department of Children and Family Services
    Zebulon M. Winstead, Crowell and Owens, LLC, 3416 North Boulevard, Alexandria, LA 71301, (318) 445-1488, COUNSEL FOR APPELLEES: R.J. (minor child), R.T. (minor child), R.A.T. (minor child)
    Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.
   KYZAR, Judge.

R.D.T. appeals from a trial court judgment terminating her parental rights based upon a finding that she failed to substantially comply with her case plan, that there was no reasonable possibility of her complying with her case plan in the near future, and that it was in the best interest of her children that her parental rights be terminated. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

R.D.T. is the biological mother of three minor children: R.J. (birthdate January 21, 2005); R.T. (birthdate August 13, 2010); and R.A.T. (birthdate June 30, 2012). The father of R.J. was acknowledged to be W.C.J., Jr., who the state alleged was currently incarcerated with a release date of April 26, 2075. The fathers of R.T. and R.A.T. are alleged to be S.E. and T.M., respectively. This appeal only concerns the state's case against R.D.T.

Pursuant to the record, the minor children were taken into custody by the State of Louisiana through the Department of Children and Family Services (DCFS) by an oral instanter order on February 2, 2014, based on a report that R.D.T. was being arrested on extradition charges from Texas and the children were being left without a caretaker. Previously, R.D.T. was involved with the DCFS back to 2006, in regards to four older children. This is the third time that R.J. has been taken into the state's custody based on an instantar order. The oral instantar order was confirmed by the trial court on February 3, 2014, after which a continued custody hearing was held on February 4, 2014, with the result that the children were continued in the custody of the state.

On February 19, 2014, the state filed a petition seeking to have the children declared children in need of care based on the following grounds: 1) the state validated claims of dependency and minor head/facial injuries against R.D.T.; 2) R.D.T. being arrested and the children had no available caretaker; upon examination by a doctor, all three children were diagnosed with facial abrasions and bruises; the two oldest children disclosed that R.D.T. hit them and their younger brother; 3) R.J.'s father was incarcerated; R.T.'s alleged father was incarcerated; and the identity of R.A.T.'s father was unknown; 4) diminished caretaker capacities exhibited by R.D.T. The state further requested that the parents be ordered to pay child support to the state while the children were in its custody. Following a March 13, 2014 answer hearing, the trial court adjudicated the children on April 10, 2014, as children in need of care. As part of its judgment, the trial court ordered the children to remain in the custody of the state and it approved DCFS' case plan goal of reunification for the children.

Following the development of case plans for R.D.T. and the children, case review hearings were held in this matter on August 4, 2014, January 5, 2015, July 6, 2015, January 4, 2016, June 13, 2016, and July 17, 2017. Permanency hearings were held on January 5, 2015, January 4, 2016, January 9, 2017, and January 8, 2018. Initially, the state recommended that the children be reunified with R.D.T. However, that goal was later changed to adoption on July 2, 2015, which the trial court approved on July 6, 2015.

On October 3, 2016, the state filed a petition to terminate R.D.T.'s parental rights and to certify the children as available for adoption. The petition alleged that R.D.T. failed to adequately participate in her case plan or demonstrate substantial improvement in redressing the problems which led to her children being adjudicated as children in need of care; that she failed to provide court-ordered support for her children for a period in excess of six months, which demonstrated an intent to permanently avoid parental responsibility for the children pursuant to La.Ch.Code art. 1015(4)(b) ; and that she failed to maintain significant contact with the children for a period of six months, which demonstrated an intent to permanently avoid parental responsibility for the children pursuant to La.Ch.Code art. 1015(4)(c). The mother, through her attorney, answered the petition, denying the allegations set forth by the state.

Following a two-day trial on the merits, the trial court took the matter under advisement. Thereafter, it rendered written reasons, terminating R.D.T.'s parental rights based on a finding that she failed to substantially comply with her case plan and that there is no reasonable probability of her complying with the case plan in the near future. A written judgment finding that R.D.T.'s parental rights should be terminated; that it was in the best interest of the minor children that R.D.T.'s parental rights be terminated; and that the minor children be certified as available for adoption was rendered by the trial court on February 7, 2018. It is from this judgment that R.D.T. appeals.

On appeal, R.D.T. raises two assignments of error committed by the trial court:

1. The trial court erred in terminating the parental rights of the mother, R.D.T., when the evidence produced by the State (and by the defense) at trial was insufficient to prove by clear and convincing evidence that she has not substantially complied with her case plan and that there was no reasonable expectation for further improvement in her condition or conduct in the near future nor reasonable expectation that she would complete the case plan as deemed necessary for the safe return of the children.
2. The trial court erred in terminating the parental rights of the mother, R.D.T., after it failed to find that termination was in the best interest of the children.

In State in the Interest of J.A. , 17-500, pp. 3-4 (La.App. 3 Cir. 1/4/18), 237 So.3d 69, 72, this court stated with regard to the termination of parental rights:

A parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with his or her children. State in Interest of A.C. , 93-1125 (La. 1/27/94), 643 So.2d 719. This parental interest includes the "care, custody, and management of their child."
State ex rel. J.M. , 02-2089, p. 7 (La. 1/28/03), 837 So.2d 1247, 1252. Consistent with the parental interest, the state has a legitimate interest in limiting or terminating parental rights under certain conditions. Id. Because termination of parental rights is a severe action, the state bears the burden of establishing each element of a ground for termination by clear and convincing evidence. La.Ch.Code art. 1035 ; State ex rel. B.H. v. A.H. , 42,864 (La.App. 2 Cir. 10/24/07), 968 So.2d 881. The statutory grounds for involuntary termination of parental rights are found in La.Ch.Code art. 1015, although "only one ground need be established." State ex rel. B.H. , 968 So.2d at 885. Once a ground for termination has been established, the parental rights may be terminated by the trial court if it is in the child's best interest. Id. ; La.Ch.Code art. 1037.

A judgment terminating parental rights is reviewed on appeal under the manifest error standard of review. State in the Interest of K.V. , 14-163 (La.App. 3 Cir. 11/21/14), 161 So.3d 795.

The grounds for terminating the parental rights of a parent are set out in La.Ch.Code art. 1015, and include:

(5) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child's parent continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
(6) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.

The state's burden of proof is by clear convincing evidence. La.Ch.Code art. 1035. Lack of compliance with an approved case plan can be proven by the following grounds:

(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.

La.Ch.Code art. 1036(C).

Additionally, La.Ch.Code art. 1036(D) provides that "lack of any reasonable expectation of significant improvement in the parent's conduct in the near future" may be proven by:

(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.

Pursuant to La.Ch.Code art. 1037(B), "[w]hen the court finds that the alleged grounds set out in any Paragraph of Article 1015 are proven by the evidentiary standards required by Article 1035 and that it is in the best interests of the child, it shall order the termination of the parental rights of the parent against whom the allegations are proven." Thus the state's burden is two-fold.

FIRST ASSIGNMENT OF ERROR

In her first assignment of error, R.D.T. argues that the trial court erred in terminating her parental rights based on its finding that the state proved by clear and convincing evidence that she failed to substantially comply with her case plan and that there was no reasonable expectation of improvement in her conduct or condition in the near future.

In its December 31, 2014 report, DCFS's case plan required R.D.T. to secure and maintain suitable housing and legal income and resources to provide for her children; to become stable on her medication in order to demonstrate that she was mentally and emotionally capable of protecting and caring for her children; for her to refrain from substance abuse, submit to random drug screens, and to be evaluated for substance abuse treatment; for her to participate in an anger management program in order to learn and practice alternate ways to express anger and handle conflicts; and for her to meet monthly in her home with a case worker in order to discuss her case plan, her progress in achieving the goals of the case plan, and changes in her circumstances.

According to all of DCFS's reports, the most success R.D.T. achieved in working her case plan occurred prior to its December 31, 2014 report. R.D.T. underwent detox and in-patient substance abuse treatment at Red River Treatment Center/Pathways, including a short anger management program. However, DCFS indicated that R.D.T. had not completed her anger management goal, as the depth of this program was unknown, and that she had not undergone random drug screens since this treatment. The December 31, 2014 report further indicated that R.D.T. had a violent episode subsequent to the completion of this treatment, which required police intervention. She had three visits with her children and stayed with R.T. while she was in the hospital undergoing umbilical hernia surgery.

DCFS's reports reveal that R.D.T. failed to maintain or secure suitable housing and employment while working her case plan.

She was arrested on three different occasions: 1) on January 13, 2015, for shoplifting and contempt of court; 2) in April 2015, for violation of her Texas parole, after which she was returned to Texas and incarcerated through August 26, 2015; and 3) on December 23, 2015, for shoplifting. She was incarcerated in Alexandria beginning on November 21, 2016, and was released some time before DCFS's July 10, 2017 report. At that time, she was living with a friend, but had not obtained employment. By the December 27, 2017 report, R.D.T. reported that she had housing and a job, but DCFS was unable to verify this information. These reports further indicate that contact between R.D.T. and her case worker was sporadic.

Kimberly Lyles, the DCFS case worker, testified that she was assigned this case in January 2015. She stated that because R.D.T. never obtained stable housing she was never able to conduct a home visit with her. With regard to employment, she stated that R.D.T. informed her in September 2017, that she was working at a McDonald's in Lafayette, Louisiana, but that she later reported being back in Alexandria by October 2017. On January 8, 2018, Ms. Lyles said that she received a letter from an employer stating that R.D.T. was employed working twenty hours a week as a sitter for an elderly women, but she said that she was unable to verify that information. Ms. Lyles further testified that prior to the start of this trial, R.D.T. presented her with an address for where she was living and informed her that that she was scheduled for a job interview in Natchitoches later that week.

Ms. Lyles testified that she was aware that R.D.T. previously had a drug problem, but she felt that R.D.T. had completed her substance abuse program. She stated that she had no information to indicate that R.D.T. has not been clean since this 2016 program, but she was also not aware of her undergoing any subsequent drug screens. Ms. Lyles further testified that R.D.T. underwent a mental health examination and was prescribed medication as a result of the examination. She stated that although R.D.T. signed a medical release for her, she was unable to obtain her records.

Ms. Lyles testified that R.D.T. failed to satisfy her court-ordered monthly child-support payments of $10.00 or $25.00, depending on whether she was employed. She stated that contact with R.D.T. has been sporadic because R.D.T. was missing for periods of time and that all of her contact had to be initiated by R.D.T., who communicates through a telephone app. She said that her inability to communicate with R.D.T. greatly affected her ability to monitor R.D.T.'s mental health and to request random drug screens. She stated that none of the phone numbers or addresses provided over the years by R.D.T. turned out to be viable.

Ms. Lyles testified that visitation between R.D.T. and her children was initially scheduled for once a month. However, she stated that visitation never occurred while R.D.T. was incarcerated. She stated that after R.D.T.'s release from prison, visitation would only occur when R.D.T. contacted her and requested a visit. She stated that R.D.T. last visited her children in June 2017, at a McDonald's, which was for R.A.T.'s birthday. Ms. Lyles testified that during the visit, R.D.T. caused a scene when she accused one of the foster parents of hitting R.T.

R.D.T. admitted that she has been involved with DCFS since 2006. She further admitted that she has been unable to obtain housing during the majority of her case plan because her criminal record prevented her from gaining employment and the funds needed to maintain a home. She testified that she is currently living at the Agape House in Alexandria, which is a recovery home for addicts run by a pastor. She stated that she shares the home with the pastor and three other persons, one being her older daughter. She said that she is the only recovering addict living in the house. R.D.T. testified that the pastor told her that her children could live with her in the home. She stated that she shares a kitchen with the other residents, but she has access to two bedrooms containing three beds. She said that another bedroom would open up once her daughter moves out. R.D.T. testified that if she is required to find her own place in order to be reunited with her children, she would do so. However, she said that she would rather remain at the Agape House. She further testified that she is not able to afford a telephone at this time and that she is only able to communicate via Wi-Fi, through an internet text app.

R.D.T. testified that she works twenty hours a week, sitting with an elderly blind lady. However, she stated that she has applied for a job with Roy O. Martin Lumber Company, which hires convicted felons. She stated that she was contacted the week before by Roy O. Martin to take a test and undergo a physical. Once she begins this job, she stated that a bus would pick her up every day in Alexandria and take her to her job in Chopin, near Natchitoches. Previously, R.D.T. testified that she worked for three weeks at an IHOP restaurant, making $2.15 per hour plus tips. She stated that she quit because she was not making enough money. She said that she also worked at a McDonalds for forty-five days, while she was living in a half-way house in Many. She said that she quit this job when she moved back to Alexandria. Based on her employment history, R.D.T. testified that she was unable to pay the court-ordered child support to the state.

R.D.T. testified she completed the mental health requirement of her case plan when she underwent a mental health examination with Dr. Bruce Craig at Red River Treatment Center. However, she admitted that she never transmitted her results to her case worker. As part of this treatment, she stated that she completed courses in anger management and living with depression and bipolar. At the completion of this course, she stated that she moved into a half-way house. R.D.T. testified that she signed a medical release so that her case worker could obtain her records.

R.D.T. testified that her last visit with her children occurred in June 2017. During this visit, she stated that R.T., who was six years old at the time, told her that her foster father was hitting her. R.D.T. testified that she became upset upon learning this because she did not believe that a man should hit a girl and that it was her understanding that foster parents were not supposed to whip the children. However, rather than informing the case worker, she stated that she confronted the foster parent. After this incident, R.D.T. testified that she did not visit the children again because she was sent to prison on a contempt charge.

Following her release from prison, R.D.T. testified that she went back into substance abuse treatment because she did not want to go back to the same environment she had been in. She explained that the only way she could obtain help was to go into drug rehabilitation and that she had to use marijuana in order to get out of Alexandria and be placed in a half-way house. R.D.T. testified that she used marijuana in August 2017, in order to enter Red River Treatment Center/Pathways. She said that she was in treatment for approximately twenty-eight days, after which she was sent to a half-way house in Many. R.D.T. testified that her case worker was aware of these facts. Although she admitted to having a drug problem in the past, R.D.T. claimed that she has been clean for nearly a year and that she has not been incarcerated for eight months.

R.D.T. acknowledged that while she procrastinated in working her case plan, she did complete her mental health and substance abuse requirements. She testified that she has changed her life and is better now than she was last year. She stated that she wants to be reunited with her children, but admitted that she is financially unable to support them at this time. Based on her current condition, she thought that she could only handle one child at this time.

In its written reasons for judgment, the trial court made the following factual findings:

For more than ten years, [R.D.T.]'s children have been involved with DCFS. Some of [R.D.T.]'s children are no longer involved only because they have aged out of the system. Her history reveals a pattern of drug use, insufficient housing, no stable employment and no consistent communication or visitation with her children. In this case, the Court believes she made an effort to work her plan and she loves her children; however, she has not provided the necessary permanence required for her children to grow and thrive. Her pattern continued through this case.
Kimberly Lyles testified that [R.D.T.] did not stay in contact with the agency or have a stable residence. Ms. Lyles could not establish a consistent visitation schedule; she could only set up visits if [R.D.T.] called. While Ms. Lyles testified that [R.D.T.] meet [sic] the substance abuse requirement of her case plan, [R.D.T.] admitted that she used drugs to test positive so she could go to a facility or home in Many in July 2017. Such action suggests that she did not complete the substance abuse requirement. Additionally, [R.D.T.] has been unable to maintain employment. Further, [R.D.T.] testified that she could only care for one of her children at the present time.
This case has been active since February 2014. As of January 2018, [R.D.T.] has not made sufficient progress. She has not substantially complied with her case plan and there is no reasonable probability that she will comply in the future. DCFS met their burden of proof and [R.D.T.]'s rights are terminated, with the children being freed for adoption as to the mother.

After reviewing the record in its entirety, we find no manifest error in the trial court's determination that R.D.T. failed to substantially comply with her case plan or that there is no reasonable expectation that she will do so in the near future. By her own testimony, R.D.T. admitted that she failed to meet the housing and income requirements of her case plan and that she intentionally used drugs after her release from prison in order to obtain further substance abuse treatment. She failed to pay the court-ordered child support payments; she had not visited with her children in excess of seven months, in part due to her incarceration on a contempt charge; and she failed to maintain contact with her case worker. Although R.D.T. testified that she has lately obtained housing and the chance of stable employment, this is four years into her case plan. She further admitted that she was only capable of caring for one child at this time. Accordingly, we affirm the trial court's finding that the state proved by clear and convincing evidence that R.D.T.'s parental rights as to her minor children, R.J., R.T., and R.A.T., should be terminated.

SECOND ASSIGNMENT OF ERROR

In her second assignment of error, R.D.T. argues that the trial court erred in terminating her parental rights based on the fact that little was said during the trial on the merits with regards to the best interest of the children and because the trial court failed to mention this issue in its written reasons.

Although the trial court's written reasons do not specifically address a finding of whether the termination of R.D.T.'s parental rights was in the best interest of her children, the February 7, 2018 written judgment states, "The Court finds that the termination of the parental rights of [R.D.T] is in the best interest of [R.J.], [R.T.] and [R.A.T.]

In Wooley v. Lucksinger , 09-571, 09-584, 09-585, 09-586, pp. 77-78 (La. 4/1/11), 61 So.3d 507, 572, the supreme court stated the "well-settled rule":

"[T]hat the district court's oral or written reasons for judgment form no part of the judgment, and that appellate courts review judgments, not reasons for judgment." Bellard v. American Cent. Ins. Co. , 2007-1335 p. 25 (La.4/18/08), 980 So.2d 654, 671 ; Greater New Orleans Expressway Commission v. Olivier , 2002-2795 p. 3 (La.11/18/03), 860 So.2d 22, 24 ("Appeals are taken from the judgment, not the written reasons for judgment."); La. C.C.P. arts. 1918, 2082 and 2083. Judgments are often upheld on appeal for reasons different than those assigned by the district judges. "The written reasons for judgment are merely an explication of the trial court's determinations. They do not alter, amend, or affect the final judgment being appealed...." State in the Interest of Mason , 356 So.2d 530, 532 (La.App. 1 Cir.1977).

Thus, it is the trial court's judgment that is the subject of this appeal, not the reasons for judgment. La.Code Civ.P. art. 2082 The judgment herein specifically held that it was in the children's best interest that R.D.T.'s parental rights should be terminated and that finding is supported by the record. Despite the fact that there may have been little direct testimony regarding the best interests of the children during the trial on the merits, the trial court had the benefit of the numerous reports from DCFS and CASA in which to determine whether the termination of R.D.T.'s parental rights was in the best interest of the children. Both DCFS's and CASA's reports recommend that it would be in the best interests of the children if R.D.T.'s parental rights were terminated.

The record indicates that R.J., who is eleven years old, is currently in her sixth foster home and that she experiences difficulty both at home and at school due to her attitude. She has difficulty with her class work and has received tutoring and counseling in the past. She is currently on medication for ADHD, bed wetting, and depression. R.T., who is six years old, has been in the same foster home for most of her stay in the state's custody and does well both socially and academically in school. Her foster parents wish to adopt her. R.A.T., who is four years old, has been diagnosed with autism, has difficulty with speech, and receives speech and special education therapy. He experiences multiple problems at school due to his inability to focus, failure to follow rules, and is defiant, manipulative, and refuses to take part in class activities. His foster mother related that she is frequently required to pick him up from school due to his behavior.

Perhaps the most poignant consideration here is the position of the children, as represented by counsel throughout these proceedings. That wish, succinctly stated, is that they "wish to be free from the requirements of [DCFS] either through their mother's successful completion of her plan or adoption[,]" and they "leave whether their mother has adequately worked her plan to the remit of the Court but beg to have permanence at the earliest possible time." While R.D.T. testified that she loved her children and wanted to be reunited with them, she also was unsure if it would be better for the children to remain in the state's custody rather than be returned to her. She further admitted that she could only care for one child based on her current situation.

Our juvenile justice system places paramount importance on the best interests of the children involved and is designed to protect their rights to "thrive and survive." State in the Interest of S.M. , 98-922, p. 14 (La. 10/20/98), 719 So.2d 445, 452. Thus, although parental rights are protected by the enforcement of procedural rules enacted to insure that they "are not thoughtlessly severed" in a termination hearing, those rights "must ultimately yield to the paramount best interest of the children" if the failure to terminate the parental rights would "prevent adoption and inhibit the [children's] establishment of secure, stable, long term, continuous family relationships." Id.

Based on the foregoing evidence, we find no manifest error in the trial court's judgment that the termination of R.D.T.'s parental rights was in the best interest of her children.

DISPOSITION

Based on the foregoing reasons, the judgment of the trial court terminating R.D.T.'s parental rights and certifying the minor children as available for adoption is affirmed. All costs associated with this appeal are assessed to R.D.T.

AFFIRMED.

      The initials of the children and their parents are used to protect the identity of the minor child. Uniform Rules-Courts of Appeal, Rules 5-1, 5 -2.

      Louisiana Children's Code Article 1015(4)(b) was redesignated La.Ch.Code art. 1015(5) pursuant to 2016 La. Acts No. 608 § 1.

      Louisiana Children's Code Article 1015(4)(c) was redesignated La.Ch.Code art. 1015(6) pursuant to 2016 La. Acts No. 608 § 1.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE IN the INTEREST OF C.D.W. v. T.R.W.
    18-240
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018
    Walter M. Sanchez, The Sanchez Law Firm, L.L.C., 1200 Ryan Street, Lake Charles, LA 70601, (337) 433-4405, COUNSEL FOR APPELLEE: State of Louisiana, Department of Children & Family Services C.D.W.
    Shane Hinch, The Larry Roach Law Firm, 2917 Ryan Street, Lake Charles, LA 70629, (337) 433-8504, COUNSEL FOR APPELLEES: State of Louisiana, Department of Children & Family Services, Jack Bernsmeier, Melanie Bernsmeier
    LaKetha Holmes, Holmes Family Law Group, L.L.C., 112 North Stewart Street, DeRidder, LA 70634, (337) 221-3028, COUNSEL FOR APPELLANT: T.R.W.
    Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.
   AMY, Judge.

Through appointed counsel for the subject minor child, the State sought termination of the parental rights of the child's biological mother on the ground of abandonment as provided by La.Ch.Code art. 1015(5). Following a hearing, the trial court entered the termination of parental rights and certified the child eligible for adoption. The biological mother appeals. For the following reasons, we affirm.

Factual and Procedural Background

C.D.W. was born to T.R.W., his mother, in June 2009. However, due to T.R.W.'s cocaine use and C.D.W.'s exposure thereto, the minor child was taken from T.R.W.'s custody and was placed in the custody of the State of Louisiana, Department of Children and Family Services. The child was initially placed in the care of foster parents, J.B. and M.B., for the first months of his life. An August 2009 case plan advanced the goal of the child's reunification with T.R.W. In 2010, C.D.W. was placed in the custody of his maternal grandmother, M.W., although J.B. and M.B. maintained visitation with him during that period. The State issued a new case plan for reunification in September 2010, but, according to the trial court, the State was released from supervision of the case at the end of that month.

Then, by judgment dated June 2, 2015, J.B. and M.B. were granted joint custody, along with M.W. At that time, J.B. and M.B. were designated domiciliary parents of C.D.W. As reported by the trial court, however, J.B. and M.B. were awarded sole custody of the child following a December 2015 hearing.

This matter was instituted on February 1, 2017 with the filing of a "Petition for Termination of Parental Rights Pursuant to Louisiana Children's Code Article 1015(4)." By that petition, the State sought the appointment of Walter Sanchez to "bring this action to terminate on behalf of the minor child" per La.Ch.Code art. 607 and to authorize him to bring the action to terminate the parental rights of T.R.W. pursuant to La.Ch.Code art. 1004(B) and (F).

The petition advanced La.Ch.Code art. 1015(5) 3 (a), (b), and (c) as grounds for termination insofar as T.R.W.'s whereabouts were unknown for more than four months and:

[S]he has failed to provide significant contributions to the care and support of the minor child for more than six (6) consecutive months; and, as of the time of filing of this petition, has failed to maintain significant contact with the minor child in that she has failed to visit or communicate with the minor child since December of 2015.

The petition noted that Mr. Sanchez was privately retained.

In its corresponding order, the trial court appointed Mr. Sanchez as counsel for the child and granted him the authority to bring the termination action pursuant to La.Ch.Code art. 1004(B) and (F). As reported below, the trial court further appointed counsel to represent T.R.W.

The parties thereafter appeared at a pre-trial hearing in April 2017, by which time T.R.W. was represented by retained counsel. The trial court's order from that date further recognized that T.R.W. was served in open court with the petition for termination of parental rights and that she "accepted service, waiving any informality with regard to the manner of delivery." The order further noted that T.R.W. entered a denial to the petition.

The merits of the termination matter proceeded to a June 2017 hearing. In written reasons for ruling, the trial court found that the ground of abandonment was proven by clear and convincing evidence and explained that, with regard to parental abandonment:

The undisputed evidence presented at trial indicated that [T.R.W.] has not provided any support for [C.D.W.] and has failed to communicate or visit with [C.D.W.] for a period far in excess of six months. [C.D.W.] was removed from [T.R.W.]'s care and placed in the State's custody due to crack cocaine in her and [C.D.W.]'s system at birth. [C.D.W.] went straight from the hospital into the State's custody and the ... home [of J.B. and M.B.]. [T.R.W.] has never had custody of [C.D.W.] and he is now 7 (almost 8) years old. She was a given a case plan but never worked it.
[T.R.W] acknowledged at trial that she has made no effort to contact [J.B. and M.B.] to see [C.D.W.] prior to the petition to terminate her rights was filed. She also admits that she has never provided any financial support for [C.D.W.] either.

Given those observations, the trial court concluded that T.R.W. abandoned the child "by placing him in the care of another" and that she "failed to provide support for him and failed to visit or communicate with him for a period in excess of six months." The trial court's subsequent best interests of the child analysis addressed both T.R.W.'s longstanding drug problem, and C.D.W.'s care by J.B. and M.B. The trial court explained that T.R.W. had been successful in her most recent rehabilitation program, but further recognized her years of drug use and inability to parent. By contrast, the trial court identified that C.D.W. was closely bonded with J.B. and M.B., that they had provided him with a safe and stable home, and that they had provided for medical and mental health needs. In light of these factors, the trial court explained that termination of parental rights was in the best interests of C.D.W.

By final judgment of December 21, 2017, the trial court commemorated its findings, terminating the parental rights of T.R.W. to C.D.W. pursuant to La.Ch.Code art. 1015(5). The trial court further ordered that C.D.W. remain in the custody of J.B. and M.B. and that the minor child was eligible for adoption. See La.Ch.Code art. 1037.

T.R.W. appeals, asserting that the trial court erred in: 1) permitting the appointment of counsel for the minor child when counsel previously served as counsel for J.B. and M.B.; 2) ordering the termination due to failure to comply with La.Ch.Code art. 1020 ; and in 3) finding that the burden of proof for termination was satisfied.

Discussion

Appointment of Counsel

T.R.W. first questions the trial court's appointment of Mr. Sanchez as counsel for C.D.W. and argues that the appointment posed an inherent conflict insofar as Mr. Sanchez had been counsel for J.B. and M.B. "since the case inception." In support of the argument, T.R.W. references La.Ch.Code art. 1016, which, at the time of Mr. Sanchez's appointment in February 2017, provided that:

A. The child and the parent shall each have the right to be represented by separate counsel in a termination proceeding brought under this Title. Neither the child nor anyone purporting to act on his behalf may be permitted to waive the child's right to counsel.

(Emphasis added.). Referencing jurisprudence regarding the distinct interests involved in a termination of parental rights matter, T.R.W. suggests that the attendant "careful balancing act was overlooked by appointment of special counsel as [Mr.] Sanchez, given his close connectivity to [J.B. and M.B.] and their goal to hinder reunification efforts for the minor child, C.D.W. with the biological parent, [T.R.W.] or for that matter with any of the minor child's maternal relatives[.]"

Following review, however, we find no merit in T.R.W.'s claim. First, as noted by C.D.W., no party lodged an objection to the petition for appointment of Mr. Sanchez in the court below and, thus, the trial court did not address the conflict issue now presented. See Uniform Rules-Courts of Appeal, Rule 1-3 (providing, in part, that: "The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise."). See also Council of City of New Orleans v. Washington , 09-1067, p. 3 (La. 5/29/09), 9 So.3d 854, 856 (wherein the supreme court explained that: "The well-settled jurisprudence of this court establishes that as a general matter, appellate courts will not consider issues raised for the first time, which are not pleaded in the court below and which the district court has not addressed.").

It is noteworthy that T.R.W's argument stems from language indicating that "[t]he child and the parent shall each have the right to be represented by separate counsel in a termination proceeding brought under this Title." La.Ch.Code art. 1016(A) (emphasis added). In this case, T.R.W. complains not of original representation of herself, as the parent, and subsequent representation of the child. She instead complains that Mr. Sanchez formerly represented J.B. and M.B. and was subsequently appointed to represent T.R.W. By its wording, Article 1016(A) does not address that situation. Neither is T.R.W.'s reference to La.Ch.Code art. 607 persuasive as that provision is contained within Louisiana Children's Code, Title VI (Child in Need of Care). By contrast, this matter arises under Title X (Judicial Certification of Children for Adoption).

For these reasons, we leave the trial court's appointment of counsel for C.D.W. undisturbed.

Notice

We similarly find that T.R.W.'s second argument is not preserved for review. By this argument, T.R.W. asserts that when presented with the initial petition in this matter, the document did not contain the notice required by La.Ch.Code art. 1020. While the record does not indicate such notice was provided pursuant to the Article, the petition indicated that T.R.W. was an absentee parent "who no longer resides at her last known address[.]" Thus, it further sought an order "[a]ppointing an attorney at law to represent the absentee defendant, [T.R.W.], upon whom service can be made and against whom these proceedings conducted contradictorily." The trial court thereafter appointed an attorney "to represent the interests of the absentee defendant, [T.R.W.], in these proceedings, upon whom service shall be made and against whom these proceedings conducted contradictorily." The resulting sheriff's return indicates that appointed counsel for T.R.W. was served with the petition.

T.R.W., her appointed counsel, and her newly enrolled counsel appeared at the answer hearing in April 2017. The trial court permitted appointed counsel to withdraw at that time. The order resulting from that hearing indicates that T.R.W. was "served in Open Court with a certified copy of the Petition for Termination of Parental Rights ..., accepted service, waiving any informality with regard to the manner of delivery." The order further reflects that T.R.W.'s counsel "entered a denial to the petition, which is set for trial on June 28, 2017 at 9:00 A.M."

Thus, in addition to the fact that T.R.W. did not lodge an objection below regarding a lack of notice pursuant to La.Ch.Code art. 1020, T.R.W. specifically waived any informality regarding delivery. Additionally, it is worth noting that T.R.W. was at all times represented by either appointed or retained counsel and that she made personal appearances at both the answer hearing and at the trial of the merits. She was thus provided with actual notice.

Therefore, we find that this argument lacks merit.

Merits

In her final argument, T.R.W. questions whether the trial court's termination of parental rights was based on adequate evidence. As noted above, the petition initiating this matter advanced grounds for termination under La.Ch.Code art. 1015(5)(a), (b), and (c). That Article indicates:

The grounds for termination of parental rights are:
....
(5) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child's parent continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating him for any period of six consecutive months.

Importantly, La.Ch.Code art. 1035 provides that "[t]he petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence."

In ruling, the trial court reasons reflect a finding that the ground of abandonment, pursuant to La.Ch.Code art. 1015(5)(b) and (c) was proven, with the trial court explaining:

The undisputed evidence presented at trial indicated that [T.R.W.] has not provided any support for [C.D.W.] and has failed to communicate or visit with [C.D.W.] for a period far in excess of six months. [C.D.W.] was removed from [T.R.W.]'s care and placed in the State's custody due to crack cocaine in her and [C.D.W.]'s system at birth. [C.D.W.] went straight from the hospital into the State's custody and the [home of J.B. and M.B.]. [T.R.W.] has never had custody of [C.D.W.] and he is now 7 (almost 8) years old. She was given a case plan but never worked it.
[T.R.W.] acknowledged at trial that she has made no effort to contact [J.B. and M.B.] to see [C.D.W.] prior to the petition to terminate her rights was filed. She also admits that she has never provided any financial support for [C.D.W.] either.
Based on the foregoing, the Court finds that [J.B. and M.B.] have proven by clear and convincing evidence that [T.R.W.] has abandoned [C.D.W.] by placing him in the care of another and has failed to provide support for him and failed to visit or communicate with him for a period in excess of six months.

On appeal, we review the trial court's determination regarding whether parental rights should be terminated pursuant to the manifest error standard. See State ex rel. H.A.S. , 10-1529 (La. 11/30/10), 52 So.3d 852. Having done so, we find no such error and maintain the trial court's finding.

As set forth above, La.Ch.Code art. 1015(5)(c) provides that: "As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months." The petition instituting this matter was filed on February 1, 2017. M.B. testified that she and her husband obtained sole custody of C.D.W. following a December 2015 custody hearing. When asked by counsel whether T.R.W. made "any effort to see [C.D.W.]" from that time until the filing of the petition, M.B. explained: "I've never had a phone call from her, and the only time she's even been mentioned is the time that she showed up at his school and she showed up at gymnastics leading to the protective order that's in place."

Entered as an exhibit at the termination hearing, the protective order resulting from the attempted contact as described by M.B. was issued in July 2016. Thus, and in addition to the record otherwise demonstrating sustained periods of no contact, it follows that the February 2017 filing of the subject petition occurred more than six consecutive months after the underlying attempted contact. In her brief to this court, T.R.W. does not dispute a lack of contact following that period, but asserts that such a lack of significant contact as described by La.Ch.Code art. 1015(5)(c)"would have been unavoidable since the parties had sought a Protective Order, preventing her contact with C.D.W. in any way or shape." Yet, T.R.W. admitted at trial that she had been neither aware of nor served with the protective order prior to the termination hearing. On this point, M.B. testified that they "tried to serve her. We went through all the court procedures. We hired a special process server, and no one could find her, including her mother." Given this testimony from both T.R.W. and M.B., the trial court was not manifestly erroneous in rejecting the defense of the protective order in the assessment of whether T.R.W. "failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months."

We similarly find unpersuasive T.R.W.'s argument in brief that "any contact between [T.R.W.] and [J.B. and M.B.] may have been attempted by telephone or mail; [T.R.W.] confirmed that she felt as though she was not able to communicate with [J.B. and M.B.] per their express desires." In this regard, the transcript reveals the following through the questioning of T.R.W. by her counsel:

Q. Thank you. There's been a lot of talk and information about whether you have made success in the therapeutic intervention at The Women's Home.[ ]
A. Yes, ma'am.
Q. Tell me about if the Women's Home has given you any directions about how to approach having a relationship with your son.
A. The Women's Home actually focuses on the women and your trauma and your issues, substance abuse related. They told me to seek a relationship with my son but make sure I stay safe within the realms of what I was allowed to do.
Q. What did that mean for you as far as staying safe as to what you could do?
A. Well, I really couldn't do too much of anything but try to call, you know, and try to foster that relationship, but I was not, you know, aware that I wasn't supposed to be calling, I guess.
Q. Did you attempt to write any letters to him?
A. I have some letters at home that I wrote when I was in treatment in 2015, but I've never mailed them. I didn't have any address to mail them to.
Q. So, you weren't aware of an address for [J.B. and M.B.] in order to contact them?
A. No, ma'am.
Q. Okay. Did your mom have any information about their address so that you could send information to him?
A. I never asked her.

Notwithstanding the 2015 timeline spoken of by T.R.W., it is clear that she did not complete her attempt to communicate by correspondence.

Also, and although T.R.W. references purported attempts at communication by telephone, the following colloquy between counsel for C.D.W. and T.R.W. indicates that any such attempts occurred after the filing of the petition for termination:

Q. You made no effort to contact [J.B or M.B.] as of February 1, 2017, from the trial date of December 10 to February 1, 2017, you never tried to contact [J.B. or M.B.] to see [C.D.W.]?
A. I called. I don't think it was before February of this year, though, but I called.

When questioned as to the timing of these calls, T.R.W. again explained that: "I don't remember exactly what month it was, but I did call. I called like twice, and I know my daughter called a couple of times." Finally, the transcript reveals the following colloquy after T.R.W. was recalled to the stand:

Q. So, whatever effort you made to reach out to [J.B. or M.B.] about your son, you didn't take until after this petition was filed on February 1, 2017.
A. Correct.

Additional questioning as to the nature of the alleged calls revealed the passive nature of any such attempt at communication. When asked whether she "ever hear[d] anyone on the other side of the phone when [she] called[,]" T.R.W. responded:

A. Yes, ma'm. [J.B.] answered.
Q. Did you have a conversation with him during those times?
A. Yes. I asked him could I speak - - I said hello, how are you, and he asked who this was, and I told him it was [T.R.W.], and I asked to speak to [C.D.W.].
Q. Did he say you could speak with him?
A. No, ma'am he did not.

In contrast, and while J.B. did not testify at the hearing, M.B. denied that she had received such a call and explained that: "Since we started the initial court proceedings, about two years ago, I've never heard from [T.R.W.]"

Given this evidence, and the credibility determinations attendant thereto, we find no manifest error in the trial court's factual determinations that the ground for termination as set forth in La.Ch.Code art. 1015(5)(c) was proven by clear and convincing evidence.

We observe here that T.R.W. additionally argues that the trial court erred in its finding that she failed to provide support for C.D.W., thus constituting abandonment pursuant to La.Ch.Code art. 1015(5)(b). On this point, T.R.W. does not contend that she provided such support or that she was unable to do so. In fact, she conceded at trial that she provided no support to either the State or to J.B. and M.B. Rather, T.R.W. asserts that "[a]n obligation of support is not in existence against [her] and per testimony of [J.B. and M.B.] was not warranted as they were able to meet all the financial needs of the minor child and averred to this through submission of their financial documents." Notwithstanding this argument, we note that "[t]he State need establish only one ground" under La.Ch.Code art. 1015. See State ex rel. H.A.S. , 52 So.3d at 860. As observed, the record supports the trial court's determination that the ground of abandonment due to failure to communicate pursuant to La.Ch.Code art. 1015(5)(c) was proven by clear and convincing evidence. As such, we do not further comment as to this alternative ground.

Of course, a finding as to a ground for termination of parental rights does not end the inquiry before the court. Rather, the trial court "must also determine whether the termination is in the best interest of the child." State in the Interest of C.F. , 17-1054, p. 11 (La. 12/6/17), 235 So.3d 1066, 1072. See La.Ch.Code art. 1037. See also La.Ch.Code art. 1039.

The trial court extensively addressed the best interests of the child analysis, explaining that:

In summary, the testimony indicates, and [T.R.W.] acknowledges, that she has had a severe drug problem since before [C.D.W.'s] birth. However, [her] most recent stint in rehab from June - September, 2016, has proven successful so far. After she was discharged from rehab, she went into a half-way program where she continues to reside. She has been clean for all of this time. She is working at the program and is looking at returning to school. [T.R.W.'s] determination and commitment to rehab this time are to be commended. The Court hopes that she will continue in her treatment and recovery.
However, the Court's focus must be on what is in the best interests of [C.D.W.]. [He] has been in the care of [J.B. and M.B.] since his birth, other than a period of time that he resided with his maternal grandmother. [J.B. and M.B.] have provided [C.D.W.] with a safe and stable home. More particularly, [J.B. and M.B.] have ensured that his medical and mental health needs are met.
[C.D.W.] has been diagnosed with oppositional defiant disorder, adhd and general anxiety. [He] constantly fears that his mother is going to come and get him. Dr. Patricia Post, who has worked closely with [C.D.W.], testified that he has issues that he will have to deal with for a long time. However, she explained that [C.D.W.] has made progress while in the care of [J.B. and M.B.] He is happier and more expressive. He is more adjusted with [J.B. and M.B.] and not quite as anxious. [C.D.W.] has indicated to Dr. Post that he wants to continue residing with his mother and father, [J.B. and M.B.] He also wants his sister to come live with them. La. Ch. C. art. 1037(A) states that the Court "shall include consideration of the child's attachment to his current caretakers."
Given all that [C.D.W.] has been through, his age and mental health needs, it is important for him to have a stable and permanent home and caregivers who will ensure that [C.D.W.] obtains the services necessary for his success. There is no doubt in the Court's mind that [J.B. and M.B.] will ensure that [C.D.W.] obtains what he needs as evidenced by everything they have provided for him to date. With [J.B. and M.B.], [C.D.W.] will be provided with a safe and secure environment that will ensure his well-being.
Considering all of the reasons discussed above, the Court finds that it is in [C.D.W.]'s best interest that the parental rights of his mother, [T.R.W.], be terminated in order to achieve permanency and stability for [C.D.W.].
Recognizing [T.R.W.'s] recent successes in her recovery, when the Court considers her years of drug use and inability to parent [C.D.W.] and the length of time that he has been stable with [J.B. and M.B.], the Court finds that it is [C.D.W.]'s best interest to terminate [T.R.W.]'s parental rights to [him]. The testimony indicates that [he] clearly has a close bond with [J.B. and M.B.]. When the Court considers the age of [C.D.W.], his attachment to his current caretakers, as well as his special needs, the Court is convinced that [C.D.W.'s] best interests mandate that the parental rights of his mother, [T.R.W.], be terminated.

Following review, and noting that T.R.W. does not provide specific argument challenging the trial court's findings as to the child's best interests, we again leave this finding undisturbed. The trial court's ruling is supported by the record. In addition to T.R.W.'s long struggles with drug addiction, it is important to note that C.D.W. has not been in her custody since his birth in 2009. Instead, J.B. and M.B. have been continuously in his life since that time, doing so for the most recent period of C.D.W.'s life as his sole custodians. As remarked upon by the trial court, testimony indicates that C.D.W. identifies them as his parents.

Accordingly, we find that T.R.W.'s assignment challenging the merits of the termination matter are without merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assigned to the defendant-appellant.

AFFIRMED.

      The initials of the parties are used to ensure the confidentiality of the minor as required by Uniform Rules-Courts of Appeal, Rules 5-1 and 5 -2.

      Titled "Petition for termination of parental rights; authorization to file[,]" La.Ch.Code art. 1004 provides, in pertinent part:
      B. Counsel appointed for the child pursuant to Article 607 may petition for the termination of parental rights of the parent of the child if the petition alleges a ground authorized by Article 1015(5), (6), or (7) and, although eighteen months have elapsed since the date of the child's adjudication as a child in need of care, no petition has been filed by the district attorney or the department.
      ....
      F. By special appointment for a particular case, the court or the district attorney may designate private counsel authorized to petition for the termination of parental rights of the parent of the child on the ground of abandonment authorized by Article 1015(5).

      While the trial court expressed the burden of proof as having been met by J.B. and M.B., the petition is clear that it was filed by the State, on behalf of the minor child.

      With an effective date of August 1, 2017, 2017 La. Acts No. 239, § 1 amended the first sentence of La.Ch.Code art. 1016(A), which, as amended, provides that: "A. The child and the identified parent shall each have the right to be represented by separate counsel in a termination proceeding brought under this Title."

      The record indicates that, at the time of the termination proceedings at issue, J.B. and M.B. were represented by Shane Hinch.

      Louisiana Children's Code Article 607(A) provides that: "The court shall appoint the program designated for the jurisdiction by the Louisiana Supreme Court to provide qualified, independent counsel for the child at the time the order setting the first court hearing is signed. Neither the child nor anyone purporting to act on his behalf may be permitted to waive this right."

      Louisiana Children's Code Article 1020 provides:
      Notice shall be issued by the clerk and served, together with a copy of the petition, on every parent against whom a proceeding is instituted under this Title and shall state:
      "NOTICE
      Louisiana law provides that you can permanently lose your rights as a parent. A petition has been filed requesting the court to terminate your parental rights to your child. A copy of the petition is attached to this notice. A court hearing of your case has been scheduled for the _____ day of __________, _____ at the __________ division of __________ court in the parish of __________. At this hearing, you will be asked to answer the petition by either admitting or denying the truth of the facts stated in the petition. If you admit those facts, you may also consent to the termination of your parental rights at this hearing. If you deny any or all of those facts, you will be given a date to return for a trial. If you fail to appear, the court can terminate your rights despite your absence. If the court at the trial finds that the facts set out in the petition are true and that termination of your rights will serve the best interests of your child, the court can enter a judgment ending your rights to your child. If the judgment terminates your parental rights, you will no longer have any rights to visit or to have custody of your child, or make any decisions affecting your child. Your child will be legally freed to be adopted by someone else. This is a very serious matter. You should contact a lawyer immediately so that you can be prepared for the court hearing. You have the right to hire a lawyer and to have him or her represent you. If you cannot afford to hire a lawyer, you may call the telephone number on the attached form for information concerning free legal aid. If free legal aid is not available, the court will appoint a lawyer at the scheduled hearing if the court finds that you are unable to pay some or all of the costs. Whether or not you decide to hire an attorney, you have the right to attend the hearing of your case, to call witnesses on your behalf, and to question those witnesses brought against you. If you have any questions concerning this notice, you may call the telephone number of the clerk's office which is __________."

      Louisiana Children's Code Article 1023(A), entitled, in part, "Service; absentee parent[,]" provides:
      If the parent against whom a proceeding is instituted cannot be served in accordance with either Article 1021 or 1022, the court shall appoint an attorney at law as curator ad hoc for the parent and service of citation shall be made upon the curator ad hoc.

      Louisiana Children's Code Article 1025.1(A) provides that "[t]he court shall require the parent to appear in person to answer the petition within fifteen days after the filing of the petition."

      While the petition was brought pursuant to La.Ch.Code art. 1015(5)(a), (b), and (c), the trial court's reasons for ruling do not reflect a particularized ruling as to subparagraph (a) and, as discussed below, T.R.W. attended the termination hearing.

      The following exchange between counsel and M.B. provides some context to the events leading to the protective order:
      Q. So, that was the protective order when she showed up and attempted to have him leave with her instead of staying in [J.B.'s] and your custody.
      A. Right.
      Q. Before she showed up that day had she made any effort to contact you and [J.B] to say I'd like to see him, I want to do whatever it takes to be able to visit with him, let me talk to you about what I've done that should make you feel comfortable, she never contacted you with anything like that?
      A. No, sir. I've never had any other contact with her at all.
      Q. Was it that same day or near about when she showed up at [C.D.W's] school without notifying you and [J.B.] as his custodians and attempted to see him without your knowledge and consent at the school?
      A. Correct. The school called me and let me know that [T.R.W.] had been there with old paperwork and attempted to see [C.D.W.]. The school said they did not allow that. And then there was a separate incident about a month later where she showed up at gymnastics as [J.B.] was taking the children to gymnastics.

      T.R.W. explained that, at the time of trial, she was living and seeking treatment at The Women's Home, a residential facility. The record indicates that she entered the facility in December 2016.

      Entitled "Findings and contents of termination judgment; form[,]" La.Ch.Code art. 1037(B) provides that:
      When the court finds that the alleged grounds set out in any Paragraph of Article 1015 are proven by the evidentiary standards required by Article 1035 and that it is in the best interests of the child, it shall order the termination of the parental rights of the parent against whom the allegations are proven. The court shall enter written findings on both issues. The consideration of best interests of the child shall include consideration of the child's attachment to his current caretakers.

      Louisiana Children's Code Article 1039(B) further references the best interests of the child analysis and provides, in pertinent part, that: "If the court finds that the alleged grounds are not proven in accordance with the evidentiary standards set forth in Article 1035or 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 ...."


text:
    Calvin HOLLY, Jr. v. Jon'a G. HOLLY
    18-207
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018
    Joseph A. Boothe, Smith, Tallaferro & Purvis, Post Office Box 298, Jonesville, LA 71343, (318) 339-8526, COUNSEL FOR DEFENDANT/APPELLEE: Jon'A G. Holly
    Brandy McClure, Post Office Box 665, Jonesville, LA 71343, (318) 339-7337, COUNSEL FOR PLAINTIFF/APPELLANT: Calvin Holly, Jr.
    Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.
   AMY, Judge.

This appeal arises from a divorce proceeding. The trial court ordered the husband to pay interim spousal support to the wife and ordered that the interim spousal support award continue for one hundred eighty days post-judgment of divorce or until a final ruling on the issue of permanent spousal support. Thereafter, the husband filed a motion for new trial regarding the continuation of the interim spousal support, and the motion was denied. The husband now appeals. For the following reasons, we reverse in part and affirm as amended.

Factual and Procedural Background

On September 25, 2005, Calvin Holly, Jr., and Jon'a G. Holly were married. Mr. Holly filed a Petition for Divorce and Ancillary Matters on March 3, 2016. Ms. Holly answered and filed a reconventional demand, in which she requested interim spousal support and stated: "[Ms. Holly] reserves all rights to bring other actions incidental to divorce." The trial court ordered Mr. Holly to pay interim spousal support to Ms. Holly retroactive to the date of the filing of the Petition for Divorce. On September 26, 2016, Mr. Holly filed a "Rule to Show Cause Why Divorce Judgment Should Not Be Granted Under Civil Code Article 102," in which he also requested "that interim spousal support be terminated upon the Judgment of Divorce." On December 2, 2016, Ms. Holly filed a "Rule for Contempt for Non Payment of Interim Spousal Support," asserting that "[Mr. Holly] has not paid interim spousal support ... for the time period of October, November and December 2016 and is in arrears ... as of December 2, 2016."

The trial court issued a judgment of divorce on December 8, 2016. Subsequently, on February 24, 2017, the trial court issued a judgment concerning Ms. Holly's Rule for Contempt, stating, in pertinent part:

[T]he prior Judgment ordering payment of interim spousal support by CALVIN HOLLY, JR., to JON'A G. HOLLY ... shall continue in full force and effect until the lapse of 180 days from the date of the Judgment of final divorce; i.e., 180 days from December 8, 2016, or until a final ruling is made by this Court on the issue of permanent spousal support.

Thereafter, Mr. Holly filed a motion for new trial. In a supporting memorandum and citing La.Civ.Code art. 113, Mr. Holly argued: "Because Ms. Holly did not request permanent spousal support and because Mr. Holly has requested that spousal support be terminated, spousal support should be terminated at the latest at the rendition of the judgment of divorce." The trial court denied Mr. Holly's motion for new trial. Mr. Holly now appeals, asserting the following assignments of error:

1. The trial court erred in its decision that interim spousal support should be continued 180 days after the final divorce.
2. The trial court erred in its decision to deny the Motion for New Trial.

Discussion

Mr. Holly argues that the trial court erred in ordering that Ms. Holly's interim spousal support award should continue one hundred eighty days after the judgment of divorce. He argues that the interim spousal support award should have terminated upon rendition of the judgment of divorce according to La.Civ.Code art. 113 because "Ms. Holly did not make a request for permanent spousal support in the Answer and Reconventional Demand, and she did not request permanent spousal support in any other pleadings. There has never been a request for permanent spousal support by Ms. Holly." In a divorce proceeding, a spouse's right to claim interim spousal support is based upon the statutorily imposed duty found in La.Civ.Code art. 98 that spouses are to support each other during marriage. Larson v. Larson , 16-695 (La.App. 5 Cir. 10/25/17), 229 So.3d 1043. In awarding interim spousal support, the trial court is guided by La.Civ.Code art. 113, which provides, in pertinent part:

A. Upon motion of a party or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, any interim allowance or final child support obligation, and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce.
B. If a claim for final spousal support is pending at the time of the rendition of the judgment of divorce, the interim spousal support award shall thereafter terminate upon rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, but only for good cause shown.

The trial court is vested with much discretion in determining an award of interim spousal support, and its decision should not be disturbed on appeal absent an abuse of that discretion. Loftin v. Loftin , 09-0795 (La.App. 3 Cir. 2/3/10), 28 So.3d 1274.

For example, in Larson , 229 So.3d 1043, during the course of divorce proceedings, Ms. Larson filed a supplemental and amending petition, in which she withdrew her request for final spousal support. Subsequently, a judgment of divorce was granted, and the trial court awarded Ms. Larson interim spousal support for a one hundred eighty day period following the date of the judgment of divorce. Finding that the trial court had abused its discretion and was manifestly erroneous in so ruling, the fifth circuit amended the judgment to reflect that Ms. Larson's interim spousal support ended on the date of the judgment of divorce, explaining: "Ms. Larson did not have a motion for final spousal support pending at the judgment of divorce, so her interim spousal support therefore terminated at the rendition of the judgment of divorce[.]" Id. at 1051.

As discussed above, La.Civ.Code art. 113(A) provides that an "award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce." Interim spousal support may continue past the rendition of the judgment of divorce "[i]f a claim for final spousal support is pending at the time of the rendition of the judgment of divorce[.]" La.Civ.Code art. 113(B). In her reply brief to this court, Ms. Holly argues that the trial court did not err in ordering that the award of interim spousal support should continue for one hundred eighty days following the judgment of divorce or until final disposition of the issue of permanent spousal support because there was a pending prayer for final spousal support. To demonstrate that there was a pending prayer for final spousal support, she cites the trial court's May 20, 2016 order related to a rule to show cause, which provides, in pertinent part: "Plaintiff-in-reconvention [Ms. Holly] further prays for all such relief as law, equity or the nature of the case permit." However, we find no support for a determination that Ms. Holly's general prayer for relief in her reconventional demand constitutes a pending "claim for final spousal support" under La.Civ.Code art. 113. Like in Larson , 229 So.3d 1043, our review of the record indicates that Ms. Holly did not have a motion for final spousal support pending when the trial court issued its judgment of divorce on December 8, 2016. Thus, according to the language of La.Civ.Code art. 113, Ms. Holly's interim spousal support terminated upon the rendition of the judgment of divorce on December 8, 2016. We conclude that the trial court abused its discretion in awarding Ms. Holly interim spousal support for a one hundred eighty day period following the December 8, 2016 judgment of divorce.

Alternatively, Ms. Holly argues that, in Dubourg v. Dubourg , 291 So.2d 441 (La.App. 4 Cir. 1974), "[the fourth circuit] found that the wife's right to final spousal support was conferred by law (then- Louisiana Civil Code Article 160 ), and is not dependent upon a claim being made or even reserved." A review of that case reveals it to be distinguishable from the case at hand. In Dubourg , Ms. Dubourg filed a petition for permanent spousal support following the judgment of divorce. In disposing of Mr. Dubourg's plea of res judicata, the fourth circuit explained:

The wife's right to alimony after divorce is conferred by LSA-C.C. art. 160, provided she successfully bears the burden of proving she was without fault in causing or contributing to the failure of the marriage and that she has insufficient means of support.... There is no requirement that the alimony must be sought nor the right thereto reserved coincident with the rendition of the judgment of divorce.
....
[A] divorced wife does not forfeit her right to alimony by her failure to assert it at the time of the rendition of judgment of divorce.

Dubourg , 291 So.2d at 443. Thus, the Dubourg case concerned whether a spouse was entitled to final spousal support if that spouse failed to request it prior to a judgment of divorce. Here, as the case is framed, the issue is whether interim spousal support terminates upon the rendition of a judgment of divorce when there is no pending claim for final spousal support.

In the alternative, Ms. Holly asserts that the case of Speight v. Speight , 03-1152 (La.App. 3 Cir. 2/4/04), 866 So.2d 344, should control our decision. In that case, the trial court ruled that Ms. Speight's interim spousal support award terminated on the date of the judgment of divorce. A panel of this court reversed, stating: "The support should have continued in favor of Ms. Speight for one hundred eighty days[.]" Speight , 866 So.2d at 347. However, we find the analysis in Speight inapplicable to the case at hand because that decision was based on an earlier version of La.Civ.Code art. 113, as evidenced by the following excerpt:

Additionally, La.Civ.Code art. 113 (emphasis ours), states:

Upon motion of a party or when a demand for final spousal support is pending, the court may award a party interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first . The obligation to pay interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, but only for good cause shown.

Speight , 866 So.2d at 346. The version of La.Civ.Code art. 113 applied in Speight differs from the version applicable to the facts of this case, which states that an "award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce ." (Emphasis added.) Thus, we disagree with Ms. Holly's assertion that Speight should control our analysis.

In his second assignment of error, Mr. Holly asserts that the trial court erred in denying his motion for new trial. Louisiana Code of Civil Procedure Article 1972 provides, in pertinent part, that a new trial shall be granted when the "judgment appears clearly contrary to the law and the evidence." As discussed above, the trial court's decision to award interim spousal support to continue for one hundred eighty days from the judgment of divorce is clearly contrary to La.Civ.Code art. 113, which states that an "award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce." Thus, we agree with Mr. Holly that his motion for new trial should have been granted.

In sum, we conclude that the trial court abused its discretion in ordering that the interim spousal support award be continued for one hundred eighty days after the judgment of divorce. Further, we conclude that the trial court erred in failing to grant Mr. Holly's motion for new trial regarding the interim spousal support award.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, insofar as it ordered Calvin Holly, Jr., to pay interim spousal support to Jon'a G. Holly for one hundred eighty days post-judgment of divorce. The judgment is amended to reflect that the interim spousal support award paid by Mr. Holly to Ms. Holly terminated upon the rendition of the judgment of divorce on December 8, 2016, and the judgment is affirmed as amended. Costs of this appeal are assessed against Jon'a G. Holly.

REVERSED IN PART; AFFIRMED AS AMENDED.

      Louisiana Civil Code Article 98 provides: "Married persons owe each other fidelity, support, and assistance."

      We note that La.Civ.Code art. 113 was amended by 2018 La. Acts No. 265, § 1. However, because the effective date of this amendment is August 1, 2018 and the operative facts of this case occurred before that date, we apply the version of La.Civ.Code art. 113 in effect prior to the amendment.

      We note that La.Civ.Code art. 113 was amended by 2003 La. Acts No. 1092, § 1, and the Speight court appears to have applied the version of the article in effect prior to that amendment.


author: KEATY, Judge.

text:
    STATE of Louisiana v. Ruffin STOKES
    17-970
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018
    M. Bofill Duhe, District Attorney, W. Claire Howington, Assistant District Attorney, 300 Iberia Street, Suite 200, New Iberia, Louisiana 70560, (337) 369-4420, Counsel for Appellee: State of Louisiana
    Richard A. Spears, Attorney At Law, 101 Taylor Street, New Iberia, Louisiana 70560, (337) 367-1960, Counsel for Defendant/Appellant: Ruffin Stokes
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   KEATY, Judge.

On April 5, 2007, Defendant, Ruffin Stokes, was charged with armed robbery, a violation of La.R.S. 14:64. A jury trial commenced on February 8, 2010, following which Defendant was found guilty as charged. Defendant was sentenced on April 19, 2010, to seventy-five years at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant, pro se, timely filed a Motion to Reconsider Sentence. Several weeks later, on May 21, 2010, defense counsel filed a Motion to Reconsider Sentence or, Alternatively, Notice of Appeal. Following a July 30, 2010 hearing, the trial court denied Defendant's motions to reconsider sentence. On June 1, 2016, Defendant filed a "Motion to Set Status Conference" to determine the status of the "unperfected appeal which was filed in this matter on May 21, 2010." At the conclusion of an August 10, 2016 hearing, the trial court granted Defendant an out-of-time appeal without objection by the State.

Defendant is now before this court asserting in his sole assignment of error that the trial court's imposition of seventy-five years imprisonment was constitutionally excessive. He argues that the trial court "did not sufficiently take into account mitigating factors nor did it appropriately tailor the sentence to the defendant for the crime committed." For the following reasons, we vacate Defendant's sentence and remand this matter to the trial court for resentencing.

DISCUSSION

The facts of this matter, which are uncontested for purposes of this appeal, were recited in the State's appellee brief:

On December 21, 2006, Charles and Angela Fus[i]lier were working at their hair salon. Three men with their faces covered rushed into the salon, waiving guns and demanding money. Although his face was covered, Charles and Angela recognized the defendant, Ruffin Stokes. The defendant pointed his gun at Angela and demanded money. Angela tried to give him what she had, but the defendant pointed the gun at Charles, who threw whatever cash he had in his pocket at the defendant. When Charles could not comply with the defendant's demand for more money, the defendant pointed his gun at Charles' and Angela's three-year-old son. Charles testified that he would rather have died than let the defendant kill his son. Charles tackled the defendant, and, during the struggle, the gun went off, firing a shot into the ceiling.

In State v. James , 15-414, pp. 2-4 (La.App. 3 Cir. 10/7/15), 175 So.3d 1176, 1178, writs denied , 15-2059 (La. 1/9/17), 208 So.3d 876, and 15-2044 (La. 1/9/17), 214 So.3d 858, this court discussed the standard for reviewing excessive sentence claims, as follows:

[Louisiana Constitution Article] I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.
State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted).
....
Even though a penalty falls within the statutory sentencing range, it may still be unconstitutionally excessive:
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case."
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061 (citations omitted). "[T]he trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1[;] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant." State v. Smith , 433 So.2d 688, 698 (La.1983) (citing State v. Ray, 423 So.2d 1116 (La.1982); 175 So.3d 1176 ; State v. Keeney, 422 So.2d 1144 (La.1982) ; State v. Duncan, 420 So.2d 1105 (La.1982) ). "[M]aximum sentences are reserved for cases involving the most serious violations of the charged offense and for the worst kind of offender." State v. Quebedeaux , 424 So.2d 1009, 1014 (La.1982) (citing State v. Jones , 398 So.2d 1049 (La.1981) ). "The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed." La.Code Crim.P. art. 881.4(D).

In the current case, Defendant was convicted of armed robbery. Louisiana Revised Statutes 14:64 provides:

A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

Defendant argues that the trial court abused its discretion when determining the appropriate length of his sentence because it did not take into consideration as mitigating circumstances that he was only twenty years old and a first-time felony offender when the armed robbery occurred. In brief, Defendant points out that although "[t]he trial court begins its analysis by noting the defendant's youth; he took it into consideration as an aggravating factor, stating that because of his youthfulness[, Defendant] would likely 'commit additional crimes.' " Defendant further notes that there is no indication in the record that the trial court considered his lack of criminal history as a mitigating factor. Citing the supreme courts' pronouncement in Quebedeaux , 424 So.2d 1009, that maximum sentences are generally imposed upon the worst of offenders and the worst of offenses, Defendant argues that his seventy-five-year sentence is unconstitutionally excessive. Thus, he asks this court to vacate his sentence and remand this matter to the trial court for resentencing.

At the sentencing hearing, the State disclosed that Defendant had no adult criminal record before offering into evidence several Victim Impact Statements. Thereafter, defense counsel asked the trial court for mercy on Defendant because of his youth. The trial court then noted for the record:

The Court, of course, heard all the testimony. And the testimony was that Mr. Stokes entered this place of business armed with a dangerous weapon, that at first the people who were in there who owned the business didn't think that it was serious because they apparently knew who he was. He had been there before. They knew him. They knew him from the neighborhood. He demanded money. He pointed the weapon. He threatened not only the adults, but also a very young child. He did so in a particularly cruel and heinous manner. He did it deliberately. He did it, the Court found, the jury found deliberately and with some planning.
The Legislature has deemed armed robbery to be ... one of the most serious crimes that is defined in our code, our Criminal Code and the penalty provision reads as follows: Whoever commits the crime of armed robbery shall be imprisoned at hard labor not less than ten years, nor more than ninety-nine (99) years without benefit of parole, probation or suspension of sentence.
The Victim Impact Statements that I have received show how serious this was and how it has affected the victims of this crime.
Mr. Stokes deserves a severe penalty. Having committed this crime at a young age with such deliberate and violent intent indicates to the Court that he is a serious offender who would likely commit additional crimes. For that reason[,] the Court is going to impose a sentence of seventy-five (75) years at hard labor without benefit of probation, parole or suspension of sentence. And in imposing this sentence the Court takes into consideration the provisions of Article 894, 895, 894.1, and finds that there is an undue risk that during any period of suspension of sentence or probation the defendant would commit another crime.
He is in need of correctional treatment and a custodial environment is suitable. A less[e]r sentence would deprecate the seriousness of the offense. The Court does find that this was a particularly heinous crime, that one or more persons could easily been killed as a result of this and that no other or no lesser sentence is appropriate in this case.

According to the trial transcript, Defendant threatened to shoot a three-year-old child because the parents did not come up with enough money. When the father attempted to wrestle the gun from Defendant, the gun discharged. Defendant does not dispute these facts. Fortunately, no one was injured, but Defendant's actions put the Fusiliers and several customers at their salon at serious risk. Defendant essentially terrorized the parents when he aimed the gun at their child and threatened to shoot him if they did not come up with more money.

In State v. Jackson , 04-1388 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, writ denied , 05-1740 (La. 2/10/06), 924 So.2d 162, the defendant was sentenced to sixty years on each of two counts of armed robbery to be served concurrently. The defendant complained that the sentences were excessive considering that he was nineteen at the time of the offenses and a first-time felony offender. Discussing whether the sentences were excessive under the circumstances, the fifth circuit stated:

Sentences in excess of the minimum for armed robbery have been upheld despite the youth of the defendant and/or the lack of a prior criminal history. However, most of these cases involve more egregious circumstances than the present case.
In State v. Williams , 04-697, p. 9-10 (La.App. 5 Cir. 11/30/04), 889 So.2d 1135, 1144-1145, a 22-year-old defendant received a 70 year sentence for armed robbery. The defendant robbed a bank while armed with a gun. In finding, the defendant's sentence was not constitutionally excessive, this Court noted the defendant had an extensive record of violent criminal activity, which was evidenced by the presentence investigative report.
In State v. Sanborn , 02-257, p. 10-12 (La.App. 5 Cir. 10/16/02), 831 So.2d 320, 330-332, writ denied , 02-3130 (La. 9/26/03), 854 So.2d 346, this Court upheld the defendant's 75 year sentence for armed robbery despite his youthful age of 25 and the fact he was a first time offender. However, the defendant's crime was exceptionally brutal. The defendant shot, pistol whipped, and broke one of the victim's ankles during the commission of the crime.
In State v. Palmer , 00-0216 (La.App. 1 Cir. 12/22/00), 775 So.2d 1231, writs denied , 01-0211 (La. 1/11/02), 807 So.2d 224 and 01-1043 (La. 1/11/02), 807 So.2d 229, the court upheld a 65 year sentence for armed robbery, although the defendant was a first felony offender. In that case, the defendant and a companion robbed a small grocery store while armed with guns. The defendant pointed his gun at a female customer's face and shot a male customer. He also threatened the store clerk with the gun.
In State v. Lofton , 96-1429 (La.App. 1 Cir. 3/27/97), 691 So.2d 1365, writ denied , 97-1124 (La. 10/17/97), 701 So.2d 1331, the First Circuit upheld a 50 year sentence imposed for a first felony offender convicted of armed robbery. In that case, the defendant put a gun to the victim's head as a threat, and discharged the gun at least twice while the victim fled, but did not shoot the victim.
In State v. Mitchell, 26,718 (La.App. 2 Cir. 12/7/94), 647 So.2d 423, the Second Circuit upheld a 50 year sentence for a young offender, who robbed a pizza restaurant at gunpoint, shot the manager five times, and then repeatedly stabbed her.
In State v. Smith , 433 So.2d 688 (La.1983), the Louisiana Supreme Court affirmed a 60 year sentence for an armed robbery of a bank. The Supreme Court noted the defendant was the planner and organizing force of the robbery, in which victims were threatened and shots were fired. The court also noted the defendant had a substantial criminal past.
In the present case, the State introduced evidence at the sentencing hearing suggesting the defendant had been involved in several armed robberies for which he was not arrested. However, the trial court sentenced the defendant without consideration of this evidence, because it found the evidence was not clear and convincing. The trial court noted that the defendant engaged in a three day crime spree where, luckily, no one was killed.
In cases similar to the present one, where the defendant does not have a criminal history and the armed robbery did not involve the discharge of a weapon or any physical injury to the victims, the sentencing range is between 20-40 years.
In State v. Price, 04-812 (La.App. 5 Cir. 3/1/05), [909] So.2d [612], this Court found a 23-year-old defendant[']s 40 year sentence for armed robbery not to be excessive. In Price , the defendant robbed a Taco Bell while armed with a firearm. No shots were fired, but the defendant made one of the employees lie on the floor while he pointed a gun at them.
In State v. Lewis , 39,263 (La.App. 2 Cir. 1/26/05), 892 So.2d 702, the defendant, a first felony offender, received three concurrent 20 year sentences for the armed robbery of three employees at a bank. The defendant was armed with a BB gun.
In State v. Roddy, 33,112 (La.App. 2 Cir. 4/7/00), 756 So.2d 1272, writ denied , 00-1427 (La. 5/11/01), 791 So.2d 1288, a 22-year-old first felony offender defendant received a 20 year sentence for armed robbery of a bank. The defendant was a passenger in the getaway car, but was aware of the plan to rob the bank. The presentence report noted the defendant had spent eight months in a juvenile detention center for a prior adjudication for armed robbery.
In State v. Square, 433 So.2d 104 (La.1983), the Louisiana Supreme Court upheld the defendant[']s 25 year sentence for a bank robbery. The defendant was 22 years old, was gainfully employed, lacked a prior criminal record, and there was an absence of personal injury to the victims of the robbery.
However, in this case, the defendant was charged with nine counts of armed robbery, and one count of conspiracy to commit armed robbery. He was tried on two counts of armed robbery and conspiracy to commit armed robbery, and found guilty. The sentencing range for armed robbery was 5 to 99 years, at the time the instant offenses were committed. The trial court considered the defendant[']s age and reviewed the sentencing guidelines before imposing a 60 year sentence for each count of armed robbery. The defendant's sentences of 60 years on each count of armed robbery, to be served concurrently, fall in that range.
The issue before us on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. We apply three factors in reviewing a trial court[']s sentencing discretion: the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes. We find in this case that the defendant[']s sentence is not constitutionally excessive. Although, the defendant was nineteen years old and a first time offender, he went on a three-day violent crime spree. While in cases with facts similar to the present one the sentencing range is between 20-40 years, the defendant's sentence of 60 years is within the statutory sentencing range (10-99 years) and does not shock our conscience. The defendant participated in an armed robbery in which victim, Adriene Bazile, testified that she had a gun pointed at her face, which placed her in fear of her life. Bazile testified that she was terrified during the robbery and fell on the floor crying when the robbers, including the defendant, left the bank. Victim, Laura Waguespack, testified that a gun was pointed at her during the robbery, which made her nervous and she feared for herself. Given these factors, we do not find the sentence imposed to be excessive.

Id. at 915-17 (footnote omitted). See also State v. Curry , 593 So.2d 860 (La.App. 2 Cir. 1992), wherein a sentence of sixty years at hard labor without benefit of parole, probation, or suspension of sentence for armed robbery was unconstitutionally excessive, even though the defendant had a lengthy juvenile record and bludgeoned the victim unnecessarily during the robbery. The defendant was a first-time felony offender, nineteen years old at time of the offense, and did not fire a gun during the robbery. The defendant's juvenile record was primarily a chronicle of escapes, and the offense was the first incident of a crime of violence against a person. The second circuit noted that "[s]ixty years without benefit for this defendant is tantamount to a life sentence and totally voids the possibility of rehabilitating the first felony offender." Id. at 863. After reviewing "comparable cases," the second circuit determined that "the maximum sentence [it] could affirm for this offender and offense [was] 35 years at hard labor without benefit[s]." Id. at 864

Considering the facts of this case and the above jurisprudence, we conclude that the seventy-five-year sentence on this twenty-year-old, first-time felony offender is constitutionally excessive and amounts to an abuse of the trial court's broad discretion. Accordingly, this matter will be remanded to the trial court for resentencing.

DECREE

The sentence imposed on Defendant, Ruffin Stokes, for his conviction of armed robbery is constitutionally excessive. We vacate his sentence and remand this matter to the trial court for resentencing in accordance with this opinion.

SENTENCE VACATED AND REMANDED.

      Defendant and his counsel were present at the July 30, 2010 hearing. The transcript reflects that no evidence was offered at the hearing and defense counsel did not orally pursue the request made in his motion that, should the motion for reconsideration be denied, Defendant "files a Notice of Appeal and seeks to have a return date set."