author: LILJEBERG, J.

text:
    Elizabeth MELANCON v. Darielle RUSSELL
    NO. 18-CA-48 18-CA-49
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, ELIZABETH MELANCON, Anne Schmidt
    COUNSEL FOR DEFENDANT/APPELLANT, DARIELLE RUSSELL, DaShawn P. Hayes
    Panel composed of Judges Marc E. Johnson, Hans J. Liljeberg, and John J. Molaison, Jr.
   LILJEBERG, J.

Defendant/father appeals the trial court's judgment awarding sole custody of the parties' minor children to the plaintiff/mother pursuant to the Post-Separation Family Violence Relief Act. He also challenges the denial of his Motion for New Trial. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The parties, Elizabeth Melancon and Darielle Russell, are the parents of two minor children, O.T.R. (born 3/22/09) and S.G.R. (born 3/26/12). The parties were never married. On June 12, 2015, they entered into a stipulated judgment, providing that Elizabeth would have sole custody of the minor children, with Darielle to have one telephone call per week with the children. The record reveals Darielle was incarcerated at the time the parties entered into this judgment.

On November 10, 2016, Darielle filed a Motion to Modify Child Custody, in which he indicated that he was no longer incarcerated and that joint custody would be in the best interest of the children. On December 12, 2016, the trial court approved a "Court Form Stipulation," providing that Elizabeth would maintain sole custody of the children, pending further orders of the court. It further provided that Darielle would have supervised visitation with the children, with his mother present at all times.

Thereafter, on February 6, 2017, Elizabeth filed an Answer and Reconventional Demand, seeking to maintain sole legal custody of the children. In her pleading, she asserted that she has been the primary caretaker of the children due to Darielle's "drug abuse and violent lifestyle." Elizabeth asserted that Darielle has an extensive criminal history, as well as a history of domestic violence against her. She also requested that Darielle be ordered to resume payment of his child support obligation, which was suspended during his incarceration, and that he be ordered to make payments toward his child support arrears, which exceeded $21,000.

On July 13, 2017, the trial court held a hearing on Darielle's Motion to Modify Custody and Elizabeth's Reconventional Demand, as well as other motions not at issue on appeal. At the hearing, Darielle testified that he was released from jail in December of 2015, and that he is currently employed. Darielle testified that he has a good relationship with his daughters, who were ages eight and five at the time of the hearing, that he has never abused them, and that he was seeking joint custody. He admitted that he has smoked marijuana in the past, but he indicated that he took a drug test a few days before this hearing and it was "clean."

On cross-examination, Darielle acknowledged that he has failed to pay child support since he was released from jail, claiming "I don't know where [Elizabeth] stays at." He also admitted that he did not pay child support prior to his incarceration because he was not talking to Elizabeth, and that he has not paid child support in at least five years. Darielle acknowledged that his visitation with the children pending this hearing was ordered to be supervised, and he denied that he ever exercised his visitation without his mother being present. Darielle testified that he has never hit Elizabeth or threatened her with harm. He admitted that he was incarcerated in 2015 because he had shot someone.

Elizabeth testified that she has experienced domestic abuse at the hands of Darielle on more than one or two occasions. She recalled an incident in 2009 when she was pregnant during which Darielle pushed her out of the door and slammed the door on her stomach, causing her to be hospitalized for complications with her pregnancy. Elizabeth also testified regarding an incident in 2009, during which she was driving with Darielle and baby O.T.R. as passengers. She stated that they got into an argument and Darielle put his hands around her neck and slammed her head against the window. Then, as she drove over some railroad tracks, Darielle put her car in neutral, causing the car to stop on the tracks. She stated that after "struggling a little bit," she was able to put the car in drive and leave the railroad tracks.

Elizabeth also testified regarding an incident in December of 2010, when Darielle hit her three or four times in the face while she was holding O.T.R., causing her face to hit O.T.R.'s cheek. She also testified about an incident in May 2012 when Darielle broke into her parent's house through a kitchen window, and she had to leave the house and go down the street to her uncle's house to call the police. Additionally, Elizabeth testified about an incident when O.T.R. was one or two years old, where Darielle put his hands around her neck and threatened to hit her.

Elizabeth also testified that on many occasions, Darielle has threatened to kill her, and she has filed for protective orders several times. She testified about threatening text messages she received from Darielle, and the printouts from several text messages were admitted into evidence.

Elizabeth testified that S.G.R. has told her that Darielle said he shot someone because they were "messing" with him. She believes the girls are scared of Darielle, and she has obtained mental health treatment for O.T.R. for anxiety and other emotional issues that have arisen since he was released from jail and "got back into their lives." According to Elizabeth, O.T.R. has also expressed that she is afraid she may go to jail if she makes a bad choice. Elizabeth requested that the trial court deny Darielle's Motion to Modify Custody "due to the instability and the violence and the drugs" she believes he would bring into the children's lives.

At the conclusion of the hearing, the trial court found that Darielle has a history of perpetuating family violence on Elizabeth, triggering the application of the Post-Separation Family Violence Relief Act, La. R.S. 9:361 et seq. ("PSFVRA"). In accordance with the provisions of the Act, the trial court awarded sole custody to Elizabeth, with Darielle to have supervised visitation every Saturday from 2:00 p.m. to 6:00 p.m., as well as specified holidays. The trial court ordered that the supervisor for visitation shall be a police officer or other competent professional, and not a relative, friend, therapist, or associate of Darielle. Finally, the trial court ordered that unsupervised visitation shall only be allowed if it is shown by a preponderance of the evidence that Darielle has successfully completed a court-approved domestic abuse intervention program of at least 26 weeks which follows the Duluth model, that Darielle is not abusing alcohol or psychoactive drugs and poses no danger to the children, and that unsupervised visitation is in the children's best interest.

On July 21, 2017, Darielle filed a Motion for New Trial, asserting that the trial court erred by applying the provisions of the PSFVRA in this matter, when Elizabeth did not specifically plead a cause of action under the PSFVRA in her Reconventional Demand. The trial court denied the Motion for New Trial without a hearing. Darielle now appeals.

LAW AND DISCUSSION

On appeal, Darielle sets forth two assignments of error. In his first assignment of error, he asserts that the trial court erroneously awarded sole custody of the minor children to Elizabeth pursuant to La. R.S. 9:362 and La. R.S. 9:364 of the PSFVRA, when Elizabeth did not specifically plead for relief under this Act in her Answer and Reconventional Demand. In support of his argument, he cites caselaw, including Glover v. Med. Center of Baton Rouge , 97-1710 (La. App. 1 Cir. 6/29/98), 713 So.2d 1261, providing that a trial court may not decide controversies that the litigants have not raised or grant relief the parties have not demanded. He also complains that he objected during the hearing when Elizabeth sought to introduce evidence of domestic violence, but the trial court overruled his objection, stating the evidence could be admitted to assess the fitness of each party. Finally, Darielle asserts he was denied due process by Elizabeth's failure to plead for relief under the PSFVRA, and he was "blindsided" by Elizabeth's request for relief under this Act during her closing argument.

Elizabeth responds that the provisions of the PSFVRA apply in the event that the trial court finds a history of family violence, regardless of whether the litigant requests relief under this specific Act. She further asserts that Darielle was put on notice that his history of family violence would be presented at the hearing. Additionally, Elizabeth argues that Darielle did not meet his burden of proving that joint custody would be in the best interest of the children.

Darielle seeks modification of the parties' consent judgment awarding sole custody to Elizabeth. When a party seeks to modify a consent judgment, rather than a considered decree, the party seeking modification of the judgment must prove: 1) there has been a material change in circumstances since the custody decree was entered; and 2) the proposed modification is in the best interest of the children. Evans v. Lungrin , 97-541 (La. 2/6/98), 708 So.2d 731, 738 ; Theriot v. Theriot , 15-311 (La. 10/14/15), 177 So.3d 759, 762. Darielle's release from prison was a material change in circumstances occurring after the consent judgment was rendered. Thus, at trial, it was Darielle's burden to prove that a change to joint custody was in the best interest of O.T.R. and S.G.R.

The PSFVRA is found in La. R.S. 9:361 et seq. This Act was created to protect victimized parties when domestic disputes arise in the course of separation and divorce. State ex rel. S.D.K. , 04-218 (La. App. 5 Cir. 5/26/04), 875 So.2d 887, 890-91.

La. R.S. 9:364(A) creates a presumption against awarding sole or joint custody to a parent with a history of perpetuating family violence. It further provides that "[t]he court may find a history of perpetuating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence." Family violence "includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injuring or defamation, committed by one parent against the other parent or against any of the children." La. R.S. 9:362(4).

La. R.S. 9:364(C) was specifically designed to protect the children's interests by restricting the visitation rights of the abusive parent in families with a history of domestic violence. Michelli v. Michelli , 93-2128 (La. App. 1 Cir. 5/5/95), 655 So.2d 1342, 1346. La. R.S. 9:364(C) provides:

If the court finds that a parent has a history of perpetrating family violence, the court shall allow only supervised child visitation with that parent, conditioned upon that parent's participation in and completion of a court-monitored domestic abuse intervention program. Unsupervised visitation shall be allowed only if it is shown by a preponderance of the evidence that the violent parent has completed a treatment program, is not abusing alcohol and psychoactive drugs, and poses no danger to the child, and that such visitation is in the child's best interest.

This Court has found that the provisions of the PSFVRA become operative if the court finds that there has been family violence and that there is a history of family violence. Ledet v. Ledet , 03-537 (La. App. 5 Cir. 10/8/03), 865 So.2d 762, 765 ; Dufresne v. Dufresne , 08-215 c/w 08-216 (La. App. 5 Cir. 9/16/08), 992 So.2d 579, 585-586, writ denied , 08-2843 (La. 12/17/08), 996 So.2d 1123 ; Nguyen v. Le , 07-81 (La. App. 5 Cir. 5/15/07), 960 So.2d 261, 263. Neither the provisions of the PSFVRA nor the caselaw requires that relief under this Act be specifically pleaded, where the allegations of abuse have been raised in the pleading or tried by the express or implied consent of the parties. See Dufresne , supra ; and Nettles v. Nettles , 13-1164 (La. App. 1 Cir. 12/27/13), 2013 WL 6858325, *1-2, 2013 La. App. Unpub. LEXIS 812, pp. *4-6.

In the present case, we find no merit to Darielle's argument that he was denied due process by Elizabeth's failure to specifically plead for relief under the PSFVRA. The record before us clearly shows that allegations of domestic violence were at issue throughout the proceedings in this case. In Elizabeth's Answer and Reconventional Demand, while she did not specifically ask for relief under the PSFVRA, she did specifically allege domestic violence as a ground for maintaining sole custody in her favor. Further, the record shows Elizabeth filed Petitions for Protection of Abuse, sought restraining orders against Darielle, and alleged various acts of violence by Darielle since this litigation commenced. Accordingly, we fail to see how Darielle could have been "blindsided" by Elizabeth's request for relief under the PSFVRA.

Considering that Elizabeth specifically raised the issue of domestic violence in her Answer and Reconventional Demand as a ground for sole custody, and considering the testimony and evidence presented at trial, we find that the trial court did not err by applying the provisions of the PSFVRA in this matter. Darielle was clearly put on notice that domestic abuse was an issue in this proceeding, and the trial court specifically found a history of family violence. A trial court's determination of domestic abuse is entitled to great weight and will not be disturbed on appeal absent a clear abuse of discretion. Dufresne , 992 So.2d at 586. In this matter, the trial court's determination was supported by the testimony and evidence. Further, we note that even if the PSFVRA was not applicable, Darielle failed to meet his burden of proving that a change to joint custody was in the children's best interest. Accordingly, this assignment of error is without merit.

In his second assignment of error, Darielle contends that the trial court erred by refusing to hold a hearing on his Motion for New Trial, even though it was timely filed. He contends that the trial court's failure to hold a hearing on his motion denied him the reasonable opportunity to place before the trial court all of the facts bearing on the issues involved.

Although La. C.C.P. art. 1976 refers to a hearing on a motion for new trial, a well-settled jurisprudential exception has developed under which a trial court may summarily deny a motion for new trial, "in the absence of a clear showing in the motion of facts or law reasonably calculated to change the outcome or reasonably believed to have denied the applicant a fair trial. Autin v. Voronkova , 15-407 (La. App. 4 Cir. 10/21/15), 177 So.3d 1067, 1070 ; Lopez v. Wal-Mart Stores , 94-2059 (La. App. 4 Cir. 8/13/97), 700 So.2d 215, 220, writ denied , 97-2522 (La. 12/19/97), 706 So.2d 457 ; Zeno v. Nixon, 13-1267 (La. App. 3 Cir. 3/12/14), 133 So.3d 1285, 1291, n.4 ; Sonnier v. Liberty Mutual Ins. Co. , 258 La. 813, 248 So.2d 299, 302 (1971).

After review of the Motion for New Trial filed in the instant case, we find that the trial court did not err by refusing to hold a contradictory hearing on the motion. The Motion for New Trial did not clearly show "facts or law reasonably calculated to change the outcome or reasonably believed to have denied the applicant a fair trial." Accordingly, this assignment of error is without merit.

In her appellee brief, Elizabeth sets forth two assignments of error, asserting that: 1) the trial court erred by ordering the parties to bear their own costs of the proceedings; and 2) the trial court erred by refusing to allow the introduction of evidence of Darielle's extensive criminal charges. However, Elizabeth did not appeal the trial court's judgment or file an answer to the appeal requesting this relief. The failure either to cross-appeal or to answer the appeal precludes this Court from considering Elizabeth's assignments of error. See La. C.C.P. art. 2133 ; Petrie v. Michetti , 10-122 (La. App. 5 Cir. 1/11/11), 59 So.3d 430, 441 ; Vicknair v. St. James School Bd. , 06-381 (La. App. 5 Cir. 10/31/06), 945 So.2d 116, 119 ; Franks v. Royal Oldsmobile Co. , 605 So.2d 633, 635 (La. App. 5 Cir. 1992).

DECREE

For the foregoing reasons, we affirm the trial court's judgment granting sole custody to plaintiff and the order denying defendant's Motion for New Trial.

AFFIRMED

MOLAISON, J., CONCURS WITH REASONS

MOLAISON, J., CONCURS WITH REASONS

I respectfully write separately from the majority to address the issue of how the trial court neglected to assess costs and attorney fees for the proceedings below.

Ms. Melancon failed to directly appeal the trial court's ruling pertaining to attorney fees and costs and, technically, did not answer the instant appeal. However, La. C.C.P. art. 2164 provides:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

The plain language of La. R.S. 9:375, pertaining to child support, and La. R.S. 9:367, regarding family violence cases, require Mr. Russell to pay for the costs and attorney fees of the proceedings below. Despite the clear wording of the statutes, neither was assessed as a part of the trial court's judgment. Accordingly, I would use this Court's authority under La. C.C.P. art. 2164 to produce the result required by law and impose costs of the lower court proceeding and attorney fees against Mr. Russell. In all other respects, I agree with the majority opinion.

      The record contains an Order dated December 12, 2016, providing that Darielle's attorney was to prepare and submit a written judgment within 30 days. However, no judgment to this effect is contained in the record. Nevertheless, both parties, their attorneys, and the trial judge signed the "Court Form Stipulation."

      Darielle's mother, Carisa Russell, also testified at the hearing. She stated she was aware that she was named as the supervisor of Darielle's visitation with his daughters. Ms. Russell testified that she has been present at all of Darielle's visitations. Darielle's fiancé, Jasmine Leagea, testified that she has been present for some of the visitations, and Ms. Russell was always there to supervise. However, Steven Parnell, a private investigator, testified that he performed surveillance on Darielle on three occasions. He stated he observed Darielle meet with Ms. Russell to bring the girls to her before she would return them to Elizabeth at the end of a visitation. Also, Elizabeth testified that the girls told her that Ms. Russell was not always present during visitations.

      Elizabeth's uncle, Gary Lousteau, also testified about the incident in May of 2012 when Elizabeth showed up at his house crying and saying that Darielle had broken in.

      Elizabeth's mother, Patricia Melancon, testified that she has not personally observed Darielle hit Elizabeth, but she has been "called to the scene" several times after abuse had taken place to get Elizabeth and the girls.

      In Nguyen , this Court found that allegations of abuse under the PSFVRA cannot be raised for the first time on appeal, as it requires the trial court to make a specific determination of whether there has been "a history of family violence." In the instant matter, allegations of abuse were raised in the trial court and the trial court made a specific determination that there is a history of family violence.

      We also note, as we did in Dufresne , supra , that even if the PSFVRA were not applicable, the trial court may impose supervised visitation when warranted for the child's safety or if in the child's best interest.

      La. C.C.P. art. 2133 provides, in relevant part:
      A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court.
      In the instant appeal, the record was lodged on January 24, 2018, and Ms. Melancon filed her appellate brief on April 17, 2018. In her brief, Ms. Melancon raised the issue of the trial court's failure to assess costs and attorney's fees against Mr. Russell; however a strict application of La. C.C.P. art. 2133 prevents us from considering Ms. Melancon's assignment.

      As succinctly explained in the "Legislative findings" section of the Post-Separation Family Violence Relief Act:
      ...
      The legislature further finds that the problems of family violence do not necessarily cease when the victimized family is legally separated or divorced. In fact, the violence often escalates, and child custody and visitation become the new forum for the continuation of the abuse. Because current laws relative to child custody and visitation are based on an assumption that even divorcing parents are in relatively equal positions of power, and that such parents act in the children's best interest, these laws often work against the protection of the children and the abused spouse in families with a history of family violence. Consequently, laws designed to act in the children's best interest may actually effect a contrary result due to the unique dynamics of family violence.
      1992 La. ALS 1091, 1992 La. ACT 1091, 1992 La. HB 1056, 1992 La. ALS 1091, 1992 La. ACT 1091, 1992 La. HB 1056.

      See, Rachal v. Rachal , 35,074 (La. App. 2 Cir. 10/12/01), 795 So.2d 1286, in which the Second Circuit relied on La. C.C.P. art. 2164 to award attorney fees on appeal to a mother who had sought past due child support. The court reasoned:
      We are cognizant that an "appellate court shall render judgment which is just, legal, and proper upon the record on appeal." La. C.C.P. art. 2164. The purpose of this article is to give an appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed upon by the court below. Wheeler v. Kelley , 28,379 (La. App. 2 Cir. 11/7/95), 663 So.2d 559, 561, writs denied , 95-2721 (La. 11/9/95), 664 So.2d 404, 405. We have the whole record before us and find thereon that $ 750.00 is a reasonable attorney fee for the services rendered ...


source: Caselaw Access Project

author: MOLAISON, J.

license: Public Domain

text:
    IN RE: L. D. B., Applying for Intra Family Adoption of E. B.
    NO. 18-CA-205
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, L. D. B., Joaquin Shepherd
    COUNSEL FOR DEFENDANT/APPELLANT, K. L., Nisha Sandhu
    Panel composed of Judges Marc E. Johnson, Hans J. Liljeberg, and John J. Molaison, Jr.
   MOLAISON, J.

In this intrafamily adoption case, the biological mother, K.L., appeals the judgment of the juvenile court which found that her consent was not required for the adoption of E.B. by the child's stepmother, terminated K.L.'s parental rights, and granted the petition for intrafamily adoption. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This matter comes before us for the second time, after we dismissed appellant's first appeal for lack of jurisdiction. In re L. D. B. , 17-373 (La. App. 5 Cir. 10/4/17), 228 So.3d 296. In K.L.'s prior appeal, we detailed the relevant underlying facts and procedural history of the proceedings as follows:

Appellant, K.L., and C.B., who were never married, had a child, E.B., together on July 1, 2005. The parties parted ways in 2009, when E.B. was four years old. From 2009 until 2014, the parties shared joint custody of E.B., with K.L. as the domiciliary parent and C.B. having visitation every other weekend and holidays. In 2014, after an apparent contentious custody battle, C.B. became the domiciliary parent and K.L. had visitation.
After separating from K.L., C.B. married L.B. in September 2009. On February 24, 2017, L.B. and C.B. filed a petition for intrafamily adoption in Juvenile Court for the Parish of Jefferson, wherein L.B. sought to adopt E.B. The parties alleged that E.B.'s biological mother, K.L., who had not consented to the adoption and whose parental rights had not been terminated, had failed to visit or attempt to communicate with E.B. for a period of ten months and had failed to pay court ordered child support for more than one year. As such, the parties asserted that K.L.'s consent was not required for the adoption. The parties further averred it was in E.B.'s best interest that she be adopted by L.B.
K.L. filed an opposition to the petition for intrafamily adoption, claiming that C.B. and L.B. had denied her contact with E.B. despite her repeated attempts since August 2015. K.L. admitted that she had been in arrears for her child support obligation, but asserted that she had made payments and continues to make efforts to reduce her arrearages and meet her obligation. K.L. alleged the petition for adoption was an abuse of process in the ongoing custody dispute in the 24th Judicial District Court ("24th JDC").
The juvenile court conducted a hearing on the opposition to the adoption on May 8, 2017. At the hearing, C.B. and L.B. testified in support of their petition and introduced evidence consisting of various emails between C.B. and K.L.; a visitation calendar kept by C.B.; documentation regarding K.L.'s child support obligation and arrears; a police report showing a child custody disturbance on February 10, 2017 at which time K.L. was arrested on an outstanding attachment; a Valentine's Day card and Mother's Day card given to L.B. by E.B.; and a letter from E.B.'s court appointed attorney indicating that K.L. was not agreeable to meet to discuss school holiday visitation. Additionally, the court examined E.B. in chambers in the presence of counsel.
To oppose the petition, K.L. offered her own testimony along with the testimony of her mother, a friend, L.B.'s brother and sister-in-law, and L.B.'s ex-husband. K.L. also introduced into evidence more emails between herself and C.B., photographs showing her house and E.B.'s room at her house, as well as photographs of E.B. with K.L. and family, and a letter from Kerry Nesbit with Behavioral Health Solutions of Louisiana indicating that K.L. had been diagnosed with post-traumatic stress disorder, major depressive disorder and borderline personality disorder and had been treating at the clinic since August 6, 2016.
The juvenile court rendered judgment at the conclusion of the hearing, which was reduced to writing the same day, denying K.L.'s opposition to the petition for intrafamily adoption, specifically finding that C.B. and L.B. proved by clear and convincing evidence that K.L. had failed to support and visit her child for a period in excess of six months and that her consent was not required for the adoption to proceed. In explaining its ruling, the court stated that it had reviewed the 24th JDC child custody record, noting that it was "two large volumes and a third not-so-large volume." The court extensively referred to an evaluation that was conducted in September 2013 in the child custody case in which E.B.'s therapist reported certain concerns. In ruling from the bench, the court explicitly stated that it was in E.B.'s best interest for the adoption to go forward; however, the court did not render a final decree granting or denying the petition for adoption. Instead, the court explained:
It is my policy to wait the time limit to see if this decision will be appealed before I actually go forward with the final degree [sic] of adoption, and I am going to do that in this case. I will set a tentative date for the adoption hearings in approximately 30 days.
Thereafter, K.L. filed a motion for a suspensive appeal from the May 8, 2017 judgment "decreeing the adoption of E.J.B. in favor of [L.B.]," which the juvenile court granted.

Id. at 297-298.

The record shows that, subsequent to this Court's dismissal of the first appeal, the parties appeared in juvenile court on December 4, 2017, for a hearing on L.B.'s petition for intrafamily adoption, which the judge granted on that same date. On December 14, 2017, the court issued a final written judgment which legally recognized L.B. as the adoptive mother of E.B. and formally terminated K.L.'s parental rights. K.L. thereafter timely filed a motion for appeal, which was granted.

LAW AND ANALYSIS

In her two assignments of error, K.L. argues summarily that the trial court erred in granting E.B.'s adoption upon finding that K.L.'s parental consent was not necessary.

Parental Consent

With respect to the issue of parental consent, K.L. specifically asserts that the trial court erred in holding that a time period lasting over six-months, during which K.L. did not visit E.B. or provide financial support, was not justified by K.L.'s "severe mental condition." The significance of the time period pertains to La.

Ch.C.art. 1245, which addresses the requirement of parental consent for intrafamily adoptions. That article provides, in part:

A. The consent of the parent as required by Article 1193 may be dispensed with upon proof by clear and convincing evidence of the required elements of either Paragraph B or C of this Article at the hearing on the opposition and petition.
C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:
(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

Only one of the conditions of La. Ch.C.art. 1245(C) needs to be proven to dispense with the consent of a parent to an intrafamily adoption. In re B.E.M. , 07-94, p. 10 (La. App. 5 Cir. 5/29/07), 961 So.2d 498, 503.

At the May 8, 2017 hearing on K.L.'s opposition to adoption, the trial court was presented with the following testimony relevant to the issue of visitation of E.B. by K.L:

C.B. testified that he and K.L had joint custody of E.B. since 2014. He said that from September of 2015 through November of 2016, there was no attempt by K.L to exercise her custody or communicate with E.B. C.B. was unsuccessful in attempting to communicate with K.L. about finding out her intentions of picking up E.B. for visitation on weekends and after school on some afternoons. Emails and calls to K.L. went unanswered until November of 2016, when K.L called and asked to pick up E.B. on the day of L.B.'s brother's funeral. C.B. stated that K.L.'s parents still requested visits with E.B. C.B. understood from E.B. that in November of 2016 and January of 2017, E.B.'s grandmother picked E.B. up for church and lunch and then went to K.L.'s home to visit.

K.L.'s mother, S.L., testified that she had seen E.B. five times since the end of 2015. When she had E.B., S.L. called K.L., who attended each of those visits at S.L.'s home. S.L. stated that she thought that all of those visits were in 2015, but she was not certain. Every time that S.L. brought E.B. to her home, it was at K.L.'s request. S.L. did not recall that K.L. had hit S.L., or that K.L. had been arrested for domestic abuse for hitting her son.

K.L. entered a faxed letter into evidence from her counselor, Kerry Nesbit, which read:

"Our patient, [K.L.], date of birth, 8/12/1970, has requested the details regarding her treatment be submitted to you before her next hearing. [K.L.] has been diagnosed with posttraumatic stress disorder, unspecified type, major depressive disorder, recurrent moderate and borderline personality disorder. The patient began receiving services beginning 8/6/2016 and continues to receive psychotherapy on a weekly basis and medication management every three months from this clinic. She is compliant with all therapy appointments."

In connection with the introduction of the letter into evidence, counsel for K.L.

argued that K.L.'s "mental illness" was the cause for the noncompliance with child support payments as well as the "sporadic visitations with physical custody."

In its Reasons For Judgment, issued on June 7, 2017, the trial court summarized its findings on the visitation issue as follows:

The last time K.L. exercised her visitation with E.J.B. was from July to August of 2015. S.L., E.J.B.'s maternal grandmother, had visitation with E.J.B. approximately five times since the end of 2015. During S.L.'s visitation with E.J.B., S.L. would call K.L. to let her know that E.J.B. was at her house. K.L. would then go to S.L.'s house and visit with E.J.B. during those times.
K.L. has asserted that by having contact with E.J.B. at her parents' home, that counted as visitation; however, it does not. S.L. (E.J.B.'s maternal grandmother) would call C.B. Jr. for visits and S.L. was granted visits. Every time S.L. would ask for a visit, C.B. Jr. arranged for the visit. C.B. Jr. and L.B. are under no legal obligation to allow visitation between S.L. and E.J.B., yet they accommodated the request every time as being in the best interest of E.J.B. due to E.J.B.'s love and affection for the grandparents. There were at least five visitations between the grandmother S.L. and E.J.B. by everyone's account in which K.L. came to see E.J.B. That does not constitute K.L. exercising her visitation rights. The mother, K.L. is the one obligated to exercise her visitation rights, not the grandmother. Both C.B. Jr. and L.B. knew that K.L. would go see E.J.B. during her visits with the grandmother and C.B. Jr. and L.B. still allowed E.J.B. to go on the visits. This further proves that C.B. Jr. and L.B. did not attempt to thwart K.L. from seeking any visitation she may have wished to have had with E.J.B.

At the December 4, 2017 hearing, C.B. testified that K.L. stopped exercising her visitation rights in 2015, and also stopped making child support payments at approximately the same time. During questioning by the trial judge, C.B. clarified that on October 26, 2015, counsel for K.L. notified E.B.'s appointed counsel that K.L. had decided not to pursue custody or visitation. The first visit that K.L. had with E.B. after that was in the fall of 2017. There were no attempts by K.L. to see E.B. after October of 2015 until February of 2017. Further, C.B. testified that no child support was paid by K.L. through the summer of 2017.

E.B. testified at the hearing that she previously had not seen her mother for a period of two years.

K.L. testified on cross examination that she did not make an effort to see E.B. for over a year because she was "sick" and a "shut in."

At the conclusion of the hearing, the trial court stated:

THE COURT:
...
At this time, let's be clear. First of all, this Court, as everyone is aware, [this Court] had a previous hearing on May -- let me find the minute entry -- May the 8th, was it? Yes. -- was the opposition hearing where this Court determined after that hearing that the consent of [K.L.] was not required in that she had legally abandoned her child by not having any contact with her for a period in excess of six months and not providing any support to her for a period in excess of six months without just cause to do so.
Out of an abundance of caution, because of some of the concerns that the Fifth Circuit had in Ms. Sandhu's attempt to appeal that decision, which was ultimately dismissed by the Fifth Circuit, the Court did allow [K.L.] to come back into this hearing today and, essentially, gave her a second opportunity to show that she, perhaps, had made efforts to visit her child or support her child but that those efforts had been thwarted.
Nothing that has been presented to me today has convinced this Court that that is true. [K.L.] went for a period well in excess of six months. In fact, well in excess of a year to two years without having any meaningful contact with her child. There has been nothing presented to this Court today to suggest that there was a valid or legal reason for her to do so, nor do I believe that she was thwarted in any way by either [L.B.] or [C.B.] in her attempts.

The affirmative defense of "just cause"

With respect to child support, once it is shown that a parent did not comply with the court order of support, the burden shifts to the parent to prove by a preponderance of the evidence that he or she had "just cause" for the failure to support the child. State in the Interest of M.L. and P.L. , 95-0045, p. 9 (La. 9/5/95), 660 So.2d 830, 833. Just cause is an affirmative defense and the parent bears the burden of proving that he/she had just cause for not paying child support or that the failure to pay child support resulted from circumstances out of his/her control. In re Sevin , 97-1145, p. 2 (La. App. 5 Cir. 5/13/98), 712 So.2d 998, 999. Similarly, regarding a parent's failure to visit or communicate with his/her child, a finding of "just cause," must be due to factors beyond his/her control. In re Morris , 39,523, p. 8 (La. App. 2 Cir. 1/26/05), 892 So.2d 739, 743.

On appeal, K.L. does not challenge the trial court's finding that a period of over six months passed without K.L. visiting E.B. or providing financial support. Rather, K.L. argues that both her lack of visitation and child support occurred as a result of mental illness, a factor which she contends constitutes "just cause" under La. Ch.C.art. 1245.

In Steed v. McKenzie , 344 So.2d 689 (La. App. 1st Cir. 1977), the First Circuit considered the issue of whether a father's consent to the proposed adoption was necessary when he had failed to make child support payments for over six months. On appeal, the court found that the father had demonstrated that just cause existed for failing to make the child support payments where there was ample evidence of the father's long history of mental illness, which included being committed to various mental institutions, as well as reports from treating psychiatrists and psychiatric social workers which concluded that the father could not "work, attend school or function as a normal person." Id. at 692. In light of that evidence, the court found that the "record as a whole convinces us that Appellee has not shown a calculated, intentional disregard for the welfare of his children." Id. at 693. Accordingly, the First Circuit found no error on the part of the trial court for denying the petition for adoption without the natural father's consent.

Conversely, in a case relied upon by K.L, Leger v. Coccaro, 98-202 (La. App. 3 Cir. 4/29/98), 714 So.2d 770, writ denied , 724 So.2d 740 (La. 07/2/98), the appellant, the natural father, argued that his failure to pay child support was excused by the just cause of his depression. On appeal, however, the Third Circuit found that the trial court did not err in finding that the appellant's depression did not constitute just cause when "[t]he medical evidence regarding Coccaro's illness is sparse and not supported by testimony or deposition." Id. at 772.

An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD , 617 So.2d 880 (La. 1993). A two-tiered test for reversal of a fact finder's determination has been established by the Louisiana Supreme Court: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong. Id. at 882, citing Mart v. Hill , 505 So.2d 1120, 1127 (La. 1987).

In the instant case, at the hearing on May 8, 2017, K.L. introduced into evidence a faxed copy of a letter from her therapist's office which referenced K.L.'s diagnoses of posttraumatic stress disorder, major depressive disorder, and recurrent moderate and borderline personality disorder. K.L. herself testified that she was "sick" during the period that she had no contact with E.B. and did not provide financial support. Here, unlike the evidence presented in Steed, supra , and similar to the facts in Leger , supra , K.L. has not demonstrated on the record the existence of a documented, prolonged, and debilitating mental illness that would have precluded her from exercising even a single visit with E.B. for well over a six month period. Accordingly, based on the record before us, we find that the trial court's conclusion that K.L.'s consent to the adoption is not required is adequately supported and is not clearly wrong.

Best interest of the child

We next consider whether the trial court properly determined that the intrafamily adoption is in E.B.'s best interest.

The primary consideration in adoption proceedings is whether the adoption is in the best interest of the child. In re B.E.M. , supra , citing In re Miller, 95-1051, p. 8 (La. App. 1 Cir. 12/15/95), 665 So.2d 774, 777, writ denied , 96-0166 (La. 2/9/96), 667 So.2d 541. The party petitioning the court for adoption carries the burden of proving the adoption is in the best interest of the child. In re J.M.P. , 528 So.2d 1002, 1012 (La. 1988). Whether an adoption is in the best interest of the child must be decided on the facts of each case, and the trial judge is vested with great discretion in making that determination. In re Farrar , 93-1347 (La. App. 3 Cir. 4/6/94), 635 So.2d 674, 676. However, this discretion is not absolute and the trial judge's best interest determination is subject to reversal if the record reveals it was manifestly erroneous. Adoption of Latiolais , 384 So.2d 377 (La. 1980).

In K.L.'s first appeal, we noted several issues based upon our review of the record. We first determined that the trial court had failed to complete "the pertinent determination of the best interest of the child for purposes of the intrafamily adoption" because such a finding was not included in the written judgment itself. In re L. D. B. , 228 So.3d at 300. Next we observed that while the trial court had relied "extensively" on documentation contained in the child custody record in this matter from the Twenty-Fourth Judicial District Court, there was no indication that the record was introduced by either party into evidence. Id. This Court's evidentiary concerns observed in the prior appeal were addressed at the December 4, 2017 hearing, with the formal introduction of numerous exhibits related to the child custody proceeding. In addition, a formal finding that the adoption is in E.B.'s best interest was included in the final written judgment of December 14, 2017.

At the December 4, 2017 final decree hearing, the trial court indicated the specific factors it considered in determining E.B.'s best interest: It first considered the fact that E.B. repeatedly expressed her wishes to be adopted by L.B., even as she indicated her love for K.L. and a desire not to hurt her mother's feelings. The court then referred to numerous documented instances of "turmoil" caused in E.B.'s life by K.L.'s past behavior, including the most recent incident where K.L. drove recklessly on the interstate when pursuing L.B.'s car. The court also found that L.B. had provided E.B. with love and stability. Finally, the court stated that its best interest determination was based on the evidence adduced at the two hearings conducted in connection with E.B.'s adoption.

The court made even more specific and detailed findings in its January 9, 2018 reasons for judgment:

V. It is in E.J.B.'s best interest that this adoption be granted.
The last contacts that the 24th Judicial District Court had with regards to the award of custody of E.J.B. was in March and June of 2014. (See P-14 and P-16). In March of 2014 joint custody of E.J.B. was maintained between K.L. and C.B. Jr. with C.B. Jr. named as domiciliary parent. (See P-14). The March 2014 judgment further ordered K.L. to undergo psychological counseling. (See P-14). On June 2, 2014, per judgment, K.L. was ordered supervised visitation rights. (See P-16). Prior to the change in physical custody of E.J.B. in March of 2014, there was an extensive custody evaluation that was ordered by the 24th Judicial District Court dated September 14, 2013 in which the evaluator substantiated just about everything that was presented to this Court through the testimony of C.B. Jr. and L.B. (See P-13).
There was an issue of whether or not E.J. B. had been slapped by K.L. which was denied by both K.L. and S.L. in their respective testimony. However, E.J.B.'s own therapist expressed great concern to the evaluator for E.J.B.'s emotional well-being for several reasons. The therapist witnessed K.L.'s temper and retaliatory behavior toward E.J.B. for issues related to C.B. Jr. and the custody battle that has ensued between K.L. and C.B. Jr. The therapist recounted an incident where E.J.B. told her that she was having a bad day because K.L. slapped her face. When the therapist attempted to address the situation with K.L., K.L. became enraged, standing over E.J.B. and screaming at her telling her she was a "liar". This incident affected the therapist so greatly that her office telephoned the Department of Family and Children Services. In addition, the therapist stated that if C.B. Jr. gets any additional custodial time, she fears the K.L. will take it out on E.J.B. The therapist went so far as to suggest sole custody for E.J.B. with C.B. Jr. because partial custody may result in K.L: retaliating against E.J.B. E.J.B. made complaints about C.B. Jr. to the therapist, but was extremely cautious about saying anything negative about K.L., which the therapist interpreted as fear of reprisal. The therapist stated that E.J.B. has witnessed a tremendous amount of conflict between K.L. and several other people, including C.B. Jr., K.L.'s biological son, and S.L., and has witnessed K.L. getting arrested at least twice. The therapist confirmed that she was told by K.L. that K.L. would abscond with E.J.B. if custody does not go her way. The therapist further stated that she felt both parents could do a better job of keeping conflict off of E.J.B.'s radar.
In addition, the custody evaluation goes on to include information pertaining to ten police reports involving incidents dating back from October 2009 to January of 2013 for review. (See P-13). The reports were from St. John the Baptist Parish, St. Charles Parish and City of Kenner. Eight of the ten reports involve incidents that occurred during exchanges of the E.J.B. On two separate occasions K.L. had to be placed in handcuffs due to her argumentative, irate and uncooperative behavior and on two other occasions K.L. was arrested.
It is also noteworthy, that once C.B. Jr. was made the domiciliary parent things started to drastically improve for E.J.B. in her life. E.J.B.'s attitude improved, her grades improved, the encopresis and enuresis stopped, and she became a much more happy and outgoing child.
At the hearing on December 4, 2017, L.B. testified as to an incident that occurred on Interstate 10 shortly after the May 2017 hearing in Juvenile Court in which both she and E.J.B. were in one vehicle and K.L. was in another vehicle. L.B. testified that upon K.L. noticing both L.B. and E.J.B. in the vehicle K.L. started acting erratically and putting everyone in the vehicle in fear. L.B. testified that the incident scared her so much that she filed a protective order. (See P-20). E.J.B. confirmed the incident and stated it made her upset and scared.
This Court also had the chance to speak with E.J.B. in chambers during both Juvenile Court hearings, with all lawyers present. At the time of the hearing in May of 2017, E.J.B. was less than two months shy of turning twelve years old. All lawyers were present and were given the opportunity to question E.J.B. outside the presence of all parties. It was clear to this Court that E.J.B. does fear retaliation by K.L. and there is a history of retaliation by K.L. that E.J.B has experienced. On both occasions in chambers, E.J.B. expressed her wishes to be adopted by L.B. E.J.B. stated that she understood what it meant to be adopted and that she wanted to be adopted by L.B. E.J.B. went on to state that she believed L.B. would allow her to have contact with K.L. Further, the attorney appointed to represent the interest of E.J.B. advocated that after meeting with E.J.B. in private and questioning of all parties that it would be in the best interest of E.J.B. to be adopted by L.B.
Since E.J.B. was three years old, she has been the subject of emotional abuse by K.L. It is not in E.J.B.'s best interest to continue to allow E.J.B. to be subject to the emotional abuse she has suffered that has come along with the contentious custody dispute. E.J.B. is terrified to say anything nice about C.B. Jr. or L.B. in front of K.L. in fear of K.L.'s reactions. E.J.B.'s fears are not irrational as there was an incident at her therapist's office which was witnessed by the therapist herself. The therapist expressed great concern for E.J.B. after witnessing the incident. This situation has been going on for over two-thirds of E.J.B.'s life and to allow it to continue would be detrimental to E.J.B.'s well-being. In this Court's opinion, L.B. is the person that E.J.B. is most comfortable with. E.J.B. has no hesitation when it comes to L.B. E.J.B. has expressed her love for L.B. and is grateful for the care and affection that L.B. has shown her. E.J.B. is thriving under the attention that L.B. gives to her. It is time for E.J.B. to be able to move on with her life without all the animosity and contentiousness.
It is clear from testimony and evidence that it is in the best interest of E.J.B. to be adopted by L.B.

As noted above, we may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. To reverse a fact finder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart v. State, Department of Transportation and Development , supra . When factual findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard of review demands great deference to the trier of fact's findings, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). After our review of the record, taking into consideration the facts and evidence presented, and for the reasons articulated by the trial court, we find the evidence in this case supports the trial court's conclusion that the proposed adoption was in E.B.'s best interest. Thus, we find no error in the district court's judgment granting the intrafamily adoption of E.B. by L.B.

DECREE

Based on the foregoing, the December 14, 2017 judgment of the district court, granting the petition for intrafamily adoption of E.B. by L.B. is affirmed.

AFFIRMED

      As in the first appeal, pursuant to Uniform Rules-Courts of Appeal, Rules 5-1 and 5 -2, the initials of the parties will be used to protect and maintain the privacy of the minor involved in these proceedings.

      The faxed letter was dated March 7, 2017.

      In this Order, the trial court referred to the child as "E.J.B." instead of E.B."

      Exhibit P-17, a Motion to Withdraw by appointed attorney for E.B., Edith Morris, states, in relevant part, "Mover received a letter from Samuel Accardo, Jr., counsel for [K.L.] on October 26, 2015 advising that [K.L.] 'had chosen to not pursue this matter further'."

      In spite of this finding, the Third Circuit ultimately reversed the trial court's granting of the adoption upon concluding that the trial court had erred in finding that the adoption was in the child's best interest.

      The trial court did not allow counsel for K.L. to enter reports by her psychiatric nurse and her therapist into evidence, on the basis that the nurse and therapist were not present in court to authenticate the documents. Counsel for L.B. objected to the documents as hearsay. The trial court gave counsel for K.L. the opportunity to proffer the exhibits, but counsel declined to do so because the trial court was not going to consider them. Thus, these records are not before us on appeal.

      Appellate courts do not review reasons for judgment as a part of the judgment itself. La. C.C.P. art. 1918 ; Burmaster v. Plaquemines Parish Government , 07-1311, p. 1 (La. 8/31/07), 963 So.2d 378, 379 (per curiam ). The written reasons for judgment are merely an explication of the trial court's determinations. State in the Interest of Mason , 356 So.2d 530, 532 (La. App. 1st Cir. 1977). The Louisiana Supreme Court has held, however, that a court of appeal can use reasons for judgment to gain insight into the district court's judgment, and we refer to them now for that purpose. See , Wooley v. Lucksinger , 09-0571 (La. 4/1/11), 61 So.3d 507.


text:
    STATE of Louisiana v. Phillip SMITH
    NO. 18-KA-131
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Juliet L. Clark
    COUNSEL FOR DEFENDANT/APPELLANT, PHILLIP SMITH, Bertha M. Hillman, Baton Rouge
    DEFENDANT/APPELLANT, PHILLIP SMITH, In Proper Person
    Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

Defendant, Phillip Smith, appeals the sentence imposed by the trial court for his second degree murder conviction at a resentencing hearing held on December 7, 2017. For the reasons set forth more fully below, we affirm defendant's sentence and remand for correction of the commitment and Uniform Commitment Order.

FACTS AND PROCEDURAL BACKGROUND

This is defendant's third appeal. Following his first appeal, this Court affirmed defendant's conviction of second degree murder in violation of La. R.S. 14:30.1, and sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. See State v. Smith , 97-1075 (La. App. 5 Cir. 4/15/98), 710 So.2d 1187. On April 1, 2013, defendant filed a Motion and Order to Correct Illegal Sentence Pursuant to La. C.Cr.P. Article 882 and Request for Resentencing. In his motion, defendant alleged that his mandatory life sentence was illegal pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because he was a juvenile at the time of the offense.

On January 16, 2014, the trial court denied defendant's motion to correct illegal sentence and defendant filed his second appeal with this Court. On October 29, 2014, this Court dismissed defendant's appeal finding that a ruling denying a motion to correct illegal sentence is not reviewable by this Court under its appellate jurisdiction. Accordingly, this Court granted defendant thirty days from the date of its opinion to file a supervisory writ application. See State v. Smith , 14-359 (La. App. 5 Cir. 10/29/14), 164 So.3d 902.

On November 25, 2014, defendant filed a pro se writ application with this Court in Case No. 14-KH-915, again challenging the January 16, 2014 denial of his Motion and Order to Correct Illegal Sentence Pursuant to La. C.Cr.P. Article 882 and Request for Resentencing. Upon review of his application, this Court found State v. Tate , 12-2763 (La. 11/5/13), 130 So.3d 829, 844, wherein the Louisiana Supreme Court held that Miller , supra , is not subject to retroactive application on collateral review, to be controlling. Therefore, this Court found no error in the trial court's January 16, 2014 ruling and denied defendant's pro se writ application.

On April 15, 2016, defendant filed a second pro se Motion to Correct Illegal Sentence citing Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), which made the holding in Miller retroactive to cases on collateral review. On April 28, 2016, the trial court ordered the matter set for hearing on resentencing. A hearing was held on December 7, 2017, after which the court sentenced defendant "pursuant to Miller , to life in prison," noting that "by operation of law he is eligible for parole." The commitment from the December 7, 2017 resentencing hearing states that the "Court re-sentenced the Defendant pursuant to Miller vs. Alabama to imprisonment at hard labor in the Department of Corrections for a term of life in prison." The commitment does not specifically state defendant is parole eligible.

On December 28, 2017, defendant filed pro se motions to reconsider sentence and for appeal. Additionally, on January 5, 2018, a counseled motion for reconsideration of sentence and motion for appeal were also filed. The trial court granted defendant's pro se motion for appeal on January 9, 2018, and his counseled motion for appeal on February 20, 2018, and further denied his pro se motion to reconsider sentence on February 2, 2018, and his counseled motion for reconsideration of sentence on April 13, 2018.

On January 16, 2018, defendant filed a Motion to Amend Minute Entry of December 7, 2017, alleging that the Department of Corrections requested clarification of the commitment to reflect that defendant was sentenced to life with parole. The trial court denied defendant's motion to amend the minute entry.

DISCUSSION

We now consider defendant's third appeal asserting an error patent on the face of the record regarding the December 7, 2017 sentencing commitment. He argues the commitment fails to reflect his parole eligibility, and in the alternative, submits that if this Court should find the trial court resentenced him without the benefit of parole, such a sentence should be deemed excessive. Defendant also files several pro se claims regarding his resentencing.

In his first counseled assignment of error, defendant argues that neither the commitment nor the Louisiana Uniform Commitment Order (UCO) reflects his parole eligible status and should be corrected. The State disagrees and argues that in accord with the transcript, the commitment and UCO accurately reflect that defendant was resentenced to life imprisonment pursuant to Miller . The State further contends that a judicial determination as to defendant's parole eligibility was not required to be made by the trial court due to its existence by operation of law.

Defendant was convicted in 1997 of second degree murder committed when he was a juvenile and was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Subsequent to his conviction and sentencing, the United States Supreme Court decided Miller v. Alabama , supra , which bars a sentencing scheme that mandates life-without-parole sentences for juveniles convicted of homicide on the grounds that such sentences constitute a violation of the Eighth Amendment prohibition against cruel and unusual punishment. A defendant who was under the age of majority at the time he/she committed a homicide is entitled to a sentencing hearing, otherwise known as a Miller hearing, for purposes of determining whether his/her sentence will be imposed with or without parole eligibility. State v. Allen , 17-685 (La. App. 5 Cir. 5/16/18), 247 So.3d 179, 184.

To meet the requirements established in Miller , supra , the Louisiana Legislature enacted La. C.Cr.P. art. 878.1, which sets forth the hearing procedure for determination of parole eligibility for certain juvenile offenders. La. C.Cr.P. art. 878.1(B)(1) specifically provides as follows:

If an offender was indicted prior to August 1, 2017, for the crime of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was not held pursuant to this Article prior to August 1, 2017, to determine whether the offender's sentence should be imposed with or without parole eligibility, the district attorney may file a notice of intent to seek a sentence of life imprisonment without the possibility of parole within ninety days of August 1, 2017. If the district attorney timely files the notice of intent, a hearing shall be conducted to determine whether the sentence shall be imposed with or without parole eligibility. If the court determines that the sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G). If the district attorney fails to timely file the notice of intent, the offender shall be eligible for parole pursuant to R.S. 15:574.4(E) without the need of a judicial determination pursuant to the provisions of this Article. If the court determines that the sentence shall be imposed without parole eligibility, the offender shall not be eligible for parole.

Therefore, under La. C.Cr.P. art. 878.1(B)(1), if a juvenile offender was indicted of second degree murder prior to August 1, 2017, and a hearing to determine the juvenile offender's parole eligibility was not held before that date, the State was afforded the opportunity to file a notice of its intent to seek a sentence of life imprisonment without the possibility of parole within ninety days of August 1, 2017. The State did not file such a notice in the instant matter. Therefore, La. C.Cr.P. art 878.1 required that defendant "shall be eligible for parole pursuant to R.S. 15:574.4(E) without the need of a judicial determination ...."

On December 7, 2017, the trial court resentenced defendant "pursuant to Miller , to life in prison." Later, the following exchange took place between the court and defense counsel:

DEFENSE: I'm sorry, Your Honor, but can we can back to Mr. Smith? I understand what the Court just said but I still didn't hear the Court say that he is eligible for parole and I - -
THE COURT: Because by operation of law he is eligible for parole.

While the trial court correctly noted that by operation of law defendant is eligible for parole pursuant to La. C.Cr.P. art. 878.1(B)(1) because the State did not file a notice of intent to seek a sentence of life imprisonment without parole, we find defendant's parole eligible status should be included in the commitment and UCO. The indication in the commitment the defendant was resentenced pursuant to Miller vs. Alabama , is not sufficient to alert the Department of Corrections that defendant is parole eligible. In order to reach this determination, the Department of Corrections would be required to review the record to determine defendant's parole eligibility based on the State's failure to file the notice of intent required by La. C.Cr.P. art. 878.1.

Therefore, this Court remands this matter to the trial court for correction of the commitment and UCO to indicate that defendant is parole eligible pursuant to La. C.Cr.P. art. 878.1(B)(1). We further direct the Clerk of Court for the Twenty-Fourth Judicial District Court to transmit the original of the corrected UCO to the appropriate authorities and the Department of Corrections' legal department. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

In his second assignment of error, defendant alternatively argues that if this Court finds the trial court sentenced defendant to life without parole, the sentence is excessive and should be reduced. Based on our findings above, this assignment of error is moot.

Defendant also raises several pro se assignments of error. In his pro se assignments of error one and four, defendant argues the trial court violated his constitutional rights under the United States Constitution by disobeying the substantive "rule change" announced in Miller and Montgomery , in that the Eighth Amendment demands the trial court fashion an "individualized" sentence for juvenile offenders "whose crime reflects unfortunate yet transient immaturity." He claims the trial court here merely employed a procedural hearing to satisfy Miller 's substantive "rule change," failing to impose an individualized sentence. Defendant concludes that the trial court's deletion of the parole restriction from his sentence does not satisfy the resentencing requirements under Miller .

As discussed above, in Miller , supra , the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. In Montgomery , supra , the Supreme Court recognized that states could remedy Miller violations by rendering a juvenile parole eligible rather than imposing a new sentence:

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile received life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity - and who have since matured - will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.

Montgomery , 136 S.Ct. at 736 (citation omitted) (emphasis added).

To implement Miller 's"meaningful opportunity to obtain release" for those juveniles who commit murder, the Louisiana Legislature enacted La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4, both cited above. In State v. Thompson , 51,674, 245 So.3d 302, 307-08 (La. App. 2 Cir. 11/15/17), the court addressed a similar claim that the trial court erred in resentencing the defendant to life with parole pursuant to La. R.S. 15:574.4(E), instead of imposing an individualized sentence and allowing the defendant an opportunity to develop a record for alternative sentencing under State v. Dorthey , 623 So.2d 1276 (La. 1993). The Thompson court noted that parole eligibility was the sole question to be answered in a Miller hearing and went on to hold:

However, in the context of a Miller hearing, the only question for the court is eligibility for parole. State v. Keith [51, 389 (La. App. 2 Cir. 6/21/17), 223 So.3d 767], supra ; State v. Shaw , supra ; State v. Sumler [51, 324 (La. App. 2 Cir. 5/2/17), 219 So.3d 503], supra . Thompson received the most lenient sentence available under the current law, and the state was not required to relitigate the entire sentence.

Id. at 308 ; see also State v. Olivier , 17-724 (La. App. 4 Cir. 2/21/18), 238 So.3d 606, 609.

Accordingly, when a juvenile defendant sentenced to life imprisonment is granted parole eligibility, Miller does not require a court to impose an individualized sentence at the Miller hearing.

In pro se assignments of error two, three and five, defendant argues his resentencing, pursuant to La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4, violated federal and state ex post facto clauses and his constitutional right to due process by failing to provide him "fair notice." He submits that his sentence violates his right to the protections of the "fair warning requirement" of the due process clause because it was based upon Miller and the legislature's response to Miller , which should not be applied retroactively to his case. He further contends that his sentence of life with parole eligibility is too harsh and that it constitutes an ex post facto application of the law because the new sentencing scheme announced in Miller did not exist at the time of his conviction and original sentencing. He avers that because the mandatory sentencing provision under which he was originally sentenced has been ruled unconstitutional, his sentence is illegal and he should be resentenced according to the penalties provided for in the lesser and included offense of manslaughter in effect at the time he committed the offense. He concludes that because his crime reflects "transient immaturity," he should be afforded the opportunity to prove that a downward departure from the sentence of life imprisonment is warranted in his case.

To the extent defendant argues that his sentence of life with eligibility of parole violates his right to due process by failing to provide fair notice because it was not a sentencing option at the time of his offense, this argument has previously been addressed and rejected by this Court and other Louisiana appellate courts. See State v. Terrick , 18-102, p. 13-14 (La. App. 5 Cir. 8/29/18), 254 So.3d 1246, 2018 WL 4100778, 2018 La. App. LEXIS 1646 ; State v. Comeaux, 17-682 (La. App. 3 Cir. 2/15/18), 239 So.3d 920, finding the elements required to prove murder have not changed, and the potential sentence for committing that crime remains life imprisonment with the only difference being that the sentence may be imposed with the benefit of parole eligibility, which is a less harsh sentence; State v. Shaw , 51,325 (La. App. 2 Cir. 5/17/17), 223 So.3d 607, wherein the court reasoned that there is no deprivation of fair warning when the requirements to prove second degree murder have not changed, and thus, the defendant knew his conduct would constitute criminal behavior; Olivier , supra , finding the defendant's right to fair notice was not violated because life without possibility of parole is still an option when sentencing youth offenders.

We further find defendant's argument that he should have been sentenced pursuant to the next lesser included offense, manslaughter, and that his life sentence with parole eligibility violated his due process rights because it retroactively exposed him to a sentence not in pace at the time of the offense, lacks merit. After the United States Supreme Court decided Montgomery , the Louisiana Legislature amended La. C.Cr.P. art. 878.1 to provide resentencing guidelines for compliance with Miller . The Fourth Circuit in State v. Williams , 15-0866 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, 253, writ denied , 16-0332 (La. 3/31/17), 217 So.3d 358, interpreted the amendment stating:

The Louisiana legislature promptly addressed the Miller directive against mandatory life-without-parole sentences for juvenile killers by devising a sentencing procedure which would require that a trial court sentencing a youthful offender review all pertinent factors before determining whether parole eligibility was warranted.
...
[L]ife without parole is still a constitutionally acceptable sentence for adult killers and it is not a prohibited sentence for all juvenile killers. Our legislature carefully designed an adequate solution by adding a new statute pertaining to parole eligibility for juvenile killers which is to be read in conjunction with the first and second degree murder statutes. In the event that the trial court imposes a life sentence with parole eligibility, La. R.S. 15:574.4(E) provides conditions which must be satisfied before the defendant can apply to the parole board for parole consideration.
Either sentencing scheme of life imprisonment with parole, or life imprisonment without parole, is proper and not unconstitutional under Miller v. Alabama , supra . Accordingly, we find the defendant was not entitled to be sentenced to the next available responsive verdict of manslaughter. See , State v. Graham , 14-1769 (La. App. 1 Cir. 4/24/15), 171 So.3d 272 [, writ denied , 15-1028 (La. 4/8/16), 191 So.3d 583 ].

Further, in State v. Brown , 51,418, pp. 11-12 (La. App. 2 Cir. 6/21/17), 2017 La. App. LEXIS 1132, writ denied , 17-1287 (La. 4/27/18), 241 So.3d 306, the court found that eligibility for parole was the sole question to be answered in a Miller hearing and it was not necessary to consider whether the defendant was entitled to a downward departure from the mandatory sentence of life imprisonment at hard labor. See also State v. Jones , 15-157 (La. App. 5 Cir. 9/23/15), 176 So.3d 713, 719.

Lastly, similar arguments that the trial court violated both the state and federal ex post facto clauses when it retroactively applied newly-created reformatory procedures not in existence at the time the offense have been found unpersuasive. In State v. Calhoun , 51,337 (La. App. 2 Cir. 5/17/17), 222 So.3d 903, 907, the Second Circuit addressed the defendant's ex post facto claim regarding resentencing at a Miller hearing:

The law in effect at the time of the crime determines the penalty to be suffered by the criminal. State v. Sugasti , 01-3407 (La. 6/21/02), 820 So.2d 518. Article I § 10 of the United States Constitution and La. Const. art. I, § 23 prohibit ex post facto application of the criminal law by the state. The focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790 ; State ex rel. Olivieri v. State , 00-0172 (La. 2/21/01), 779 So.2d 735, cert. denied , 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001). Clearly, the instant situation does neither. The trial court scrupulously awarded this defendant all to which he was entitled in parole consideration under the guidelines in La. R.S. 15:574.4(E).
This sentence is not illegal. He received the mandatory minimum sentence available under Miller , La. R.S. 14:30, and La. C.Cr. P. art. 878.1. As this Court noted in [ State v. ] Fletcher , [49,303 (La. App. 2 Cir. 10/1/14), 149 So.3d 934, writ denied , 14-2205 (La. 6/5/15), 171 So.3d 945, cert. denied , --- U.S. ----, 136 S.Ct. 254, 193 L.Ed.2d 189 (2015) ], the legislature was not required to amend the murder statutes to provide for sentencing of juvenile homicide defendants. The legislature designed an adequate solution to Miller by creating statutes relating to parole eligibility for juvenile homicide defendants which are to be read in conjunction with the murder statutes. He has a chance at parole, but he will have to earn it. This scheme is reasonable and satisfies Miller , supra .

In light of the foregoing, we find: (1) defendant's resentencing did not deprive him of due process by failing to provide him fair notice when the elements of the crime have not changed and his sentencing exposure is now less harsh; (2) that defendant's sentence is not excessive but rather a constitutionally acceptable sentence imposed with parole eligibility per proper retroactive application of La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E) ; (3) defendant is not entitled to be sentenced under the lesser included offense of manslaughter as the only issue in a Miller hearing is parole eligibility; and (4) that defendant's sentencing under Miller does not violate state and federal ex post facto clauses as the "new law" does not redefine criminal conduct or increase the penalty by which the crime is punishable. In sum, the trial court in this matter adhered to the law set forth in Miller and Montgomery with respect to defendant's resentencing. Defendant's life sentence with parole eligibility is a constitutionally acceptable sentence which now provides him with a meaningful opportunity for release.

ERRORS PATENT DISCUSSION

Defendant also requests an errors patent review. This Court routinely reviews the record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990).

This is defendant's third appeal. Defendant received an errors patent review upon his original appeal. He is not entitled to a second errors patent review of his underlying conviction and sentence. State v. Taylor , 01-452 (La. App. 5 Cir. 11/14/01), 802 So.2d 779, 783-84, writ denied , 01-3326 (La. 1/10/03), 834 So.2d 426. However, an error patent review was conducted with respect to defendant's resentencing, and the review reveals the following errors patent in addition to the error patent discussed supra in response to defendant's first assignment of error.

We first find that neither the resentencing transcript nor the commitment reflects that defendant received a proper advisal of the time period for seeking post-conviction relief as required by La. C.Cr.P. art. 930.8. Generally, when a defendant is resentenced, he need not be advised again of the applicable prescriptive period for post-conviction relief if such advisal was provided during original sentencing. See State v. Griffin , 51,506 (La. App. 2 Cir. 9/1/17), 243 So.3d 1205. However, when defendant was originally sentenced for second degree murder on June 27, 1997, the trial court apprised him of the three-year time limitation for applying for post-conviction relief then in effect at the time under La. C.Cr.P. art. 930.8. The amendment to article 930.8, which took effect on August 15, 1999, shortened the prescriptive period to two years and was held to apply retroactively. See State v. Powell , 00-1729 (La. App. 5 Cir. 3/14/01), 783 So.2d 478, 482. Thus, at the time of defendant's resentencing, the two-year prescriptive period was in effect.

Accordingly, by way of this opinion, we advise defendant that no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

Further, it is noted that the commitment properly reflects defendant's life sentence is to be served at hard labor, but the UCO does not. Thus, in addition to adding that defendant's sentence is with the benefit of parole as ordered above, we order the trial court to correct the UCO to reflect that defendant's life sentence is to be served at hard labor. See State v. Foster , 50,535 (La. App. 2 Cir. 4/13/16), 194 So.3d 674. We further direct the Clerk of Court for the Twenty-Fourth Judicial District Court to transmit the original of the corrected UCO to the appropriate and the Department of Corrections' legal department. See State v. Kelly , 17-442 (La. App. 5 Cir. 2/21/18), 239 So.3d 432, 438.

DECREE

Accordingly, we affirm defendant's sentence and remand this matter for correction of the commitment to reflect defendant's parole eligibility and Uniform Commitment Order as instructed in this opinion.

AFFIRMED; REMANDED FOR CORRECTION OF THE COMMITMENT AND UNIFORM COMMITMENT ORDER

      Miller, supra , rendered automatic sentences of life imprisonment without parole for juvenile homicide offenders unconstitutional. Defendant's date of birth is January 30, 1980. Therefore, at the time of the offense, August 31, 1995, defendant was fifteen years of age.

      The trial court retained jurisdiction to rule on defendant's motion to reconsider sentence after his appeal(s) were granted pursuant to La. C.Cr.P. art. 916(3).

      The order denying defendant's motion to amend the minute entry of December 7, 2017, is undated. Further, the trial court retained jurisdiction to rule on defendant's motion to amend minute entry after his appeals had been granted pursuant to La. C.Cr.P. art. 916(2).

      At the time of the December 2017 resentencing hearing, La. R.S. 15:574.4(E)(1) provided:
      Notwithstanding any provision of the law to the contrary and except as provided in Subsection G of this Section, any person serving a sentence of life imprisonment for a conviction of first degree murder (R.S. 14:30 ) who was under the age of eighteen years at the time of the commission of the offense and whose indictment for the offense is on or after August 1, 2017, shall be eligible for parole consideration pursuant to the provisions of this Subsection if a judicial determination has been made that the person is entitled to parole eligibility pursuant to Code of Criminal Procedure Article 878.1(A) and all of the following conditions have been met: ....
      (Emphasis added.)
      La. R.S. 15:574.4(G)(1) provided:
      Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment for a conviction of first degree murder (R.S. 14:30 ) or second degree murder (R.S. 14:30.1 ) who was under the age of eighteen years at the time of the commission of the offense and whose indictment for the offense was prior to August 1, 2017, shall be eligible for parole consideration pursuant to the provisions of this Subsection if a judicial determination has been made that the person is entitled to parole eligibility pursuant to Code of Criminal Procedure Article 878.1(B) and all of the following conditions have been met: ....