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State ex. rel. T.E.

Court of Appeals of Louisiana, First Circuit

September 15, 2017

STATE OF LOUISIANA IN THE INTEREST OF T.E.

         Appealed from the Juvenile Court in and for the Parish of East Baton Rouge, Louisiana Trial Court No. 110250 Honorable Pamela Taylor Johnson, Judge.

          HILLAR C. MOORE, III DISTRICT ATTORNEY JERNE' C. THERIOT ASSISTANT DISTRICT ATTORNEY BATON ROUGE, LA. ATTORNEYS FOR STATE OF LOUISIANA.

          NINA S. HUNTER BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLEE T.E.

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          PETTIGREW, J.

         In this case, the State challenges the juvenile court's dismissal of its petition pursuant to Children's Code Title VII, art. 730. For the reasons that follow, we find the judgment of dismissal in this matter is not an appealable judgment and dismiss the appeal.

         FACTS AND PROCEDURAL HISTORY

         According to the record, the State filed a petition requesting that T.E. be adjudicated a child of a Family In Need of Services based on T.E. being a truant and ungovernable. The matter proceeded to trial on October 13, 2016, at which time evidence was introduced and the case was submitted for consideration. The juvenile court found that the State failed to prove its case by a preponderance of the evidence and dismissed the State's petition with prejudice. The State appealed.

         When the instant appeal was lodged, a show cause order was issued by this court, noting that there was no written judgment in the record regarding the October 13, 2016 ruling. Counsel for T.E. subsequently filed a motion to dismiss the appeal as untimely because the State failed to timely seek an extension of the return date. On June 7, 2017, the record was supplemented with a written judgment signed by the juvenile court on May 16, 2017, which dismissed the petition with prejudice. On July 10, 2017, another panel of this court handed down two separate actions in this matter.

         First, the motion to dismiss the appeal was denied. We note that had this motion been referred to the merits, our decision would have been the same. This court has consistently recognized that appeals are favored in the law. Moreover, the Louisiana Code of Civil Procedure mandates that "[t]he articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves." Petroleum Treaters, Inc. v. Houma Land & Offshore Co., 545 So.2d 1300, 1301 (La.App. 1 Cir. 1989), citing La. Code Civ. P. art. 5051. Louisiana Code of Civil Procedure article 2161 provides, in part, that an appeal shall not be dismissed because of an irregularity, error, or defect unless it is imputable to the appellant. In a separate action, this court maintained the appeal, but reserved for the merits panel the final determination as to whether the appeal should be maintained. Thus, we turn to the merits of the appeal.

         DISCUSSION

         On appeal, the State argues that the juvenile court erred as a matter of law in ruling that the State failed to meet its burden of proof. The State contends it was only required to prove the allegations of the petition by a preponderance of the evidence, i.e., prove that the allegations of fact are more probable than not. Thus, the State avers this question of law should be reviewed by this court de novo, showing no deference to the findings and reasoning of the juvenile court. In response, T.E. argues this matter is not appealable and the dismissal should be affirmed. Directing this court's attention to Articles 330 and 331 of the Louisiana Children's Code, T.E. maintains that black letter law is controlling in this case. We agree with T.E. that this matter is not appealable.

         Article 330, entitled "Judgments appealable, " provides:

A. An appeal may be taken from any final judgment of a court and shall be to the ...

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