Opinion
NO. 2013 KJ 0322
2013-09-13
STATE OF LOUISIANA IN THE INTEREST OF M.W.B., JR.
Hillar C. Moore, III District Attorney Jaclyn C. Chapman Otha "Curtis" Nelson Assistant District Attorneys Baton Rouge, LA Attorneys for Plaintiff-Appellant, State of Louisiana Michael S. Walsh Joseph K. Scott, III Baton Rouge, LA Attorneys for Defendant-Appellee, M.W.B., Jr.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
Juvenile Court,
In and for the Parish of East Baton Rouge,
State of Louisiana
Trial Court No. 99810
Honorable Kathleen Stewart Richey, Judge Presiding
Hillar C. Moore, III
District Attorney
Jaclyn C. Chapman
Otha "Curtis" Nelson
Assistant District Attorneys
Baton Rouge, LA
Attorneys for Plaintiff-Appellant,
State of Louisiana
Michael S. Walsh
Joseph K. Scott, III
Baton Rouge, LA
Attorneys for Defendant-Appellee,
M.W.B., Jr.
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
HIGGINBOTHAM, J.
The State filed a petition alleging that M.W.B.. Jr., a fifteen-year-old child, should be adjudicated delinquent, and/or in need of supervision, and/or in need of care based upon the commission of indecent behavior with a juvenile (Count 1), a violation of La. R.S. 14:81, and aggravated rape (Count 2), a violation of La. R.S. 14:42. The child entered a denial to the allegations of the petition. After a status conference, the parties entered into an Informal Adjustment Agreement ("the agreement") dated September 14, 2011. The term of the agreement was set at one year, and certain terms and conditions that the child had to meet during that year were set forth. The agreement was signed by the child, his parents, his attorney, his probation officer, the assistant district attorney, and the juvenile court judge. The minutes reflect that the juvenile court also ordered that the child have no contact with the victim and no unsupervised contact with any children under the age of twelve.
On September 5, 2012, the State filed a motion to terminate the agreement, alleging that the child failed to follow certain conditions. The juvenile court denied the motion and dismissed the pending petition with prejudice pursuant to Louisiana Children's Code article 841. The State now appeals, assigning error to the juvenile court's finding that the child satisfied the terms of the agreement and to the dismissal of the petition with prejudice. For the following reasons, we affirm the ruling of the juvenile court.
FACTS
Because the State's petition was dismissed and the matter did not proceed to an adjudication hearing, the facts are not fully developed. The petition alleges that from February 26, 2010, through March 26, 2010, the child committed a lewd or lascivious act upon or in the presence of a juvenile, the victim the child's half-sister), and engaged in oral or vaginal sexual intercourse with the victim. At the time of the offenses, the child was fourteen years old, and the victim was three years old.
DISCUSSION
In its sole assignment of error, the State argues that the juvenile court erred in dismissing the petition filed against the child. Specifically, the State contends that the petition should not have been dismissed because the child did not meet all of the terms set forth in the agreement.
The agreement at issue was entered on September 14, 2011, pursuant to Louisiana Children's Code article 839B which provides, "[a]fter the filing of a petition but before the attachment of jeopardy pursuant to Article 811, the court may authorize the district attorney or probation officer to effect an informal adjustment agreement if the child and district attorney have no objection." According to Louisiana Children's Code article 84IB, the child shall be discharged from further supervision if he satisfies the terms of the agreement, and the pending petition shall be dismissed with prejudice.
The State filed a motion to terminate the agreement on September 5, 2012, nine days before the expiration of its term. In its motion, the State argued that the child failed to meet certain terms of the agreement. According to the State, the child left Louisiana to attend military school, "making it impossible for [his] probation officer to supervise his probation...." The State also argued that the child violated curfew while on leave from the military school, failed to submit to drug screens, failed to report to and obey the rules of his probation officer, and failed to submit proof that he followed the recommendations of his psychosexual and substance abuse evaluations.
The child's probation officer, Rosemore Garner, testified at the hearing on the motion. Garner stated that he made contact with the child from September 2011 until the end of the year. The child arrived at the military school in January 2012. That month, Garner notified the State that he was unable to make contact with the child, and the State informed him that the child was attending military school. After learning this information, Garner checked with the State once a month to determine how he should proceed, and the State responded by stating that it was waiting on information from the military school.
The juvenile court reviewed the terms of the agreement with Garner. Garner testified that the child had not received any other referrals for delinquent acts or traffic offenses and that it had not been reported to him that the child failed to abide by any of the reasonable rules and regulations of his parents. Although the child had one positive drug screen, Garner testified that he had no indication that the child was consuming alcohol or using drugs. Garner also testified that there was no indication that the child violated his curfew. The child completed the required psychosexual evaluation and never failed to report to Garner when required, but Garner was unaware whether the child completed outpatient substance abuse counseling. At the conclusion of the juvenile court's questioning, Garner recommended that the agreement should be terminated if the child complied with its terms while at military school.
The juvenile court pointed out that the State was aware that the child was attending military school eight months prior to filing the motion to terminate. The State argued that the delay in filing the motion was not to "sandbag" the child at the end of the agreement, but, rather, "it got done when it got done." The State claimed that it had "no true desire to adjudicate" the matter and that its main concern was whether the child completed the required psychosexual evaluation and follow-up treatment. It explained, "the State is not committing that we are going to take [the child] to trial but [we] do need to make sure that what we came to this Court for has been addressed . . . [we] just don't have proof from the therapist what was discussed in those sessions."
At the end of the hearing, the juvenile court deferred ruling on the motion and left the record open for the child to submit evidence that his therapist addressed the issues raised in the psychosexual evaluation. The juvenile court stated that it would find the terms of the agreement had been met and would dismiss the petition with prejudice if the child provided evidence that he received the proper counseling. The minutes reflect that on November 1, 2012, the parties returned to the juvenile court, evidence was submitted, and argument heard. Finding that the child had satisfied the terms of the agreement, the juvenile court denied the State's motion to terminate and dismissed the petition with prejudice.
An appellate court cannot set aside a juvenile court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. In its manifest error review, it is important that the appellate court not substitute its own opinion when it is the juvenile court that is in the unique position to see and hear the witnesses as they testify. If the juvenile court's findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and if such a basis does exist, (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. If there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. State in the Interest of D.H., 2004-2105 (La. App. 1st Cir. 2/11/05), 906 So.2d 554, 559-60.
In light of the record reviewed in its entirety, the juvenile court's finding that the child satisfied the terms of the agreement is reasonable. The juvenile court reviewed the terms of the agreement with the child's probation officer and deferred ruling until additional evidence was submitted. After reviewing the evidence, the juvenile court was satisfied that the child complied with the terms of the agreement. We cannot say this finding was manifestly erroneous or clearly wrong. Therefore, we find no error in the juvenile court's dismissal of the petition with prejudice. Accordingly, the State's assignment of error lacks merit.
DISMISSAL OF JUVENILE PETITION WITH PREJUDICE, AFFIRMED.