text:
    Pearl Hatter BIGGS, et al., Plaintiffs-Appellants v. Isaac Curtis HATTER, Jr., et al., Defendants-Appellees.
    No. 45,066-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      Minifield & Harper, by L. Charles Mini-field, Pamela R. Harper, Minden, for Plaintiffs-Appellants.
    Newell & Newell, by Daniel W. Newell, Homer, for Defendant-Appellee, Lewis Louisiana Properties, L.L.C.
    The Newell Law Firm, by Patrick O. Jefferson, Homer, Appointed Curator/Counsel for Defendants-Appellees, Isaac Curtis Hatter, Jr., Carolyn Hatter Curry and Steno Hatter Gillis.
    Before GASKINS, PEATROSS and LOLLEY, JJ.
   GASKINS, J.

| tThe plaintiffs, Dock Hatter, Jr., Josez-ette Josephine White, Bobbie Jean Hatter Smith, and Pearl Hatter Biggs, individually and as executrix of the estate of Isaac Curtis Hatter, Sr., appeal from a trial court judgment sustaining an exception of prescription filed by one of the defendants in this matter, Lewis Louisiana Properties, L.L.C. The judgment effectively dismissed the plaintiffs’ claim of ownership of property in Claiborne Parish. For the following reasons, we reverse the trial court judgment and remand the matter for further proceedings.

FACTS

Isaac Hatter, Sr. (Isaac Sr.) was married to Steno Hatter (Steno), now Gillis. They had two children, Isaac Hatter, Jr. (Isaac Jr.), and Carolyn Hatter Curry (Carolyn). Isaac Sr. and Steno were divorced in California on November 10,1950. Isaac Sr. was living in California at the time of his death on April 21, 2003.

On May 7, 2003, Isaac Jr. opened an intestate succession for his father in California. However, Isaac Sr. had executed a will on December 20, 2002. Isaac Sr. appointed his brother, Dock Hatter, Jr. (Dock), and his sister, Pearl Hatter Biggs (Pearl), as his personal representatives. After payment of his debts, he left the money in his bank accounts to be distributed evenly between his son, Isaac Jr., his daughter, Carolyn, and his living brother and sisters, Dock, Pearl, Bobbie Jean Hatter Smith, and Beulah Hatter Mouton. He made dispositions of personal ^property and then made the following bequest concerning immovable property:

I direct all property owned by me, located in Homer, Louisiana, Claiborne parish [sic] known as the Wake Hatter Estate be divided equally between my living brother and sisters, Dock Hatter, Jr., Beulah Hatter Mouton, Pearl Hatter Biggs and Bobbie Jean Hatter Smith. I direct Dock R. Hatter, Jr., and Pearl Hatter Biggs to oversee and make all final decisions concerning administration of this property. I direct one lot located in Pine Bluff, Arkansas to Dock R. Hatter, Jr.

On September 19, 2003, Pearl filed a petition in California to probate the will. On January 14, 2004, Isaac Jr. filed a contest to the will, claiming that it was procured by fraud. On November 5, 2004, Isaac Jr. was removed as administrator of his father’s succession and Pearl was named the executrix.

On December 28, 2005, Steno, Isaac Jr., and Carolyn filed a petition in Claiborne Parish for possession of Isaac Sr.’s immovable property, claiming that he died intestate and that his children were his only heirs. The only property listed as owned by the estate was that in Claiborne Parish and was described as follows:

Undivided interest in and to the SE 1/4 and the SE 1/4 of the NE 1/4, LESS & EXCEPT the North 13 1/3 acres of section 29, Township 23 North, Range 6 West, Claiborne Parish, Louisiana, containing 183 and 2/3 acres, more or less, together with all and singular improvements thereon and all rights thereunto belonging.
An interest in and to the THE MINERAL LEASE in and to the TIGNER# 1-1, the TIGNER # 2, and the TIGNER # 3 situated on the above described property.

The court in Claiborne Parish signed a judgment of possession on January 31, 2006, putting Isaac Jr. and Carolyn in possession of the |sClaiborne Parish property. The judgment was filed the next day. Isaac Jr. and Carolyn sold their interest in the property to Lewis Louisiana Properties, LLC (LLP) on October 23, 2006, for approximately $90,000.

LLP then sought to recover mineral royalty payments from Petro-Hunt LLC, claiming entitlement to a 58 percent undivided interest in the property. On June 27, 2007, in another proceeding not at issue here, Petro-Hunt filed a concursus petition to deposit into the registry of the court $200,503.75, payable to any or all of the defendants claiming entitlement to royalties from the property sold by Isaac Jr. and Carolyn to LLP. LLP filed a separate lawsuit for partition by licitation. Pearl, Dock, Josezette Josephine White, and Bobbie Jean Hatter Smith filed for an injunction in that case to bar the partition until their rights of ownership to the property, as opposed to those of LLP, could be determined.

On July 11, 2007, Pearl, on behalf of the succession of Isaac Sr., filed a petition for ancillary probate of a testament probated in another state. The court in Claiborne Parish ordered that Pearl be confirmed as the testamentary executrix after complying with the requirements provided by law.

Shortly thereafter, on July 30, 2007, Pearl filed the initial pleading in this case as executrix of her brother’s estate, concerning the immovable property at issue here. She asserted a petitory action and sought to annul the | Judgment of possession, to cancel the judgment of possession from the conveyance records, to cancel the cash sale deed, and to collect damages. This pleading alleged that the judgment of possession was obtained by fraud and ill practices under La. C.C.P. art. 2004. Isaac Jr., Carolyn, and LLP were named as defendants.

A petition of intervention was filed on October 24, 2007, by Pearl, in her individual capacity, Dock, Beulah Hatter Mouton, and Bobbie Jean Hatter Smith, expressing their desire to intervene and join the suit filed by Pearl on behalf of Isaac Sr.’s succession, demanding the same relief against the same defendants. On April 14, 2008, the plaintiffs filed a second amended and supplemental petition making further allegations regarding fraudulent actions by the defendants.

On April 15, 2008, LLP filed an answer to the petitory action, claiming that it was an innocent third party that relied on the public records and is the rightful owner of the disputed Claiborne Parish property.

A third supplemental and amending petition was filed on November 7, 2008, by Pearl, individually and as executrix of the succession, Dock, Josezette Josephine White, and Bobbie Jean Hatter Smith, claiming to be the owners of the immovable property.

IfiA peremptory exception of prescription was filed by LLP on September 5, 2008, against Pearl, as executrix of the estate of Isaac Sr. Also on that date, LLP filed a motion for summary judgment on the grounds asserted in the exception of prescription.

According to LLP, La. R.S. 9:5630 bars any action by a successor who is not recognized in a judgment of possession issued by a court of competent jurisdiction, from attacking a judgment of possession more than two years after the judgment has become final. According to LLP, the judgment of possession became final, at the latest, on April 1, 2006. Therefore, LLP argues that any action by a person who is a successor of a deceased person not recognized as such in a judgment of possession, to assert an interest in immovable property against a third person who acquired an interest in the property by onerous title, prescribed two years from April 1, 2006.

IfiLLP claimed that the action under La. R.S. 9:5630 can only be brought by the alleged successors named in the purported will and asserted that the estate of Isaac Sr. was not a proper party to attack the judgment of possession. Therefore, according to LLP, the original petition filed on July 30, 2007, did not interrupt prescription.

LLP also argued that the petition of intervention filed by Pearl, Dock, Josezette Josephine White, and Bobbie Jean Hatter Smith was not a proper intervention because it did not assert ownership of the disputed property. LLP argued that this pleading did not interrupt prescription.

The trial court filed a judgment granting the exception of prescription on January 6, 2009. In oral reasons at the time of the ruling, the trial court stated that the exception was granted because two years had passed before the “proper” petition for intervention was filed.

Motions for new trial and to annul the trial court judgment were filed in January 2009. In April 2009, the trial court found that the petition to annul the trial court judgment was not properly before the court. A judgment denying the motion for new trial was signed on May 4, 2009, and filed on June 5, 2009. Pearl, as executrix of the estate of Isaac Sr., appealed suspen-sively. Pearl, individually, along with Dock, Bobbie Jean Hatter Smith and Jo-sezette Josephine White, appealed devolu-tively.

The plaintiffs essentially argue that the trial court erred in granting the exception of prescription, dismissing the plaintiffs’ claims. The plaintiffs argue that the trial court erred in finding that the executrix did not have the authority to bring a cause of action for the return of the property in 17Claiborne Parish that previously belonged to the estate of Isaac Sr. The plaintiffs contend that the trial court erred in granting the exception of prescription based upon a finding that the petition of intervention filed by the decedent’s siblings and legatees on October 24, 2007, did not interrupt prescription. We find that these arguments have merit.

INITIAL SUIT BY SUCCESSION REPRESENTATIVE

The plaintiffs assert that the trial court erred in finding that Pearl, as the executrix of the estate of Isaac Sr., did not have the authority to bring a suit for the return of the property in Claiborne Parish that previously belonged to the estate. The plaintiffs emphasize that the decedent’s interest in the Claiborne Parish property was sold during the administration of the estate in California. Once Pearl, as the executrix, learned that the property had been sold, she filed the original petition in this matter on July 30, 2007. According to the plaintiffs, as the succession representative, the executrix had a fiduciary duty to collect, preserve, and manage the property of the succession.

LLP claims that the trial court found that the estate of Isaac Sr. was not a “person who is a successor” under La. R.S. 9:5630. LLP maintains that the right to sue to claim property under this statute is a right belonging to a successor and not to the estate. Because the estate was not a successor, LLP argues that the original suit did not interrupt prescription.

laDiscussion

In the initial suit against the defendants, Pearl sued in her capacity as succession representative and claimed that the judgment of possession had been obtained by fraud and ill practices and sought the setting aside, or cancellation, of the deed which purported to sell the immovable property to LLP. Approximately three months later, a petition of intervention was filed by Pearl, in her individual capacity, along with her siblings, Dock, Beulah Hatter Mouton, and Bobbie Jean Hatter Smith, requesting to intervene in the original suit and demanding the same relief against the same defendants. Both the initial suit and the intervention were filed within the two-year prescriptive period under La. R.S. 9:5630 and asserted an ownership interest in the disputed property.

LLP claims that the initial suit did not interrupt prescription because a suit under La. R.S. 9:5630 must be brought by a successor and not a succession representative. The jurisprudence of this state holds that failure of a party to file an original claim in the proper capacity does not prevent the petition from interrupting prescription. As to Pearl, the initial petition interrupted prescription even if her capacity was incorrectly stated.

In Meadoux v. Hall, 369 So.2d 240 (La.App. 4th Cir.1979), unit denied, 369 So.2d 1366 (La.1979), the defendants argued that the parents of a decedent had no cause of action for the wrongful death of their son because their original petition was filed in their capacities as administrators of their son’s estate. They amended their petition to sue in their individual capacities. The court noted that the proper plaintiffs were before the court. |flThe only challenge was to the capacity in which they originally brought suit. The court found that the amendment of pleadings to state the proper capacity of the plaintiffs related back to the filing of the original petition. Prescription is interrupted when the defendant is fully informed of the nature of the claim being asserted against him even though the plaintiff may lack capacity to assert that claim. Meadoux v. Hall, supra.

In Giroir v. South Louisiana Medical Center, Division of Hospitals, 475 So.2d 1040 (La.1985), the court stated that where a plaintiff only seeks to change the capacity in which the action is brought, or in which the defendant is sued, because there is no change in the parties, and because all parties are on notice of the facts out of which the claim arose, an amendment will relate back to the date of the original pleading absent prejudice due to delay in filing.

The purpose of prescriptive statutes is to afford a defendant economic and psychological security if a cause of action is not pleaded timely and to protect the defendant from stale claims and loss of relevant proof. They are designed to protect him against lack of notification of a formal claim within the prescriptive period, not against pleading mistakes that his opponent makes in filing the formal claim within the prescriptive period. Gaines v. Bruscato, 30,340 (La.App.2d Cir.4/8/98), 712 So.2d 552, unit denied, 1998-1272 (La.6/26/98), 719 So.2d 1059.

In the present matter, Pearl timely filed the original petition in this matter as the executrix of the estate of Isaac Sr. Later, in her individual capacity as a legatee of her brother, she joined in a timely intervention by hoher siblings who were the other successors under the decedent’s will to the disputed property. The intervention merely changed the capacity in which Pearl brought the action before the court and added her siblings. The original pleading, when read with the valid timely intervention by the successors, interrupted the running of prescription and gave LLP full notice of the claims made and the parties involved. Therefore, the original suit, filed on July 30, 2007, interrupted the running of prescription under La. R.S. 9:5630.

VALIDITY OF THE INTERVENTION

The plaintiffs contend that the trial court erred in sustaining the exception of prescription based upon a finding that the petition of intervention filed on October 24, 2007, by the decedent’s siblings was not a valid intervention and did not interrupt prescription. LLP claims that the plaintiffs’ pleading did not comply with the technical requirements of La. C.C.P. art. 1032 which specifies that an incidental demand, such as an intervention, is commenced by a petition containing the name and domicile of the parties, a concise statement of all causes of action, the supporting material facts, and a prayer for the relief sought. LLP argues that the purported intervention only requested leave of court to file an intervention and did not claim ownership of the disputed property. LLP also maintains that the intervention did not set forth the domicile of the parties. Therefore, LLP contends that the pleading did not interrupt prescription under La. R.S. 9:5680.

| nThe plaintiffs urge this court to look at the substance of their demand and not the technicalities. They cite La. C.C.P. art. 1091 which allows interventions and contend that, in their petition, they joined with the original plaintiff to demand the same relief against the defendants. The plaintiffs maintain that they were entitled to amend their pleadings to remove any defects as to form, and any defects were removed by the filing of their third supplemental and amending petition.

Discussion
La. C.C.P. art. 1091 provides:
A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant.

This court has previously taken a liberal view of interventions. Williams v. Jefferson, 586 So.2d 666 (La.App. 2d Cir. 1991). For an intervention, it is sufficient that the intervenor have a justiciable right related to or connected with the object of the pending action against one or more of the parties thereto. To enforce this right, the intervenor may proceed in one of three ways listed in the code article. Bellow v. New York Fire and Marine Underwriters, Inc., 215 So.2d 350 (LaApp. 3d Cir.1968).

| ]j>LLP claims that the pleading is not a valid intervention because the domicile of the parties is not listed and the prayer requests only leave of court to intervene. According to LLP, all that was achieved by this pleading was the granting of leave of court to intervene, but no true intervention asking for relief against the defendants was filed until the third supplemental and amending petition filed by Pearl, Dock, Josezette Josephine White, and Bobbie Jean Hatter Smith on November 7, 2008. LLP maintains that this pleading was the first valid filing by the successors of Isaac Sr. seeking to assert their ownership rights to the immovable property against the third party, LLP. LLP urges that this filing was made after the running of the two-year prescriptive period of La. R.S. 9:5630.

We find that the intervention filed by Pearl in her individual capacity, along with Dock, Josezette Josephine White, and Bobbie Jean Hatter Smith was a proper intervention. The intervention was filed on October 24, 2007, within the two-year prescriptive period at issue here. The pleading notes that on July 30, 2007, Pearl, in her capacity as executrix of the estate of Isaac Sr., filed a petition for recognition of immovable property, to annul the judgment of possession, to cancel the judgment of possession from the conveyance records, to set aside the cash sale deed, and for damages against the defendants. The second paragraph of the pleading states that “Petitioners desire to intervene in the above Petition to join the plaintiff in demanding the same relief against the same defendants.” When read with the original petition, this pleading clearly put the defendants on notice that the successors of Isaac Sr., who were bequeathed the disputed property in | ishis will, were joining in the original demand to set aside the judgment of possession in favor of Isaac Jr. and Carolyn, and to annul the sale of the property to LLP, based upon the fraud and ill practices of Isaac Jr. and Carolyn.

The prayer on the intervention requests leave of court to intervene but, as explained by the plaintiffs’ attorney, this was done as a mere formality. An intervention is an incidental demand. Under La. C.C.P. art. 1033, an incidental demand can be filed without leave of court at any time up to and including the time the answer to the principal demand is filed. In this case, the intervention was filed before the answer to the principal demand. Therefore, leave of court was not required.

Older jurisprudence held that the character of a pleading is determined by the prayer for relief rather than by the allegations therein. However, the Louisiana Code of Civil Procedure now espouses the theory of fact pleading, whereby a party may receive any relief to which he is entitled under the factual pleadings and evidence. Stonebridge Development, LLC v. Stonebridge Enterprises, LLC, 42,039 (La.App.2d Cir.4/4/07), 954 So.2d 893, writ denied, 2007-0963 (La.6/22/07), 959 So.2d 508.

A party may be granted any relief to which he is entitled so long as the facts pled gave the opposing party adequate notice of the existence of potential causes of action. Cameron v. Bruce, 42,873 (La. App.2d Cir.4/23/08), 981 So.2d 204, writ denied, 2008-1127 (La.9/19/08), 992 So.2d 940.

| uThe failure of the plaintiffs to state the domicile of the parties is not fatal to their petition for intervention in this case. La. C.C.P. art. 926 provides that objections raised through dilatory exceptions include nonconformity of the petition with the requirements of La. C.C.P. art. 891. All objections which may be raised through the dilatory exception are waived unless pleaded therein. In this matter, no dilatory exception of failure to meet the technical pleading requirements was filed in the trial court and those objections are now waived.

In this case, the intervention clearly provides that the plaintiffs are joining in the original petition and the pleadings assert a cause of action by persons who are successors of a deceased person, but have not been recognized in a judgment of possession rendered by a court of competent jurisdiction, claiming an interest in an immovable formerly owned by the deceased, against a third party, LLP, who acquired an interest in the immovable by onerous title from persons recognized as heirs of the deceased in the judgment of possession. Under the liberal view of interventions, we find that this pleading was, in fact, an intervention which was timely filed under La. R.S. 9:5630. Therefore, the claims asserted against LLP are not prescribed.

REMAINING CLAIMS

On appeal, the plaintiffs argued that the trial court erred in sustaining LLP’s exception of prescription based upon a finding that the third supplemental and amended petition, filed on November 7, 2008, did not relate back to the original petition filed by Pearl, as executrix on July 30, | |F,2007. They alleged that the trial court erred in failing to find that the exception of prescription was moot. They also claimed that the intervenors were not served with process regarding the exception of prescription and that the trial court erred in denying their motion for new trial. On November 2, 2009, Pearl, as executrix of her brother’s estate, filed an exception of no cause of action in this court, claiming that LLP did not have a cause of action against Pearl, as the executrix of Isaac Sr.’s estate, to assert an exception of prescription. She also filed an exception of nonjoinder of a party under La. C.C.P. arts. 641 and 642, claiming that Pearl, in her individual capacity, Dock, Josezette Josephine White, and Bobbie Jean Hatter Smith were necessary parties to the exception of prescription. On December 17, 2009, this court referred the exceptions of no cause of action and nonjoinder of a party to the merits of the appeal. Because we find that the plaintiffs’ claims against LLP have not prescribed, it is not necessary to consider these issues.

CONCLUSION

For the reasons stated above, we reverse the trial court judgment sustaining the exception of prescription on behalf of LLP. We find that the original petition filed by Pearl Hatter Biggs was valid and interrupted prescription. We find that the intervention by the siblings and successors of Isaac Curtis Hatter, Sr., claiming ownership of the disputed property was a valid, timely intervention. Therefore, the claims of Pearl Hatter Biggs, Dock Hatter, Jr., Josezette Josephine White, and Bobbie Jean Hatter Smith have not prescribed and the matter is remanded to the trial court for further | ^proceedings. Costs in this court are assessed to Lewis Louisiana Properties, LLC.

REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

      . Beulah Hatter Mouton died during the course of the proceedings. Josezette Josephine White was substituted for her.

      . The defendants in the concursus proceeding were: Pearl Hatter Biggs, individually and as executor of the estate of Lela Refrow H. Thompson, deceased, and as executor of the estate of Isaac C. Hatter, Sr., deceased; Carolyn Curry Hatter; Claudette Lee Grace George; Columbia Grace, Jr.; Eddie Grace; Jackie Gill Grace; Judy Ann Grace; Robert Lee Grace; Dock R. Hatter, Jr.; Isaac Curtis Hatter, Jr.; Bertha Grace Henderson; Annette Marie Grace Holland; Joseph Mouton, individually and as administrator of the estate of Beulah L. Hatter Mouton; Ribble Investment Company; Bobbie Jean Hatter Smith; Josezette J. White; Ronald B. Johnson; Kelly H. Johnson; and Lewis Louisiana Properties.

      . La. C.C.P. art. 2004 provides:
      A. A final judgment obtained by fraud or ill practices may be annulled.
      B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
      C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.

      . La. R.S. 9:5630 provides:
      A. An action by a person who is a successor of a deceased person, and who has not been recognized as such in the judgment of possession rendered by a court of competent jurisdiction, to assert an interest in an immovable formerly owned by the deceased, against a third person who has acquired an interest in the immovable by onerous title from a person recognized as an heir or legatee of the deceased in the judgment of possession, or his successors, is prescribed in two years from the date of the finality of the judgment of possession.
      B. This Section establishes a liberative prescription, and shall be applied both retrospectively and prospectively; however, any person whose rights would be adversely affected by this Section, shall have one year from the effective date of this Section within which to assert the action described in Subsection A of this Section and if no such action is instituted within that lime, such claim shall be forever barred.
      C. "Third person” means a person other than one recognized as an heir or legatee of the deceased in the judgment of possession.
      D. For the purposes of this Section, after thirty years from the date of recordation of a judgment of possession there shall be a conclusive presumption that the judgment was rendered by a court of competent jurisdiction.

      . The record is unclear as to whether the succession proceeding in California is still open.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Patrick Dewayne DYAS, Appellant.
    No. 45,065-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      Louisiana Appellate Project by Holli Herrle-Castillo, Patrick Dewayne Dyas, for Appellant.
    Charles Rex Scott, II, District Attorney, Suzanne Morelock Owen, Brady D. O’Callaghan, R. Bennett Langford, III, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and DREW, JJ.
   DREW, J.

IvAt jury trial, Patrick Dewayne Dyas was found guilty of obstruction of justice. Adjudicated as a second felony offender, he was sentenced to 40 years at hard labor without benefit of probation or suspension of sentence. He was fined $10,000. We affirm the conviction, amend the sentence, and, as amended, we affirm the sentence.

FACTS

While extinguishing an early morning house fire at 3127 Poland Street in Shreveport, Louisiana, firefighters discovered two bodies in the ruins of the dwelling. Both the male and the female body appeared to have stab wounds. Shreveport Police Department detectives and a Shreveport Fire Department investigator were called in to assist. The female victim was identified as Jacquetta “Jackie” Moore. Detectives were unable to make an identification of the male but first thought it might be Moore’s boyfriend, Patrick Dyas, defendant herein.

Detectives found Dyas at his home that morning and transported him to police headquarters for a voluntary interview. During the interview, Dyas was very cooperative in providing information. He acknowledged his relationship with Moore and indicated they got along fine. After the interview, Dyas was transported home. Further investigation revealed a violent relationship with the victim. Moore had in place a peace bond against Dyas.

Corporal Patrick McConnell and Detective Eric Farquhar interviewed Dyas a second time. This interview was recorded and Dyas was informed that he was being interviewed as a “person of interest” in the first degree |2murder investigation. At some point, it was learned that Dyas had several outstanding warrants for his arrest. Dyas was briefly left alone in the investigator’s office. Moore’s cell phone was also left in the office at that time.

At the city jail, Dyas spit out his gum. McConnell heard something hard hit the floor. Farquhar saw Dyas expel a small piece of plastic from his mouth.

Farquhar retrieved the item and recognized it to be a SIM card from a cellular telephone. Dyas initially said the card had been in the trash can and was hit by his gum. When challenged, Dyas admitted concealing the card in his mouth, explaining that the card was from his phone and that he removed it because he had a previous experience involving his SIM card being stolen when he had been arrested. Dyas asked that all his belongings be given to his brother.

Farquhar discovered that Dyas’s phone already had a SIM card in it, while the card from Moore’s phone was missing. The card retrieved from Dyas was placed in Moore’s phone and the phone’s previous settings returned.

Dyas’s arrest, conviction, and sentencing followed for obstruction of justice. He was adjudicated as a second felony offender and sentenced. He now appeals.

|.,DISCUSSION

Sufficiency

Dyas alleges the state failed to present sufficient evidence to prove the essential elements of the charged offense, particularly including that:

• he knew or had reason to know that the taking of the cell phone SIM card could affect a future criminal proceeding;

• he had specific intent to distort the results of that proceeding; and/or

• the evidence from the SIM card was reasonably likely to be relevant to a future criminal proceeding.

La. R.S. 14:130.1 provides, in part:

A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as hereinafter described:
(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:
(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or
(b) At the location of storage, transfer, or place of review of any such evidence.

Our law on review for sufficiency of the evidence is well settled.

14Mike Hood, a Shreveport Fire Department investigator, was accepted |Bby the court as an expert in the determination of the origin and cause of fires. Hood testified that:

• he was called out to 3127 Poland Street on November 26, 2007;

• en route, he learned that two victims had been found in the fire;

• upon arrival, he observed that the fire had been extinguished and a female victim had been pulled from the house by firefighters;

• the “obvious trauma” to the body suggested her death had not been caused by the fire;

• the body of a male was found in a bedroom in the back of the house, also with trauma that had not been caused by the fire;

• the back bedroom sustained the heaviest damage, and a knife blade was found amidst the debris in this room;

• the knife handle was broken off and dried blood was on the knife blade; and

• he found four points where different fires had been set.

Patrick McConnell, an investigator with the Shreveport Police Department’s violent crimes unit, testified regarding his training and duties during his 14 years with the police department. He further testified that:

• he was the primary or lead investigator assigned to the case;

• he identified the female victim as Jac-quetta “Jackie” Moore;

• the male victim was initially thought to be Dyas, Moore’s boyfriend;

• based on this belief, McConnell went to Dyas’s residence in an attempt to determine if he was the second victim from the home;

• Dyas was found there and was questioned about the crime;

• Dyas was not arrested or considered a suspect when first interviewed;

• Dyas later became a suspect and was re-interviewed in McConnell’s office;

| fi* during the recorded interview, Dyas was advised of his Miranda rights and informed that he was a “person of interest” in the first degree murder investigation;

• a redacted version of the interview was played for the jury;

• McConnell determined that Dyas had several outstanding warrants;

• Moore’s telephone had been recovered from the fire scene and was in his office, on his desk, at the time of the interview;

• McConnell stated it was routine to have evidence in the office until it was transferred to the property room;

• prior to the interview with Dyas, McConnell and Farquhar had made attempts to access the phone’s data but were unsuccessful;

• when powered up, the cell phone displayed “Jackie”;

• Dyas was briefly left alone in the office with the cell phone;

• Dyas was transported to the city jail in a police vehicle;

• as Dyas exited the vehicle, he spit out gum into a trash can;

• McConnell heard a “tinkling noise like a piece of high-impact plastic skipping across the pavement”;

• he retrieved the small piece of plastic and asked Dyas where it had come from;

• Dyas said it fell from the trash can when he spit the gum into the can;

• Farquhar had seen the piece come from Dyas’s mouth;

• the officers retrieved the piece and recognized it to be a SIM card;

• when Dyas was asked why he put the SIM card in his mouth, he replied that he had taken the card from his phone because he had been arrested before and the card had been stolen by jailers and he did not want that to happen again;

• Dyas told the officers he wanted the SIM card as well as his phone and other property to be given to his brother;

• Dyas was then booked into the Shreveport city jail;

17* as McConnell and Farquhar were leaving the city jail, Farquhar asked him if they should secure the small SIM card, and McConnell suggested it be put back into Dyas’s phone;

• when Farquhar opened Dyas’s phone to reinsert the SIM card, another card was already in the phone;

• McConnell believed the SIM card could have come from Moore’s phone so he called to have another detective check for the SIM card;

• the SIM card was determined to be missing from Moore’s phone;

• when the detectives arrived at their office, the mystery SIM card was inserted into Moore’s phone, and her settings appeared;

• the officers attempted to access the information in Moore’s phone because they knew she was in the habit of text-ing quite a bit and they thought the information would be helpful to the investigation;

• the cell phone subscriber advised that Dyas and Moore sent over 1,860 text messages to each other between July and August;

• when the phone was later unlocked, all text messages had been deleted;

• subsequently, Dyas contacted the detectives to speak with them;

• a redacted recording of the interview was played for the jury;

• during the interview, Dyas admitted taking the SIM card from Moore’s phone in an attempt to conceal it;

• he said that he took the card to find which persons Moore had been communicating with, as well as wanting to save her reputation;

• McConnell didn’t know whether saliva would affect the SIM card; and

• records obtained from Cingular reflected activity on the phone but not the content of the text messages or voice mails.

Eric Farquhar testified that:

• he was the secondary investigator on the case;

• Moore’s mother initially identified Dyas as her daughter’s boyfriend;

lx* Since Dyas was not a suspect at the time of the first interview, he was not advised of his Miranda rights;

• on all subsequent interviews, Dyas was advised of his Miranda rights and he was made aware of the nature of the investigation;

• when Dyas was left in the office alone with Moore’s cell phone, he had an opportunity to take the SIM card;

• Farquhar had been trying for several days to unlock the code on the phone;

• he was present when Dyas exited the vehicle at the city jail;

• he saw Dyas spit the object from his mouth;

• he picked it up and identified it as a SIM card;

• he inserted the SIM card into Moore’s phone, after determining that the SIM card was not from Dyas’s phone;

• when the detectives found the code to unlock Moore’s phone, there was no information regarding calls or text messages stored on the phone;

• Dyas indicated he took the card to protect Moore’s reputation;

• Farquhar noted that information from cell phones is generally helpful in that it can be used to further an investigation by providing leads;

• he opined that the SIM card may have been damaged when it was removed;

• a delay in obtaining information from a victim’s cell phone could delay or hinder an investigation and the ability of the detectives to develop a suspect;

• despite the fact that some records were obtained from the cell phone service provider, he testified that their investigation was hindered because of the stolen SIM card.

The state rested its case after Farqu-har’s testimony and the defendant exercised his right not to testify. He presented no witnesses.

The evidence was sufficient to convict Dyas of the charged offense. The state was able to prove that the defendant, with full knowledge of the |nongoing murder investigation, took the SIM card from the victim’s cell phone. There was no reason for him to do this unless he knew that the cell phone might have helped the officers.

Dyas argues that the state failed to prove that he knew or had reason to know that taking the cell phone SIM card could affect a future criminal proceeding. Testimony from the investigators indicated that Dyas reported one of his reasons for taking the SIM card was to prevent exposure of the victim’s drug usage. Dyas knew taking the SIM card would prevent the investigators from discovering information pertaining to the case. Dyas knew or should have known that his actions would affect the criminal proceedings.

Dyas also argues that the state failed to prove that he had the specific intent to distort the results of that proceeding. The state proved through the testimony of its witnesses that Dyas did in fact indicate it was his intention to prevent the disclosure of certain information pertaining to the victim. Despite the defendant’s innocent explanations for his actions, the jury could reasonably infer that he did in fact intend to distort the results of the investigation.

Dyas also argues that the state failed to show that the evidence from the SIM card was reasonably likely to be relevant to the future criminal proceeding. Both detectives testified that the information could have been helpful.

The testimony of the state’s witnesses showed that Dyas intentionally took evidence (victim’s cell phone) from the location of storage, transfer, or 11ftplace of review of any such evidence with the intent of altering the outcome of the investigation. By his own admission in one of his reasons for taking the SIM card, Dyas indicated that he intended to preserve the reputation of the victim, if evidence of her drug usage was to be found on the SIM card. Dyas had been informed that he was a person of interest in the ongoing investigation, and it can be inferred from his actions that he intended the consequences, which were to deprive the investigators of the information contained on the SIM card.

Excessiveness

Defendant argues that his sentence was too harsh, considering all factors, while the state counters that Dyas received a midrange sentence which was clearly deserved. Our law on review for excessiveness of sentence is well settled.

|1tAs a second felony offender, defendant’s sentencing exposure was 20 to 80 years of imprisonment. La. R.S. 14:180.1 and La. R.S. 15:529.1. He was sentenced to 40 years at hard labor without benefit of probation or suspension of sentence. He was also fined. The trial court gave extensive and appropriate consideration to the defendant’s social history and criminal background. The trial court noted the voluminous correspondence it had received from family members, relatives, and acquaintances of the defendant as well as the murder victims.

During the sentencing hearing, the trial judge reviewed the defendant’s criminal history, including two serious offenses committed as a juvenile in 1989. Dyas’s adult record included traffic offenses, resisting an officer, driving under suspension, and forgery, which was the predicate for the adjudication.

Dyas’s criminal history included simple battery charges. The trial court noted that Dyas had previously benefited from leniency but that now he was not a candidate deserving of a downward departure from the |,.¿multiple offender sentencing brackets. This midrange sentence does not shock the sense of justice.

Error Patent Review

Dyas was also fined $10,000. In State v. Dickerson, 584 So.2d 1140 (La. 1991), the Louisiana Supreme Court held the following:

La. R.S. 15:529.1 requires that the sentencing judge vacate the original sentence and resentence the defendant as a multiple offender. In resentencing, the judge must impose a sentence authorized by La. R.S. 15:529.1. That statute does not authorize the imposition of a fine, but only provides for enhanced sentences relating to the term of imprisonment. The trial judge was therefore without authority to impose a fine on resentencing under La. R.S. 15:529.1.

DECREE

The defendant’s conviction is affirmed. The sentence is amended to delete the $10,000 fine, and, as amended, the sentence is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED, AND, AS AMENDED, AFFIRMED.

      . A SIM card or Subscriber Identity Module is a portable memory chip used in some models of cellular telephones. The card simplifies switching to a new phone by simply sliding the SIM out of the old phone and into the new one, thereby transferring personal identity information, cell phone number, phone book, text messages and other data.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a juiy's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.
      The Jaclcson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Speed, 43,786 (La.App.2d Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 2007-2053 (La.3/7/08), 977 So.2d 896.
      Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255,
        cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,-032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La. 11/9/06), 941 So.2d 35.
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).
      Circumstantial evidence is defined as evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Lilly, 468 So.2d 1154 (La.1985); State v. Mims, 39,757 (La.App.2d Cir.6/29/05), 907 So.2d 237; State v. Turner, 591 So.2d 391 (La.App.2d Cir.1991), writ denied, 597 So.2d 1027 (La. 1992).
      An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.5/4/07), 956 So.2d 607; State v. Lott, 535 So.2d 963 (La.App. 2d Cir. 1988).

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La. 1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La. 1982); State v. Swayzer, 43,350 (La. App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La. 1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.
      Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La. App.2d Cir.4/2/97), 691 So.2d 864.
      In selecting a proper sentence, a trial judge is not limited to considering only a defendant's prior convictions but may properly review all prior criminal activity. State v. Pamilton, 43,112 (La.App.2d Cir.3/19/08), 979 So.2d 648, writ denied, 2008-1381 (La.2/13/09), 999 So.2d 1145; State v. Boyte, 42,763 (La.App.2d Cir. 12/19/07), 973 So.2d 900, writ denied, 2008-0175 (La.6/20/08), 983 So.2d 1272. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Doyle, 43,438 (La.App.2d Cir.8/13/08), 989 So.2d 864.

      . Armed robbery and illegal carrying of a weapon.


author: PEATROSS, J.

text:
    STATE of Louisiana in the Interest of J.J.B., Plaintiff-Appellee v. A.N.B., Defendant-Appellant.
    No. 45,238-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      Raymond Lee Cannon, for A.N.B.
    Jamie Crews, for J.J.B. & Confidential Party.
    LeRoy Smith, Jr., Tallulah, for Unknown Father.
    State of Louisiana, Dept, of Social Services by Guy R. Lain, Edwin Moberley, Tallulah, for State of Louisiana, Dept, of Social Services.
    Before GASKINS, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

hA.N.B. appeals from a judgment terminating her parental rights to her minor child, J.J.B., and freeing the child for adoption. For the reasons stated herein, we affirm.

FACTS

The minor child, J.J.B., was first removed by instanter order from the custody of his mother, A.N.B., and taken into the care and custody of the state on April 25, 2007, following a report of neglect, malnourishment and abandonment. J.J.B. was physically removed from the care of A.N.B.’s relatives as she had left J.J.B. with them and had not returned. J.J.B. was three years old at that time and was suffering from severe dental neglect and was being cared for by various individuals and relatives other than A.N.B. J.J.B. was then placed in the care and temporary custody of his maternal cousin. Following the continued custody hearing, the child was adjudicated in need of care on the bases of abandonment, medical neglect, malnutrition and inadequate clothing.

In June 2007, physical custody of J.J.B. was transferred to his maternal uncle because the cousin was unable to become certified for kinship care and, therefore, could no longer provide care for J.J.B. The following February, however, a second instanter order was issued removing J.J.B. from the custody of his uncle because of unexplained injuries suffered by the child. The record reflects that the girlfriend of the uncle, who also resided in the home with the uncle and J.J.B., related information to case | gworkers beginning in October 2007 concerning alleged “clumsiness” of J.J.B. and his propensity to fall down and injure himself. At the request of the case worker, the girlfriend took J.J.B. to the hospital, where he presented with a hema-toma to the posterior occipital area, a he-matoma in his left eye (a blackened eye), an abrasion and laceration to his face and trauma to the left hand with severe swelling and pain. J.J.B. also exhibited several older hematomas, abrasions and scars on his back. The uncle and girlfriend provided differing accounts of how J.J.B. sustained the injuries. The record includes medical testimony that the blackened eye was the result of blunt force trauma. The record also reveals that the child exhibited no clumsiness or propensity to fall down while at school. The medical testimony excluded any possible medical condition of J.J.B. that may result in reduced gross motor skills increasing his tendency to fall. To the contrary, the testimony indicates that J.J.B. is active and has good motor skills and coordination, consistent with his age and development. Accordingly, on December 8, 2008, J.J.B. was again determined to be in need of care and was placed in the custody of the state and in a foster home.

From the initial removal of J.J.B. until February 2009, the goal of the Department of Social Services (“Department”) was reunification with the mother. The record reveals that numerous case plans were formulated for A.N.B.; however, she refused to comply with the requirements of those plans and was uncooperative with case workers. A.N.B. was not attending visitations with J.J.B. as provided in the case plans. A.N.B. was to have visitations with J.J.B. every other week, but the sole contact between A.N.B. |Rand the child was a “chance” meeting in a Family Dollar store on July 10, 2008.

At a permanency hearing on February 9, 2009, the court approved a change in goal from reunification to adoption and advised A.N.B. that the next step would be the filing of a petition to terminate her parental rights. There was testimony at the permanency hearing that A.N.B. was not cooperating with the Department and would only speak with the CASA volunteer. A.N.B. had not secured housing for herself and J.J.B. and had failed to begin substance abuse treatment. The testimony further indicates that A.N.B. had given birth in March to an infant who tested positive for ecstasy and marijuana.

Subsequently, the Department filed a Petition For Termination of Parental Rights on June 23, 2009, and the matter was heard on August 10, 2009. After hearing the testimony, the trial judge terminated the parental rights of A.N.B. to J.J.B., finding that the Department had met its burden of proof by clear and convincing evidence. Specifically, he found that A.N.B. “failed to work her court approved ease plan and make substantial progress in correcting the parenting deficiencies addressed in the court approved case plan.” The trial judge found no reasonable expectation of improvement and that A.N.B. and the unknown father of J.J.B. had abandoned the child by having no physical contact with the child and by failing to provide financial support for the child. The trial judge further found it to be in the best interest of J.J.B. that he be freed for adoption so that he may be placed in a |4“safe, stable and nurturing” permanent home. This appeal by A.N.B. ensued.

DISCUSSION

Title X of the Louisiana Children’s Code governs the involuntary termination of parental rights. Permanent termination of the legal relationship existing between natural parents and children is one of the most drastic actions the state can take against its citizens. State ex reí. A.T., 06-0501 (La.7/6/06), 936 So.2d 79; State ex rel. C.M.M. v. T.P.M., 42,238 (La.App.2d Cir.5/9/07), 957 So.2d 330; State ex rel. A.D.W., 43,012 (La.App.2d Cir.1/9/08), 974 So.2d 137.

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. Parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children. These interests warrant great deference and require full, vigilant due process protection ensuring that fair procedure is followed when the state seeks to terminate the parent-child legal relationship. Balanced against those protections is the child’s profound interest in terminating parental rights which prevent adoption and hamper the establishment of secure, stable, long-term and continuous relationships found in a home with proper parental care. In balancing the parents’ and the child’s interests, the courts of this state have consistently found the interests of the child to be paramount over those of the parents. State ex rel. C.M.M. v. T.P.M., supra, citing State ex rel. L.B. v. G.B.B., 02-1715 (La.12/4/02), 831 So.2d 918.

|sThe fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the state remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. State ex rel. S.M.W., 00-3277 (La.2/21/01), 781 So.2d 1223; State ex rel. C.M.M. v. T.P.M., supra.

Although there are several statutory grounds for involuntary termination of parental rights set forth in La. Ch. C. art. 1015, as stated, only one ground need be established. State ex rel. S.C.M., 43,441 (La.App.2d Cir.6/4/08), 986 So.2d 875; State ex rel. J.W.M., 44,513 (La.App.2d Cir.6/24/09), 15 So.3d 1218. According to La. Ch. C. art. 1015(4),(5) and (6), the grounds for termination of parental rights include:

(4) Abandonment of the child by placing him in the physical custody of a nonpar-ent, 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.
|fi(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.
(5) 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 petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence. La. Ch. C. art. 1085(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); State ex rel. C.M.M. v. T.P.M., supra. Even upon finding that the state has met its evidentiary burden, a court still should not terminate parental rights unless it determines that to do so is in the child’s best interest. State ex rel. C.E.C. v. D.M.D.B., 40,409 (La.App.2d Cir.9/28/05), 912 So.2d 418; State ex rel. C.M.M. v. T.P.M., supra.

La. Ch. C. art. 1036, which addresses proof of parental misconduct, provides in pertinent part:

C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent’s failure to attend court-approved scheduled visitations with the child.
|7(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:

(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(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.

The state must prove that the parent is unfit to retain parental control and that there is no reasonable expectation of reformation in the foreseeable future in order to obtain termination of parental rights when the child has | sbeen removed from the parent’s home. State ex rel. B.H. v. A.H., 42,864 (La.App.2d Cir.10/24/07), 968 So.2d 881.

The issue of parental compliance with a case plan, the parent’s expected success of rehabilitation and the expectation of significant improvement in the parent’s condition and conduct are questions of fact in a proceeding for termination of parental rights. An appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. State ex rel. C.E.C. v. D.M.D.B., supra; State ex rel. S.S.S., 39,047 (La.App.2d Cir.8/18/04), 880 So.2d 153; State ex rel. C.M.M. v. T.P.M., supra.

Children have a need for permanency. Forcing children to remain in foster care indefinitely, when there is no hope of reuniting them with their families, runs afoul of the state and federal mandates to further the best interests of the child. State ex rel. C.E.C. v. D.M.D.B., supra; State ex rel. C.M.M. v. T.P.M., supra; State ex rel. A.D.W., supra.

In the case sub judiee, the Department asserted La. Ch. C. art. 1015(4) and (5) as the bases for termination of A.N.B.’s parental rights. As previously stated, the trial judge ordered that A.N.B.’s parental rights be terminated and certified J.J.B. for adoption. On appeal, A.N.B. argues that the termination of her parental rights to J.J.B. is not supported by clear and convincing evidence. A.N.B. submits that she did not abandon J.J.B. and asserts that the judgment was clearly and manifestly erroneous because she was meeting “some of the goals of her care plan in light of the prevailing |neconomic conditions in this country.” We disagree with A.N.B. and detect no manifest error in the findings of the trial judge.

At the hearing on termination of parental rights, A.N.B. testified as follows:

Q: Is it correct, [A.N.B.], that case plans were formulated for your reunification with the child with the agency and court approved?
A. Yes, sir.
Q: Is it correct, [A.N.B], that the last time-contact you had with your son, [J.J.B.], was on or about July 10, 2008, at a convenience store?
A: Yeah.
Q: Is it correct that you have not had any contact with your son from that day to present date?
A: No, sir.
Q: Is it also correct, [A.N.B.], that since the time that your child came into care, you have not provided any financial support for the child, your child?
A: No, sir.
THE COURT: Is it correct or is it not correct?
A: Uh yeah.
THE COURT: It’s correct.
A: Yes, sir.
Q: And you have also not communicated with your child by means of the telephone, letter, or any type of written communication, is that correct?
A: Yes, sir.
ImQ: Now, why haven’t you communicated with the child? Why haven’t you called or talked to the child?
A: I don’t know.
Q: I can’t hear you.
A: I don’t know sir.
Q: Have you tried to?
A: Huh.
Q: Have you tried to?
A: I had seen him once at Family Dollar Store. I had seen him once.
Do you know the child s telephone number? G?
No, sir. t>
Did you ask anybody for it? <©
No, sir. i>
Why didn’t you want to have the child’s telephone number? <©
Huh? i>
Why didn’t you want to have the number? Why didn’t you want to have the number? <©
(inaudible.) i>
Ma’am? <©
I don’t know. i>

A.N.B. admits in the remainder of her testimony that she refused to work with the Department because she believed that case workers had disclosed confidential information to her family. The testimony makes clear, however, that A.N.B. took no steps toward the goal of reunification |nwith J.J.B. In addition, although A.N.B. had been employed as a housekeeper at a motel for a little over a month at the time of the hearing, she had historically failed to maintain any employment and had not had housing since J.J.B. was removed in 2007. Case worker Mary Ann Gilfoil testified that A.N.B. was requested to obtain employment and housing and to complete substance abuse treatment several times during 2008 and 2009, but failed to do so. Ms. Gilfoil further explained the change in goals from reunification to adoption:

... [A.N.B’s] last contact with [J.J.B.] was July 10th, of '08, when [J.J.B.] and the foster mother ran into [A.N.B.] at the Family Dollar Store here in Tallulah and since that time, [A.N.B.] has not visited with [J.J.B.] nor has she submitted any type of birthday present or birthday card or Christmas present. And I have had two contacts with A.N.B. within the last week and a half and in those two contacts, [A.N.B.] has not asked about [J.J.B.] welfare.

The record is replete with examples of A.N.B.’s refusal to cooperate with the Department in its efforts to reunite her with her child. We find no error in the trial court’s determination that the Department met its burden of proof by clear and convincing evidence that A.N.B. abandoned this child and failed to comply with the case plan. We further detect no manifest error in the determination that it is in the best interest of J.J.B. to be certified for adoption. The record reveals that J.J.B. is thriving in the foster home. He is doing well in school and his emotional, medical and financial needs are being met. Ms. Gilfoil testified that the only anxiety observed in J.J.B. is when the state van arrives to take him for a visitation with A.N.B. The [,..record supports the decision that this child now deserves stability and permanence and should be free for adoption.

CONCLUSION

For the foregoing reasons, the judgment of the trial court terminating the parental rights of A.N.B. to her minor child, J.J.B., and freeing the child for adoption is affirmed. Costs of appeal are assessed to the mother, A.N.B.

AFFIRMED.

      . The biological father of J.J.B. is unknown. Paternity testing excluded the candidate provided by A.N.B. In addition, the Department of Social Services received information that the maternal uncle with whom J.J.B. was placed in June 2007 may have been the father; however, he was also excluded by DNA testing.

      . J.J.B. s birthday is July 30, just a few weeks after he saw his mother in the Family Dollar Store,