author: WOODARD, Judge.

text:
    NORTHERN INSURANCE COMPANY OF NEW YORK v. Dan GABUS d/b/a Martial Arts Academy and/or Bayou Crane Productions and ABC Insurance Company.
    No. 04-153.
    Court of Appeal of Louisiana, Third Circuit.
    July 7, 2004.
    Gregory J. McDonald, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, LA, for Plaintiff/Appellant, Assurance Company of America.
    Henry Provosty, Edgar D. Gankendorff, Christophe B. Szapary, Provosty, Salder, deLaunay, Fiorenza & Sobel, New Orleans, LA, for Defendants/Appellees, Dan Gabus d/b/a Martial Arts Academy and Bayou Crane Productions and Certain Underwriters at Lloyd’s London.
    Kraig Thomas Strenge, Lafayette, LA, for PlaintiffiAppell'ee, Styles Fashion Outlets, Inc., Lafayette Insurance Co.
    William M. Blaekston, Hoffman, Siegel, Seydel, et al., New Orleans, LA, for Plaintiff/Appellee, Allstate Insurance Co.
    Robert L. Ellendér, Voorhies & Labbe, Lafayette, LA, for Defendant/Appellee, Domengeaux & Foreman d/b/a La Promenade Mall, et al.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLIE COLOMBARO WOODARD,' and MARC T. AMY, Judges.
   WOODARD, Judge.

Assurance appeals the trial court’s dismissal of its action against Gabus on an exception of prescription. We reverse the trial court’s ruling and remand the matter for further proceedings.

sfc t- iH * *

On September 30, 2001, there was a fire in La Promenade Mall (Promenade) in Lafayette, Louisiana. Allegedly,' defective wiring and installation caused the fire arid incited several lawsuits against the Defendant, Dan Gabus, individually and doing business as Martial Arts Academy and Bayou Crane Productions (Gabus), and his insurers, certain underwriters at Lloyd’s London (Lloyd’s), for damages the fire caused. The trial court consolidated the cases against Gabus, only two of which are the subject of this appeal. Subway of Acadiana (Subway),and It’s the Hair, Inc. (Hair) leased space and operated their respective businesses in Promenade. Both businesses suffered property damages and interruption of their businesses due to the fire. On September 24, 2002, Northern Insurance Company of New York (Northern), a subsidiary of Zurich Insurance Company (Zurich), filed a claim against Gabus,- stating that it insured both businesses and had compensated 'them for damages the fire caused and, therefore, was subrogated to Subway’s and Hair’s rights.

Subsequently, Northern realized that another of Zurich’s subsidiaries, Assurance Company of America (Assurance), was actually Hair’s insurer; Northern only insured Subway. Counsel for Northern and Assurance filed a supplemental and amending petition, adding Assurance as a party plaintiff. The trial court dismissed Assurance’s claim on an exception of prescription. Assurance appeals.

Timeliness of Supplemental and Amending Petition

Assurance urges that the amended petition simply substituted it for Northern as Hair’s insurer and, therefore, relates back to the date of the original petition. On the contrary, Gabus urges that it does not relate back because, in substance, it is a new claim.

| gN otwithstanding, we need not address this issue, as the record demonstrates that Assurance filed its claim within the one-year prescriptive period and does not need the benefit of the “relating back” principle.

The instant action is a delictual one which La.Civ.Code art. 3492 governs, imposing a one year prescriptive period. The fire occurred on September 30, 2001, making September 30, 2002 the last day of the prescriptive period. Northern/Assurance faxed the supplemental and amending petition to the Clerk of Court in Lafayette Parish on September 30, 2002.

Louisiana Revised Statute 13:850 allows parties to validly file pleadings via facsimile as long as they comply with the statute’s requirements, which are:

Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars.

Assurance maintains that it mailed the original document on the same day it transmitted the fax. However, the Clerk of Court stamped the document October 8, 2002. This court has yet to expressly hold, but has implied, that we would follow other circuits’ interpretation that a party who takes advantage of La.R.S. 13:850 does not receive the benefit of the “mailbox rule” as well. In other words, placing the document and fees in the mail does not satisfy “shall forward” under the statute; rather, the party must “deliver” the document and fees to the Clerk of Court within the five day period. Nor does the case at bar present a situation requiring us to expressly hold that the “mailbox rule” is inapplicable under La.R.S. 13:850, because we find that the Clerk received the pleading and fees within the five day period.

| aUnder normal circumstances, October 8, 2002 would be beyond the five day period. Nonetheless, Hurricane Lili compelled the Fifteenth Judicial District Court in Lafayette Parish to close at noon on Wednesday, October 2, 2002. It did not reopen until Tuesday, October 8, 2002. After the trial court heard the matter and granted Gabus’ exception of prescription, Assurance realized that it did not need the benefit of “relating back” to Northern’s original petition because it filed the supplemental and amending petition within the one year prescriptive period.

As a general rule, if a party fails to raise an issue in the trial court, we will not entertain it on appeal. However, when extraordinary circumstances require it, we will exercise our authority under La.Code of Civ.P. art. 2164 to reach a just result. In this instance, the courthouse’s emergency closing constitutes such extraordinary circumstances, and the record clearly reveals that Assurance’s claim is not prescribed.

Furthermore, we need not remand the case for the parties to present the issue to the trial court because proof of the timely filing is apparent from the evidence already in the record. Namely, the record includes a copy of the emergency order closing the court. Also, the facsimile of the supplemental and amending petition, dated September 30, 2002, is in the record, as well as a copy of the receipt that the Clerk faxed to Assurance’s counsel on October 1, 2002, documenting that he received the supplemental and amending petition via fax on September 30, 2002 at 2:11 p.m.

While La.R.S. 13:850 deems filing completed when “the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court,” this court has held that “[ijssuance of a transmission receipt will always be after the transmission, albeit usually only a short time after the fax transmission itself. Therefore, La.R.S. 13:850(A) cannot mean literally that the fax filing is complete on the happening of both receipt by the clerk of the transmission and the clerk’s verification of this receipt by his transmission of a receipt to the sender.”

Moreover, .La.Code Civ.P. art. 253 requires the Clerk to endorse the fact and date of filing “upon receipt of th,e pleadings or documents by the clerk.” (Emphasis added.) Thus, even though the Clerk did not fax a receipt until October 1, 2002, theRreceipt proves that the Clerk received the document on September 30, 2002. Consequently, if the Clerk received the original document and fees within five days, exclusive of holidays, then the facsimile has the same force and effect as the original, which results in a timely filing on September 30, 2002.

The Fifteenth Judicial District Court’s closure on October 2, 2002 through October 7, 2002 constitute legal holidays for the purpose of calculating La.R.S. 13:850’s five day period. Accordingly, the clerk’s receipt of the original document on October 8, 2002 was within the five day period. Because Assurance complied with La.R.S. 13:850’s requirements, the Clerk’s stamp should have reflected September 30, 2002 as the filing date.

Accordingly, the trial court erred in granting Gabus’s exception of prescription. We reverse its ruling and remand the case to 'the trial court for further proceedings.

CONCLUSION

We find that Assurance complied with La.R.S. 13:850 and, therefore, filed its supplemental and amending petition within the one year prescriptive period for delic-tual actions. This pretermits a decision of whether the supplemental and amending petition constitutes a new claim as opposed ■ to a substitution of parties. We reverse the trial court’s judgment and remand the matter for further proceedings. Accordingly, we cast the costs of this appeal on Gabus and its insurers.

REVERSED AND REMANDED.

      . See La.Code Civ.P. art 1153.

      . See Antoine v. McDonald’s Restaurant, 98-1736 (La.App. 3 Cir. 5/5/99), 734 So.2d 1257.

      . See Id. (citing Martin v. Kroger Co., 29,915 (La.App. 2 Cir. 10/29/97), 702 So.2d 347, writ denied, 98-0033 (La.3/13/98), 712 So.2d 881).

      . See Salley v. Salley, 94-418 (La.App. 3 Cir. 11/23/94), 647 So.2d 1164.

      . Antoine v. McDonald’s Restaurant, 98-1736 (La.App. 3 Cir. 5/5/99), 734 So.2d 1257.

      . See La.R.S. 1:55(E)(3); La.Code Civ.P. art. 5059.


source: Caselaw Access Project

author: BILLIE COLOMBARO WOODARD, Judge.

license: Public Domain

text:
    STYLES FASHION OUTLETS, INC, et al. v. Dan GABUS d/b/a Martial Arts Academy and/or Bayou Crane Productions and ABC Insurance Company.
    No. 04-152.
    Court of Appeal of Louisiana, Third Circuit.
    July 7, 2004.
    Gregory J. McDonald, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, LA, for PlaintiffiAppellant, Assurance Company of America, Northern Insurance Company of New York.
    Henry Provosty, Edgar- D. Gankendorff, Christophe B. Szapary, Provosty, Salder, deLaunay, Fiorenza & Sobel, New Orleans, LA, for Defendants/Appellees, Dan Gabus d/b/a Martial Arts Academy and Bayou Crane Productions and Certain Underwriters at Lloyd’s London.

      Kraig Thomas Strenge, Lafayette, LA, for Plaintiff/Appellee, Styles Fashion Outlets, Inc. Lafayette Insurance Co.
    William M. Blackston, Hoffman, Siegel, Seydel, et al., New Orleans, LA, for Plain-tifEAppellee, Allstate Insurance Co.
    Robert L. Ellender, Yoorhies & Labbe, Lafayette, LA, for Defendant/Appellee, Domengeaux & Foreman d/b/a La Promenade Mall, et al.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   BILLIE COLOMBARO WOODARD, Judge.

For the reasons assigned this day in Northern Ins. Co. of New York v. Dan Gabus, et al., 04-153 (La.App. 3 Cir. 7/7/04), 877 So.2d 1183, 2004 WL 1496871, we reverse the trial court’s dismissal of Assurance Company of America on an exception of prescription. We remand the matter for further proceedings and cast the costs of this appeal on Defendant/Ap-pellee, Gabus and its insurers.

REVERSED AND REMANDED.


text:
    ALLSTATE INSURANCE COMPANY v. Dan GABUS d/b/a Martial Arts Academy and/or Bayou Crane Productions and ABC Insurance Company.
    No. 04-154.
    Court of Appeal of Louisiana, Third Circuit.
    July 7, 2004.
    Gregory J. McDonald, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, LA, for plaintiff/appellant Assurance Company of America.
    Henry Provosty, Edgar D. Gankendorff, Christophe B. Szapary, Provosty, Salder, deLaunay, Fiorenza & Sobel, New Orleans, LA, for defendants/appellees Dan Gabus d/b/a Martial Arts Academy and Bayou Crane Productions and Certain Underwriters at Lloyd’s London.
    Kraig Thomas Strenge, Lafayette, LA, for plaintiff/appellee Styles Fashion Outlets, Inc., Lafayette Insurance Co.
    William M. Blackston, Hoffman, Siegel, Seydel, et al., New Orleans, LA, for plaintiff/appellee Allstate Insurance Co.
    Robert L. Ellender, Voorhies & Labbe, Lafayette, LA, for defendant/appellee Do-mengeaux & Foreman d/b/a La Promenade Mall, et al.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   WOODARD, Judge.

For the reasons assigned this day in Northern Ins. Co. of New York v. Dan Gabus, et al., 04-153 (La.App. 3 Cir. 7/7/04), 877 So.2d 1183, 2004 WL 1496871, we reverse the trial court’s dismissal of Assurance Company of America on an exception of prescription. We remand the matter for further proceedings and cast the costs of this appeal on Defendant/Appellee, Gabus and its insurers.

REVERSED AND REMANDED.


author: DREW, J.

text:
    STATE of Louisiana, Appellee, v. James Allen CURTIS, Appellant.
    No. 38,650-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 2004.
    Lavalle B. Salomon, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, Shirley M. Wilson, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART and' DREW, JJ.
   DREW, J.

The state initially charged defendant Curtis with two crimes:

• One count of sexual battery, a violation of La. R.S. 14:43.1 punishable by not more than ten years’ imprisonment at hard labor without benefits; and
• One count of molestation of a juvenile, a violation of La. R.S. 14:81.2(C) punishable by imprisonment for one to fifteen years with or without hard labor, and a fine not to exceed $10,000.

The state agreed to dismiss the sexual battery charge in exchange for defendant’s guilty plea to the molestation charge. The court imposed a sentence of ten years at hard labor plus a fine of $5,000, or in default, an additional year of incarceration. The trial court denied a timely motion for reconsideration. Defendant argues the sentence is excessive. We affirm the conviction and sentence. ..

The record reflects that during a three-year period (between January 1, 2000, and January 5, 2003) the defendant engaged in multiple acts of sexual intercourse, fellatio, and cunnilingus with a daughter of his fiancée with whom he was living during this aberrant conduct. The child was eleven years old when initially victimized. Defendant admitted engaging in these multiple sexual acts with this victim over the three years, but offered in mitigation that he never exerted any physical force. Curtis also allegedly fondled the victim’s younger sister on one occasion, but he denied that his act was intentional.

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. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. Where, as here, the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary. State v. Lanclos, 419 So.2d 475 (La.1982).

Whether a sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. 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. 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. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ, denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La. App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 1,97-0705 (La.9/26/97), 701 So.2d 979. The trial court was aware of and considered mitigating factors.

Prior to imposing sentence, the court considered a PSI report and other matters submitted by the defense and reviewed the sentencing guidelines. The court noted defendant had received a significant benefit from his plea bargain, stating that the evidence could have supported a prosecution for aggravated rape, which would have borne at least a life sentence.

In mitigation, the court considered defendant’s good work history and noted the absence of any prior adult arrests or convictions.

However, the court noted these overshadowing aggravating factors:

• Curtis knew this victim was particularly vulnerable due to her youth and her history of being abused when even younger by another predator;
• Curtis had held himself out to the child as her, stepfather and had used that position of authority and supervision to facilitate the commission of these heinous and inexcusable acts;
• Defendant had used threats to prevent the victim from reporting the criminal activity;
• No excuse or justification existed to justify defendant’s behavior; and
• The victim did not facilitate defendant’s conduct in any manner:

The court reasonably concluded defendant was in need of custodial treatment and tliat a-lesser sentence would deprecate the seriousness of the offense.

On this record, we do not find constitutional error. Over a protracted period of time, the defendant' repeatedly sexually abused a young child over Rwhom he was in loco parentis. He received a substantial benefit from the state’s willingness to charge only molestation of a juvenile. The sentence imposed is lawful, ánd is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of justice. ’ There is no showing of an abuse of the trial court’s discretion in the imposition of this sentence, which is not excessive under the facts of this sad case.

The conviction and sentence 1 are AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, In the Interest of K.P., Plaintiff-Appellee, v. L.P. and K.M., Defendants-Appellants.
    No. 38,911-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    July 14, 2004.

      Charles Kammer, III, Shreveport, for Appellant, L.P.
    W. Allen Haynes, for Appellee, K.M.
    Glen Mangham, for Appellee, State.
    Michelle Brown, for Appellee, K.P.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   MOORE, J.

The father, L.P., appeals a judgment of disposition finding that his daughter, K.P., is a child in need of care, continuing her custody with the Department of Sbcial Services (“DSS”), and subjecting L.P. to restricted and supervised visitation. We affirm.

Factual Background

On the evening of Sunday, November 28, 2003, DSS received a report from the emergency room of Willis-Knighton Pier-remont that 6/6-month-old K.P. had sustained a spiral fracture in the middle of her right femur. The child’s mother, K.M., told hospital personnel that K.P. had rolled . off a mattress and box springs onto the floor. However, the emergency room physician, Dr. Brandhurst, and the orthopedist on staff, Dr. Bicknell, both thought this was a serious injury, that could not happen accidentally. At the adjudication hearing, they .testified that an adult would have to grab the child’s thigh, pull and twist forcefully to break the bone this way.

When Ms. Hamilton, the DSS investigator; got to the hospital, the parents gave conflicting and changing stories. The father, L.P., said he did not live with the mother, had 'not seen K.P. in two weeks, and had no idea how the injury occurred. The mother, K.M., said that she, the baby and. the father had spent the afternoon together Christmas shopping at Pierre Bossier Mall, then came to L.P.’s apartment on Dee Street in east Shreveport, where they ate and watched a video, and finally she took the baby to her apartment on Dudley Drive in the Normandy Village area of Shreveport. She said the child was fine all afternoon and early evening, but while K.M. was in ^another room the child fell off the mattress and box springs and started crying. K.M. then noticed the child’s leg was swollen, so she took her to the hospital.

Ms. Hamilton then re-interviéwed the father. This time, he admitted he had indeed been with K.M. and the child that day. He also admitted he had been investigated by DSS for child abuse, arising from an incident in which he still insisted he was only trying to give K.P. some medicine when he bruised her face. He did not admit, but Ms. Hamilton soon learned, that just two months earlier a juvenile court hearing officer had issued a protective order upon finding that L.P. shook and bruised the child. L.P. violated this order by being with K.P. and K.M. on November 23.

The next day, Ms. Hamilton re-interviewed the mother, K.M., in the presence of a police detective. This time she said the baby had fallen off the mattress at the father’s apartment, and when she picked her up, she heard a “pop” and the child started screaming. She added that because the baby would not stop crying, L.P. went to pick her up. K.M. did not see what L.P. did, but when he was with the child, K.M. heard a “thumping” or “popping” noise. She later decided that these sounds were actually from the loud video they were watching, “Final Destination 2.” Detective Lamont then placed K.M. under arrest for cruelty to a juvenile. L.P. was not arrested.

DSS filed an affidavit in support of an instanter order that day, November 24. An emergency instanter order issued, placing K.P. in the legal custody of DSS, and in the physical custody of the child’s maternal grandparents in Thibodaux, Louisiana.

Is At the adjudication hearing on January 9, 2004, the witnesses testified as outlined above, both parents denying that they had hurt K.P. The mother testified that she changed her story to Ms. Hamilton and accused L.P. of thumping or popping the child only because she (K.M.) wanted to avoid being arrested for child abuse. She claimed that those accusations were false. The father, an E4 Senior Airman at Barksdale, admitted that he had previously bruised K.P., resulting in a protective order; DSS filed a transcript of the protective order hearing into evidence. The father also conceded that his USAF personnel file contained minor disciplinary matters and his superiors had required him to undergo anger management.

In addition, both mother and father related that while at Toys-R-Us, they put K.P. in an ExerSaucer; her foot got caught in the bottom, and they had to tug at her to get her out. Despite this new theory of KJP.’s injury, and their continued denial of any wrongdoing, the juvenile court adjudicated K.P. in need of care and continued her in DSS custody.

The disposition hearing was held on February 19, 23 and 26, 2004. A DSS social worker, Phyllis Jones, testified that in January K.M. admitted that she had moved back in with L.P. “in mid-November,” and thus both she and L.P. had lied about living apart when K.P. broke her leg. Ms. Jones and another social worker, Shauna Gilbert, testified that DSS had set four goals to reunify mother and child. They confirmed that the mother was attending sessions and the father was cooperating, but that he planned to leave Louisiana and did not intend to marry K.M. The juvenile court rendered a judgment of disposition finding K.P. still in need of care, continuing 14custody with DSS (placement with her maternal grandparents), and maintaining supervised sight and sound visitation at the discretion of DSS and the custodians.

From this judgment of disposition, L.P. has appealed, advancing two assignments of error.

Discussion

By his first assignment, L.P. contends DSS did not prove by a preponderance of the evidence that he was involved in breaking K.P.’s leg, or even knew about it. In support, he paints the following factual scenario:

It is undisputed that L.P. was not around the child when the injury occurred. Prior to Sunday afternoon, the father saw the child on Tuesday when he briefly visited the child at the daycare. Additionally, on Tuesday the minor child went to the doctor’s office for a checkup. If the injury existed prior to Tuesday, the doctor would have discovered the injury. Not only did the State fail to put on any evidence to dispute this testimony, but the mother admitted in court that the father did not break the child’s leg.

DSS responds that this argument reflects only one version of L.P.’s “multiple stories as to the events surrounding the apparent time of the injury.” DSS also cites the finding of the hearing officer who granted the protective order against L.P. on September 25, 2003, that he had an “attitude problem” and needed anger management. DSS concludes that with the highly conflicting testimony and L.P.’s record of abusing his daughter, the juvenile court was perfectly entitled to find K.P. in need of care.

An appellate court will not set aside the factual findings of a juvenile | Rcourt in the absence of manifest error or unless those findings are plainly wrong. State in Int. of JB, 35,032 (La.App. 2 Cir. 5/9/01), 794 So.2d 899, and citations therein. When there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact are not disturbed on review. In re AJF, 2000-0948 (La.6/30/00), 764 So.2d 47. When the fact finder is presented with two permissible views of the evidence, his choice between them is not clearly wrong. State ex rel. GJL, 2000-3278 (La.6/29/01), 791 So.2d 80.

The juvenile court heard disparate and evolving accounts of KP.’s injury from both parents. Both denied intentionally harming the child, but their protestations of innocence are refuted by the expert medical evidence that such a fracture could only be intentional. The court theorized that L.P. and K.M. “were in a heated argument, tussling over the child, not meaning to hurt the child, and * * * were both involved in this child’s injury.” We perceive no manifest error in this assessment.

Notably, L.P. conceded that he had previously bruised the child’s face, and that his superiors at Barksdale had prescribed anger management; such admissions could easily persuade the juvenile court that L.P. was capable of perpetrating this abuse upon K.P.. La. Ch. C. art. 606 A(l). Even though at trial he denied breaking the .child’s leg, he admitted lying to the investigator, Ms. Hamilton, on several occasions. Most glaringly, L.P. urges in brief, “it is undisputed that L.P. was not around the child when the injury occurred.” This claim was refuted not only by K.M. but by L.P. himself on direct examination. , ,

l fiOn this record, the court was entitled to discredit L.P.’s denial of involvehient and find that he either abused K.P. of aided or tolerated the acts of abuse perpetrated by others. We perceive no manifest error.

By his second • assignment, L.P. urges the court should have given him physical custody of the child, subject to DSS supervision, and continued the mother’s supervised visitation. ' He does not brief this separately, but contends that a fair reading of the evidence would show that not he, but KM., was responsible for breaking HP.’s leg. He concludes, somewhat rhetorically, “To the extent that the state is unwilling to recognize that a mother is unable [sic ] to abuse her child, is the maternal preference still,alive?”

DSS responds that on the facts presented, the juvenile court was entitled to take custody away from L.P.

The court shall not remove a child from the custody of her parents unless her welfare cannot, in the opinion of the court, be adequately safeguarded without such removal. La. Ch. C. art. 682 A. The child’s health and safety is the paramount concern in the court’s consideration of removal. Id. The juvenile court’s conclusions with respect to removal are subject to manifest error review. State in Int. of JB, supra.

At the adjudication hearing, L.P. testified that he would be leaving the state imminently for duty in Phoenix, Arizona; he also mentioned a training period in Alabama. At the disposition hearing, Ms. Gilbert testified that based on her interviews with the parties, L.P. did not plan to marry K.M.; L.P. admitted they were living together only for financial reasons. |7The juvenile court alluded to the anger issues apparent in L.P.’s protective order hearing, military record and in-court demeanor. The court also noted L.P.’s persistent refusal to admit any fault or to accuse K.M. These factors obviously bear on the child’s health and safety and support a finding that removing K.P. from her father’s custody was necessary to safeguard her welfare. La. Ch. C. art. 682 A. We perceive no manifest error.

Conclusion

For the reasons expressed, we affirm the judgment of disposition. Costs are assessed to the appellant, L.P.

AFFIRMED.

      . Appointed counsel for K.P. filed a letter adopting DSS’s position in support of the judgment of disposition. K.M. filed a pro forma brief stating that she would not present any argument; instead, she declares, she will work with DSS for the goal of reuniting with her child.