author: | EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana in the Interest of S.D.K. and K.D.K.
    No. 04-CA-218.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      . T. Robin McIntyre, Opelika, AL, for Parent/Appellant.
    Janet M. Ahern, New Orleans, LA, for Parent/Appellee.
    Diane S. Gaidry, Thibodaux, LA, for Plaintiff/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and THOMAS F. DALEY.
   | EDWARD A. DUFRESNE, JR., Chief Judge.

In this appeal, T.D.M., the biological mother of S.D.K. and K.D.K., challenges the trial court’s ruling returning the legal custody of the minor children to their biological father, A.K. For the reasons which follow, we affirm the trial court judgment.

In 1999, after protracted litigation, an Alabama Family Court granted legal custody of the children to their biological father, A.K., who presently lives in St. Charles Parish. The biological mother, T.D.M., who lives in Alabama, was given visitation rights. On May 3, 2002, T.D.M. picked up the children in Louisiana for her regular visitation. Sometime after picking them up, T.D.M. realized that her son, S.D.K., had bruises on his body. On May 4, 2002, she took him to Dr. Smalley for an examination. Dr. Smalley observed multiple bruises on S.D.K’s body that were consistent with the child’s statement of physical abuse by his father and stepmother, D.K. Following these allegations of abuse, the children were immediately placed in state custody in Alabama.

| ¡.Thereafter, on May 7 and 8, 2002, the Alabama Lee County Court conducted an emergency hearing and determined that S.D.K. had, in fact, been physically abused, and that such abuse occurred while the child was in the custody of his father. The Alabama Court ordered that the custody of the children be transferred from the Lee County Department of Human Resources to the appropriate agency in Louisiana. In accordance with that order, the children were subsequently transported to St. Charles Parish, and were placed in the custody of the State of Louisiana through the Department of Social Services, Office of Community Services.

On June 7, 2002, the St. Charles Parish District Attorney filed a petition, pursuant to LSA-Ch.C. art. 631 et seq., seeking to have the two minor children adjudicated to be in need of care. After a hearing, the court adjudicated the children to be in need of care, pursuant to LSA-Ch.C. art. 666, and maintained the custody of the children with the state through the Office of Community Services. In its August 2, 2002 written judgment, the court noted as follows:

The Court finds that reasonable grounds exist that the children, S.K. and K.K., are children in need of care due to physical abuse, and further that there existed substantial, immediate danger to the health, safety and welfare of the children which precluded reasonable efforts to be made as an alternative to removal from the home, specifically, the child, S.K., suffered physical injury as the result of beatings which occurred while in the home of the father, A.K., perpetrated by A.K. or D.K., or both. The Court further finds that the mother of the children, T.D., has experienced a history of instability and has previously lost custody of the children to the father after protracted litigation. The mother also has a history with the Lee County Department of Human Resources in Alabama for failure to adequately supervise her children and inappropriate housing. The Court further finds that it is necessary and appropriate to adjudicate the children in need of care and that return of the children to the home of either parent would be contrary to their health, safety, welfare and best interest.

Thereafter, A.K. and D.K. began participation in the services recommended in the case plan by the Office of Community Services, and on November 15, 2002, |athe two children were placed back in the home of their father on a trial basis. On November 22, 2002, the court conducted a disposition hearing pursuant to LSA-Ch.C. art. 678 et seq. After considering the evidence presented, the trial judge determined that the children should remain in the continued legal custody of the state. The court also approved the case plan submitted by the Department of Social Services finding it to be consistent with the health and safety of the children and in the best interest of the children. The court further found that the father had completed the necessary counseling pursuant to LSA-R.S. 9:364.

On May 12, 2003, the court conducted a permanency hearing pursuant to LSA-Ch.C. art. 702. After considering the evidence presented, the trial court entered the following findings:

First, the father in this particular matter, A.K., and his current wife have cooperated with the Department of Social Services in this investigation.
Second, Mr. A.K. has completed anger management classes and parenting classes, through the Kingsley Preservation Services, and the parenting class through the Children’s Hospital parenting classes.
Additionally, his current wife has engaged in this and continues to be engaged in anger management classes. Fourth, I find based on the evidence that I have heard that the children are not currently in any danger in their placement in the father’s home at this time.
I don’t know whether or not Revised Statute 9:364 applies to a child in need of services or OCS proceedings. However, if it does, in my opinion, the father’s completion of the anger management classes and the parenting classes satisfies the requirements of 9:364.

Based on these findings, the court returned legal custody of the children to father, with no further supervision by the Department of Social Services. In addition, the court noted that the custody of the father and the visitation by the mother shall be governed by the previous judgments of the Alabama Family Court. It is from this judgment that the biological mother now appeals.

T.D.M. asserts that the trial court erred in returning the legal custody of the two minor children to their father based on the provisions of the PosNSeparation | ¿Family Violence Relief Act, LSA-R.S. 9:361 et seq. To support her argument, T.D.M. specifically cites to LSA-R.S. 9:364 which states, in part, as follows:

A. There is created a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children. The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence. The presumption shall be overcome only by a preponderance of the evidence that the perpetrating parent has successfully completed a treatment program as defined in R.S. 9:362, is not abusing alcohol and the illegal use of drugs scheduled in R.S. 40:964, and that the best interest of the child or children requires that parent’s participation as a custodial parent because of the other parent’s absence, mental illness, or substance abuse, or such other circumstances which affect the best interest of the child or children. The fact that the abused parent suffers from the effects o£the abuse shall not be grounds for denying that parent custody.

Relying on this statute, T.D.M. asserts, in her appellate brief, that “the record is basically void of a preponderance of the evidence that the perpetrating parent has successfully completed a treatment program as defined in R.S. 9:362, is not abusing alcohol and the illegal use of drugs.” She argues that, absent this evidence, it was reversible error for the trial court to return the legal custody of the children to their father. We find no merit to the arguments raised by T.D.M.

First, we note that it is unlikely that the provisions of the Post-Separation Family Violence Relief Act apply to the instant child in need of care proceedings. The Act is contained in Title 9 of the Louisiana Revised Statutes, under Chapter 1, pertaining to divorce. LSA-R.S. 9:361 specifically addresses the issues of child custody and visitation and how they are affected by family violence during legal separation and divorce. That article states:

|fi... The legislature further finds that the problems of family violence do not necessarily cease when the victimized family is legally separated or divorced. In fact, the violence often escalates, and child custody and visitation become the new forum for the continuation of abuse. Because current laws relative to child custody and visitation are based on an assumption that even divorcing parents are in relatively equal positions of power, and that such parents act in the children’s best interest, these laws often work against the protection of the children and the abused spouse in families with a history of family violence. Consequently, laws designed to act in the children’s best interest may actually effect a contrary result due to the unique dynamics of family violence.

From a review of the Act as well as the case law, the apparent legislative intent in creating the Act was to protect victimized parties when domestic disputes arise in the course of separation and divorce. In State, DSS in Interest of A.D., 628 So.2d 1288 (La.App. 3 Cir.1993), the Third Circuit discussed the applicability of the Post-Separation Violence Act to child in need of care proceedings. In that case, the state attempted to use the act to deny visitation between the children in need of care and the father accused of sexually abusing them. After an analysis of the history of the act and its precedent articles, the court noted, “By implication, the statute applies only in situations where the State is not involved and the custody of the children is given to one of the parents.” 628 So.2d at 1291. Moreover, LSA-R.S. 9:368 provides that “[t]his Part shall in no way affect the remedies set forth in ... the Children’s Code, or elsewhere.... ” The Louisiana Children’s Code provides very specific and strict procedures for the state to follow when bringing a child in need of care case.

However, even if the provisions of the Post-Separation Family Violence Relief Act are deemed applicable, we find, as did the trial judge, that A.K. met the requirements as contemplated by the Act. In the present case, the Office of Community Services developed a case plan for the children with the goal of reunification with the father. To achieve that goal, the Office of Community Services recommended that Mr. and Mrs. King participate in family therapy, and |fithat Mrs. King participate in anger management therapy. The father and stepmother also underwent a psychological evaluation with Dr. Rafael Salcedo who recommended anger management and family therapy. The record is clear that the father and the stepmother were very cooperative with the Office of Community Services and completed all the services that were recommended for them, including parenting classes, anger management therapy, and in-home family therapy. In addition, D.K. continued with her therapy even after completion of the case in the trial court.

Based on the foregoing discussion, we find that the trial judge did not err, under either the provisions of the Children’s Code or the Post-Separation Family Violence Relief Act, in returning the legal custody of the children to the father. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . In the district court proceedings, there were no concerns raised about substance abuse on the part of the father. The main issue addressed throughout the hearings was the physical abuse of S.D.K. The first mention of substance abuse occurred at the end of the permanency placement hearing when the mother's attorney requested that a drug test be performed on the father prior to a final determination by the judge. This request was based on some information contained in Dr. Salcedo’s psychological evaluation of the father. Since the issue of substance abuse was not litigated in the district court, we will not address the mother's argument that the record is void of evidence that A.K. is not abusing alcohol or illegal drugs.

      . T.D.M. cites Lewis v. Lewis, 34,031 (La.App. 2 Cir. 11/3/00), 771 So.2d 856, to support her position that failure to apply the act in cases involving family violence was reversible error. In Lewis, the court stated, should a history of family violence be proven to exist, such that application of the Post-Separation Family Violence Relief Act is mandated, failure to apply the act is reversible legal error. We do not dispute those findings, but note that the case is distinguishable. The Lewis case is a civil domestic dispute, and not a child in need of care proceeding.


source: Caselaw Access Project

author: | .SOL GOTHARD, Judge.

license: Public Domain

text:
    Janice HUTCHINSON, Individually and on Behalf of her Minor Child, Bryant Sibley, Jr. v. WESTPORT INSURANCE CORPORATION, The Law Office of Jumonville & Lee, Jan P. Jumonville and Patrick F. Lee.
    No. 04-CA-138.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Janice Hutchinson, Hammond, LA, for Plaintiff/Appellant.
    Richard T. Simmons Jr., Darren A. Pa-tin, Metairie, LA, for Defendani/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and THOMAS F. DALEY.
   | .SOL GOTHARD, Judge.

Plaintiff, Janice Hutchinson, appears before this court in proper person seeking review of a judgment by the trial court that dismissed her action for legal malpractice. The malpractice action resulted from a failure of defendant law firm to file timely an action for damages sustained by plaintiffs minor son, Bryant Sibley, Jr., in an automobile accident that occurred on August 21, 1997. The action for malpractice was filed on April 19, 1999 when plaintiff was represented by new legal counsel. Since that time plaintiff has become dissatisfied with the legal representation of several licensed attorneys and has appeared in proper person on her son’s behalf since July of 2002. On April 28, 2003, the trial court granted a defense motion to dismiss the matter for failure to comply with the court’s orders regarding discovery. It is that judgment which is before us in this appeal.

As previously stated, the record shows that the legal malpractice action was filed on April 19, 1999! The petition alleges that defendant law firm Jumonville & Lee, and individual attorneys, Jan P. Jumonville and Patrick F. Lee were retained by Ms. Hutchinson to represent the interests of her minor son for injuries received | sm an automobile accident on July 12, 1997. Documents in the record show that four-year-old Bryant was riding in the open bed of a pick-up truck driven by his father when the truck was hit in the rear by another vehicle. Thankfully, although being placed unrestrained in the back of a pick-up and being thrown out of the vehicle on impact, Bryant did not sustain life-threatening injuries. The hospital records show that little Bryant suffered multiple abrasions to the scalp, back, buttocks, hand, elbow and knee. He was alert and oriented in the emergency room and a CT scan was ordered. The diagnostic tests showed evidence of a mild to moderate right lateral parietal scalp hematoma, with no evidence of definite or depressed skull fracture. There was no evidence of intra-cranial hemorrhage or hematoma, cerebral edema mass or mass effect. He was released from the hospital after the diagnosis. The record contains a letter from Bryant’s treating physician who reports that Bryant will likely suffer chronic headaches for the rest of his life as a result of the accident. Bryant’s mother reported that he is fearful of riding in vehicles and still has pain in his knee.

Defendants failed to file suit timely, thereby allowing the applicable prescriptive period to extinguish any rights plaintiff may have had against the original tort-feasor. A letter acknowledging that fact is contained in the record. Also made defendant in the lawsuit is Westport Insurance Corporation, the legal malpractice carrier for the defendants. The petition was filed by counsel for plaintiff, David Bernberg.

Kelly Barbier filed a petition of intervention for legal fees due, alleging that plaintiff had retained his legal services to represent her in the legal malpractice claim against the named defendants, but discharged him. Attachments to the petition show that Ms. Hutchinson signed a “Retainer Contract” with Barbier on October 27, 1998. Apparently, Ms. Hutchinson also became unhappy with the representation of Mr. Bernberg, because a second petition for intervention was | ¿filed by David Bernberg and the law firm of Jacobs, Manuel, Kain & Bernberg. The petition alleges Ms. Hutchinson retained their legal services regarding this legal malpractice action, but subsequently discharged them. Attached to that petition are an undated “Contract of Employment” signed by Ms. Hutchinson, and a letter from Ms. Hutchinson discharging Bernberg and his firm dated August 23,1999.

Because of the confusion over who was actually representing Ms. Hutchinson in this legal malpractice matter, defendants filed a motion for extension of time to file responsive pleadings. In that motion, defendants assert that Ms. Hutchinson would now be represented by Kerry Cockrell. It does not appear that Mr. Cockrell filed a formal motion to enroll as counsel. Nevertheless, a motion to substitute counsel was filed by Alfred Shapiro on February 14, 2000 in which it is asserted that Mr. Cock-rell is no longer representing Ms. Hutchinson. A subsequent “Petition for Intervention” filed by Mr. Cockrell shows that he was discharged on January 11, 2000.

Mr. Shapiro was apparently discharged by February 24, 2000, because on that date Ms. Hutchinson filed a pro se “Motion to Set for Trial on the Merits.” In the motion, Ms. Hutchinson asserts that all discovery has been completed, and that the case is ready for trial on the merits. Also on that date, Ms. Hutchinson wrote a letter to the trial court stating that:

We have been through four different' attorneys to represent us in this legal malpractice lawsuit with no success in bring (sic) closure to this case, As a result, however, due to poor legal guidance each one has been discharged from the case.

On March 3, 2000, all defendants in the legal malpractice answered the petition, and filed a “Motion to Determine Counsel.” In the motion, defendants assert that they have entered into discussions with all of plaintiffs attorneys, including Mr. Shapiro, who was hired only ten days before Ms. Hutchinson’s pro |fise motion to set for trial. The motion also addressed the fact that, despite Ms. Hutchinson’s representation to the court in the motion to set for trial, discovery was not complete and, in fact, had not begun. According to a minute entry, there was a status conference on March 30, 2000, at which all parties, including Ms. Hutchinson, were present. The court held that the motion to determine counsel would be considered on April 27th.

On March 23, 2000, Mr. Shapiro filed a motion to withdraw as counsel, and on April 4, 2000, Ms. Hutchinson enrolled as counsel for herself. The minute entry on April 27, 2000 indicates there were no appearances for Ms. Hutchinson. At that time the court ruled that Cleo Fields must enroll as counsel.

On May 23, 2000, Cleo Fields and Michael Guy enrolled as counsel of record for Ms. Hutchinson. At this point, it appears that discovery began, as there are several notices of deposition filed by defendants. On June 20, 2002, Mr. Fields and Mr. Guy withdrew as counsel of record. On June 25, 2002, defendants filed a motion for a status conference, which was set for July 16, 2002. Ms. Hutchinson again appeared in proper person. In that capacity she filed a request for a jury trial on July 2, 2002, which was opposed by the defendants.

On July 16, 2002, the request for jury trial was denied by the court as untimely, and a formal motion to enroll as pro se counsel filed by Ms. Hutchinson was granted by the trial judge with the notation that the motion was “signed after detailed advice to mover (plaintiff) re. the disadvantages of proceeding unrepresented.”

Trial was set for April 21, 2003 by a pretrial order signed on September 11, 2002. Discovery continued and on October 11, 2002, defendants filed a motion to compel answers to interrogatories and responses to requests for production of documents alleging Ms. Hutchinson failed to properly respond to discovery | ¿motions served on her on August 16, 2002. A hearing on the motion was set for November 20, 2002. Ms. Hutchinson did not attend; however, she filed an opposition to the motion to compel asserting she should not have to respond because she does “not understand” the interrogatories or the request for the production of documents. On November 27, 2002, the trial court granted the motion to compel and ordered Ms. Hutchinson to respond within fifteen days from receipt of the order. Ms. Hutchinson moved for, and was granted, a thirty-day extension for compliance of that order. When no response was received from Ms. Hutchinson in the allotted time, defendants filed a motion to dismiss the lawsuit.

The trial court heard the motion to dismiss on April 21, 2003. The transcript of that hearing is contained in the record. It shows that Ms. Hutchinson explained that she had not answered the interrogatories because she did not have an attorney to explain them to her. Ms. Hutchinson acknowledged that she has had several attorneys during the course of this lawsuit and that she chose to represent herself after being advised of the disadvantages of self-representation. Mr. Hutchinson also attended the hearing and spoke on his wife’s behalf. He explained that his wife was ill and unable to attend the September 11, 2002 hearing. The trial court explained to Mr. Hutchinson that the issue was failure to respond to the discovery requests, not failure to attend the hearing.

The trial court further inquired about any efforts the Hutchinsons may have made to answer the discovery. Mr. Hutchinson explained that they tried to answer the interrogatories, but did not understand them. However, Mr. Hutchinson asserted that they did reply. Counsel for the defendants responded that the response to every interrogatory and request for production of documents was “could you be more specific.” Defendant’s counsel explained to the trial court that the interrogatories were written specifically in a manner that a layman would be able to understand, such as the name, address and telephone number of any family 17member who suffers from migraine headaches. Other questions involve a previous incident on December 14, 1995 when Bryan was admitted to North Oaks Hospital emergency room with a head injury. Defense counsel also reported that he had been contacted by four different attorneys representing the Hutchinsons with the intent of responding to discovery with a focus on settlement, before each attorney was fired by Ms. Hutchinson.

The Hutchinsons responded that they were trying to get an attorney who would handle the case for them, but were so far unsuccessful. In the end they asked the court for mercy for their son and additional time to get a new attorney. The court noted that was the exact same plea the Hutchinsons made to the court eight months before, and granted the motion to dismiss.

In brief to this court, plaintiff assigns eleven errors for our review. Some of these errors do not relate to the specific judgment of dismissal before us. However, recognizing that Ms. Hutchinson is appearing before this court in proper person, and because we interpret the thrust of plaintiffs argument to be that her petition was dismissed unfairly, we will consider all matters presented to us in this appeal. We have grouped Ms. Hutchinson’s eleven assignments of error into two topics for discussion; the inappropriate conduct of the trial court in the proceedings, and the dismissal of plaintiffs’ cause of action for failure to abide by the rules of discovery.

In her accusations against the trial judge, Ms. Hutchinson avers that the judge’s conduct in this case was in violation of the District Court Standards and the Code of Professionalism in the Courts embodied in Part G of the Supreme Court rules. Specifically, Ms. Hutchinson asserts the judge was “rude” at a status conference held on July 16, 2002 when she asked for a jury trial. Ms. Hutchinson continues to explain that, in closing, the judge expressed his regret that Ms. Hutchinson had a “bad experience” in the court system. Ms. Hutchinson concedes, IsShe did not know to which “bad experience” the judge referred, but concluded it was an acknowledgment that she was treated badly in the conference.

Ms. Hutchinson also asserts that the trial court violated its trust to the litigants in his court room:

1. By denying her request for a jury trial.
2. “When it did not enforce it’s (sic) orders to have the defendant take a deposition as well as the plaintiffs in this case.”
8. By not enforcing its order to return to plaintiffs a videotape of Bryant that documented his injuries.
4. In holding a pro se litigant to the same degree of standards it would hold a licensed attorney.
5. In inaccurately transcribing the minutes for the hearing on April 11, 2008.

La. C.C.P. art. 1733 C provides that a request for jury trial must be filed no later than ten days after the service of the last pleading directed to any issue triable by a jury. In this case the original petition was filed in April of 1999 and the answer was filed in March of 2000. Thus, Ms. Hutchinson’s request for a jury trial, filed on July 2, 2002 over two years after defendants’ answer, is clearly untimely and the trial court was correct in its denial of the request.

The allegations that the trial court did not enforce its “orders” is totally without merit, since the record does not indicate that any such orders were ever issued by the court.

It is clear from the record that Ms. Hutchinson sought and rejected the advice of several licensed attorneys over the projected course of this litigation and felt she could handle the case more effectively. It is also apparent from documents contained in the record that the main disagreement between Ms. Hutchinson and her attorneys involved issues of quantum. In brief to this court, Ms. Hutchinson states that she originally requested $750,000.00 for damages. On appeal she states that “at this time plaintiffs-appellants feel that due to the fact that this legal malpractice lawsuit has been so seriously detrimental to our entire family, | flplaintiffs-appellants feel that a sum of ($2.5 Million Dollars) would be a more ‘fair’ and justifiable amount in order to compensate plaintiffs-appellants for damages in this case.”

Ms. Hutchinson sought self-representation, which is her right, and accepted the consequences after having been advised that litigation may present problems for which she was not prepared. Contrary to Ms. Hutchinson’s allegation that she was held to the same standards as a licensed attorney, we find the opposite is true. We have reviewed the interrogatories propounded to her and find them to be straightforward and understandable to a layman of Ms. Hutchinson’s education and intelligence. The lack of regard for the rules of discovery, and efforts to delay proceedings shown in this case by a licensed attorney would have merited a much stricter standard. Ms. Hutchinson was given much latitude and consideration by the opposing attorneys and the trial court in this case because of her pro se status. We find this argument to be without merit.

Ms. Hutchinson’s allegation that the trial court canceled an appearance at a status conference once in the course of a matter which has been pending for almost five years can not be construed in any way to be a violation of any code of performance or rules of court.

The assertion that the trial court inaccurately transcribed the “minutes for the hearing on April 11, 2003” is a serious accusation of wrong doing by the trial court which is totally unjustified. It is not clear from the assignment of error or the argument whether the misrepresentations alleged by Ms. Hutchinson are in the minute entry or the transcript. Both are contained in the record and this court can find no inconsistencies. The actual transcript of the hearing, certified by the court reporter, is contained in the record. The transcript shows that the trial court granted a defense motion to dismiss after hearing argument from both sides, giving oral reasons for his ruling. The minute entry for that date accurately reflects that.

ImFinding no merit in the first part of plaintiffs’ argument, we now consider the issues regarding the review of the judgment on appeal.

La. C.C.P. art. 1471 allows dismissal of plaintiffs action as a sanction for failure to comply with discovery orders. In Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199, the Supreme Court enunciated four factors to consider before taking the drastic measure of dismissal.

(1) whether the violation was willful or resulted from inability to comply; (2) whether less drastic sanctions would be effective; (3) whether the violations prejudiced the opposing party’s trial preparation; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.
Id. 635 So.2d at 203 (citing; Batson v. Neal Spelce Associates, Inc., 765 F.2d 511 (5th Cir.1985); U.S. for Use of MCO Const. v. Shipco General, 814 F.2d 1011 (5th Cir.1987))

In the matter before us, Ms. Hutchinson is the client and is directly and solely responsible for the failure to' comply with the discovery order which led to the dismissal. She was impatient, unrealistic in her expectations of damages and dissatisfied with the representation of several attorneys. Consequently, she demanded self-representation despite the trial court’s warning that such procedure was unwise. Further, she was given special consideration and extra time to respond to discovery.

It appears to this court that the legal malpractice, which was admitted by defendant, was a simple case which, under normal circumstances would have been resolved shortly after filing. It is clear from the record that Ms. Hutchinson’s refusal to heed the advice given by numerous counsels and her insistence in handling the matter on her own is the sole cause for the undue delays and ultimate dismissal.

Nevertheless, we are reminded that dismissal and defaults pursuant to art. 1471 are “draconian penalties which should be applied only in extreme circumstances.” Horton, supra 635 So.2d at 203. In the matter before us the |n allegation of legal malpractice appears to be well-founded, and will require an assessment of value of the underlying case. After hearing Ms. Hutchinson in oral argument before this court we are convinced that her concern for her son is genuine and we agree that little Bryant did not get deserved compensation as a result of the legal malpractice. We are hopeful that Ms. Hutchinson now recognizes the severity of the consequences of a failure to obey a court order, as well as her unrealistic expectations of quantum and her inability to represent her son effectively in this matter.

La. C.C.P. art. 2164 mandates this court to “render any judgment which is just, legal, and proper upon the record on appeal.” Consequently, we are reversing the judgment of dismissal and remanding the matter to the trial court with instructions to allow Ms. Hutchinson a reasonable amount of time to seek legal counsel and answer the interrogatories propounded to her, with a warning that her case will be dismissed if the new order of the trial court is not obeyed timely.

REVERSED AND REMANDED.

      . While it is not clear from the record, it appears that the trial court was informed at that time that Ms. Hutchinson had retained Mr. Fields to represent her.


author: IsSUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Roy SARRIO.
    No. 04-KA-89.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Kevin V. Boshea, New Orleans, LA for Appellant, Roy Sarrio.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial - District Court, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long — Appellate Counsel, Assistant District attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and SUSAN M. CHEHARDY.
   IsSUSAN M. CHEHARDY, Judge.

This is defendant’s second appeal. On March 16, 1998, a jury found defendant, Roy Sarrio, guilty of one count of racketeering and two counts of possession with intent to distribute marijuana. On April 27, 1998, the trial court sentenced defendant to concurrent thirty-year prison terms on each count. On the same day, the court held an enhancement hearing pursuant to La. R.S. 40:982. The court found that defendant satisfied the requirements for enhancement under the statute, and imposed an additional sentence of sixty years at hard labor pursuant to La. R.S. 40:982. The judge ordered that all of the sentences be served concurrently.

Defendant appealed his convictions and sentences. This Court affirmed the convictions, but vacated defendant’s sentences and remanded for re-sentencing. State v. Sarrio, 01-543 (La.App. 5 Cir. 11/27/01), 803 So.2d 212, writ denied, 02-0358 (La.2/7/03), 836 So.2d 86. This Court found that, although La. R.S. 40:982 authorized the district court to enhance defendant’s sentence for possession with intent to distribute marijuana, the statute did not allow for the imposition of a separate sentence.

|sOn remand, the trial court re-sentenced defendant on October 30, 2003 to thirty years at hard labor on each of his three convictions. The judge ordered that the sentences be served concurrently. Defendant made an oral motion for appeal. On October 30, 2003, defendant also filed a written Motion to Reconsider Sentence, which was subsequently denied. On November 3, 2003, defendant filed a written Motion for Appeal, which was subsequently granted.

Facts

A summary of the pertinent facts in this case is contained in this Court’s opinion on defendant’s original appeal. State v. Sarrio, 803 So.2d at 215-218.

Discussion

On appeal, defendant raises two assignments of error: first, the three sentences imposed are “legally excessive, unduly harsh and violative of the federal constitution and the Constitution of the State of Louisiana,” and, second, the trial court respectfully erred in the denial of the motion to reconsider sentence. We note that in his assignments of error on appeal, defendant contends both that the sentences imposed by the trial court are constitutionally excessive, and that the trial court erred in failing to comply with the provisions of La.C.Cr.P. art. 894.1. However, in his Motion to Reconsider Sentence made in the trial court after re-sentencing, defendant alleged only that “[t]his Motion is being made due to the excessive and harsh nature of the sentence imposed.” The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence for constitutional excessiveness. State v. Dupre, 03-256, p. 7 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153; La.C.Cr.P. art. 881.1 A(2).

The Eighth Amendment to the United States Constitution and- Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or | imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Wickem, 99-1261, p. 10 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. Trial judges are granted great discretion in imposing sentences and sentences will not be set aside as excessive absent clear abuse of that discretion. State v. Parker, 03-288, p. 4 (La.App. 5 Cir. 7/29/03), 853 So.2d 67, 69. The issue on appeal is whether the trial judge abused his discretion, and not whether another sentence might have been more appropriate. Id.

At the time of the charged offenses, the penalty for racketeering was imprisonment for not more than fifty years, or a fine of not more than one million dollars, or both. La. R.S. 15:1354(A). The sentencing range for possession of marijuana with intent to distribute was five to thirty years of imprisonment and a mandatory fine of not more than fifty thousand dollars. La. R.S. 40:967(B)(2).

The enhancement provision, La. R.S. 40:982, provided:

A. Any person convicted of any offense under this part, if the offense is a second or subsequent offense, shall be sentenced to a term of imprisonment that is twice that otherwise authorized or to payment of a fine that is twice that otherwise authorized, or both. If the conviction is for an offense punishable under R.S. 40:966(B), R.S. 40:967(B), R.S. 40:968(B) or R.S. 40:969(B), and if it is the offender’s second or subsequent offense, the court may impose in addition to any term of imprisonment and fine, twice the special parole term otherwise authorized.
B. For purposes of this section, an offense shall be considered a second or subsequent offense, if, prior to the commission of such offense, the offender had at any time been convicted of any violation of this state, the United States, any other state of or any foreign country, relating to the unlawful use, possession, production, manufacturing, distribution, or dispensation of any narcotic drug, marijuana, depressant, stimulant, or hallucinogenic drugs.

1 ¡¿This Court established, in its earlier opinion in this case, that the trial court was authorized to apply the enhancement provisions of La. R.S. 40:982 in sentencing defendant on the marijuana charges. State v. Sarrio, 803 So.2d at 225. Therefore, defendant’s sentencing exposure for each marijuana conviction was ten to sixty years.

Defendant argues that his sentences are disproportionate in length to those of his co-defendant, Keith Marcel, who entered guilty pleas to several charges in the bill of information in exchange for his testimony at defendant’s trial. The record reflects that Marcel received a fifteen-year sentence. As a general rule, the fact that a co-defendant has received a more lenient sentence does not necessarily indicate that the penalty imposed on the defendant is excessive. State v. Tate, 01-1658, p. 26 (La.5/20/03), 851 So.2d 921, 940, cert. denied, — U.S. -, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). In any case, this Court found, and the record establishes, that defendant’s involvement in the narcotics business was more substantial than Marcel’s.

Four associates in defendant’s enterprise testified at his trial. They portrayed defendant as the head of the operation. A cab driver testified that he became a courier for defendant, who paid him to deliver marijuana. State v. Sarrio, 803 So.2d at 227. A second man testified that he “moved marijuana around” for defendant. He indicated that he was present when defendant arranged for a delivery of four hundred to five hundred pounds of cocaine from Mexico. Id. Marcel testified that defendant recruited him as a “front-man” in the drug sales, and that his actions were directed by defendant. Sarrio, 803 So.2d at 227. This Court found that defendant was “the management head of- the group. In this capacity he procured the drugs to be sold, set the price, set the quantity and the manner of sale, received the proceeds, procured and paid the participants.” Id.

| (¡Defendant complains that he was penalized for electing to go to trial instead of pleading guilty. In Bordenkircher v. Hayes, 434 U.S. 357, 363-364, 98 S.Ct. 663, 668-669, 54 L.Ed.2d 604 (1978), the United States Supreme Court stated:

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.” But in the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecutor’s offer....
While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of this trial rights, the imposition of these difficult choices [is] an inevitable”' — and permissible — -“attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty. [Citations omitted.]

Here, defendant neither alleges nor demonstrates that he was not free to accept any plea offers made by the State. Moreover, we do not find that the sentences imposed were vindictive.

Defendant notes that La. Acts 2001, No. 403, § 4 instituted more lenient sentencing provisions for some narcotics offenses. Defendant suggests that, although that amendment did not become effective until after defendant committed the instant offenses, the trial judge should have taken into account the legislature’s desire to revisit harsh sentencing schemes. Defendant argued this point at re-sentencing, and the judge clearly took defendant’s arguments into consideration. However, the judge was not obligated to consider the 2001 revisions to influence his decision. More importantly, the sentencing range for possession of marijuana with intent to distribute has remained unchanged since the time defendant committed the instant offenses. La. R.S. 40:966(B)(3).

17Lastly, defendant argues that the amount of marijuana he was charged with distributing was relatively small, and that his sentences are not proportionate to the offenses. The evidence at trial indicates, however, that defendant ran a large-scale narcotics-distribution operation in which he moved significant quantities of marijuana on a regular basis.

Based on the foregoing, we do not find that the trial court abused its broad discretion in imposing concurrent thirty-year sentences or in denying defendant’s Motion to Reconsider Sentence. These assignments of error are without merit.

Finally, the record on re-sentencing was reviewed for errors patent. La.C.Cr.P. art. 920. While we note that defendant’s sentences for the two marijuana convictions are illegally lenient because the trial court did not impose the mandatory fine of “not more than fifty thousand dollars” prescribed in La. R.S. 40:966(B)(2), we also note that the State did not raise this issue in the district court or on appeal.

Under State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, and La. C.Cr.P. art. 882, this Court has the authority to correct an illegally lenient sentence despite the fact that neither party has raised the issue below or on appeal. State v. Turner, 03-325 (La.App. 5 Cir. 6/19/03), 850 So.2d 811, 819, writ denied, 03-2170 (La.1/30/04), 865 So.2d 74. This Court has recognized that the authority to correct an illegally lenient sentence is permissive rather than mandatory, and it has, on occasion, declined to remand for imposition of a mandatory fine. State v. Turner, supra; State v. Jordan, 02-820 (La.App. 5 Cir. 12/30/02), 836 So.2d 609, 614. We decline to remand in this case.

Next, La.C.Cr.P. art. 930.8 provides that a defendant has two years from the date that “the judgment of conviction and sentence has become final” to file an application for post-conviction relief. Subpart C of the article requires that the trial court inform a defendant of the prescriptive period at the time of sentencing. In |sthis case, the trial court’s advisal to the defendant was incomplete. Therefore, we remand and order the district court to inform defendant of the provisions of La. C.Cr.P. art. 930.8 by sending appropriate written notice to defendant within ten days of the rendition of the opinion and to file written proof that defendant received the notice in the record of the proceedings. State v. George, 99-887 (La.App. 5 Cir. 1/4/00), 751 So.2d 973, 975.

Lastly, the district court must impose a separate sentence as to each conviction in a case involving multiple convictions. State v. Hebert, 02-1252 (La. App. 5 Cir. 4/8/03), 846 So.2d 60, 65. In this case, the transcript reveals that the trial court imposed a separate sentence for each of defendant’s three convictions. The commitment, however, states that the court re-sentenced defendant to “imprisonment at hard labor for a term of 30 years.” Where the transcript and a minute entry conflict, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand with instructions to amend the commitment to reflect the transcript.

SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The State alleged that defendant committed acts in furtherance of the racketeering activity (i.e., the possession of marijuana with intent to distribute) during April and May of 1996. The Louisiana Supreme Court has held that the applicable sentencing scheme is the one in effect at the time the offense is committed. State v. Sugasti, 01-3407, p. 5 (La.6/21/02), 820 So.2d 518, 521.

      . The State alleged that defendant had a 1989 conviction for distribution of cocaine.


author: | .MARION F. EDWARDS, Judge.

text:
    In re K.P.W., Wife of/and K.R.W., JR. Applying for Intrafamily Adoption of M.K.M.F. State of Louisiana In the Interest of M.K.M.F.
    Nos. 03-CA-1371, 03-CA-1372.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Terri M. Miles, Metairie, LA, for Plaintiff/Appellant.
    Denise G. Larson, Indigent Defender Board — Juvenile Court, Harvey, LA, for Minor/Appellee.
    Mary A. Mumme, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   | .MARION F. EDWARDS, Judge.

Kelly Marie Woodrum Figueroa and Alfredo Figueroa III, parents of M.K.M.F, resided in Georgia with their children A.F. and M.K.F. On March 11, 2002, they filed a Petition for Voluntary Transfer of Custody of M.K.M.F. to Mrs. Figueroa’s half-brother, Kenneth Woodrum and his wife, Kimberly Woodrum, who resided in Jefferson Parish. In the judgment resulting from that petition, the Juvenile Court for the Parish of Jefferson granted guardianship of M.K.M.F. to the Woodrums for two years, beginning April 27, 2002, “unless ordered otherwise by this Court prior to the expiration of the at time period on April 27, 2004.” The judgment imposed the condition that the Figueroas be allowed to visit with the child when the Woodrums travel to Georgia.

On May 1, 2003, the Woodrums filed a Petition for Intrafamily Adoption of M.K.M.F. On May 12, 2003, Mrs. Figueroa contacted the court requesting revocation of the Voluntary Transfer of Custody. The two matters were consolidated for trial. Following a hearing, the Juvenile Court denied the Petition lafor Intrafamily Adoption, and further ordered that the Voluntary Transfer of Custody be dismissed, and that M.K.M.F. be returned to her parents. It is from this judgment that the Woodrums appeal.

Shortly after the judgment was rendered, the Woodrums filed an application and Motion for Stay in this Court. The writ/motion urged that the Juvenile Court committed error in failing to find that they proved the parents failed to communicate with the child for a period of six months, and further, in finding that if the parents revoked their consent to the voluntary transfer, the child should be returned to them without a finding by the Court of the best interests of the child pursuant to La. Ch. C. art. 1523. This court granted the stay and ordered a transcript of the Juvenile Court proceedings. We held:

We have carefully reviewed the transcript which was received by this Court on September 17, 2003, the reasons for judgment provided by the trial court and the applicable law and jurisprudence. Under the circumstances presented in this case, we are unable to conclude that the trial court abused her discretion in ordering that the custody of minor child, MKMF, be transferred to her biological parents pursuant to the specific directives of the trial court. Accordingly, relators’ writ application is denied and the stay order entered by this Court on August 26, 2003 is hereby lifted.

The Figueroas argue in brief that M.K.M.F. was returned to them in Georgia in September, 2003.

The threshold issue is the “law of the case” principle. The law of the case principle is a discretionary guide which relates to, for our purposes, the rule that an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case.

It applies to all prior rulings or decisions of an appellate court or the supreme court in the same case, not merely those arising from the full appeal process. The reasons for the law of the case doctrine is to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue.

14An appellate court’s denial of supervisory writs does not bar reconsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion on the issue. Reconsideration is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results.

In our prior ruling, we considered the substantive issues presented by the application, following trial on the merits. No further events took place in the trial court prior to the filing of this appeal. In this regard, we note that some cases have held a writ denial which considered the substantive issue raised on appeal is given effect as the law of the case. The Fourth Circuit considered a situation in which the same issue was brought on appeal as had been previously considered, in the same case, by the same parties, in an application for supervisory writs. The application was denied, and the court determined that its prior ruling should be regarded as the law of the case:

Of course, if we merely deny a writ application, without considering the substance of the issue raised, simply because we do not believe that the situation is appropriate for our exercise of our supervisory jurisdiction, then there is no “decision” as to that issue to be given effect as the law of the case. However, in the present case, we did decide the issue presented by the prior writ application and exactly the same issue is presented by the present appeal ....
If the court of appeal merely declines to exercise its supervisory jurisdiction, because it feels that the situation is not appropriate for such exercise (e.g. the issue is better raised for the first time by appeal from a final judgment), and does not decide the substance of the issue raised by the writ application then there is no “decision” as to that issue to be given effect as the law of the case. If the court of appeal does decide the substance of an issue raised by an application for supervisory writs, then that decision will be given effect later as the law of the case just as if that decision had been rendered upon an appeal.

|fiSimilarly, other courts, including our own, have determined that in the absence of palpable error or manifest injustice, it would not reconsider issues previously raised on writs which were denied.

In the present case, we find that the writ panel of this court clearly considered the substance of the issues raised on this appeal, and we see neither palpable error nor manifest injustice in our prior ruling. While we find that our former ruling denying writs pertaining to return of custody to the Figueroas is conclusive, we elaborate on the reasons why writs were denied in the first instance.

The trial court gave sixteen pages of extensive and detailed Reasons for Judgment. These reasons analyzed each of the elements of La. C.Ch. art. 1523 and found that it would be in the best interests of M.K.M.F. to grant the revocation of the voluntary transfer of custody. Art. 1523 states:

A. Upon failure of a custodian to return a child after revocation of the parent’s consent, the parent may move for dismissal of the proceedings and for the return of the child to their custody.
B. The motion to dismiss shall be set for contradictory hearing with the custodians.
C.In making its determination of the best interests of the child, the court shall consider the following:
(1) The length of the parent/child separation.
(2) The current fitness of the parent.
(3) The frequency of contact between the parent and child during the separation.
(4) The efforts made by the parent to exercise parental responsibilities during the separation, including support.
(5) The terms and conditions of the judgment.

It was found that although the Figuer-oas are not perfect parents, it would be in the best interests of the child that she be returned to their custody. In so doing, the court specifically questioned the credibility of the Woodrums and did not give much weight to their testimony. The determination of credibility is based upon the | fiobservation of the witnesses’ demeanor at trial, and is firmly established as being singularly within the factfinder’s province. The court correctly noted that in determining whether it would be in the child’s best interest to be returned to her parents, there was no requirement to take the fitness of the custodians into consideration. It was not a contest as to who could give M.K.M.F. the better life.

It was found that considering M.KM.F.’s age, the separation from her parents had not been too long so as to necessitate her remaining in the custody of the Woodrums. In determining the requirement of “current fitness of the parent” under the article, the court considered the definition of “parental fitness” as found in La. Ch. C. art. 1103(5) and analyzed the facts before it. There were no allegations of abuse. Although the Figueroas had difficulties with their finances and housing, the court found that their situation had stabilized. There were no allegations of illness, disability, conduct disorder, substance abuse, or chemical dependency which would make the parents unable to provide an adequate home. In the court’s opinion, the type of criminal convictions, which both the Figueroas had incurred years before the birth of M.K.M.F., did not pose a risk of any harm to her.

Analyzing the testimony, the court found that the frequency of contact between the Figueroas and M.K.M.F. was dictated and controlled by the Woodrums. The visits were limited due to the great distance between the parties, the active probation status of the parents, who could not leave Georgia until they caught up on restitution payments, and the denial of visits by the custodians. Even in Georgia, the court believed that the Woodrums controlled the visits. The efforts made by the parents to exercise parental responsibilities during the separation “were not easily accomplished by Mr. And Mrs. Figueroa considering the circumstance surrounding the placement ...” The court found that the parties had an understanding that the Fi-gueroas would not send support during the period of 17guardianship. Although it was determined that the Figueroas could have called to check on their daughter more often, their financial instability compounded their problems causing them to have limited access to long distance phone service. It was obvious to the court that the Woodrums had full intentions of completely destroying the relationship between M.K.M.F. and the Figueroas. Taking all factors into consideration, the court “unequivocally determined that it is without a doubt in [M.K.M.F.’s] best interest that she return to the custody of her parents ...” Finally, the court noted that the Voluntary Transfer would have automatically expired on its own terms on April 27, 2004, at which point custody would have reverted back to the parents unless parental rights were terminated in the adoption proceeding.

On the adoption petition, the court found that the Woodrums failed to prove the consent of the Figueroas was not needed. Under La. Ch. C. art. 1245, when an intra-family adoption is filed, parental consent is not necessary when:

B. When a petitioner authorized by Article 1243 has been granted custody of the child by a court of competent jurisdiction and any one of the following conditions exists:
(1) The parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

The only applicable portion of the statute is (B)(2). The court found that the Woodrum’s claim, that M.KM.F.’s parents failed to see her for two separate periods of six months each, was not true. The Figueroas claimed to have visited with M.K.M.F. in Georgia in August 2002, and both wrote and telephoned the child, interrupting the first six month period in dispute. The second six month period was interrupted by a request to see the child at Christmas and at Easter, which visits were denied by the Woodrums. Therefore, the petition for adoption was denied.

|sThe court applied the law properly to the facts of the present case. The record, including the transcript made a part of the writ application, amply supports each finding made by the court. Finding no palpable error nor manifest injustice in our prior decision, the judgment of the trial court is affirmed. Costs of this appeal are taxed to the Woodrums.

AFFIRMED.

CHEHARDY, J., dissents without reasons.

      . In Re: Adoption of MKMF, 03-C-1000, 9/24/03.

      . Shaffer v. Stewart Const. Co., Inc., 03-971 (La.App. 5 Cir. 1/13/04), 865 So.2d 213, citing Jones v. McDonald’s Corp., 97-2287 (La.App. 1 Cir. 11/6/98), 723 So.2d 492, 494 (some citations omitted).

      . State v. Davis, 03-488 La.App. (5 Cir. 11/12/03), 861 So.2d 638.

      . Tsatsoulis v. City of New Orleans, 99-2544 (La.App. 4 Cir. 8/30/00), 769 So.2d 137, writ not considered, 01-684 (La.5/4/01), 791 So.2d 647; see also

      . Franklin Southland Printing Co., Inc. v. New Orleans Aviation Bd., 99-60 (La.App. 5 Cir. 7/27/99), 739 So.2d 977; Ficarra v. Mount Vernon Fire Ins. Co., 527 So.2d 493, 494 (La.App. 5 Cir.1988). Also see Green v. K-Mart Corp., 2001-675 (La.App. 3 Cir. 6/18/03), 849 So.2d 814 (La.App. 3 Cir.2003); Bowie v. Young, 2001-0715 (La.App. 3 Cir. 3/20/02), 813 So.2d 562. But see Bonar v. Bonar, 00-232 (La.App. 5 Cir. 8/29/00), 768 So.2d 194.


text:
    STATE of Louisiana v. Stanley ONSTEAD.
    No. 03-KA-1413.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Cameron M. Mary, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Ralph S. Whalen, New Orleans, LA, for DefendantyAppellant.
   | .MARION F. EDWARDS, Judge.

Defendant, Stanley Onstead, appeals his conviction for molestation of a juvenile over whom he had supervision or control, in violation of LSA-R.S. 14:81.2. Olmstead pled not guilty at arraignment, and after a bench trial on May 1, 2002, the trial judge found him guilty as charged.

According to nine-year-old J.M.’s trial testimony, Onstead touched her inappropriately and compelled her to touch him inappropriately while she was at his house. J.M. testified that “Mr. Stan,” (Onstead) lived near her home, and that she, her sister, Melissa, her brother, Billy, and some of their friends frequently visited Onstead, who was 55 years old at the time of trial. J.M. stated that Onstead provided art supplies for the children to use at his house. While there, J.M. and the other children also made popcorn, ate cereal, and watched television. The children played on Onstead’s computer, which had several children’s games. Onstead bought J.M. art supplies, toys, and clothing. According to J.M., while Onstead also purchased some things for Billy and Melissa, J.M. always received more. In [ .addition, On-stead purchased memberships for the children at Elmwood Fitness Center, where J.M. participated in gymnastics, also at Onstead’s expense. Onstead brought J.M. and the other children to Elmwood, where he videotaped J.M. during gymnastics.

J.M. said that the other children were not allowed to go upstairs at Onstead’s house, but Onstead occasionally took her upstairs. J.M. testified that Onstead would show her some clothing, money, and toys that his mother and brother had given him. Further, J.M. said that Onstead told her not to look when he dressed, and she said she did not.

According to J.M., Onstead touched her breasts, her vagina, and her “butt” while downstairs in the back room of his home, where he kept his computer, or in the living room, where the television was located. J.M. said this touching happened “[a] lot.” J.M. said that, when she was sitting on Onstead’s lap, he would start “digging underneath” her clothing. According to J.M., Onstead touched her under and on top of her clothing. J.M. testified that Onstead also made her touch and “squeeze” his “front private” on one or two occasions. According to J.M., something “[ylellow and sticky” came out of On-stead’s “front private” when she touched it. J.M. testified that Onstead told her not to tell anyone or she would not be able to come to his house anymore.

J.M.’s mother, Mrs. M., testified that Onstead was a “mentor” to the neighborhood children. Onstead also provided significant financial assistance to Mrs. M, even paying her rent when she had been threatened with eviction. Further, On-stead paid some of the utility bills and brought her to Bridge House where she obtained an automobile. Mrs. M., who had been separated from her husband for more than one year, acknowledged she was romantically interested in Onstead, but never pursued her interests. According to Mrs. M., Onstead focused more attention on J.M. Mrs. M. said that Onstead videotaped J.M. during gymnastics hand that she had seen one of the videotapes when Onstead allowed her to view the tape through the video camera. However, Onstead kept the tapes and did not give Mrs. M. any copies of them.

Mrs. M. also testified that J.M. had a medical problem in which she had suffered nerve damage to her “bowel area.” As a result, J.M. would sometimes have an accident in her clothing. Mrs. M. discussed J.M.’s medical problem with Onstead and he kept extra clothing for J.M. at his home. However, Mrs. M. testified that she never gave Onstead permission to touch J.M. to determine whether J.M. had an accident in her clothing. According to Mrs. M., it would have been “obvious” if an accident had occurred. Mrs. M. testified that she suspected “something out of the ordinary” between Onstead and her children. Although Mrs. M. asked J.M. on a “daily basis,” if Onstead had touched her, J.M. always replied negatively.

One day in October of 2000, when J.M.’s father, Mr. M., was visiting the children at J.M.’s house, J.M. revealed that Onstead had touched her. J.M.’s disclosure was prompted after Mr. M. became suspicious when his son, Bill, commented that Mr. M’s navel resembled Onstead’s navel. Thereafter, Mr. M. asked Bill whether On-stead had ever touched him, and Bill replied that Onstead had tickled him on the stomach. Mr. M. went into the living room, sat down next to J.M. and asked if Onstead had ever touched her. When J.M. nodded, Mr. M. asked her where she had been touched. Mr. M. testified that J.M. placed her right hand over her left breast. Thereafter, J.M.’s mother, Mrs. M., who was sitting in a chair in the living room, took J.M. aside and talked to her. Mr. M. told Mrs. M. that they needed to talk to the police and that J.M. should be questioned before the matter went any further.

J.M. acknowledged at trial that her mother frequently asked her if Onstead had touched her, and she always responded negatively. J.M. said that she could |Rnot explain why she had never told her mother, and that she “just felt ... like telling [her] dad.” Mr. M. acknowledged that he had prior convictions for D.W.I., possession of marijuana, and possession of Demerol.

At trial, Mrs. M. identified a birthday card that J.M. received from Onstead in November of 2000. The inside of the card is signed, “Happy birthday. Love ya’ Mr. Stan.” The envelope contains the written message, “Happy birthday, [J.M.]. XXOOXX.” Around the same time, On-stead wrote Mrs. M. two letters in which he urged her to contact him, and which accompanied a Thanksgiving turkey for the family. Mrs. M. testified that Onstead asked her not to press charges and desired to resolve the situation out of court. Mrs. M. testified that as a result of the sexual abuse, J.M. was undergoing weekly treatment at the time of trial.

Onstead testified that he is self-employed in the water filtration business, and also deals in “rare” books, estimating that his collection was worth $750,000 to one million dollars. He testified that he had many valuables, such as old toys and dolls, that were kept upstairs to protect them from damage. According to Onstead, the children were not allowed upstairs.

Onstead denied that he had ever touched J.M. in a sexual manner and said he had never been arrested before. According to Onstead, he has lived in the New Orleans area since 1996. In February of 2000, Onstead met some of the neighborhood children, including J.M., her siblings, and some of their friends. After he introduced himself to the parents of the children, the children frequently came over to his house. Onstead acknowledged that he purchased crayons, paints and paper for the children, and that they also watched television at his house.

Onstead testified that he paid for health club memberships for J.M., her siblings, and their friends. He also paid for J.M. to attend gymnastics at the health club, although he had also offered the opportunity to the other children as well. According to Onstead, only J.M. was interested in gymnastics. Onstead also stated [(¡that he videotaped J.M. during gymnastics because Mrs. M. did not come to watch J.M. very often, although he also videotaped the other children as well. While Onstead initially said that he showed no preferential treatment to any of the children, he later admitted that J.M. was his “favorite.” According to Onstead, J.M. seemed to “crave” or “want” more attention, and that J.M. made a point to be “nice to [him].”

With regard to J.M.’s medical problem, Onstead claimed that J.M. cried to him about other children calling her names. According to Onstead, he knew by the smell that J.M. had an accident in her pants the first time it happened. The next time J.M. had an accident, Onstead asked Mrs. M. about the problem. Onstead said Mrs. M. told him that the nerve damage was so severe that J.M. would frequently not be able to tell if she needed to go to the bathroom or whether she had gone. Thereafter, Onstead bought some underwear and some shorts for J.M., with Mrs. M.’s knowledge, to keep at his house.

Onstead said that if he believed that J.M. had soiled herself, then he would ask her. Sometimes J.M. replied negatively, and he would “feel her little bum” to determine whether she had an accident in her pants. According to Onstead, he did not accompany J.M. to the bathroom when she cleaned herself. Once she had taken care of herself, Onstead would clean out her underpants and put them in the washing machine.

Onstead explained that he bought things for J.M. and her siblings because he enjoyed the kids and because of their situation at home. According to Onstead, the children seldom received anything to eat and came to his house in dirty clothing. Onstead said that Mrs. M. told him that her sister wanted to remove the children from the home because of Mrs. M’s drug and alcohol problems. However, Onstead said he never called Child Protection because he did not believe it was |7necessary. Onstead acknowledged that, in hindsight, he could understand why his attention to the children “doesn’t look right.”

At the end of September 2000, the children stopped coming over. Onstead went to Mrs. M.’s to see if anything was wrong. Onstead said that Mrs. M. told him what J.M. had said to her father. According to Onstead, Mrs. M. did not believe the allegations, and said that J.M. had later denied the allegations. Onstead said that he was arrested on October 31, 2000.

On appeal, Onstead contends the evidence is legally insufficient to support his conviction because the State failed to prove that he had control or supervision of the juvenile and because the victim’s testimony was not credible. The State responds that the evidence was sufficient because the trial judge found the victim’s testimony was believable and because it proved all of the elements of the offense beyond a reasonable doubt.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the court, is sufficient to support a conviction or convictions.

Molestation of a juvenile is defined in LSA-R.S. 14:81.2 as follows:

A. Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological' intimidation, threat of great |sbodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

Thus, the State must prove beyond a reasonable doubt that (1) the accused was over the age of seventeen, (2) the accused committed a lewd or lascivious act upon the person or in the presence of a child under the age of seventeen, (3) the accused was more than two years older than the victim, (4) the accused had the specific intent to arouse or gratify either the child’s sexual desires or his own sexual desires, and (5) the accused committed the lewd' or lascivious act by use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Specific intent is a state of mind and may be inferred from the circumstances and actions of the accused.

The bill of information specifically alleges that Onstead molested J.M. by having a position of control or supervision. In his appellate briefs, Onstead contends that the State failed to prove that he had a position of control or supervision over J.M. According to Onstead, he never had supervision over J.M. while she was at his house. In support of his argument, he cites several cases in which the defendant lived in the home or was related to the child victim. Although the usual scenario may be that the offender is related to the victim or lives in the home, the statute does not mandate these circumstances.

Despite his contentions to the contrary, the record contains evidence, which if believed by the trier of fact, appears to support a finding that Onstead molested J.M. by the use of influence by virtue of his position of control or supervision over J.M. Onstead testified that he asked J.M.’s mother for permission to have her children at his home. His testimony indicates that he had rules for the children to | flfollow at his home, in that he did not allow the children upstairs. Further, the record reflects that Onstead performed caretaking functions for J.M. while she was at his home. When she soiled herself at his house, he cleaned her underpants and told her to wash her hands. With Mrs. M.’s permission, he took J.M. on errands, picked her up from school, and brought her to gymnastics. He bought her .toys, clothes and other gifts. Further, J.M.’s testimony indicates he compelled her silence by telling her that she would not be allowed to come to his house anymore if she revealed that he had made her touch him.

Considering the foregoing, we find that the evidence was sufficient to prove that Onstead used influence by virtue of a position of control or supervision, within the meaning of LSA-R.S. 14:81.2, to take advantage of J.M. and to indulge himself. Next, Onstead contends that the evidence is insufficient because no rational trier of fact could have believed J.M.’s testimony. He claims that J.M.’s testimony was not credible because of conflicts between her testimony and that of her parents. According to Onstead, J.M: testified that her grandmother lived in the home at the time of the incident, while Mrs. M. testified that the grandmother lived with them at the time of trial. On direct-examination, J.M. testified that her grandmother lived with them at the time of trial. On cross-examination, J.M. was asked about the people who lived with her at the time she told her dad about the allegations. She replied that it was the same people she had mentioned earlier, and she answered affirmatively when counsel named her grandmother. We find it reasonable to infer from the context of the child’s answers, that she was confused by the question on cross-examination, not that she lied.

Onstead also contends that J.M.’s testimony was not credible because she initially reported that he touched her breast, while she testified at trial that he touched her in three places. Further, Onstead asserts the evidence reflects that J.M. lied about her bowel problem. However, as the trial court found when denying 1 inOnstead’s motion for a judgment of acquittal, J.M. admitted that she had accidents. As pointed out by the trial judge, J.M. may not equate the fact that she had accidents in her pants with a bowel “problem.”

In finding Onstead guilty as charged of molestation of a juvenile, the trial judge found J.M. to be a credible witness and provided oral reasons in support of the verdict. Specifically, the court found it significant that J.M. gave such a detailed description as to what happened when J.M. touched Onstead’s penis. The trial judge pointed out that J.M. would not have known this information unless it had happened to her, and stated that she had no reason to disbelieve J.M. In particular, the trial judge noted that J.M. had given up a lot in order to come and testify, as she was no longer able to participate in the activities Onstead had paid for, and was not able to have any new clothes or other things that Onstead gave her.

Although Onstead contends that J.M.’s testimony was not believable, the trial judge clearly found otherwise. It is the role of the fact-finder to weigh the respective credibilities of the witnesses, and a reviewing court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. The appellate court is not permitted “ ‘to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.’ ” After reviewing the record, we find that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution could have concluded beyond a reasonable doubt that Onstead was guilty as charged. This assignment of error has no merit.

Onstead also contends that the trial judge erred in denying his motion for a new trial based on newly discovered evidence, and in order to serve the ends of 11 Justice. According to Onstead, evidence of the fact that he passed two polygraph tests, and expert testimony from Dr. Pel-legrin (that he did not have the traits of a pedophile) compels a new trial. Onstead also contends the trial judge erred in excluding the opinion of Dr. Pellegrin that J.M.’s testimony could have been influenced by other external factors. Finally, Onstead contends that the trial judge erred in excluding testimony from his psychologist, Dr. Galloway, that he had not observed any indication that he (Onstead) was a pedophile.

At the hearing on the motion for new trial on January 31, 2003, Dr. Pellegrin, an expert clinical psychologist, testified that she had administered the Minnesota Mul-ti-Phasic Personality Inventory II test to Onstead and that he did not show any evidence of deviant sexual behavior or evidence of sexually deviant behavior regarding children. Dr. Pellegrin also testified that the Sexual Abuse Inventory test did not reveal any signs usually associated with sexual offenders. Further, Dr. Pel-legrin testified that she had concerns about the validity of the child’s report because the mother’s trial testimony revealed that the mother repeatedly asked the child whether she had ever been touched. According to Dr. Pellegrin, repeating such a question to a child could lead to a false report. The trial judge sustained the State’s objection to the entirety of Dr. Pellegrin’s testimony on the basis that it was not newly discovered evidence. The court allowed Onstead to proffer the remainder of Dr. Pellegrin’s testimony.

The court also ruled that the testimony of Dr. Galloway, was not admissible because it was irrelevant, not only because the testimony related to Dr. Galloway’s post-trial treatment of Onstead but also because it was not newly discovered evidence. Onstead asserted that he would proffer Dr. Galloway’s testimony by way of a written report, but the record does not contain any reports by Dr. Galloway.

hiAt the hearing, Onstead asserted that he had taken a polygraph test before and after trial. The defense and the State joined in a stipulation that the polygraph examiners would testify consistent with their reports, that Onstead was truthful when he denied that there had been any inappropriate touching, or that any of the allegations of the offense were true. The trial judge stated for the record that she was aware of the results of the polygraph before trial. Additionally, the defense and State stipulated that several family members were present at the hearing who would testify, if called, that the allegations made in this case are not consistent with their knowledge of Onstead. Finally, On-stead offered the video taped interview with the child as an exhibit under seal. The trial court held the matter open, and on February 28, 2003, denied the motion for new trial on the basis that Onstead did not present any evidence that could not have been discovered before trial.

A motion for new trial is based upon the supposition that an injustice has been done to the defendant, and, unless such injustice is shown, the motion shall be denied no matter upon what allegations the new trial is grounded. LSA-C.Cr.P. art. 851. According to Article 851, the court shall grant a new trial upon the defendant’s motion under the following circumstances:

(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
11S(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

A defendant seeking a new trial based on newly discovered evidence must establish that: 1) the evidence was discovered since the trial, 2) failure to learn of the evidence prior to trial was not due to defendant’s lack of diligence, 3) the evidence is material to the issues at the trial, and 4) the evidence is of such a nature that it would probably produce a different verdict in the event of a retrial. The ruling on a motion for new trial is within the sound discretion of the trial judge and will be disturbed on appeal only when there is a clear showing of abuse of that discretion.

At the hearing, Onstead argued for a new trial in his case on the basis of newly discovered evidence, and in order to serve the ends of justice. This Court has previously held that a claim for new trial based on the ground that the ends of justice would be served presents nothing for appellate review.

Regarding the polygraph tests, the Louisiana Supreme Court has recognized that polygraph evidence, while inadmissible at trial, may be admissible at a hearing on a motion for new trial under certain circumstances. In the present case, the trial judge specifically stated that she was aware of the polygraph results prior to trial. The court obviously did not believe that the two examinations warranted a new trial, and that decision was soundly within the judge’s discretion.

Further, Onstead did not show that, notwithstanding the exercise of reasonable diligence, the testimony of Dr. Pel-legrin and Dr. Galloway was not discoverable before or during trial. Additionally, even if it were newly discovered |14evidence, we do not find that the testimony was material and would have produced a different result. The trial judge stated at the motion for new trial hearing that she had seriously considered all of the issues at trial and did not reach the guilty verdict lightly. After carefully reviewing all of the evidence, we are unable to conclude that the evidence would have produced a result other than a verdict of guilty as charged.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920. On review, we note that the trial transcript reflects that while defense counsel waived a jury trial on Onstead’s behalf, the minute entry is silent on this issue. Further, we find the validity of the waiver to be in question. Under LSA-R.S. 14:81.2, Onstead was entitled to a jury trial of six persons. Although the right to a jury trial may be waived in non-capital cases, it must be “knowingly and intelligently” waived. LSA-C.Cr.P. art. 780(A). Waiver of this right is never presumed.

In the present case, at the very start of the trial the following exchange occurred in Onstead’s presence:

THE COURT:
All right. Opening statement, State?
MR. MARY:
Judge, I believe Mr. Onstead has to waive—
THE COURT:
Oh, yeah. Waive—
MR. WHALEN:
Oh, I’m sorry, Your Honor. Yes. For the record, we would waive a jury, trial in the matter and request that Mr. Onstead be tried by the Judge alone.
THE COURT:
All right. Opening statement, State?

This Court has previously held, on error patent review, that similar exchanges do not, in and of themselves, constitute a valid waiver of the | ^defendant’s right to a trial by jury. Our Supreme Court has noted that while it is preferable for the trial court to advise a defendant of the right to trial by jury in open court before obtaining a waiver, it is not statutorily required. Additionally, the court declared that it is preferable, but not necessary, for a defendant to personally waive the right to a jury trial. “... [c]ounsel may waive the right on the defendant’s behalf, provided that the defendant’s decision to do so was made knowingly and intelligently.” In that case, defense counsel specifically stated that he and his client had discussed the waiver at length on several occasions, and that both had agreed to the waiver. In the present matter, defense counsel did not refer to any discussion with Onstead on this issue. Thus, there is no indication on the record that Onstead knowingly and intelligently waived his right to a jury trial.

For this reason, we are compelled to remand the matter, and will adhere to the procedure previously set out by the Supreme Court, instructing the trial court to conduct an evidentiary hearing solely to determine whether or not Onstead affirmatively waived his right to a jury trial.

For the foregoing reasons, we conditionally affirm the conviction and sentence, and remand the matter to the trial court for an evidentiary hearing to determine whether Onstead validly waived his right to a jury trial.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; HEARING ORDERED ON ISSUE OF VALID WAIVER OF JURY TRIAL.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tilley, 99-569 (La.7/6/00), 767 So.2d 6, 24, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001).

      . State v. Breaux, 02-382 (La.App. 5 Cir. 10/16/02), 830 So.2d 1003, 1009.

      . State v. LeBlanc, 506 So.2d 1197, 1199 (La.1987); State v. Breaux, 830 So.2d at 1010.

      . State v. Graham, 420 So.2d 1126, 1127 (La.1982).

      . See e.g. State v. Davis, 97-331 (La.App. 3 Cir. 10/29/97), 702 So.2d 1014, writ denied, 97-2990 (La. 11/6/98), 726 So.2d 919.

      . State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). Accord, State v. Wallace, 00-1745 (La.App. 5 Cir. 5/16/01), 788 So.2d 578, 584, writ denied, 01-1849 (La.5/24/02), 816 So.2d 297.

      . State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50, (quoting State v. Mussall, 523 So.2d 1305, 1311 (La.1988)).

      . See, State v. Brisban, 00-3437 (La.2/26/02), 809 So.2d 923, 931; State v. Knapper, 555 So.2d 1335, 1339 (La.1990).

      . State v. Tracy, 02-0227 (La.App. 5 Cir. 10/29/02), 831 So.2d 503, 512, writ denied, 02-2900 (La.4/4/03), 840 So.2d 1213.

      . See, State v. East, 99-1379 (La.App. 5 Cir. 7/25/00), 768 So.2d 173, 179, writ denied, 01-3025 (La. 10/25/02), 827 So.2d 1167.

      . See, State v. Robertson, 97-0177 (La.3/4/98), 712 So.2d 8, 35-36, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998).

      . See State v. Humphrey, 445 So.2d 1155 (La.1984).

      . State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. McCarroll, 337 So.2d 475, 480 (La.1976).

      . State v. Pierre, 98-1123 (La.App. 5 Cir. 4/14/99), 733 So.2d 674, 679; State v. Terrase, 02-1009 (La.App. 5 Cir. 2/25/03), 841 So.2d 947, 950.

      . State v. Pierre, 02-2665 (La.3/28/03), 842 So.2d 321.

      . Id.

      . See State v. Nanlal, 97-786 (La.9/26/97), 701 So.2d 963, 963-964; State v. Hampton, 00-1002 (La.App. 5 Cir. 1/23/01), 782 So.2d 1045.