author: 1 .THIBODEAUX, Judge.

text:
    Kathleen Ceasar THOMAS v. Maison DE ST. JAMES.
    No. 02-729.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 29, 2003.

      Michael B. Miller, Crowley, LA, for Plaintiff/Appellant Kathleen Ceasar Thomas.
    John J. Rabalais, Janice B. Unland, Robert T. Lorio, James C. Arceneaux, Ra-balais, Unland & Lorio, Covington, LA, for Defendant/Appellee Maison De St. James.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS and JIMMIE C. PETERS, Judges.
   1 .THIBODEAUX, Judge.

In this workers’ compensation case, Kathleen Ceasar Thomas appeals a summary judgment rendered by the workers’ compensation judge (WCJ) in favor of Mai-son De St. James (Maison) pursuant to La.R.S. 23:1208. The WCJ found that Ms. Thomas committed fraud when she worked for wages while continuing to receive workers’ compensation indemnity benefits in the form of temporary total disability benefits (TTD). Ms. Thomas also asserts that the WCJ did not follow proper summary judgment procedure pursuant to La. Code Civ. P. art. 966 in that she allowed the introduction of an affidavit on the date of the hearing on Maison’s motion for summary judgment.

I.

ISSUE

The issue in this case is whether the WCJ erred by granting St. James’ summary judgment finding that Ms. Thomas violated La.R.S. 23:1208.

II.

FACTS

Ms. Thomas was employed as a certified nurse assistant (CNA) at Maison, a nursing home facility and began her shift at 6:00 a.m. On March 22, 2001, she was assigned to work in “section A” of the facility. The patients in “section A” are totally incapacitated. However, an hour and a half into her shift, she was assigned to work in “section B” of the facility where there are both incapacitated patients and patients who can somewhat take care of themselves. At approximately 8:15 a.m. Ms. Thomas, without help from another CNA, attempted to assist a totally incapacitated patient from her bed to a commode in her room. First Ms. Thomas sat the patient up Lin bed, placed her arms underneath the patient’s arms and turned her body toward the commode. Ms. Thomas testified in her deposition that the patient was a big lady. Ms. Thomas was able to get the patient onto the commode chair, but while pivoting her from the bed to the commode, the patient’s body went one way while Ms. Thomas went the other. It was at that point that Ms. Thomas felt something pull in the center of her upper back. Although she was able to get the patient on the commode, she was unable to return the patient to the bed due to the pain in her back. Ms. Thomas reported the pain to her supervising nurse, Kim Bias (Nurse Bias). With the assistance of Nurse Bias, Ms. Thomas was able to get the patient back into the bed.

Ms. Thomas testified in her deposition that she was able to work a few more hours, but was unable to finish her shift. At approximately 10:00 a.m., the nursing home administrator, Mr. Fellows, called Ms. Thomas into his office and told her to go home. Mr. Fellows was able to get an afternoon doctor’s appointment for Ms. Thomas. That afternoon, Ms. Thomas saw Dr. Seep. By the time she saw Dr. Seep, she was experiencing pain in both her upper and lower back. Dr. Seep ordered that Ms. Thomas undergo physical therapy. Ms. Thomas underwent physical therapy for about two weeks. During this time she was not at work and about three weeks after the accident, she began receiving workers’ compensation indemnity benefits.

Ms. Thomas decided to meet with a lawyer. It was at this time she requested to be seen by another doctor. Ms. Thomas saw Dr. Cobb on August 1, 2001. She testified in her deposition that the pain in her back had worsened. Ms. Thomas’ treatment with Dr. Cobb included diagnostic x-rays, an MRI and pain medication. She did not get the results of the MRI and she did not see Dr. Cobb again because workers’ compensation would not pay for the visit.

LOn May 9, 2001, Ms. Thomas filed a disputed claim for compensation. In her disputed claim, Ms. Thomas alleged that she was being underpaid weekly compensation benefits, that she was not allowed her choice of physician and her prescriptions were not being paid. In connection with defending the case, Maison took Ms. Thomas’ deposition on October 2, 2001. During the course of the deposition, Ms. Thomas admitted that she was working as a sitter for an elderly gentleman from mid-June through August 2001 for seven days a week, eight hours a day. Ms. Thomas described her job duties as basically keeping him company because he was mobile and could do a lot of things on his own. She further admitted that she was paid $6.00 per hour in cash. Ms. Thomas’ job sitting for the elderly gentleman ended when he had a stroke and had to be hospitalized. She did not report to her employer or the OWC that she was receiving money. Ms. Thomas claimed that she did not know there was a problem with earning money at the same time she received workers’ compensation indemnity benefits although she admitted that she signed “Form 1025 Certification of Compliance” that informed her that it was unlawful to willfully make false statements or misrepresentations in order to obtain workers’ compensation benefits.

Consequently, on November 16, 2001, Maison filed a motion for summary judgment alleging that Ms. Thomas violated La.R.S. 23:1208. The WCJ granted Mai-son’s motion. It is from this judgment that Ms. Thomas appeals, requesting that this court reverse the judgment of the WCJ and remand for further proceedings.

Jill.

LAW AND DISCUSSION Summary Judgment

In Baker v. Murphy Oil USA, Inc., 01-1299, pp. 3-4 (La. 4 Cir. 4/10/02); 816 So.2d 329, 331, the fourth circuit explained the summary procedure as follows:

The appellate court standard of review of summary judgments is de novo. Smith v. Our Lady of the Lake Hospital, [93-2512 (La.7/5/94); 639 So.2d 730]; Walker v. Krpop, 96-0618 (La.App. 4 Cir. 7/24/96); 678 So.2d 580. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Two Feathers Enterprises v. First National Bank, 98-0465 (La.App. 4 Cir. 10/14/98); 720 So.2d 398, 400. This procedure is now favored and shall be construed to accomplish these ends. La.Code Civ.P. art. 966(A)(2). This standard of review requires the appellate court to look to the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to show that there is no genuine issue as to a material fact, and that the mover is entitled to a judgment as a matter of law. La.Code Civ.P. art. 966(B). In order to prevail on a motion for summary judgment, the movant must show “that it is quite clear as to what the truth is, and that excludes any real doubt as to the existence of material fact.” South Central Bell Telephone Co. v. Sewerage and Water Board, 95-0949 (La.5/19/95); 654 So.2d 1090. Both the evidence and all inferences drawn from the evidence must be construed in favor of any party opposing the motion, and all doubt must be resolved in his favor. When faced with a supported motion for summary judgment, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.Code Civ.P. art. 967; Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97); 702 So.2d 323, 326. The initial burden of proof remains with the mover and is not shifted to the nonmoving party until the mover has properly supported the motion and carried the initial burden of proof. Only then must the court consider the evidence in support of the opposition showing the existence of specific facts establishing a genuine issue of material fact. Scott v. McDaniel, 96-1509 (La.App. 1st Cir.5/9/97); 694 So.2d 1189, 1191-92. If the mover carries the burden and the non-moving party fails to show in his opposition that there 14s no genuine issue of material fact, summary judgment should be granted. La.Code Civ.P. arts. 966 and 967. Pursuant to La.Code. Civ.P. art 966(C)(2), what the mover of a summary .judgment must prove depends on [the] party [that] will bear the burden of proof at trial. The defendant need not negate all essential elements of the plaintiffs claim, action or defense, but can rather simply point out to the court that there is an absence of factual support for one or more elements of the claims.

Thus, in the present case, once Maison negates a necessary element of Ms. Thomas’ claim, the burden then shifts to Ms. Thomas to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial. Moody v. City of New Orleans, 99-0708 (La.App. 4 Cir. 9/13/00); 769 So.2d 670, writ denied, 00-2809 (La.12/8/00); 776 So.2d 468. “Whether or not a true ‘material fact’ exists ... is based on whether [it is] a fact “whose existence or nonexistence may be essential to appellant’s cause of action under the applicable theory of recovery, i.e. one that would matter on trial of the merits.’ ” Id. at 671.

Louisiana Revised Statutes 23:1208

Ms. Thomas admitted that she worked a full time job, earning more than her pre-injury wages, while still receiving TTD benefits, and that she failed to inform the OWC about this employment. Louisiana Revised Statutes 23:1208 provides for penalties with respect to misrepresentations concerning workers’ compensation benefit payments as follows:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
* * *
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

(¡The Louisiana Supreme Court in Resweber v. Haroil Construction Company, 94-2708, p. 7 (La.9/5/95); 660 So.2d 7, 12 interpreted and applied the provisions of La.R.S. 23:1208:

Section 1208 is clear and unambiguous and as such will be applied as written. La.Civ.Code art. 9; La.R.S. 1:4. Section 1208 clearly applies to any willful false statements or representations made “for the purpose of obtaining or defeating any benefit or payment.” Section 1208 has no language limiting it to only certain types of false statements, i.e., statements other than those relating to prior injuries. The legislature has imposed no notice requirements in Section 1208, apparently being of the opinion that any claimant should be on notice that false statements made willfully for the purpose of obtaining workers’ compensation benefits will not be tolerated and will result in the forfeiture of those benefits. The only requirements for forfeiture of benefits under Section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.

Thus, to prevail on its La.R.S. 23:1208 claim, Maison had to prove three things, (1) a false statement or representation, (2) willfully made by Ms. Thomas, and (3) made for the purpose of obtaining any workers’ compensation benefit or payment.

At the hearing on Maison’s motion for summary judgment, Maison presented OWC Form 1025 “Certification of Compliance” signed by Ms. Thomas. The certification of compliance informed Ms. Thomas that it was unlawful to receive both workers’ compensation benefits, with the exception of supplemental earnings benefits (SEB), and earn wages at the same time. The form also advised that it was unlawful for her to willfully make a false statement or misrepresentation to obtain workers’ compensation benefits as well as the penalties therefore. Further, the compliance certification advised Ms. Thomas that she must notify her employer or insurer of “the earning of any wages, changes in employment or medical status, receipt of social security benefits, and receipt of retirement benefits.” In her 17deposition, Ms. Thomas admitted that she could read and write the English language and that she signed the form. In connection with its proof that Ms. Thomas was advised against making false statements and/or misrepresentations, Maison submitted the affidavit of its administrator, Mr. Hugh Fellows. Mr. Fellows’ affidavit simply stated that Ms. Thomas was asked and given the opportunity to read Form 1025 prior to signing the form.

Mr. Fellows’ affidavit was submitted to the court on the date of the summary judgment hearing. Ms. Thomas asserts that the WCJ erred when she allowed Maison to submit the affidavit on the date of the hearing in violation of La.Code Civ.P. art. 966(B), that requires any supporting affidavits to be served at least ten days before the date of the hearing. However, Maison served an unsigned copy of the affidavit on Ms. Thomas far more than ten days before the summary judgment hearing. All that was done on the date of the summary judgment hearing was to submit to the WCJ a signed copy of Mr. Fellows’ affidavit. The content of the affidavit timely served on Ms. Thomas and the one submitted to the WCJ at the summary judgment hearing was the same. In Stewart v. Carter, 33,203, p. 2 (La.App. 2 Cir. 5/10/00); 759 So.2d 297, 298, citing Anderson v. Allstate Insurance Company, 93-1102 (La.App. 1 Cir. 4/8/94); 642 So.2d 208, 213, writ denied, 94-2400 (La.11/29/94); 646 So.2d 404, the second circuit discussed the purpose for the ten-day period between service and hearing of the motion for summary judgment:

The requirement of La.C.C.P. art. 966(B) that the motion for summary judgment be served at least ten days before the time specified for the hearing is designed to give fair notice of the evidentiary and legal bases for the motion. The adverse party then has time to respond with evidentiary documentation of his own, either in the form of affidavits or discovery devices, and to be prepared to meet the legal argument of the moving party.

| sIt is clear in the present case that Ms. Thomas had fair notice of the contents of Mr. Fellows’ affidavit far in advance of the summary judgment hearing. Thus, this assignment of error is without merit.

Maison also introduced Ms. Thomas’ deposition taken by Maison in connection with its defense to Ms. Thomas’ action. In -her deposition, Ms. Thomas admitted that she worked a full-time job while still receiving TTD benefits, and that she did not inform Maison of this employment. At the hearing on the motion for summary judgment, Ms. Thomas did not come forward with any evidence to negate the fact that she committed fraud in obtaining workers’ compensation benefits in violation La.R.S. 23:1208. Therefore, in accordance with La.Code Civ.P. art. 966, we find that the WCJ was correct in granting Maison’s motion for summary judgment since there was no genuine issue of material fact concerning Ms. Thomas’ commission of fraud.

IV.

CONCLUSION

For the above reasons, the judgment of the workers’ compensation judge granting summary judgment to Maison de St. James is affirmed with all costs of this appeal assessed to Ms. Kathleen Ceasar Thomas.

AFFIRMED.


source: Caselaw Access Project

author: EZELL, J.

license: Public Domain

text:
    Herbert and Mary A. ROBIN v. ALLSTATE INSURANCE CO.
    No. 02-1029.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Judy Y. Barrasso, Stone, Pigman, Walther, et al, New Orleans, LA, for Defendant/Appellee: Allstate Ins. Co.
    Larry Lane Roy, Preis, Kraft & Roy, Lafayette, LA, for Defendant/Apellee: Marie Candice Hattan.
    Ped C. Kay III, Broussard & Kay, Lafayette, LA, for Plaintiffs/Appellants: Hebert Robin and Mary A. Robin.
    Russell Oliver Primeaux, Kean, Miller, Hawthorne, DÁrmond, McCowan, & Jar-man, L.L.P., Baton Rouge, LA, for Defendant/Appellee: Computer Sciences Corp.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   EZELL, J.

For the reasons discussed in the consolidated case, Robin v. Allstate Ins. Co., 02-689 (La.App. 3 Cir. 2/5/03), 844 So.2d 41, the judgment signed on July 12, 2002, granting the exception of no right of action and res judicata filed by Allstate is reversed. Costs of this appeal are assessed to Allstate.

REVERSED AND REMANDED.


author: L SULLIVAN, Judge.

text:
    Christopher L. CAFFERY v. Matthew D. WHITE, et al.
    No. 02-857.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2003.

      Norris J. Greenhouse, Greenhouse Law Office, L.L.C., Marksville, LA, for Plaintiff/Appellee, Christopher L. Caffery.
    Nolan J. Hammond, Attorney at Law, Alexandria, LA, for Defendant/Appellee, Heidi Perry.
    Andrew H. Meyers, Breaud & Lemoine, Lafayette, LA, for Defendants/Appellants, St. Paul Fire & Marine Insurance Co., Matthew D. White, Luhr Brothers, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   L SULLIVAN, Judge.

This litigation stems from an automobile accident of May 17, 1999, in which a pickup truck driven by Matthew White and owned by his employer, Luhr Brothers, Inc. (Luhr), struck the rear of a car driven by Heidi Perry shortly after Ms. Perry backed onto Louisiana Highway 1, near Alexandria, Louisiana, from a private drive. Ms. Perry and her passenger, Christopher Caffery, filed separate suits that were consolidated in the district court. After a bench trial, the trial court apportioned 75% fault to Mr. White and 25% fault to Ms. Perry, finding that Ms. Perry had successfully completed backing onto the highway and that Mr. White could have avoided the accident had he maintained a proper watch and slower speed. St. Paul Fire and Marine Insurance Company (St.Paul), as the alleged insurer of Mr. White, appeals the judgment in Mr. Caffery’s suit, and Mr. White and Luhr appeal the judgment in Ms. Perry’s suit.

Apportionment of Fault

St. Paul, Mr. White, and Luhr argue that the trial court erred in allocating 75% fault to Mr. White, the favored driver, and 25% fault to Ms. Perry, who had the higher duty of care in entering the highway from a private drive. They further contend that the record does not support a finding that Mr. White was guilty of any negligence.

The trial court’s apportionment of fault is a factual determination that will not be disturbed in the absence of manifest error. Duncan v. Kansas City S. Ry. Co., 00-66 (La.10/30/00); 773 So.2d 670, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). If an appellate court does reallocate fault after finding an abuse of the trial court’s discretion, it may do so only to the highest or lowest percentage of fault reasonably within that discretion. Clement v. Frey, 95-1119, 95-1163 (La.1/16/96); 666 So.2d 607.

In Stobart v. State, through the Dep’t of Transp. & Dev., 617 So.2d 880, 882-83 (La.1993) (citations omitted), the supreme court offered the following guidance to appellate courts in applying the manifest error rule:

This court has announced a two-part test for the reversal of a factfinder’s determinations:
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.
Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Nonetheless, this Court has emphasized that “the reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ”

| ¡¡Ms. Perry testified that she backed her vehicle, a red Toyota Corolla, onto northbound Highway 1 from a parking lot adjacent to the road then moved forward into the left lane, intending to make a U-turn at the next intersection at Shirley Street. She stated that she “went up a good piece” and activated her left turn signal, but that she was hit from the rear after her car had partially entered the left turn lane. Upon impact, her car began spinning until it came to rest in the grassy median before the intersection at Shirley Street. According to Ms. Perry, she checked for traffic before proceeding and determined that Mr. White’s pickup, a white Chevrolet, was far enough away for her to enter the highway and to reach the turning lane. Ms. Perry denied hearing either a horn or another vehicle sliding before the impact. At trial, Mr. Caffery testified that Ms. Perry’s left turn signal was on, although he admitted that he had previously alleged in the verified petition for his claim against Ms. Perry that she failed to activate her signal.

Mr. White testified that he applied his brakes and moved to the left lane when he first saw Ms. Perry backing into the right lane. He also stated that he sounded his horn continuously until impact, which he estimated was about five seconds later. When Ms. Perry moved into the left lane, he pulled to the right, hoping to avoid a collision, but he still struck the rear passenger side of her car. Although he estimated that he was traveling the speed limit of 55 m.p.h., he testified that he could not come to a stop even after “slamming” on the brakes. After the impact, his truck began to slide, eventually coming to a stop in the median past the intersection at Shirley Street. Mr. "White testified that Ms. Perry did not have her turn signal on before the impact, which he believed occurred about 150 feet before the left turn lane.

^Officer Craig Mickel investigated the accident for the Alexandria Police Department. At trial, his recollection was refreshed with both his accident report and his deposition testimony, although the report was not introduced into evidence. In his deposition, he had testified that the point of impact was about “100 to 150 feet from the actual intersection” at Shirley Street in the middle of the left lane. At trial, he explained that he reached this conclusion from the location of debris on the highway. When asked why his police report did not mention any debris, he replied such a notation is not usually listed for minor crashes. He testified that he did not observe any tire markings on the road and that he did not take any measurements. He explained that he ticketed Ms. Perry for failure to yield from a private drive after interviewing witnesses who stated that Mr. White tried to avoid Ms. Perry’s vehicle by moving to the left, but that she moved to the left as well.

Jerry Fluker, who was traveling southbound on Highway 1, estimated that he was about forty yards from the point of impact. He testified that he first saw the red Toyota in the northbound left lane with its left turn signal on. He also saw the white pickup traveling “at a high rate of speed” move from the right lane to the left lane, apparently to get around another vehicle that was in the right lane. He then saw the white truck hit the red car from the rear, sending the car into a spin. Mr. Fluker testified that he remained with the occupants in the red car until they were placed in an ambulance because the man in the white truck was angry and cursing. He also testified that he did not hear a horn sound before the impact.

Eugene and Lenora Brown also witnessed the accident from the southbound lanes of Highway 1. Mrs. Brown, who was driving, testified that she first saw the red car moving forward in the northbound right lane. She said that she did not see the red |,scar back onto the highway, but that her husband told her that it did. She first testified that the red car was “just right in front” of the white truck, but she later said that the white truck was not “right up” by the businesses where the red car entered the highway, but was farther back in a curve. She believed that the red car “had plenty of time to get over,” but that the other vehicle must have been in its blind spot. Mr. Brown testified that he saw the red car back onto the highway then cross into the path of the white truck. He did not see the impact itself, but he did see the red car spin around in a cloud of dust that he thought came from the left turn lane. He did not see any headlights or turn signals on, nor did he hear the honking of a horn or the screeching of brakes.

A driver entering a highway from a private road or driveway must “yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.” La.R.S. 32:124. This court, in Valin v. Barnes, 550 So.2d 352, 355 (La.App. 3 Cir.), writ denied, 552 So.2d 399 (La.1989) (quoting Davis v. Galilee Baptist Church, 486 So.2d 1021, 1023 (La.App. 2 Cir.1986) (citations omitted) (emphasis added)), set forth the duty of such a motorist, as well as that of a motorist on the favored street, as follows:

A motorist who is about to enter a roadway from a private driveway is required to yield the right of way to all approaching vehicles so close as to constitute an immediate hazard. Unusual, extreme, and high care toward favored traffic is required of such a motorist under the case law. Conversely, the duty of the driver on the favored street toward the intruding motorist is the much lesser ordinary care and that driver generally may rely on the assumption or presumption that those vehicles entering the roadway from less favored positions such as a private drive will not drive into the path of favored traffic. The motorist who is otherwise proceeding lawfully on the favored street is not required to look out for or search in anticipation of careless drivers who might enter his right of way from a private driveway in violation of the statute. [La.R.S. 32:124.] The presumption or assumption may not be relied on \ Rby a motorist who is proceeding unlawfully before or after he sees the intruding vehicle.

Our review of the record reveals several disputed issues of fact, including the location of the impact, whether Ms. Perry had activated her left turn signal, and whether Mr. White applied his brakes and blew his horn. Ms. Perry testified that the impact occurred after her vehicle had partially entered the left turn lane, while Mr. White and Officer Mickel testified that it was in the left lane. Additionally, Officer Mickel indicated that the impact was 100 to 150 feet from the “actual intersection,” whereas Mr. White testified that it was 150 feet from the left turn lane. Significantly, neither side established how far the impact— whether closer to the left turn lane or to the intersection — was from the point where Ms. Perry entered the highway. Mr. Fluker testified that he saw Ms. Perry’s left turn signal illuminated, yet the other witnesses did not. Mr. White testified that he “laid on” his horn for about five seconds, yet no one else reported hearing a horn. Although Mr. White testified that he “stood on” or was “slamming” his brakes, Officer Mickel did not note any skid marks at the scene.

Clearly, Ms. Perry was required to exercise a high degree of care in entering the highway in reverse and in moving to the left lane. However, Mr. White also had corresponding duties, including proceeding in a lawful manner before and after being confronted with an intruding vehicle. Evidence that he breached these duties includes Mr. Fluker’s testimony that the white truck was traveling “at a high rate of speed,” Officer’s Mickel’s testimony that there were no tire markings at the scene, and that Mr. White’s truck traveled beyond the Shirley Street intersection after impact. On the record before us, we cannot find error in the trial court’s decision to assess Mr. White with a greater percentage of fault in this accident.

17Insurance Coverage

St. Paul next argues that Mr. Caffery failed to prove that it provided insurance coverage to Mr. White, as the record contains neither a policy of insurance nor a stipulation as to coverage. Mr. Caffery responds that St. Paul admitted coverage in its answer, or, alternatively, that the record supports a finding that St. Paul insured Mr. White.

“The burden of proof is on the plaintiff to establish every fact essential to his claim and that his claim is within the insurance policy coverage.” Bourque v. Audubon Ins. Co., 97-522, p. 3 (La.App. 3 Cir. 11/19/97); 704 So.2d 808, 811, writ granted in part on other grounds, 97-3142 (La.2/20/98); 709 So.2d 766. In Bourque, this court found the record established the existence of a homeowner’s policy where (1) the parties stipulated to the authenticity of a certain standard policy form, (2) the record contained both a renewal declaration in the plaintiff’s name stating that the policy was in that standard form and the complete underwriting file for the plaintiffs policy, and (3) an adjuster testified that the claim was denied because it resulted from the plaintiffs business activities, in violation of the policy.

In Ledet v. National Car Rental System, Inc., 96-1270 (La.App. 3 Cir. 6/4/97); 694 So.2d 1236, the issue was whether the plaintiff had proved the existence of a policy covering the rented vehicle driven by the defendant. This court found sufficient evidence of coverage where (1) in response to the plaintiffs allegation that the rental agency issued a self-insured policy covering the negligent acts of the defendant, the rental agency answered that any provision as to liability insurance was to be found in the rental agreement, which it pled by reference as if copied therein, (2) in its answer, the rental agency did not specifically deny that the car driven by the | ^defendant was covered by a self-insured policy, and (3) an employee of the rental agency testified in a deposition that he had determined that the rental agency provided primary coverage for the accident.

In Malloy v. Vanwinkle, 94-2060 (La.App. 4 Cir. 9/28/95); 662 So.2d 96, the court found sufficient proof that the plaintiff was covered under his parents’ UM policy where (1) the insurer did not raise the issue of coverage in the pre-trial order, but instead raised it only on appeal, (2) the plaintiff introduced a policy renewal notice in his parents’ name, and (3) the plaintiff testified that he was residing with his parents at the time of the accident.

In the present case, Mr. Caffery alleged in Paragraph 8 of his petition that St. Paul issued a liability insurance policy on the “White” vehicle that covered its operator. In the same paragraph, Mr. Caffery made similar allegations as to Safeway’s coverage of Ms. Perry’s vehicle. In its answer, St. Paul replied:

8.
Except to admit the issuance of a policy of insurance by ST. PAUL FIRE AND MARINE INSURANCE COMPANY, which policy is the best evidence of the terms, conditions, provisions, and limitations contained in the policy itself and which is pled herein in extenso, Defendants place Plaintiff on his full proof seeking to infer liability on the part of any party by virtue of the existence of said policy of insurance. All other allegations of Paragraph 8 are denied.
Prior to trial, the following colloquy between counsel and the court occurred:
BY MR. GREENHOUSE:
I think we discussed it at the pretrial conference whether Mr. Meyers is going to stipulate to the insurance coverage. I don’t know if he’s going to offer the policy as a joint, an exhibit or what, but I think we did discuss that at the pretrial.
IflBY MR. MEYERS:
That was never discussed. Number one, I don’t have a copy of the policy. That has never been subpoenaed, requested in discovery or any other time. I don’t have the policy.
BY MR. GREENHOUSE:
Well, Your Honor, in that I’d like to offer, file and introduce, even though I know it’s part of the record, the answers to ... my petition for damages, Your Honor, and I ask that it be made part of the record, the defendant’s answer.
BY THE COURT:
That there was in fact coverage.
BY MR. GREENHOUSE:
Yes, Your Honor.
BY MR. MEYERS:
We would simply respond, Your Honor, that the answer says what the answer says and it specifically states that if there is any, going to be any liability assessed to any party by virtue of the existence of any such insurance policy that plaintiffs are in full proof of showing that.
BY MR. GREENHOUSE:
It is admitted that they issued a policy. Paragraph 8, Your Honor.
BY THE COURT:
All right. I think that would be one of those essential things, regardless. All right. Any further argument?

At trial, Mr. White testified that he was in the course and scope of his employment with Luhr at the time of the accident, but he was not asked any questions linabout his employer’s insurer. From the pleadings and the colloquy above, we cannot conclude that St. Paul either admitted or stipulated that it provided a policy of insurance covering Mr. White. In the absence of any testimony or documents, such as a policy declaration sheet, indicating that St. Paul issued a policy to either Mr. White or Luhr, we find that Mr. Caffery has not presented sufficient proof of insurance coverage. Accordingly, the judgment against St. Paul must be reversed.

Decree

For the above reasons, the trial court’s apportionment of fault is affirmed, but the judgment in favor of Christopher Caffery and against St. Paul Fire and Marine Insurance Company is reversed. Costs of this appeal are assessed one-half to Plaintiff-Appellee, Christopher Caffery, and one-half to Defendant-Appellant, St. Paul Fire and Marine Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . The trial court awarded the following damages, which amounts are not at issue in these consolidated appeals: for Mr. Caffery, $5,500.00 in general damages, $1,580.44 in medical expenses, and $269.73 in lost wages, all subject to a 25% reduction for Ms. Perry’s percentage of fault; for Ms. Perry, $4,500.00 in general damages and $2,323.68 in medical expenses, also subject to a reduction for her percentage of fault.

      . Although the cases remain consolidated on appeal, we will render a separate decision in each suit. See Perry v. White, 02-858 (La.App. 3 Cir. 2/12/03); 846 So.2d 797, 2003 WL 292080.

      . Mr. Caffery had settled all claims against Ms. Perry prior to trial.


author: JjPETERS, J. L COOKS, J.

text:
    STATE of Louisiana v. Rodney JENKINS.
    No. 02-0997.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2003.

      Wilson Rambo, Attorney at Law, Monroe, LA, for Defendant/Appellee, Rodney Jenkins.
    Robert R. Bryant, Jr., District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Appellant, State of Louisiana.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   JjPETERS, J.

The defendant, Rodney Jenkins, was charged by bill of information with possession of cocaine with intent to distribute, a violation of La.R.S. 40:967(A). A jury found him guilty of attempted possession of cocaine with intent to distribute, a violation of La.R.S. 14:27 and La.R.S. 40:967(A). Because the conviction constituted a third felony conviction, the state then charged the defendant as an habitual offender. The trial court rejected the defendant’s motion for judgment of acquittal and initially sentenced him to serve three years at hard labor. The trial court then adjudicated the defendant an habitual offender, vacated the three-year sentence, and sentenced him to serve fifteen years at hard labor without the benefit of probation or suspension of sentence. The defendant appealed, asserting nine assignments of error.

The charge against the defendant arises from a June 30, 1997 search of a Lake Charles, Louisiana residence by officers of the Lake Charles City Police Department. In making the search, the officers seized thirty-five rocks of crack cocaine. The state asserted in the charge before this court that the seized crack cocaine belonged to the defendant.

Assignments of Error Numbers 1, 2, and 3

The defendant filed a motion to quash the bill of information which the trial court rejected. The motion was based on the argument that the state had failed to timely commence his trial. In his first three assignments, the defendant asserts that the trial court erred in denying the motion to quash, in finding that his speedy trial rights had not been violated, and in concluding that a joint motion for continuance had the effect of suspending the time limits for commencing trial.

H No trial of a non-capital felony shall commence “after two years from the date of institution of the prosecution.” La. Code Crim.P. art. 578(2). Institution of prosecution is accomplished by the filing of either a bill of information or the return of a grand jury indictment. State v. Gladden, 260 La. 735, 257 So.2d 388 (1972). The failure to timely commence trial is a basis for the grant of a motion to quash. La. Code Crim.P. art. 532(7). However, the two-year period may be suspended or interrupted during the pretrial phase of the prosecution. For example, a preliminary plea filed by a defendant has the effect of suspending the limitation periods for commencing trial. La.Code Crim.P. art. 580. Once the time limitation is suspended, the state has at least one year after the ruling on the preliminary plea to commence the trial. Id. Additionally, the time limitations established by La.Code Crim.P. art. 578 are interrupted when “[t]he defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.” La.Code Crim.P. art. 579(A)(3). Once interrupted, the time limitations “commence to run anew from the date the cause of interruption no longer exists.” La.Code Crim.P. art. 579(B).

In the matter now before us, the state filed a bill of information on March 9, 1998, charging the defendant with the offense. Therefore, absent a suspension or interruption of the two-year time limitation, the state had until March 9, 2000, in which to commence trial. Trial did not begin until November 26, 2001.

The trial court minutes reflect that, during that two-year period, the trial was set and reset at least seven times. However, the only activities pertinent 13to this appeal are those which occurred on November 19, 1999, and thereafter. On November 19, the trial court rescheduled the defendant’s trial for January 3, 2000. The trial court minute entry for January 3 reflects that the defendant appeared on that day without counsel and announced that he was “available for trial.” However, trial did not begin on that day. Instead, on the next day, the defendant again appeared, but this time with counsel. The trial court minutes reflect that the defendant’s counsel requested a continuance which the trial court granted. The trial court then rescheduled the trial for March 20, 2000.

In rejecting the defendant’s motion to quash the bill of information, the trial court concluded that the January 4, 2000 request for continuance “interrupted the two-year period” for commencement of trial. The defendant essentially argues that the trial court minutes are inaccurate and that he and the state jointly requested the continuance. As a joint motion, the defendant contends that it does not interrupt the two-year period. However, the transcript of the January 4 hearing reflects that, when the defendant’s case was called for trial, counsel for the state made the comment, “It’s my understanding [the defendant is] going to request a continuance in this matter.” Counsel for the defendant" responded, “That is correct, Your Honor.” At no time did the state join the request for a continuance. Therefore, we reject the defendant’s argument on this point.

We do, however, disagree with the trial court classifying the request for a continuance as an interruption of the two-year period. Instead, we interpret it as a suspension. As a suspension rather than an interruption, it had the effect of granting the state a one-year extension in which to commence trial. La.Code l4Crim.P. art. 580. Kegardless of the motion’s classification, the defendant’s failure to appear for the March 20, 2000 trial is fatal to his argument that the state did not timely commence trial.

The defendant was present in open court on January 4, 2000, when the trial court set the March 20, 2000 trial date. He failed to appear for trial, and, on March 24, 2000, the trial court issued a bench warrant for the defendant based on his failure to appear for trial. After a July 5, 2000 hearing, the trial court found the defendant guilty of contempt of court for his failure to appear on March 20, 2000. Given the fact that he had actual notice of the March 20 setting, the proof of which appears of record, his failure to appear caused the two-year time limitation to “commence to run anew.” La.Code Crim.P. art. 579(B). Therefore, the November 26, 2001 trial was timely commenced, and we find no merit in the defendant’s first three assignments of error.

Assignments of Error Numbers 4, 5, and 6

In these three assignments of error, the defendant asserts that the trial court erred in denying his motion for judgment of acquittal, that the verdict is contrary to the law and evidence, and that the evidence presented was insufficient to support the jury’s guilty verdict. When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). The same basic test is applied by the trial court in | ¡¡considering whether to grant a motion for post-verdict judgment of acquittal. La.Code Crim.P. art. 821(B).

Louisiana Revised Statutes 40:967(A)(1) provides that “it shall be unlawful for any person knowingly or intentionally ... [t]o ... possess with intent to ... distribute ... a controlled dangerous substance ... classified in Schedule II.” Cocaine is a Schedule II controlled dangerous substance. La.R.S. 40:964(A)(4). “Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended.” La.R.S. 14:27(A).

The state presented the testimony of four Lake Charles police officers who participated in the June 30, 1997 search. However, only Officer Reynaldo Sierra testified that he saw the defendant at the residence to be searched. According to Officer Reynaldo, as he and Officer Michael Reid drove up to the residence on the evening of June 30, he observed the defendant standing outside talking with a female who was later determined to be Lynette Edwards. According to Officer Reynaldo, the defendant observed his approaching vehicle and fled the scene on foot. Ms. Edwards fled into the residence.

Officer Reid did not recall observing anyone outside the residence, but did encounter Ms. Edwards after he entered the residence. According to Officer Reid, he informed Ms. Edwards of the search warrant and gave her a copy. He then secured Ms. Edwards and the premises, but did not participate in the search. Officer Fletcher James Idom, III testified that he found the thirty-five rocks of crack cocaine on a dresser in a bedroom area of the I (¡residence. He only recalled coming in contact with Ms. Edwards inside the residence.

Officer Todd Chaddick, who was the lead investigator in the case, testified that he entered the residence after Ms. Edwards had been arrested and that he was given the seized cocaine at some point. According to Officer Chaddick, the defendant was the target of his investigation, and he personally had observed the defendant at the residence on at least two prior occasions within the two-week period prior to the search.

The only other evidence directly connecting the defendant to the searched residence was the testimony of Ms. Edwards. She confirmed Officer Sierra’s testimony that she and the defendant were outside the residence as the police arrived. According to Ms. Edwards, when they first saw the approaching officers, the defendant “took off,” and she ran into the residence. When the officers entered the residence, one of them gave her a copy of the search warrant and handcuffed her. She was later transported to the Lake Charles Police Station, questioned, and released.

Ms. Edwards testified that she and her three children had been living in the residence with the defendant for approximately one and one-half months. According to Ms. Edwards, the defendant owned all of the furnishings in the residence except her telephone. Additionally, she testified that she observed the defendant bring the cocaine into the house.

With the help of Ms. Edwards, Officer Chaddick apprehended the defendant at his mother’s residence on July 9, 1997. According to Officer Chaddick, Ms. Edwards directed him to the defendant, who was hiding in the |7attic. Although Ms. Edwards did not testify concerning her assistance in apprehending the defendant, she did acknowledge that she was present when the defendant was apprehended.

The defendant argues that Officer Sierra’s identification testimony was suspect, given his memory of specifics as well as the fact that no other officer observed the defendant at the residence. He also notes that the state failed to produce any direct evidence, other than the testimony of Ms. Edwards; that the defendant physically lived at the residence; and that the misleading statements made by Ms. Edwards to the investigating officers, her criminal record, and her personal reasons for testifying against the defendant makes her testimony unbelievable.

Ms. Edwards admitted that she initially gave the arresting officers a false name and that she had been previously convicted of theft and forgery. She further acknowledged that, at the time of trial, she was on probation and had a pending marijuana charge against her. Additionally, on June 30, 1997, she was pregnant with another man’s child and was angry at the defendant because he had admitted to her that he had physically abused her youngest daughter. The abused child is the defendant’s biological child.

The jury heard the testimony and evaluated the evidence and lack of evidence concerning the defendant’s connection to the searched residence. As stated in State v. Pontiff, 604 So.2d 71, 76 (La.App. 3 Cir.1992),

[t]he jury, sitting as the trier of fact, had the distinct opportunity to view each individual witness’s demeanor, listen to their | «respective testimony, and assess credibility. Their firsthand knowledge of the witnesses’s testimony is an immeasurable advantage when compared to our limited review within the four corners of the cold record.

The jury convicted the defendant of attempted possession of cocaine with intent to distribute, and he did not object to the jury being given the choice of that responsive verdict.

[I]f the defendant does not enter an objection [to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict] (at a time when the trial judge can correct the error), then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury.
It would be unfair to permit the defendant to have the advantage of the possibility that a lesser “compromise” verdict will be returned (as opposed to being convicted of the offense charged) and then to raise the complaint for the first time on appeal, that the evidence did not support the responsive verdict to which he failed to object. Therefore, at least when the defendant fails to interpose a timely objection to a legislatively responsive verdict, this court will not reverse the conviction if the jury returns such a verdict, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged.

State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-52 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432 (1983).

While the police officers could clearly have better assisted the trier of fact with a more thorough investigation, considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have concluded that the state established the essential elements of the crime beyond a reasonable doubt. Since the record fully supports the jury findings, this court will not engage in re-evaluating the credibility of witnesses or reweighing the other evidence adduced at trial. Therefore, we find no merit in these 19assignments of error.

Assignments of Error Numbers 7, 8, and 9

In these final assignments of error, the defendant asserts that the trial court failed to arraign him on his habitual offender bill, failed to advise him of his right to remain silent and his right to require the state to prove the habitual offender case against him, and failed to present sufficient evidence to establish the validity of one of the underlying convictions. Subsequent to instituting this appeal, the defendant abandoned his assignment that the state failed to arraign him on the habitual offender bill. Additionally, we find the remaining assignments to be without merit.

The record does not indicate that the defendant was advised, at any time, of his right to remain silent or to have the state prove the case against him. However, the defendant remained silent at the hearing on the habitual offender charge as the state introduced both testimonial and documentary evidence. “[0]nly harmless error results from the trial court’s failure to advise of rights when the defendant remains silent throughout the proceeding and the state presents competent evidence to prove the existence of the defendant’s prior convictions and his identity as the person previously convicted.” State v. Williams, 2001-0998, p. 4 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, 911. We find the failure of the trial court to advise the defendant of his right to remain silent and to have the state prove the case against him to be harmless error.

In addition to the conviction for attempted possession of cocaine with intent to distribute, the state identified two prior convictions as the grounds for the habitual offender adjudication: a January 14, 1992 conviction for | ^manslaughter, a violation of La.R.S. 14:31, and a September 14, 1998 conviction for simple escape, a violation of La.R.S. 14:110. The defendant challenges the sufficiency of the evidence presented as to the simple escape conviction only.

In attempting to establish the simple escape conviction as a predicate conviction, the state filed a copy of the guilty plea form executed by the defendant, a certified copy of the bill of information charging him with simple escape, and a certified copy of the minutes reflecting the conviction. Additionally, the state offered as evidence a fingerprint record taken in conjunction with the manslaughter conviction and one taken in conjunction with the simple escape conviction.

Detective Shirley Green of the Calcasieu Parish Sheriffs Office, an expert in the field of fingerprint identification, testified that she compared the two fingerprint records and found that they were identical in all respects except for the date and place of birth. Detective Green then took fingerprint samples from the defendant in open court and compared them to the two fingerprint cards in her possession. In doing so, she concluded that the fingerprints taken from the defendant were the same as those found on the two fingerprint cards. Additionally, Elizabeth Montgomery, a state probation and parole officer, testified that she began supervising the defendant in March of 1997, when he was on parole for manslaughter, and was supervising him when he was convicted of simple escape.

In State v. Shelton, 621 So.2d 769, 774 (La.1993), the supreme court stated:

In We have consistently held that in order to enhance a sentence with a prior guilty plea, the State bears the burden of proving the guilty plea was constitutionally taken, and, to meet its burden, the State must introduce a contemporaneous record of a Boykin examination which demonstrates the guilty plea was free and voluntary and which includes a waiver of the three constitutional rights specified in Boykin.

However, the supreme court further stated that “in State v. Halsell, 403 So.2d 688, 690 (La.1981) (emphasis added), we noted that a ‘colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea.’ ” Id. at 776. The affirmative showing can be satisfied by a written waiver of rights or guilty plea form, or even a minute entry. Id.

The guilty plea form introduced to establish the simple escape conviction was signed by the defendant and is entitled “WAIVER OF CONSTITUTIONAL RIGHTS AND PLEA OF GUILTY.” Included within the form is the following language:

I understand that in pleading guilty to [the charge of simple escape], I stand convicted thereof, and waive the following Constitutional rights:
1) To be tried by a jury.
2) To confront and cross-examine the witnesses who accuse me of the crime charged.
3) To compulsory process of the court to require witnesses to appear and testify for me.
4) The privilege against self-incrimination or having to take the stand myself and testify.
5) To appeal from a verdict of guilt.
6) To be represent[sic] at all times in the proceedings, including appeal, by counsel of my choice or by court-appointed attorney at no cost to me if I lack finances to employ one.

|12The defendant further stated in the guilty plea form that “I acknowledge that I am guilty of the offense charged and voluntarily waive such rights and enter a plea of guilty thereto.”

The court minutes of September 14, 1998, reflect that the defendant was present in open court with counsel and that he submitted the guilty plea form to the trial court after having discussed it with his counsel and after having signed it. The minutes further state that the trial court questioned the defendant concerning the guilty plea form and advised him of “the six constitutional rights as stated on the form.” According to the minutes, the defendant responded that he understood his rights as set forth on the form and waived those rights.

We find that the evidence presented by the state to establish that the defendant was the same person who had previously been convicted of simple escape was more than sufficient to meet its burden of proof such that it complied with the standards as set forth in Shelton, 621 So.2d 769. Therefore, we find no merit in this assignment of error.

Errors Patent

Pursuant to La.Code Crim.P. art. 920, we have reviewed the record for errors patent on the face of the record. In doing so, we have found one that requires corrective action.

The court minutes state that the trial court ordered the defendant to serve his sentence without the benefit of probation, parole, or suspension of sentence. However, the sentencing transcript does not mention parole ineligibility. Therefore, we must remand the matter for correction of the trial 113court minutes.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s conviction and sentence in all respects. We remand the matter to the trial court and order that the court minutes be corrected to delete the provision regarding parole ineligibility.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

COOKS, J., dissents and assigns written reasons.

L COOKS, J.

Dissenting.

The evidence is so weak in this case that the jury had to rely solely on the uncorroborated testimony of a prior convicted felon with a good motive not to tell the truth. She not only was on probation and facing unrelated pending charges, but also faced being charged with the very crime she claimed defendant committed. Defendant also presented evidence that she potentially held a grudge against him. It is sometimes difficult to reconcile one of the aims of the criminal justice system — to punish the guilty — with the constitutional rights of every citizen, including a guilty defendant, to insist that a verdict of guilt is based on proof beyond a reasonable doubt. This difficulty is surely magnified in cases where police officers fall short in performing their investigative role. But, we cannot supply what they failed to gather and the state, as a consequence, failed to produce at trial.

      . Additionally, all of the officers testified that they did not recall seeing any men's clothing during the search process. Apparently the police investigation did not include gathering evidence in the form of utility statements, receipts, or even rental information.


author: |, COOKS, Judge. 1 THIBODEAUX, J.,

text:
    STATE of Louisiana v. Ronald M. SMITH, Jr.
    No. 02-719.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2003.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Ronald M. Smith, Jr.
    David W. Burton, District Attorney, DeRidder, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS and JIMMIE C. PETERS, Judges.
   |, COOKS, Judge.

On or about August 8, 2001, Ronald M. Smith, Jr., who was thirty at the time, had consensual sexual intercourse with a sixteen-year old victim. He was convicted by a jury of carnal knowledge of a juvenile, a violation of La.R.S. 14:80 and was sentenced to seven years at hard labor and ordered to pay a fíne of fifteen hundred dollars, plus court costs. Smith appeals, asserting his sentence is excessive and the trial court did not adequately consider mitigating factors required by La.Code Crim.P. art. 894.1.

Compliance with La.Code CrimJP. art. 894.1 and Excessiveness of Sentence

The defendant alleges the trial court did not adequately consider the mitigating factors as required by La.Code Crim.P. art. 894.1 and the sentence is constitutionally excessive under the circumstances of the case.

The sentencing guidelines to be followed by the trial court are found in Article 894.1. In considering these guidelines, this court has held:

[T]he trial court must “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La.Code Crim.P. art. 894.1(C). The purpose of obligating a trial court to do so “is to insure that each sentence is individualized to the offender and the offense.” State v. Davis, 511 So.2d 91, 92 (La.App. 3 Cir. 1987). However, to comply with La. Code Crim.P. art. 894.1(C), the trial court is not required to “articulate every circumstance or read through a checklist of items.” State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96); 677 So.2d 480, 483. Still, the record should sufficiently establish that the trial court adequately considered the guidelines of La. Code Crim.P. art. 894.1 in particularizing a defendant’s sentence. Id.

State v. Spencer, 00-1335, p. 7 (La.App. 3 Cir. 2/28/01); 781 So.2d 780, 785.

At the sentencing hearing for Smith, the trial judge stated:

The offense occurred on August 8, 2001, in the ladies’ prayer room of the Trout Creek Pentecostal Church, which is located near the Junction Community in Beauregard Parish, Louisiana.
I ¡At the time of the offense the victim, S.F., was' 16 years of age and you were 30 years of age. From my observations at the trial, S.F. did not appear particularly mature for her age, either from the perspective of her physical appearance or from observing her conduct. You were fully aware that she was 16 years of age at the time you committed this crime.
At the conclusion of the trial the Court ordered a presentence investigation to be prepared by the Division of Probation and Parole. I have received that report, and it has been thoroughly reviewed by the Court.
According to the PSI, your only prior criminal conviction was for possession of drug paraphernalia in Myers County, Florida, in 1994.
After your arrest in the instant case, you were granted bail with specific instructions from the Court and with bail being conditioned on you having no contact whatsoever with S.F. You ignored the instructions and conditions of your bond; and as a result, you were placed back in the Beauregard Parish Jail to await trial.
I have considered all provisions of Code of Criminal Procedure Article 894.1, which provides the factors to be taken into account as to whether you should receive a probated sentence, as well as sentencing guidelines. I find there are particularly aggravating circumstances in this case. The father of S.F. had repeatedly instructed you to stay away from his daughter, your own mother told you that S.F. was too young for you, you acknowledge that you knew she was only 16, and, further, you violated the instructions of this Court and the provisions of your bond pertaining to no contact with S.F. while you were awaiting trial. For all of these reasons, I find that you are not a good candidate for probation.
All factors considered, the Court finds that confinement with the Department of Corrections for a substantial period of time is appropriate in your case.

The defendant argues the trial court placed too much emphasis on the assertions that the victim’s father repeatedly told him to stay away from the victim, that the defendant’s mother told him the victim was too young for him, and that he had contact with the victim against the trial court’s orders after he was released from jail on bond. The defendant argues “that improper weight was given to these factors, and too little emphasis was placed on mitigation factors, such as Smith’s first offender status,” and on the fact that after his release on bond it was the victim who la“stole her father’s van and went to see him.” The defendant contends the trial court failed to consider as mitigating factors that the victim was not harmed and was an active participant.

We find the fact that Smith was warned to stay away from the victim indicates Smith ignored the consequences involved in engaging in sexual intercourse with a juvenile, thereby supporting the trial court’s finding that Smith would commit the same offense again. See La.Code Crim.P. art. 894.1(A)(1). Additionally, consent is an element of the offense of carnal knowledge of a juvenile; therefore, the fact that the victim was an active participant in Smith’s criminal conduct is not a mitigating factor to be considered. “The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions.” State v. Bugbee, 34,-524, p. 12 (La.App. 2 Cir. 2/28/01); 781 So.2d 748, 758. We find the trial court adequately considered the sentencing guidelines when he imposed Smith’s sentence as required by La.Code Crim.P. art. 894.1.

Smith contends his sentence of seven years at hard labor is constitutionally excessive under the circumstances of this case. Louisiana Revised Statutes 14:80(C) provides imprisonment of not more than ten years, with or without hard labor. Smith was sentenced to seven years at hard labor.

In determining whether a sentence is excessive, this court stated, in State v. Hammock, 97-1164 p. 5 (La.App. 3 Cir. 4/1/98); 711 So.2d 756, at 758, writ denied, 98-1143 (La.9/25/98); 726 So.2d 11:

For a sentence to be excessive, the penalty must be so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and, therefore it is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 4(La.1981); State v. Everett, 530 So.2d 615 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1233 (La.1989).

Id. at p. 5, 758. See, also, the recent Louisiana Supreme Court case of State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501.

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir. 1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958. In Cook, the defendant pled to a charge of vehicular homicide and was sentenced to serve nine years at hard labor. This court vacated the sentence as excessive on the grounds that it made no meaningful contribution to acceptable penal goals and was the needless imposition of pain and suffering. The Louisiana Supreme Court reversed and reinstated the defendant’s sentence. The supreme court stated the trial court is given “‘broad sentencing discretion’” and the only relevant question on review was “ ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” Id. at 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984))

s Smith, who was thirty years old, was well aware that the victim was only sixteen years old at the time of the affair. Considering the evidence presented in this matter, the age difference between Smith and the victim, the fact that Smith was warned on more than one occasion to end the relationship but refused to do so, and the sentences imposed in similar cases, this court finds the sentence of seven years is not so grossly disproportionate to the severity of the crime as to shock our sense of justice.

Error Patent

We find one error patent on the face of the record. The trial court ordered the defendant to pay a $1500.00 fine. The penalty provision in effect at the time of the commission of the offense did not provide for the imposition of a fine. In the 2001 Regular Session, the Louisiana Legislature amended the penalty provision for La.R.S. 14:80 to provide for the imposition of a fine of not more than $5,000.00. The effective date of the act was August 15, 2001, seven days after the defendant committed the present offense. Thus, the trial court was without authority to impose a fine in the present case.

An appellate court may correct an illegal sentence when the correction does not involve the exercise of sentencing discretion. La.Code Crim.P. art. 882(A); State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99); 745 So.2d 694. Therefore, we amend the defendant’s sentence to delete that portion imposing a $1500.00 fine.

DECREE

For the foregoing reasons, the sentence imposed by the trial court is affirmed. However, that portion of the sentence imposing a $1500.00 fine is deleted.

AFFIRMED AS AMENDED.

THIBODEAUX, J., dissents and assigns written reasons.

1 THIBODEAUX, J.,

dissenting.

In this case, the Defendant was charged with one count of carnal knowledge of a juvenile and was convicted as charged. The Defendant had one prior misdemeanor conviction for possession of drug paraphernalia. At trial, the victim testified she was a willing participant and that she was sixteen years old at the time. The affair lasted approximately one month and that the Defendant and the victim engaged in sex on two other occasions during that time period.

In State v. Hammock, 97-1164 (La.App. 3 Cir. 4/1/98); 711 So.2d 756, writ denied, 98-1143 (La.9/25/98); 726 So.2d 11, this court did not find a sentence of five years to be excessive on a conviction for carnal knowledge of a juvenile where the victim was fifteen years old and the defendant was twenty years old. Hammock had two prior felony convictions for distribution of cocaine. The defendant in State v. Sanderson, 97-1281 (La.App. 3 Cir. 5/13/98); 715 So.2d 483 received a sentence of three years at hard labor, suspended, with five years probation. Sanderson pled guilty to one count of carnal knowledge of a juvenile. The victim was sixteen and mentally retarded. In State v. Guffey, 94-797 (La.App. 3 Cir. 2/1/95); 649 So.2d 1169, writ denied, 95-973 (La.9/22/95); 660 So.2d 469, the defendant was originally charged with five counts of molestation, but pled guilty to five counts of carnal | ¡.knowledge with a juvenile, his fifteen-year-old stepdaughter. Guffey was sentenced to three years at hard labor on three counts, and five years at hard labor on two counts. The five-year sentences were suspended and all sentences were ordered to run concurrently. This court vacated the sentences and remanded the matter to the trial court because the trial court failed to articulate a factual basis for the sentences. A sentence of seven years at hard labor was found not to be excessive in State v. Ezernack, 496 So.2d 1317 (La.App. 3 Cir.1986) where the defendant pled guilty to one count of carnal knowledge of a juvenile. The victim was Ezernack’s minor stepdaughter and the offenses occurred over a long period of time. The trial court noted Ezernack had an extensive criminal history and that there was a fifteen-year age difference between the defendant and the victim. The defendant in State v. Cary, 535 So.2d 417 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1244 (La.1989), pled guilty to one count of carnal knowledge of a juvenile. In exchange for his plea, the State dropped two charges of aggravated crimes against nature and two charges of molestation of a juvenile. Cary received seven years at hard labor. The victim was his sixteen-year-old stepdaughter.

The majority gives lip service to the factor of disproportionate, disparate sentences, but does not consider this factor at all. If it had, I am convinced a different result would have been reached. I have examined sentences imposed on similarly-situated defendants in other courts and jurisdictions: State v. Smith, 404 So.2d 210 (La.1981), four years where defendant impregnated a twelve-year-old; State v. Compton, 867 So.2d 844 (La.1979), concurrent three years on each of four counts of carnal knowledge involving four different girls; State v. Blackwell, 377 So.2d 110 (La.1979), ten years for carnal knowledge of a juvenile, convicted as a third-felony offender; State v. Barber, 815 So.2d 296 (La.1975), two years where the victim was |3a 15-year-old runaway; State v. Berry, 31,861 (La.App. 2 Cir. 3/31/99); 732 So.2d 638, ten years for carnal knowledge of a juvenile pled down from two counts of forcible rape where there was evidence that the victim struggled and scratched defendant; State v. DeGueurce, 30,334 (La.App. 2 Cir. 2/25/98); 710 So.2d 296, writ denied, 98-1213 (La.10/9/98); 726 So.2d 18, three years where the defendant was a female teacher who had sexual intercourse with one of her fourteen-year-old students over a one-year period; State v. Owunta, 98-0006 (La.App. 4 Cir. 3/31/99); 734 So.2d 57, a five-year suspended sentence imposed on a defendant who was a teacher who had sexual intercourse with a student over a three-month period; State v. Lewis, 97-1549 (La.App. 4 Cir. 2/3/99); 727 So.2d 1274, ten years where the defendant was a family friend and the sexual relationship occurred over a two-month period; State v. Boudreaux, 565 So.2d 1069 (La.App. 5 Cir.1990), a ten-year sentence was imposed pursuant to a plea agreement where aggravated crimes against nature and molestation charges were dismissed.

Considering the nature of the crime and the Defendant’s background, I find a great disparity between the Defendant’s sentence and sentences imposed on similarly-situated defendants for similar crimes. Thus, the Defendant’s sentence of seven years at hard labor is excessive and makes no measurable contribution to acceptable penal goals. I would vacate the Defendant’s sentence and remand this matter to the trial court for resentencing.

For the foregoing reasons, I respectfully dissent.


author: hGREMILLION, Judge.

text:
    STATE in the Interest of A.C.H. Consolidated With STATE in the Interest of A.I.H.
    Nos. 02-1014, 02-1015.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2003.
    Writ Denied March 14, 2003.

      William Thomas Babin, Assistant District Attorney, Sharon Michelle M. Breaux, Assistant District Attorney, Lafayette, LA, for State of LA., Department of Social Services.
    David Kelly Balfour, Lafayette, LA, for Gregory S. McPherson.
    Harold Lee Domingue Jr., Lafayette, LA, for A.H.
    Vivian Veron Neumann, Lafayette, LA, for L.F.
    Janie Gorab Jackson, Lafayette, LA, for Father for A.I.H. Unknown/Unidentified Biological.
    Marcus Anthony Allen, Sr., Esq., Lafayette, LA, for A.C.H., A.I.H.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   hGREMILLION, Judge.

In these consolidated cases, the State of Louisiana through the Department of Social Services, appeals the judgment of the trial court dismissing its petition to terminate the parental rights of Lisa Marie Lavergne Fernandez, as to her children, A.C.H. and A.I.H. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A.C.H., born April 23, 2000, entered foster care in October 2000, after his mother and her boyfriend were arrested for attempting to rob a tobacco store. A.C.H. was present at the attempted robbery. In December 2000, A.C.H. was adjudicated a child in need of care.

A.I.H., born March 19, 2001, entered foster care at birth because she had cocaine in her system and her mother was incarcerated shortly after delivery due to an outstanding warrant for her arrest on charges of theft. Following a hearing in late April 2001, the trial court adjudicated A.I.H. a child in need of care and continued her custody with the state, with a follow-up hearing scheduled in September 2001. Fernandez was ordered to begin treatment for her mental illness and substance abuse problems, to attend and participate in parenting classes deemed appropriate by DSS, to refrain from criminal activity, to submit to random drug screens, and to attend Narcotics Anonymous and/or Alcoholics Anonymous meetings.

Following a September 2001 hearing, the trial court continued custody of both children in the State finding that inadequate progress had been made toward | ¡.alleviating or mitigating the causes necessitating the children’s continued placement in foster care. In a case plan dated October 2001, reunification with Fernandez was still DSS’s goal. A review hearing was scheduled for January 2002. In the interim between the September 2001 hearing and the January 2002 hearing, DSS reported to the trial court that Fernandez had been incarcerated for forty-two days at the Lafayette Parish Correctional Center, she had resumed residing with her boyfriend, who has an extensive mental health record and criminal history, and that she had not complied with her case plan.

Following the January 2002 hearing, the trial court continued custody in the State, again finding that Fernandez had made inadequate progress to alleviate the circumstances requiring the removal of her children from her custody. At this time, the permanent plan for A.I.H. changed to “adoption” rather than “reunification.”

In March 2002, DSS filed a petition for termination of parental rights and certification for adoption, urging that, pursuant to La.Ch.Code art. 1015(5), more than one year had elapsed since the minor children were removed, Fernandez had not substantially complied with her case plan, and there was no reasonable expectation of significant improvement in Fernandez’s condition or conduct in the near future.

In preparation for trial, DSS forwarded a report on May 13, 2002, to the trial court indicating that Fernandez had not complied with her case plan because she had failed to attend substance abuse treatment. As of April 2002, Fernandez began residing in a homeless shelter for women. DSS reported that she was not working, attending any inpatient treatment, and had missed several visitations with her children. However, Fernandez reported to DSS that she attended two NA/AA 1 ¡¡meetings per week, attended church, and that she had discontinued contact with her boyfriend, who had strongly influenced her to use drugs. DSS further reported a positive drug screen in February 2002, but a negative one in April 2002. DSS further stated that Fernandez failed to comply with that portion of her case plan requiring her to seek treatment for her mental illness. The report also states she has not sought out any help, nor has she taken her recommended medication. Further, Fernandez did not refrain from criminal activity and faced felony theft charges as of that date. Fernandez was also to attend parenting classes, which she had failed to do in the past. She was referred to classes again, and had attended two classes with four remaining. Fernandez’s scheduled visitations with her children were hit-or-miss and DSS reported that the children were uncomfortable around her and would often cry, causing her to end the sessions early. As many as six months have elapsed with no visit whatsoever. Finally, DSS reported that Fernandez is not in frequent contact with them, nor does she keep the agency apprized of her whereabouts. Further, she had not provided the agency with verification of her income and had not maintained a stable residence in order to demonstrate that she would be able to provide for her children’s basic needs.

Following the hearing, the trial court issued a written judgment denying and dismissing the petition to terminate Fernandez’s parental rights and continued the children’s custody in the State. DSS timely appealed to this court.

ISSUES

DSS assigns as error:

1. The trial court’s finding that there was a reasonable expectation of significant improvement in Fernandez’s | condition or conduct in the near future.

2. The trial court’s finding that termination of Fernandez’s rights was not in the best interest of the children.

LAW AND DISCUSSION

We have stated that “[p]arental rights to the care, custody, and management of children is a fundamental liberty interest warranting great deference and vigilant protection under the law.” In re J.K., 97-336, p. 4 (La.App. 3 Cir. 10/29/97), 702 So.2d 1154, 1156. See also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Accordingly, a parent has a strong interest in the accuracy of a decision to terminate her rights. Lassiter v. Department of Social Servs. of Durham County, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Thus, the Louisiana legislature has imposed strict standards that require the State to prove, by clear and convincing evidence, the grounds for termination under La.Ch.Code art. 1015 before a judgment can be issued terminating parental rights. In re J.K., 702 So.2d 1154.

This analysis requires a balancing of the child’s interests and the parent’s interests; however, it has been repetitively held that the interests of the child are paramount over that of the parent. In re J.A., 99-2905 (La.1/12/2000), 752 So.2d 806. In that case, the supreme court stated:

The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of | .^parental rights if justifiable grounds exist and are proven. Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens.

Id. at 811 (citation omitted).

The trial court’s determination regarding the termination of parental rights will not be reversed by the appellate court unless it is manifestly erroneous or clearly wrong. In re V.F.R., 01-1041 (La.App. 3 Cir. 2/13/02), 815 So.2d 1035, writ denied, 02-0797 (La.4/12/02), 813 So.2d 412.

DSS argues that it proved by clear and convincing evidence that Fernandez failed to comply with her case plan, which is a ground for termination pursuant to La.Ch. Code art. 1015(5). Article 1015(5) sets forth the following as grounds for involuntary termination:

Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parents custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

It also argues that, pursuant to La.Ch. Code art. 1036(C), it has proven lack of parental compliance with the case plan. La.Ch.Code art. 1036(C) states:

Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
U(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parents failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the ease plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

DSS also argues that it proved, by clear and convincing evidence, there was a lack of any reasonable expectation of significant improvement in Fernandez’s conduct as evidenced by several factors set forth in La.Ch.Code art. 1036(D), which states:

Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

^Jennifer Newman, a foster care supervisor at DSS, testified that Fernandez had failed to comply with her case plan in that she did not have a stable home and moved around from place-to-place; she did not keep in contact with DSS or apprize them of her whereabouts; did not attend scheduled meetings and visits; did not attend parenting classes; did receive some inpatient rehabilitation for her mental illness, but was not cooperating with the staff; did not receive treatment for her substance abuse; and attended only twelve of twenty-seven scheduled visits with her children.

Jennifer Jamison, who took over AJ.H.’s case in November 2001, reiterated Newman’s testimony that Fernandez had not completed any of the steps in her case plan. She further testified that A.C.H. is doing very well in his current placement and that the foster parents would like to adopt him if he is released. She also stated that A.I.H. has been in the same foster home since birth and that the foster parents would adopt her if she were to be released. Jamison stated that, in the month prior to trial, Fernandez had made an effort to comply with some aspects of her case plan and that she had expressed a desire to complete her case plan. She also indicated to Jamison that she would like to have her children back in her custody. She further stated that DSS would assist her in working her case plan if the trial court gave her six more months to work toward completing it. However, she stated that she believed it was in the children’s best interest to stay with their foster parents as they had bonded to them and were doing very well.

Fernandez testified that she was currently pregnant. She stated that she did not have independent housing, but had worked as a barmaid part-time, although |sshe had not worked since January. She admitted that she hadn’t succeeded in following through with her case plan in the past, but that she believed she would be able to succeed in her new environment. She attributed many of her past problems to her former boyfriend and stated that, in her new drug-free environment, she is prepared to rebuild her life.

Edryie Berry, the supervisor at the shelter in which Fernandez is living, testified that Fernandez is involved in the many programs offered by the shelter and has individual sessions with her several times per week. Berry stated that she believed Fernandez had a sincere desire and willingness to change. She stated that she has voluntarily participated in all of the programs offered by the shelter.

Following this testimony, the trial court acknowledged Fernandez’s failure to comply with the case plan up until six weeks prior to trial. However, the trial court found:

Having heard the testimony of both the mother and witnesses, the Court is, however, impressed that this is in fact a significant effort to turn her life around. Whether or not she can do what is required by this Court and the federal government statutes and regulations within a reasonable period of time from this day forward, I don’t know. But certainly I think at this juncture the Court is hesitant to terminate her parental rights based on the effort that she has made.
Having said that, ma’am, and having concluded that I will not terminate your parental rights this time, we will have a review hearing in six months and you’re going to have to make some effort to show that you’re going to be able to sustain for your children housing, employment, those things. You haven’t had the employment since January. The sugar and spice club or whatever it’s called is not employment that’s going to satisfy me. I hope that what’s happening for you at Naomi House is something that’s going to be strong enough to get you past this hurdle. But in six months we’ll have a review hearing and at a juncture past six months if termination is what has to happen again, we’re not going to have a full-blown hearing again. We’ll only have that which will be required from this juncture on. I have heard | [¡enough to terminate parental rights but for what I consider to be a significant change in the last six weeks. So I guess what I’m saying is if you can prove to me in the next six months — and I’m not saying that’s when things will happen to change, but during that six months you’ll have to convince me that I can be in a position to someday award you the custody back of your children.

Based on our review of the evidence, we cannot say that the trial court manifestly erred in denying the termination of Fernandez’s parental rights. There is no dispute that Fernandez failed to comply with her case plan in the past. However, the trial court found that her recent behavior indicated a reasonable expectation of improvement. Because the termination of parental rights is a severe action, not to be taken lightly, the trial court’s finding that Fernandez has made recent improvements and showed a willingness to change, is in keeping with the guidance in In re J.A, 752 So.2d at 811, that the “courts must proceed with care and caution” in parental termination cases. Moreover, the children remain in the stable care of their foster parents pending a review hearing to determine if Fernandez is progressing in her case plan. For these reasons, we feel the trial court did not manifestly err in finding that it was in A.C.H. and AJ.H.’s best interest that their mother’s rights to them not be terminated.

CONCLUSION

The judgment of the trial court dismissing DSS’s petition for the termination of the parental rights of Lisa Marie Lav-ergne Fernandez is affirmed. All costs of this appeal are assessed against the plaintiff-appellant, the State of Louisiana, through the Department of Social Services/Office of Community Services.

AFFIRMED.

      . Parental rights of the fathers of these two children have been terminated and are not at issue.

      . Initials are used throughout to protect the privacy of the juveniles.


author: SULLIVAN, Judge.

text:
    Heidi PERRY v. Matthew D. WHITE, et al.
    No. 02-858.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2003.
    Norris J. Greenhouse, Greenhouse Law Office,L.L.C., Marksville, LA, for Plaintiff/Appellee: Christopher L. Caffery.
    Nolan J. Hammond, Attorney at Law, Alexandria, LA, for Defendant/Appellee: Heidi Perry.
    Andrew H. Meyers, Breaud & Lemoine, Lafayette, LA, for Defendants/Appellants: St. Paul Fire & Marine Insurance Co., Matthew D. White, Luhr Brothers, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   SULLIVAN, Judge.

For the reasons expressed in Caffery v. White, 02-857 (La.App. 3 Cir. 2/12/03); 846 So.2d 771, the judgment of the trial court in favor of Heidi Perry and against Matthew White and Luhr Brothers, Inc. is affirmed. Costs of this appeal are assessed to Defendants Appellants, Matthew White and Luhr Brothers, Inc.

AFFIRMED.