State of Louisiana in the Interest of M.P. .

STATE OF LOUISIANA IN * NO. 2020-CA-0083
THE INTEREST OF M.P.
*
COURT OF APPEAL
*
FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPEAL FROM
JUVENILE COURT ORLEANS PARISH
NO. 2018-352-13-DQ-B/E, SECTION “E”
HONORABLE Desiree Cook-Calvin, JUDGE
******
Judge Tiffany G. Chase
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(Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome,
Judge Tiffany G. Chase)

BELSOME, J., CONCURS IN THE RESULT

Tenee Felix
LOUISIANA CENTER FOR CHILDREN'S RIGHTS
1100-B Milton Street
New Orleans, LA 70122

COUNSEL FOR APPELLANT

Leon Cannizzaro, District Attorney
Donna Andrieu, Chief of Appeals
Scott G. Vincent, Assistant District Attorney
DISTRICT ATTORNEY’S OFFICE ORLEANS PARISH
619 South White Street
New Orleans, LA 70119

COUNSEL FOR APPELLEE

REVERSED, VACATED, ADJUDICATION
SET ASIDE, AND PETITION DISMISSED
MAY 13, 2020

TGC
JFM
M.P. seeks review of the juvenile court’s ruling extending M.P.’s

adjudication hearing beyond the time limitations in La. Ch.C. art. 877.1 After

consideration of the record before this Court and the applicable law, we reverse,

vacate, set aside M.P.’s adjudication as delinquent and dismiss the petition.

Procedural History

On December 17, 2018, the State filed a petition alleging M.P. committed

aggravated battery, a violation of La. R.S. 14:34.2 On January 24, 2019, M.P.

answered the petition and entered a plea of not guilty. M.P. was not detained on the

charge of aggravated battery. The adjudication hearing was scheduled for April 4,

2019; however, the matter was re-allotted to a new section of court because the

original judge recused herself. A pre-trial conference was scheduled for April 17,

2019 in the new section of court but was continued to April 24, 2019 due to the

unavailability of a court reporter.

The pre-trial conference, scheduled for April 24, 2019, was continued a

second time due to the unavailability of a court reporter. M.P.’s adjudication

1
In order to maintain the confidentiality of the proceedings, as discussed in La. Ch.C. art. 412,
initials are used to identify juveniles involved.
2
The underlying facts of the matter are not relevant to this appeal.

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hearing was set a third time for September 11, 2019. M.P. filed a notice of

objection, opposing the juvenile court’s scheduling of the adjudication hearing on

September 11, 2019. M.P. argued that the September 11, 2019 adjudication hearing

date was beyond the time limitations set forth in La. Ch.C. art. 877.

On September 11, 2019, the juvenile court was closed because of issues with

the air conditioning system in the building. The matter was then set for a pre-trial

conference on October 2, 2019. M.P. was not served and the pre-trial conference

was continued. The October 2, 2019 minute entry notes that M.P. waived the time

limitations in La. Ch.C. art. 877 but, also notes that M.P. objected to the hearing

date chosen by the court. The juvenile court then set the adjudication hearing for

November 20, 2019 and adjudicated M.P. delinquent of aggravated battery

pursuant to La. R.S. 14:34. This appeal followed.

Procedural Issue

As a threshold matter, we must first determine whether the issue of the

timeliness of the adjudication hearing is properly before this Court. Louisiana

jurisprudence requires that a juvenile defendant affirmatively object to an

adjudication hearing being held beyond the mandatory time limitations of La.

Ch.C. art. 877. State in the Interest of D.V., 2013-1283, p. 8 (La.App. 4 Cir.

5/7/14), 144 So.3d 1097, 1103 (citing State ex rel Q.U.O., 39,303, pp. 4-5 (La.App.

2 Cir. 10/27/04), 886 So.2d 1188, 1191). A juvenile defendant is not allowed to

raise that issue for the first time on appeal. Id.

The timeliness of an objection to an adjudication hearing, in order to

preserve the issue on appeal, recently appeared before this Court. In State in the

Interest of C.B., 2020-0075, 2020 WL 1879596 (La.App. 4 Cir. 4/15/20), the

juvenile defendant argued that the juvenile court abused its discretion in continuing

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the adjudication hearing, outside of the time limitations in La. Ch.C. art. 877, due

to the unavailability of a court reporter. C.B. answered the petition on August 14,

2018. Id. The adjudication hearing was set for November 28, 2018, a date already

beyond of the time limitations in La. Ch.C. art. 877. C.B. did not object to the

November 28, 2018 adjudication hearing date. Id. The adjudication hearing was

ultimately continued to May 8, 2019; then to July 24, 2019; and finally to October

16, 2019. C.B. filed a notice of objection to the July 24, 2019 and October 16,

2019 adjudication hearing dates being set outside of the time limitations in La.

Ch.C. art. 877. C.B. did not file a motion to dismiss the petition for failure to

timely prosecute and the issue was not challenged by seeking supervisory review.

Id. Thus, the Court found that the juvenile defendant’s challenge to the timeliness,

on appeal, of the prosecution was untimely. Id. However, we find C.B.

distinguishable from the case sub judice.

In C.B., the juvenile defendant did not object to the first setting of the

adjudication hearing, which was beyond the time limitations in La. Ch.C. art. 877.

In the case sub judice, M.P. filed a notice of objection after the new section in

juvenile court set the adjudication hearing for September 11, 2019. The filing of

the notice of objection raised the issue of M.P.’s opposition to the scheduling of

the adjudication hearing beyond the La. Ch.C. art. 877 time limitations.

Additionally, although the October 2, 2019 minute entry states that M.P. waived

the time limitations of La. Ch.C. art. 877, the same minute entry inconsistently

states that M.P. objected to the November 20, 2019 adjudication hearing date.

Thus, the record reflects that M.P. objected to the scheduling of the adjudication

hearing beyond the time limitations in La. Ch.C. art. 877. Likewise, M.P. objected

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to the November 20, 2019 adjudication hearing date as noted in the minute entry.

As such, the issue was preserved and can be considered on appeal.

Timeliness of Adjudication Hearing

M.P. argues that the juvenile court erred in holding the adjudication hearing

beyond the time limitations allowed. Pursuant to La. Ch.C. art. 877(B), a child not

in continued custody must be adjudicated within ninety (90) days of the

appearance to answer the petition. The time limits to conduct the adjudication

hearing, as set forth in La. Ch.C. art. 877, are mandatory. State in the Interest of

R.D.C., Jr., 1993-1865, 632 So.2d 745, 749 (La. 1994). However, the time limits

may be extended if the juvenile court determines that good cause exists for an

extension. La. Ch.C. art. 877(D). “[I]t is incumbent on the [S]tate to make a

showing of good cause and obtain an extension before the period has run.” Id. at

748 (emphasis added). Additionally, the juvenile court may extend the time

limitations on its own motion if good cause is found. State in Interest of Franklin,

1994-0423, p. 3 (La.App. 4 Cir. 7/26/95), 659 So.2d 537, 538. Although, La. Ch.C.

art. 877 allows for the adjudication hearing time limitations to be extended if good

cause is found, the statute does not allow the juvenile court to set the adjudication

hearing beyond the time limitations set forth in La. Ch.C. art. 877. State ex rel J.B.,

2003-0587, p. 4 (La.App. 4 Cir. 12/10/03), 863 So.2d 669, 671.

M.P. answered the petition on January 24, 2019; thus, he was required to be

adjudicated no later than April 24, 2019.3 The original adjudication hearing date

was April 4, 2019. The matter was re-allotted and a new adjudication date was not

initially provided. The April 17, 2019 court date was a pre-trial conference and the

good cause found on that date related to the continuance of the pre-trial

3
Applying the formula for computation as set forth in La. Ch.C. art. 114.

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conference, not the extension of the time limitations for conducting the

adjudication hearing. Likewise, the April 24, 2019 court date was also a pre-trial

conference. As this Court in State ex rel. J.B. found, “‘good cause’ relates to the

extension of time to set an adjudication hearing, and not the setting of a pre-trial

conference to determine the date of the adjudication hearing.” State ex rel. J.B.,

2003-0587, p. 3, 863 So.2d at 671. In the case sub judice, the determination of a

good cause extension, prior to the first adjudication hearing date of September 11,

2019, relates to pre-trial conference dates. Allowing the extension of the time

limitations of La. Ch.C. art. 877 applies to adjudication hearings, not pre-trial

conferences. Id.

Although the juvenile court did not proceed with the pre-trial conference on

April 24, 2019 and set the adjudication hearing for September 11, 2019, that date

was beyond the time limitations of La. Ch.C. art. 877. Additionally, the record

does not reflect that the State requested the juvenile court extend the time

limitations for holding the adjudication hearing beyond the mandatory time limits

of La. Ch.C. art. 877. Even if good cause existed to continue the September 11,

2019 adjudication hearing, the next court date provided by the juvenile court,

October 2, 2019, was for a pre-trial conference not an adjudication hearing.

The record does not demonstrate that good cause was found to hold the

adjudication hearing outside of the mandatory time limitations. The basis found for

continuing the matter was related to pre-trial conferences, not the adjudication

hearing. The juvenile court did not provide a basis for extending the adjudication

hearing beyond the time limitations of La. Ch.C. art. 877. Thus, M.P.’s

adjudication hearing was untimely and it was error for the juvenile court to conduct

the adjudication hearing on November 20, 2019.

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“[T]he remedy for an untimely adjudication hearing is dismissal of the

petition… .” State in the Interest of R.W., 2016-1187, p. 8 (La.App. 4 Cir. 3/2/17),

213 So.3d 13, 18. Finding that the adjudication hearing was untimely, this Court

finds it appropriate to reverse, vacate, set aside M.P.’s adjudication as delinquent

and dismiss the petition against M.P. See In the Interest of K.E.C., 2010-0953

(La.App. 3 Cir. 12/8/10), 54 So.3d 735); See also State in the Interest of R.D.C.,

Jr., 1993-1865, 632 So.2d at 749.

Decree

For the foregoing reasons we reverse, vacate, set aside the juvenile court’s

adjudication of M.P. as delinquent and dismiss the petition.

REVERSED, VACATED, ADJUDICATION
SET ASIDE, AND PETITION DISMISSED

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