author: CARAWAY, J.

text:
    Brian MAYO, Plaintiff-Appellant v. Tonya HENSON, Defendant-Appellee.
    No. 42,250-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      Loomis & DeMent, by Albert E. Loom-is, III, Monroe, for Appellant.
    Ronald K. Cook, Monroe, for Appellee.
    Before BROWN, CARAWAY and DREW, JJ.
   CARAWAY, J.

Lin this case, the father initiated proceedings against the mother seeking either sole or primary custody of the 3½ year old daughter born out-of-wedlock, claiming that the mother’s alcohol abuse impaired her maternal fitness. An older half-sibling lived in the residential home maintained by the mother for 13 years. After the hearing officer designated the father as domiciliary parent, the child moved into his home. The mother objected to the trial court’s adoption of the hearing officer’s recommendation. Following a six-day trial, the trial court’s ruling awarded joint custody and restored the mother’s primary custody by naming her domiciliary parent, subject to the father’s reasonable visitation. Finding no abuse of discretion in the trial court’s judgment, we affirm.

Facts

H.M.M. was born on December 6, 2002, several months after Brian Mayo and Tonya Henson ended their relationship. Brian testified that he abandoned the relationship when Tonya was about 5 months pregnant. Tonya took the infant home to the same dwelling in which she and her then 11-year-old son had lived most of his life. Tonya testified that she paid all of the hospital expenses in connection with H.M.M.’s birth, totaling about $7,500. The child was conceived toward the end of Brian’s third marriage to another woman.

After H.M.M.’s birth, Tonya voluntarily allowed Brian periodic visitation. He also paid informal support, but Tonya testified he contributed nothing to defray the costs of her frequent doctor visits and prescription Ldrugs. Brian’s visitation schedule consisted of Thursday night through Sunday one week, and Thursday until Friday alternating weeks. He remarried in June 2005, and has a six-year-old stepdaughter.

Brian initiated this action in March 2006, in the wake of Tonya’s increasingly problematic behavior generally attributed to alcohol abuse. Tonya’s recent convictions for DWI and battery in 2005 resulted in two probated sentences. She was also arrested for DWI in 1991 and battery in 2000. Both fighting incidents involved altercations with women associated with her boyfriends.

At trial, Tonya countered with evidence of Brian’s routine use of marijuana and Xanax along with alcohol abuse. Witnesses also testified that Brian had previously sold marijuana.

Tonya and Brian both dropped out of high school and eventually obtained GEDs. Brian operates an auto trim business. His former employment with the fire department ceased in 1995 after a random drug screen evaluation. Tonya left home at 15 when her parents divorced, after being hospitalized for an alleged beating by her father. She has earned some college credit and is self-employed as a medical staffing consultant. Her business, known as “Rad Search,” is operated out of her home. Although married briefly at 20, she has no other marriages. She is close to her mother and brothers, and maintains contact with her abusive father. The parties have worked out an informal child support arrangement in which Brian makes indeterminate payments to Tonya. Because he is self-employed, Brian testified that he obtained life insurance coverage naming |ahis mother beneficiary to assuage Tonya’s concerns about supporting H.M.M. in the event of untimely death.

Ten witnesses as well as both parties testified at trial, including a mental health expert for each parent, neither of which evaluated the opposing party. Dr. Van Frusha interviewed Tonya and H.M.M. at his office in June 2006, and visited Tonya’s home in July, where he observed the interaction among Tonya, the child and the child’s half-brother, P.F. He was particularly impressed with P.F.’s school achievements and musical abilities. Dr. Van Frusha characterized the older child as exceptionally bright, even gifted. He described Tonya’s interaction with her children as appropriate and loving, and described the connection among them, and the bonding of both children to her. P.F. and H.M.M. were also bonded to each other, and H.M.M. called the older child “brother.” P.F.’s testimony as a whole indicated awareness of Tonya’s admitted history of alcohol abuse and drug use, but he discounted whether it hampered her mothering ability.

On the other hand, Dr. E.H. Baker testified as Brian’s mental health expert. His evaluation was based on reading Tonya’s deposition, and he did not personally interview her. He characterized Tonya’s house as unstable because her drinking was inappropriate and led to “significant disinhibition,” during which she failed to control her anger and hostility. He admitted Tonya reared P.F. successfully and that her “parenting ability is there.” He admitted on cross that Brian omitted some unfavorable personal history during their interview.

I/The trial court questioned Brian and Tonya at length to ascertain the reason each believed one was the better parent. It challenged Brian to be candid about his drug use in light of his positive marijuana screen during the pendency of the custody proceeding, and confronted his “untruthfulness.” Although Brian’s new wife, Tina, testified that their relationship was good, the trial court was skeptical considering Brian’s relationship history which included three marriages ending in divorce. Importantly, Brian and Tina both worked full-time, and had to place H.M.M. in day care. Tonya was a self-described stay-at-home mother. She recalled difficulty communicating with Brian since his remarriage, complaining that Tina interjected herself into the parental dialogue. As for H.M.M.’s hands-on care, Brian testified that he took her to the doctor five to ten times but admitted on cross he was unaware of her 90 doctor visits in three years. He complained that Tonya did not take H.M.M. to the dentist enough, resulting in numerous cavities.

In written reasons, the trial court articulated its factor-by-factor analysis pursuant to Civil Code Article 134 resulting in a ruling for joint custody with Tonya as the domiciliary parent. The details of Brian’s custody/visitation schedule are not set forth in the record, but presumably remain similar to the parties’ prior arrangement.

Brian appeals the judgment, assigning as error the trial court’s application of the best interest of the child standard embodied in Article 134. Brian insists that limited and supervised visitation by Tonya is needed | Rto guard against the risk posed to the child’s safety because of Tonya’s admitted problems with alcohol.

Discussion

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 97-541 (La.2/6/98), 708 So.2d 731; Rutledge v. Rutledge, 41,-792 (La.App.2d Cir.12/13/06), 945 So.2d 307. In a proceeding in which custody of an illegitimate child formally acknowledged by both parents is sought by both parents, and in proceedings for change of custody after an original award, custody shall be awarded in accordance with the provisions on custody incident to divorce contained in Title V of the Louisiana Civil Code. La. C.C. art. 245. The best interest of the child test under Articles 131 and 134 is a fact-intensive inquiry requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Rutledge, supra; Cook v. Cook, 40,572 (La.App.2d Cir.1/25/06), 920 So.2d 981. Each custody case must be viewed within its own peculiar set of facts. Cook, supra.

La. C.C. art. 134 provides that the court shall consider all relevant factors in determining the best interest of the child and such factors may include the following:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
|fi(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The court is not bound to make a mechanical evaluation of all of the statutory factors listed in Article 134, but should decide each case on its own facts in light of those factors. The court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Rutledge, supra (internal citations omitted). Moreover, the factors are not exclusive but are provided as a guide to the court and the relative weight given to each factor is left to the discretion of the trial court. Rutledge, supra, citing McIntosh v. McIntosh, 33,908 (La.App.2d Cir.8/31/00), 768 So.2d 219.

Underlying the trial court’s great discretion in child custody cases is its opportunity to better evaluate the credibility of witnesses. Accordingly, a trial court’s determination in the establishment or modification of custody issues is entitled to great weight and will not be reversed on appeal unless |7an abuse of discretion is clearly shown. Knowlton v. Knowlton, 40,931 (La.App.2d Cir.4/12/06), 927 So.2d 640; Cook, supra; Walkowiak v. Walkowiak, 32,615 (La.App.2d Cir.12/8/99), 749 So.2d 855; Warlick v. Warlick, 27,389 (La. App.2d Cir.9/29/95), 661 So.2d 706.

In the ruling and its questioning of the parties, the trial court conscientiously and laboriously considered the factors listed in Civil Code Article 134 for its determination of the best interest of the child. It found that the majority of the factors favored primary custody in Tonya. Sadly, however, because of the drug and alcohol abuse of both parents and their history of poor relationships with persons of the opposite sex and/or former spouses, the trial court concluded regarding the parents’ “moral fitness” factor that it “was equally ‘bad’ for each party.” The illegal drug and alcohol problems of both parents have not yet precipitated intervention by state authorities, through criminal incarceration and action by the Department of Social Services, which could resolve custody of the child by removing the parents altogether. The court was therefore required to rule on custody with knowledge of these major failings of both parents which may harm the well-being of the child in the future.

With this “equally bad” backdrop, Brian’s appeal primarily rests on a re-emphasis of Tonya’s alcohol abuse, her brushes with the law caused by that abuse and her frequent and failed relationships. However, more damning is the course of events that elapsed after Brian’s initiation of this action in March 2006, revealing his own drug problem. In his deposition of April 22, 2006, Brian denied the use of marijuana since his removal from |sthe Monroe Fire Department in 1995. Leading up to the hearing officer conference of May 23, 2006, Brian refused Tonya’s request to submit to hair follicle drug testing. After the conference, the hearing officer recommended that both parents be subjected to drug testing and this recommendation became the order of the trial court on June 6, 2006. Two days later, Brian tested positive for marijuana use. At trial, he also admitted use of Xanax and ecstasy. With this direct evidence of Brian’s use of illegal drugs, the trial court could easily credit the testimony of other witnesses regarding Brian’s distribution and sales of those drugs.

Accordingly, while Brian’s emphasis of the alcohol abuse and possible alcoholic condition of Tonya is noted in this appeal, the trial court was called upon to weigh the equally disturbing evidence of Brian’s drug abuse. The court’s decision leaving custody of H.M.M. primarily with Tonya ultimately rested on the strength of Tonya’s previous exercise of the care and rearing of the child since birth, the desirability for maintaining continuity of that custodial environment, and the success of Tonya’s existing family unit demonstrated by the character and educational strengths of her older son, P.F. The trial court’s rulings on those important factors support its judgment of joint custody with Tonya’s designation as domiciliary parent.

Conclusion

For the above reasons, the ruling of the trial court is affirmed. Costs are assessed to appellant.

AFFIRMED.

      . H.M.M. allegedly suffers from RDS, a chronic respiratory disorder.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Alfreda EASTER, et al., Plaintiffs-Appellees v. DIRECT INSURANCE COMPANY, et al., Defendants-Appellants. Shirley Brown, Plaintiff-Appellant v. ACE American Insurance Kenneth Gaines and Flowers Bakers, Defendants-Appellees.
    Nos. 42,178-CA, 42,179-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      Hudson, Potts & Bernstein, by Jay P. Adams, Monroe, for Appellant, Direct Insurance Company.
    Smith & John, by Richard M. John, Shreveport, for Appellant, Shirley Brown.
    Norman Gordon & Associates, by W. Brett Cain, Shreveport, for Appellees, Alfreda Easter, et al.
    Lunn, Irion, Salley, Carlisle, by James B. Gardner, Shreveport, for Appellees, Kenneth Gaines, Flowers Baking of Tyler, L.L.C. and Ace American Insurance Company.
    Before WILLIAMS, GASKINS and DREW, JJ.
   GASKINS, J.

hln this auto accident case, plaintiff Shirley Brown appeals from a judgment dismissing her lawsuit against Flowers Bakery, et al. For the following reasons, we affirm the trial court judgment.

FACTS

These consolidated lawsuits arose after an August 23, 2004, car accident on northbound Interstate 49 in Shreveport, just south of the Interstate 20 interchange. A Honda Accord driven by Ms. Brown was struck from behind by a bread truck driven by Kenneth Gaines. Alleging that she was injured, Ms. Brown sued Mr. Gaines, his employer, Flowers Bakery (Flowers), and its insurer, Ace American Insurance Company (Ace). Ms. Brown’s passengers, Alfreda Easter, Golda Easter, and Golda’s minor child, Kerivien Patterson, also alleged that they were injured. The passengers sued Mr. Gaines, Flowers and Ace, and also sued Ms. Brown and her insurer, Direct Insurance Company (Direct). Ms. Brown’s passengers later settled their claims against all parties. Ms. Brown went to trial alone against Mr. Gaines, Flowers and Ace.

Drawings of the location of the crash were introduced into evidence. These exhibits show that Interstate 49 is four lanes wide just before it splits into five lanes, three going left into the downtown area and two veering to the right toward the I-20 ramps, east and west bound.

Ms. Brown, who was from Arkansas and admitted that she was not familiar with the 1-49 / 1-20 interchange, said that she first thought that she 1 ^needed to be in the left-hand lane of 1-49 to exit to 1-20 westbound. She testified:

I had just left King’s Highway entering I — 19 north. I was going to enter the I-20 towards Dallas area. I was going to exit off on Jewella, but as I was coming I entered to the — next to the last lane on the lefthand side of the driver’s side. I was driving that area when a passenger told me that I need to get over one lane. So I turned my signal light on [and] proceeded to get over to the next lane and I saw that the traffic was pretty close. It was a car turning. They had their signal light on right to move over so I could make that turn. So after I saw that the area was, you know, cleared enough so I can make that turn I made my turn into the next lane and I proceed (sic) driving down that area.
After I made that lane change my front passenger Alfreda Easter she told me she said You see that car over there in the median?’ I said ‘Yes.’ I seen it, it’s just sitting there and then it made a brake like the driver hit their brakes real hard and the car moved....
At that point when the vehicle hit its brakes, I hit mine to let the traffic behind me realize that something was going on up in front of us and so I proceeded slowing down and then the car it was, you know, after it had made a brake I said ‘well, it’s a truck behind me it’s coming up pretty fast.’ They say, ‘well, don’t worry about the truck long as you hit your brakes let them know something was going on up here he should slow down.’
And so we drove on a little bit further and the car made another brake and so I hit my brakes and slowed down further. Then after that I was hit....

Mr. Gaines had a sharply different version of the events. He testified that he was driving his bread truck in the lane of 1-49 that veers toward 1-20 westbound. He first saw Ms. Brown’s car in the far left-hand lane of 1-49. Mr. Gaines did not see Ms. Brown signal before she changed lanes to cross 1-49, pulling in front of him. Mr. Gaines said that he hit his brakes, but was |sunable to avoid running into Ms. Brown. He said that he was not speeding prior to the accident.

Donald Cornett was driving himself and his wife Patricia in a vehicle traveling behind Mr. Gaines on 1-49 and witnessed the accident. Mr. Cornett, who was driving the same speed as Mr. Gaines, said that he first saw Ms. Brown’s car in the far left lane of 149. He testified that he did not see Ms. Brown put on a turn signal:

I saw her cut in front of the truck. He locked his brakes up. Then I saw [Ms. Brown] go right underneath his truck in the front end and then I seen his truck up on one side then the other. Scared the hell out of me. I thought he was going — I thought I was going to have him on my truck because he locked them up so fast and I locked them up and we were all — it was the grace of God that he didn’t lay that thing over right then.

He said that the brake lights on the bread truck came on immediately when Ms. Brown pulled in front of Mr. Gaines. He also stated that Mr. Gaines’ truck swerved out of its lane at one point while Mr. Gaines was trying to avoid Ms. Brown’s car. Mr. Cornett, who is color blind, described Ms. Brown’s car, which is a dark green Honda, as dark red and like a Ford Escort.

Patricia Cornett also testified that Ms. Brown was in the far left lane of 149 when she first saw the plaintiff. She testified that the first thing she noted was:

Seeing [Ms. Brown] cut over. There was a truck along side her that she almost — it was going straight. He kept going straight and had to put his brakes on. She cut over and then I saw the guy in the Flower truck — bread truck in front of us slam on his brakes and then we slammed our brakes on when we seen that.
DHe almost flipped in front of us. He was going side to side putting his brakes on trying to avoid hitting her and then he had no choice but to straighten it out and to hit her because the way that she cut him off and we had to slam our brakes on. We almost hit him. We had to slam our brakes on.

She agreed that Mr. Games’ truck swerved from side to side for about 30 to 40 seconds and traveled 300 or 400 feet prior to the impact.

The Cornetts’ testimony conflicted in numerous respects. Mr. Cornett testified that he was driving their Mercury automobile, whereas Ms. Cornett remembered being in the couple’s Suburban. Mr. Cornett stated they had just left a shop where he had gotten a knee brace; Ms. Cornett testified that they had been at a tool shop. They also differed in their recollection of whether and how long they remained at the scene after the accident and where they were going at the time this event occurred.

After the hearing was completed, the trial court concluded that Ms. Brown was entirely at fault for the accident. The judge observed:

I’m sorry to tell you this in court, Ms. Brown, but I did not find you to be a credible witness. Your version of what happened here absolutely makes no sense. Nobody else saw this blinker. According to your version, you move over and you’re driving in front of the bread truck for a while and he’s speeding and he slams into the back of you and that story makes absolutely no sense to the Court. The Court also notes that you failed to bring into court the people who were in the car with you who could have corroborated your version of what happened here. In any event, I didn’t find you to be a credible witness.
I found the defendant, Mr. Gaines, to be a very credible witness. I had the opportunity to observe him while he was testifying and if he couldn’t recall something he admitted that and I found him to be credible.

|sThe court observed that Ms. Cornett was shaking and very nervous while on the stand and noted that she did not recall the details of the accident as well as her husband did. The court then stated:

I found Mr. Cornett to be a completely credible witness. He was driving the car and so he had more reason to be attentive than his wife. So he had more reason to be paying attention to what was going on here. And I found him to be credible when he corroborated the other testimony that the plaintiff swerved across the three lanes of I-Í9 to get over to the 1-20 exit area. And I also find that he corroborated Mr. Gaines’ testimony in telling the court how quickly this accident happened. It was a matter of a few seconds and there was no opportunity for him to avoid striking the back of her car.

The trial court found that Ms. Brown’s improper lane change prevented Mr. Gaines from being able to stop before crashing into the plaintiff. The trial court entered judgment dismissing Ms. Brown’s claims with prejudice. Ms. Brown now appeals.

FAILURE TO CALL WITNESSES

Ms. Brown argues that the trial court erred in applying an adverse presumption against her for the decision not to call purported fact witnesses who were equally available to all parties and who had in fact settled their claims arising from the accident. This argument is without merit.

An adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, even though the presumption is rebuttable, and is tempered by the fact that a party need only put on enough evidence to prove the case. Driscoll v. Stucker, 2004-0589 (La.1/19/05), 893 So.2d 32; Ollis v. Miller, 39,087 (La.App.2d Cir.10/29/04), 886 So.2d 1199; Louisiana Safety Association of Timbermen Self Insurers Fund v. Malone Lumber, Inc., 34,646 (La.App.2d Cir. 66/20/01), 793 So.2d 218, writ denied, 2001-2557 (La.12/07/01), 803 So.2d 973. This adverse presumption is referred to as the “uncalled witness” rule and applies when a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence and fails to call such witnesses. Driscoll v. Stucker, supra. The presumption is rebuttable, particularly when the witness is equally available to the opposing party. Gaston v. Bobby Johnson Equipment Co., Inc., 34,-028 (La.App.2d Cir.11/3/00), 771 So.2d 848; Louisiana Safety Association of Timbermen Self Insurers Fund v. Malone Lumber, Inc., supra.

In reasons for judgment, the trial court found that Mr. Gaines’ version of the accident was credible and that Ms. Brown was not a credible witness. The court mentioned in passing that Ms. Brown failed to call as witnesses the passengers in her car who might have corroborated her version of the accident. The trial court did not actually rely on the presumption in making its decision. Based upon the record before us, we do not find that the trial court improperly applied the “uncalled witness” rule in deciding against Ms. Brown. The court simply found that the plaintiffs story made no sense, given all of the evidence presented. The plaintiff failed to put on enough evidence to prove her case. We perceive no error of law sufficient to warrant a de novo review of the evidence. See Robinson v. Flowers, 41,798 (La. App.2d Cir.1/24/07), 949 So.2d 549.

WITNESS CREDIBILITY

Ms. Brown argues that the trial court erred in supporting its decision with the testimony of witnesses who were inconsistent with each other and 17whose testimony concerning core facts was clearly impeached. This argument is without merit.

In civil cases, the appropriate standard of review for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. The reviewing court should' affirm where the district court judgment is not clearly wrong or manifestly erroneous. Driscoll v. Stucker, supra.

One of the basic tenets of the manifest error standard of review is that reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the court of appeal is convinced that had it been the trier of fact, it would have weighed the evidence differently. Driscoll v. Stucker, supra. Where there are two permissible views of the evidence, the trier of fact’s choice between them cannot be manifestly erroneous or clearly wrong. Louisiana Association of Timbermen Self Insurers Fund v. Malone Lumber, Inc., supra.

When findings are based on determinations regarding credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfin-der can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so I ¿internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Louisiana Safety Association of Timbermen Self Insurers Fund v. Rufino’s Painting & Contractors, Inc., 40,-620 (La.App.2d Cir.5/19/06), 930 So.2d 1186.

Additionally, the existence of negligence and the allocation of fault are factual determinations and subject to the trial court’s great discretion. See Robert v. Nelson, 36,541 (La.App.2d Cir.12/11/02), 833 So.2d 1136; Henderson v. Sutherland’s Lumber Co., 31,714 (La.App.2d Cir.3/31/99), 733 So.2d 667.

Ms. Brown cites the numerous differences between the testimony of Donald and Patricia Cornett and argues that the trial court’s reliance on their testimony over that of the plaintiff was manifestly erroneous. Ms. Brown has thoroughly explored the differences and contradictions between their testimony and argues that the discrepancies leave room for her version of how the accident occurred to be plausible.

Any incongruity in the testimony of the Cornetts was on peripheral matters not directly bearing on the ultimate issue of liability in this case. Their testimony and that of Mr. Gaines was consistent in stating that Ms. 1 ¡¡Brown did not signal a lane change, and that she suddenly cut in front of Mr. Gaines, causing him to hit her vehicle from the rear. Mr. Cornett was certain in his testimony that Ms. Brown’s actions caused Mr. Gaines to slam on his brakes to avoid hitting her. Further, the Cornetts are disinterested witnesses who corroborated Mr. Gaines’ version of the accident.

The trial court had ample opportunity to hear the thorough cross-examination of these witnesses by plaintiffs counsel and was fully apprised of the differences in their versions of events. The trial court accepted Mr. Cornett’s testimony over Ms. Cornett’s testimony because he was the person who was driving and because he seemed to have the better recollection of the event. Although the testimony of the witnesses in this case undoubtedly contains numerous differences and discrepancies, none of the inconsistencies show that the trial court’s factual finding was manifestly erroneous or clearly wrong. The trial court did not err in finding that Mr. Gaines and his witnesses were credible witnesses, in finding Ms. Brown not to be credible, and in dismissing the plaintiffs claims.

FOLLOWING MOTORIST PRESUMPTION

Ms. Brown contends that the trial court erred in its determination that the “following motorist” presumption in favor of the plaintiff was inapplicable to the present case. This argument is without merit.

A following motorist is charged with a duty of great care regarding a preceding motorist. Robert v. Nelson, supra. This duty is derived in large measure from La. R.S. 32:81 which states, in pertinent part, that:

[T]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable 11fland prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

A well-established presumption exists that, in a rear-end collision, the following driver breached the standard of care set out in La. R.S. 32:81 and is presumed negligent. Robinson v. Flowers, supra. To escape liability, the following motorist has the burden to prove that he had his vehicle under control, closely observed the lead vehicle and followed at a safe distance or that the lead vehicle negligently created a hazard which the following vehicle could not reasonably avoid. Robinson v. Flowers, supra.

This rule and presumption was intended to cover the situation where the vehicle has been lawfully proceeding within the same lane as the following vehicle and a rear-end collision occurs as a result of the following motorist’s failure to maintain a safe distance or to keep a proper lookout. Robert v. Nelson, supra.

Louisiana’s jurisprudence recognizes several situations where, while the following car may have impacted the lead car from the rear, the following car is not presumed negligent. For example, a driver changing lanes without first determining that the move can be completed safely and then is struck from the rear by a following car, cannot rely on the rear-end collision presumption to shift the burden to the following driver. Robinson v. Flowers, supra.

La. R.S. 32:79(1) provides:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply.
| n(l) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

La. R.S. 32:104 provides that a change of lanes by a driver must be indicated by a turn signal. The applicable rule from these two statutes is that a motorist who attempts to change traffic lanes on a multiple-lane highway must ascertain before turning that the maneuver can be made safely without endangering normal overtaking or oncoming traffic. Robert v. Nelson, supra.

The record shows that the “following motorist” presumption does not apply to the facts of this case. The trial court made findings of fact, based upon its reasonable evaluations of credibility, that Ms. Brown abruptly and at the last available moment swerved her ear from the far left lane of 1-49 across two lanes and then into the lane immediately in front of Mr. Gaines. Mr. Gaines could not avoid the collision. The court found that it was Ms. Brown who breached her duty under La. R.S. 32:79 not to move from her lane of travel without first ascertaining that the movement could be made with safety. The trial court’s finding that Ms. Brown swerved in front of Mr. Gaines and was solely at fault in causing this accident is supported by the record and is not manifestly erroneous.

CONCLUSION

For the reasons stated above, the judgment of the trial court is affirmed. Costs in this court are assessed to the plaintiff, Shirley Brown.

AFFIRMED.

      . The passengers’ suit, Alfreda Easter, et al. v. Direct Insurance Company, et al., 42,178-CA, was dismissed against Mr. Gaines, Flowers and Ace on August 11, 2006. The passengers’ claims against Ms. Brown and Direct were dismissed on August 21, 2006.


text:
    STATE of Louisiana, in the Interest of C.M.M. and A.R.M., Plaintiffs-Appellees v. T.P.M., Defendant-Appellant.
    No. 42,238-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      Joey W. Hendrix, Shreveport, for Appellant T.P.M.
    Steven R. Thomas, Mansfield, for Appel-lees, the Juveniles C.M.M. and A.R.M.
    Audie L. Jones, Shreveport, for Appellee Dept, of Social Services.
    Brian McRae, for Appellee S.L.F.M.
    Before GASKINS, PEATROSS and LOLLEY, JJ.
   GASKINS, J.

hThe defendant, T.P.M., appeals from a trial court judgment terminating his parental rights to his two children, C.M.M. and A.R.M. For the following reasons, we affirm.

FACTS

When this matter arose, the children’s mother was a drug abuser and T.P.M. was incarcerated on domestic violence charges for battering her. The battery occurred in the presence of the children. He had previously served time on a drug offense. In March 2003, the mother sent the children to stay with their uncle, the defendant’s brother. The uncle and his girlfriend got into a disagreement and left the children unattended at their residence. C.M.M., who was then eight years old, took A.R.M., then five years old, to a neighbor’s house where she called her maternal grandmother. The grandmother picked up the children and kept them overnight. She could not keep them permanently because her husband was a child molester. She contacted the authorities the next day to take the children.

In May 2003, the court signed an instanter order for removal. The children were placed in a foster home because no suitable relatives could be found. The defendant’s mother was not considered because the defendant and his brother had been placed in foster care.

In July 2003, the court adjudicated the children in need of care and assigned custody to the state. A case plan was formulated with the goal of reunifying the children and parents. The mother was given a list of requirements and the case was reviewed every six months. In February 2004, the defendant was released from prison and was added to the case Implan. The defendant was ordered to attend parenting classes, submit to a substance abuse evaluation, and attend a domestic violence perpetrators group. When the matter was reviewed in May 2004, the defendant had refused to comply with these requirements.

In February 2005, the state filed a petition for termination of parental rights, arguing that the mother and the defendant had utterly failed to comply with the requirements of the case plan. When the case was reviewed in May 2005, the state contended that return to the family home would be contrary to the welfare, health, and safety of the children and would not be in the best interest of the children. The state recommended that the children be continued in state custody with a plan of adoption by their foster parents.

The defendant opposed the plan to terminate his parental rights. The hearing in this matter began in April 2005, but was recessed to allow psychological evaluations of T.P.M. and the children. The hearing resumed in October 2005. After hearing testimony from the foster care worker and several psychologists who evaluated T.P.M. and the children, the trial court stopped the hearing and sent the defendant for therapy with Chris Miciotto, a clinical social worker. T.P.M. was then to be reevaluated.

|aThe hearing resumed in September 2006. At the close of the hearing, the trial court terminated the defendant’s parental rights. The court observed that this matter had been pending for almost four years. There had been no substantial compliance with the case plan by T.P.M. and there was no reasonable expectation of improvement. The court noted that the defendant failed to comply with his program of treatment, had not paid child support, and had tested positive for marijuana during the course of these proceedings. According to the court, the defendant is concerned only with his own interests and his demeanor in court showed that he should not be raising children. The court found that the state proved all allegations by clear and convincing evidence and that the need for a safe and stable home for the children was controlling. The court ordered that the defendant’s parental rights be terminated. The defendant appealed.

TERMINATION OF PARENTAL RIGHTS

The defendant contends that the state failed to prove by clear and convincing evidence that his parental rights should be terminated. He claims that there is nothing in the record to show that he is an unfit parent. The defendant also argues on appeal that the court failed to properly weigh his progress on the case plan. He cites his completion of anger management and parenting courses in prison, as well as those completed after his release. He claimed to be making progress in the counseling he received from Mr. Miciotto. These arguments are without merit.

Title X of the Louisiana Children’s Code governs the involuntary termination of parental rights. Permanent termination of the legal | relationship existing between natural parents and children is one of the most drastic actions the state can take against its citizens. State ex rel. AT., 2006-0501 (La.7/6/06), 936 So.2d 79.

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. Parents have a natural, fundamental liberty interest to the continuing companionship, care, custody, and management of their children. These interests warrant great deference and require full, vigilant due process protection that fair procedure be followed when the state seeks to terminate the parent-child legal relationship. Balanced against those protections is the child’s profound interest in terminating parental rights which prevent adoption, and hamper the establishment of secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing the parents’ and the child’s interests, the courts of this state have consistently found the interests of the child to be paramount over those of the parents. State ex rel. L.B. v. G.B.B., 2002-1715 (La.12/4/02), 831 So.2d 918.

The state’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the state seeks the permanent severance of that relationship in an involuntary termination proceeding. 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 |Rproviding 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. State ex rel. L.B. v. G.B.B., supra; State ex rel. S.M.W., 2000-3277 (La.2/21/01), 781 So.2d 1223.

In order to terminate parental rights, the court must find that the state has established at least one of the statutory grounds contained in La. Ch. C. art. 1015. It provides, in pertinent part:

The grounds for termination of parental rights are:
(4) Abandonment of the child by placing him in the physical custody of a nonpar-ent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s 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.

The petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence. La. Ch. C. art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Even upon finding that the state has met its evidentiary burden, a court still should not terminate parental rights unless it determines that to do so is in the child’s best interests. State ex rel. C.E.C. v. D.M.D.B., 40,409 (La.App. 2d Cir.9/28/05), 912 So.2d 418.

La. Ch. C. art. 1036, which addresses proof of parental misconduct, provides in pertinent part:

C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case 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.
D. 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.

The issue of parental compliance with a case plan, the parent’s expected success of rehabilitation, and the expectation of significant improvement in the parent’s condition and conduct are questions of fact in a proceeding for termination of parental rights. An appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. State ex rel. C.E.C. v. D.M.D.B., supra; State ex rel. S.S.S., 39,047 (LaApp. 2d Cir.8/18/04), 880 So.2d 153.

Children have a need for permanency. Forcing children to remain in foster care indefinitely, when there is no hope of reuniting them with their families, runs afoul of the state and federal mandates to further the best interests of the child. State ex rel. C.E.C. v. D.M.D.B., supra.

Rebecca Teasley of the DeSoto Parish Office of Community Services (OCS) was the foster care case worker in this matter. She testified in this matter that the case plan was reviewed with the defendant when he came to the office in February 2004, shortly after his release from prison. He missed some case review meetings and reportedly told the children that he would not cooperate with the case plan. He first attended a review meeting in late November 2004. Ms. Teasley stated that the defendant refused to attend parenting and anger management courses arranged for him. Instead, he |Rclaimed to have taken courses in jail and also took courses he arranged for himself.

In August 2004, Ms. Teasley was present when the defendant had a traumatic visit with the children. The defendant got into a discussion with the children. C.M.M. indicated that she was uncomfortable and Ms. Teasley directed the defendant to cease the discussion. The defendant became angry and began cursing. Ms. Teasley terminated the visit. C.M.M. was so upset she almost threw up and said that was the way T.P.M. acted when he hit her mother.

According to Ms. Teasley, the defendant made no progress toward reunification. The children told Ms. Teasley that they did not want to return to their parents and wanted to be adopted by their foster parents. When asked about family counseling, Ms. Teasley noted that the children’s counselor did not think that was in their best interest.

Harold Ledford with Project Celebration testified that the defendant was referred to his agency for anger management and parenting courses, but that he never showed up. Mr. Ledford tried to set up a schedule that the defendant could comply with, all to no avail.

Andrea Williams of Support Enforcement Services testified that there is a support order against the defendant for C.M.M. and A.R.M. for $135 per month per child. These orders were entered in February 2005. At the time of the hearing, the defendant owed $1,945 in past-due support for C.M.M. and $1,645 for A.R.M.

| pCheryl Shirley of Northwest Regional Center for Addictive Disorders did an assessment of the defendant and found that he was addicted to drugs. She recommended intensive outpatient treatment four times per week. The defendant refused to comply, saying that he did not have transportation. He also refused to submit to drug screening by the OCS.

Shelly Booker, the social worker who counseled the children,, testified that both girls had emotional problems when they first entered foster care. They had witnessed domestic abuse in the home, as well as observing drug use by their parents. They had also experienced having both parents incarcerated at various times. The children are afraid of the defendant and A.R.M. drew pictures of the defendant hurting her mother. She also had nightmares in which the defendant harmed her foster mother. Ms. Booker stated that the children never expressed a desire to live with the defendant. Rather, they told her they strongly desired to stay with their foster parents.

The children had been in their foster home since 2003. Ms. Booker noted the incident in August 2004, when the defendant became belligerent during visitation. She stated that after that point, visitation was moved to the OCS office. According to Ms. Booker, the defendant was arrested for simple battery in December 2004. This fact, combined with the defendant’s refusal to comply with the case plan and the problematic visitation, indicated that family counseling would not be appropriate. There was also information that the defendant was driving by the foster home, causing concern to the children. Ms. Booker testified that the children had [ ^significant stability for three years in the foster home and that taking them away from the foster parents would be devastating.

The defendant was evaluated by Dr. Daniel Lonowski, a psychologist, in May 2004. His report was introduced into evidence at the hearing. Dr. Lonowski noted that when the defendant was nine years old, he and his brother were taken into state custody. The defendant told Dr. Lo-nowski that his mother relinquished custody of him and his brother because she could not control their behavior. T.P.M. was distrusting and suspicious of the state. Although T.P.M. denied alcohol abuse, he had previously been incarcerated for distribution of marijuana. During outpatient substance abuse treatment, T.P.M. continued to use marijuana. In spite of these factors, Dr. Lonowski did not classify T.P.M. as chemically dependent.

Dr. Lonowski concluded that T.P.M. had narcissistic personality traits and was self-centered. He stated that narcissistic people harbor notions that they are entitled to special rules or considerations and they become upset if these are not forthcoming. He stated that such individuals have frail egos and when confronted, with their narcissistic confidence shaken, they tend to experience emotional distress. They then react with hurt, depression, or hostility. They tend to be insensitive to the needs and feelings of others and they typically exploit relationships. Dr. Lonowski opined that T.P.M. has the ability to parent the children, but because of his difficult family history and his narcissistic personality orientation, he might be drawn into antagonistic encounters with certain family members that could compromise his parenting.

InDr. Lonowski recommended that T.P.M. and the children be referred for family counseling to address issues such as his absence from their lives while he was incarcerated and the children’s concerns about their parents.

Dr. John Simoneaux, a psychologist, evaluated the defendant in June 2005 and testified at trial. He also found the defendant to be narcissistic, which is the most difficult personality disorder to treat. The defendant sees himself as being without fault. The defendant is self-centered and self-indulgent. He makes excessive demands on others for attention and sympathy, but is resentful when any demands are placed on him. The defendant does not get along well with others in social situations and is uncomfortable around women. He avoids deep emotional involvement. Dr. Simoneaux found the defendant to be unrealistically grandiose in his self-appraisal and not receptive to counseling.

Dr. Simoneaux said the defendant reportedly completed parenting and anger management classes in prison. According to Dr. Simoneaux, the defendant did not learn much, because his views on parenting showed a poor fund of knowledge. Dr. Simoneaux said that the defendant was not able to appropriately parent the children and there was a high potential for future abuse or neglect. While there was not a high risk that the defendant would physically abuse the children, his poor judgment and poor impulse control could harm the children as a result of his bad judgment. He said that the defendant would be unlikely to protect the children if it conflicted with his own self-interest.

lii>Dr. Simoneaux noted the defendant’s failure to comply with the requirements of the state in order to get the children back. He found that the defendant was distressed, not so much at the prospect of losing the children, but because people think he is wrong and he does not believe that he is. He stated that it was consistent with the defendant’s personality to insist that he would do whatever it took to get his children back, and then do nothing.

According to Dr. Simoneaux, the finding by Dr. Lonowski that T.P.M. did not have a substance abuse problem is based on a test in which the answers are easily predictable. Dr. Simoneaux disagreed with Dr. Lonowski’s purported recommendation for family counseling. The children’s therapist, Ms. Booker, thought that family counseling would be harmful to the children and Dr. Simoneaux concurred. He also stated that Dr. Lonowski recommended family counseling without evaluating the children.

Dr. Simoneaux evaluated C.M.M. and found her to be intelligent and articulate. She commented that her father smoked too. much and seemed to describe him smoking crack cocaine. The domestic violence observed by C.M.M. was frightening and emotionally abusive to her. She indicated that she was happy in the foster home and did not want to live with her father.

A.R.M. was also evaluated by Dr. Simo-neaux. He found her to be bright and engaging. She was aware of her mother’s drug abuse and also observed the domestic abuse of her mother by her father. Dr. Simoneaux stated that he would not suggest that the girls be returned to their father.

11sOn October 20, 2005, during the hearing, the court recessed the proceedings to allow T.P.M. an opportunity to undergo counseling with Chris Miciotto, a social worker appointed by the court. The court ordered individual counseling for T.P.M. to determine whether he could progress to the point where family counseling would be appropriate. T.P.M. was then to be reevaluated by Dr. Simoneaux.

The hearing resumed on September 13, 2006, almost one year later. Mr. Miciotto filed his report into the record and was available for questioning. The report indicates that T.P.M. attended 17 counseling sessions from October 25, 2005 to January 18, 2006. The main focus of treatment was T.P.M.’s narcissistic tendencies. Mr. Mi-ciotto noted that keeping T.P.M. focused was difficult. He felt that T.P.M. had made progress and should continue with individual counseling while the issue of family counseling was addressed. T.P.M. denied any drug abuse and said that he used alcohol occasionally. At the hearing, Mr. Miciotto acknowledged that he had not seen Ms. Booker’s evaluation finding that family counseling was not appropriate. Further, he had not evaluated the children. The defendant told Mr. Miciotto that he smoked marijuana on occasion, but failed to tell him about a positive drug screening in May 2006. Mr. Miciotto agreed that people using drugs should not be parenting and that the defendant still needs counseling.

Dr. Simoneaux again evaluated the defendant in January 2006. He testified at the hearing that the defendant had “learned the language” in order to make himself look better. Dr. Simoneaux did not think that the |14defendant had made any progress. He found that the defendant still had narcissistic and antisocial orientations. Dr. Simoneaux observed that the defendant was in the middle of a trial to terminate his parental rights, and still had made no effort to change. The defendant’s visitation had been limited to one hour per month due to his own behavior. Dr. Simoneaux stated that the children should not be held in limbo on the possibility that the father might make some progress.

While the hearing was recessed for T.P.M. to receive counseling, he also chose to be evaluated by a psychologist of his own choosing, Dr. Mark Vigen. This evaluation was filed into the record. Dr. Vi-gen also found that T.P.M. was narcissistic and does not have an accurate view of himself and parenting. Dr. Vigen found that T.P.M. was prone to alcohol and/or drug abuse. Interestingly, T.P.M. submitted to drug testing for Dr. Vigen on May 1, 2006. He tested positive for marijuana.

The defendant testified at the hearing that he could not comply with the case plan set forth by the OCS because he did not have transportation to get to the various meetings and counseling sessions. He claimed to have completed parenting and anger management classes in prison and also in a program of his own choosing after his release. He admitted refusing drug testing by the OCS, but said he would submit to testing by his parole officer. His latest refusal of a drug test was in April 2006. He stated he would have gone, but his pregnant pit bull dog was involved in a fight and he had to attend to that matter.

|1fiThe defendant denied becoming belligerent during visitation with the children in August 2004. He also denied that his mother, who was present, became involved in the disagreement.

The defendant acknowledged testing positive for drugs in May 2006. He stated that he wanted another chance to comply with the state’s requirements, but also wanted more access to the children. He claimed that the children often told him that they wanted to live with him and that they were being confused by others. He acknowledged being behind in his child support.

The record shows that the state has proved by clear and convincing evidence that T.P.M. failed to comply with his case plan and there is no reasonable expectation of significant improvement in his condition and conduct in the near future. Rather than complying with the case plan, he chose to do things his own way. This behavior is completely consistent with his narcissistic personality, which the state proved is extremely difficult to treat. The record also shows that T.P.M. has demonstrated an inability to control his temper and that the children are afraid of him. In addition, the record reveals that the defendant is a drug abuser who refused to admit his dependency. Most telling is the defendant’s use of drugs during these proceedings. Further, the state showed that, although T.P.M. was employed, he failed to pay his child support for these children. The traits inherent in the defendant’s narcissistic personality, combined with his drug abuse and his refusal to recognize and address his problems, preclude him from parenting these children.

l1fiThe state showed by clear and convincing evidence that the defendant has failed to financially support the children. Further, more than one year has elapsed since the children were taken into state custody and there has been no substantial compliance with the case plan nor is there any reasonable expectation of improvement in the near future. The trial court’s decision to terminate parental rights is not clearly wrong or manifestly erroneous. The record supports the decision to terminate T.P.M.’s parental rights.

EXPERT RECOMMENDATIONS

The defendant argues that Dr. Lonowski and Mr. Miciotto recommended family counseling and Dr. John Simoneaux suggested intensive therapy. The defendant objects that these recommendations were not followed. He claims that the OCS set him up to fail. These arguments are without merit.

As outlined above, Ms. Booker and Dr. Simoneaux found that family counseling was not in the best interest of the children. Recommendations for family counseling by Dr. Lonowski and Mr. Miciotto were made without any evaluation of the children.

The record shows that the defendant was given numerous opportunities to comply with the OCS case plan. The hearing was recessed for more than one year to allow the defendant to receive counseling. The defendant simply failed to cooperate and comply with the OCS requirements to the extent necessary to prevent termination of his parental rights. The defendant was treated fairly and equitably. He was given counseling, as |17well as numerous opportunities to comply with the OCS case plan. The defendant alone is responsible for his noncompliance and the resulting termination of his parental rights.

IN CAMERA EXAMINATION OF CHILDREN

The defendant objects to the trial court’s denial of his request to examine the children in camera regarding where they wanted to live. This argument is without merit.

When the hearing resumed on September 13, 2006, the court denied the defendant’s request that the judge talk to the children in camera, because he did not want to damage their relationship with the parents. The court reserved the right to talk to the children if deemed necessary by any of the experts. The court stated, “We’ll talk to the experts and see what they say. At this time, I’m not going to talk to them before the case but reserve the right to talk to them if deemed necessary by any of the experts.”

In the context of a hearing to terminate parental rights, La. Ch. C. art. 1034(C) provides:

C. If competent, the child may be heard on his own behalf. Any testimony given by a child may be taken by a videotaped interview or by closed circuit television, as authorized by Title 3, Chapter 8 of this Code, or by an in-chambers conference attended only by the judge and court reporter and by counsel for the child, for the petitioner, and for the parents.

La. R.S. 13:3665 provides that a competent witness in any civil proceeding in court or before a person having authority to receive evidence shall be a person of proper understanding.

Guidance for the issues raised in this matter can be gleaned from the general provisions dealing with custody of children. In the context of a | ^regular custody hearing, in determining the best interest of the child the court may consider the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference. La. C.C. art. 134(9).

The weight placed upon the wishes or desires of the child as to whether custody should be changed varies from case to case. Stability and continuity are more important considerations than the wishes of the child. See Legrand v. Legrand, 455 So.2d 705 (La.App. 5th Cir.1984).

While the trial court had the option to determine the competence of the children and, if competent, to' question them regarding their preference, the failure to do so in this case does not constitute reversible error. Even if the children had expressed a desire to live with T.P.M., the record overwhelmingly shows that termination of T.P.M.’s parental rights is in the best interest of the children.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court, terminating the parental rights of T.P.M. to C.M.M. and A.R.M. Costs in this court are assessed to T.P.M.

AFFIRMED.

      . Shortly after T.P.M.'s release from prison, the children's mother was convicted on drug and other charges and was incarcerated. She also had not complied with the case plan requirements. The mother agreed to the termination of her parental rights. A judgment to that effect was signed by the trial court in July 2006.


author: BROWN, Chief Judge. CARAWAY, J.,

text:
    STATE of Louisiana, Plaintiff-Appellee v. John Melvin WATKINS, Defendant-Appellant.
    No. 42,060-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.
    Rehearing Denied June 14, 2007.

      Eskridge E. Smith, Jr., Bossier City, for Appellant.
    Brian P. Joffrion, Eugene W. Bryson, III, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, WILLIAMS, CARAWAY, MOORE, and LOLLEY, JJ.
   BROWN, Chief Judge.

hln November 2004, pursuant to Children’s Code Art. 1306.7, the district attorney for Caddo Parish filed a petition in the First Judicial District Court for Caddo Parish to register for enforcement an April 2003 consent support order issued by the California Superior Court for Los Angeles County against defendant, John Watkins. A Judicial Hearing Officer concluded that the California support order should be registered for enforcement, and Watkins appealed to the district court. Because exactly the same question had been handled in 1994 in the Caddo Parish Juvenile Court, the district court transferred the case to the juvenile court. This appeal is from the ruling of the Juvenile Court upholding the Hearing Officer’s opinion.

Facts and Procedural Background

John and Judith Watkins were married and had a child, Shirley, who was born on September 3, 1976. In December 1978, judgment was rendered in California Superior Court for Los Angeles County awarding custody of the child to Judith and ordering John Watkins to pay $160 per month to Judith for the support of then-daughter. Ten years later, in 1988, Judith applied for state aid in California. In conjunction therewith, she assigned to the State of California her right to collect child support pursuant to the 1978 judgment. In 1989, Los Angeles County forwarded the judgment to Riverside County, California, which sought to collect arrearages and future | ^support against Watkins in the juvenile court for Caddo Parish, Louisiana.

On June 30, 1994, approximately two months before the child’s eighteenth birthday, judgment was rendered against Watkins in the juvenile court for Caddo Parish finding him $5,000 in arrears on the California support obligation, even though more than $18,000 had been claimed. The difference resulted from the grant of a peremptory exception of prescription. Defendant paid off the $5,000 and the current support obligation prior to October 22, 1998, at which time he received correspondence from the Caddo Parish Juvenile Court indicating that his case had been closed. Louisiana had received documentation from Riverside County, California, also indicating that the case was closed.

These actions in the Caddo Juvenile Court filed in 1989 and 1990 sought to collect the support in the full amount set in the 1978 California judgment. We note that from December 1978 (the date of the California order) until September 1994 (the date the child turned 18 years old), the total amount owed, if nothing had been paid, would have been approximately $30,700. No one appealed the June 1994 Caddo Parish judgment applying Louisiana prescription statutes and finding the arrearage to be $5,000. That judgment provided that Watkins was to pay $160 per 13month with $120 going for current support and $40 toward “acknowledged” arrears of $5,000. It further stated that current support will be paid until September 1994 (the 18th birthday of the child), then the total amount of $160 would go to liquidate the arrears. As stated, by October 1998 this judgment had been paid in full primarily through the taking of Watkins income tax refunds. This payment was acknowledged both by the Caddo Parish Juvenile Court and Riverside County, California.

In late 2002 or early 2003, Los Angeles County began garnishing Watkins’ wages. According to Watkins, who was employed at the Shreveport GM plant, over $1,200 per month was being taken out of his paycheck. As a result of the wage garnishment, Watkins contacted by telephone an assistant district attorney in Los Ange-les County. In April of 2003, Watkins and the State of California entered into a consent judgment through a telephonic conversation. The amount Watkins allegedly owed was set at $58,639.00, of which $29,567.90 consisted of principal and $29,071.17 in accrued unpaid interest and penalties. The telephonic agreement provided that Watkins would have his wages garnished at the rate of $400 monthly. Watkins now claims that he was informed that he could either agree to the $400 per month or California would continue to garnish his wages at a rate of over $1,200 per month. Thereafter, the California officers apparently faxed Watkins a document which he signed and faxed back to California. The document purports to be the consent [Judgment which, in November of 2004, California requested that Louisiana register and enforce through a proceeding under UIFSA (Uniform Interstate Family Support Act). Upon receiving notice of the request, Watkins contested the Louisiana court’s registration of the consent judgment. The juvenile court registered the 2003 consent judgment for enforcement and denied the exception of res judi- cata filed by Watkins. Defendant has appealed the juvenile court’s judgment.

Applicable Law

In accordance with the U.S. Constitution, Article 4, Section 1, Louisiana courts must give full faith and credit within this state to a foreign judgment rendered by a court with proper jurisdiction. The applicable law to determine whether the foreign court had jurisdiction is the law of the forum state rendering the original judgment. State v. Fontenot, 587 So.2d 771 (La.App. 2d Cir.1991). When enforcement of a foreign judgment is sought within this state, the jurisdiction of the foreign court is open to judicial inquiry; however, there is a general presumption that the decree is valid, and the burden of undermining the judgment rests heavily upon the attacking party. Holden v. Holden, 374 So.2d 749 (La.App. 3d Cir. 1979).

The Uniform Interstate Family Support Act (UIFSA) sets forth seven enumerated defenses to defeat the enforcement of a foreign support order. Louisiana Children’s Code article 1306.7 provides:

(A). A party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses:
(1) The issuing tribunal lacked personal jurisdiction over the contesting party.
(2) The order was obtained by fraud.
|s(3) The order has been vacated, suspended, or modified by a later order.
(4) The issuing tribunal has stayed the order pending appeal.
(5) There is a defense under the law of this state to the remedy sought.
(6) Full or partial payment has been made.
(7) The proscriptive period under Article 1306.4 (Choice of law) precludes enforcement of some or all of the arrearag-es.
(B). If a party presents evidence establishing a full or partial defense under Paragraph A of this Article, a tribunal may stay enforcement of the registered order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders. An uncontested portion of the registered order may be enforced by all remedies available under the laws of this state.
(C). If the contesting party does not establish a defense under Paragraph A of this Article to the validity or enforcement of the order, the registering tribunal shall issue an order confirming the order.

Discussion

Res Judicata, Mistake of Fact and Full/Partial Payment

It is Watkins’ primary contention that the 2003 consent judgment should not be enforced, as he has already fulfilled his child support obligation as required by the previous 1994 judgment. Watkins contends that the 1994 judgment and his payments made in satisfaction of that judgment preclude the State of California from seeking additional arrearages, interest, or penalties. To support his contention, Watkins argues that after the 1994 judgment neither the State of California, nor anyone on behalf of Judith Watkins Childree, appealed or reserved any right to collect further amounts and that after satisfaction of the 1994 judgment, the case was dismissed in both Louisiana and California. Furthermore, Watkins asserts that the 2003 consent judgment emanates from the same obligation that was the subject of the 1994 judgment, which he satisfied. Therefore, it | fife Watkins’ position that the juvenile court erred by denying his peremptory exceptions of res judicata and no cause of action.

The state maintains that the juvenile court properly denied Watkins’ exception of res judicata. According to the state, the only means by which Watkins could contest the validity or enforcement of the 2003 consent judgment in Louisiana is by proving the existence of one of the seven enumerated defenses found in La. Ch. C. Art. 1306.7, and res judicata is not one of them.

Watkins also contends that the state cannot seek to register and enforce the 2003 consent judgment because he has already made full or partial payment, which is an enumerated defense under Louisiana’s Children’s Code article 1306.7(A)(6).

The state, however, takes the position that Watkins’ argument about the full or partial payment of the 1994 judgment is inapplicable since the state seeks to register and enforce only the 2003 consent judgment. If Watkins wished to raise the issue of past payments, the state argues he should have done so during the California proceeding in 2003. Furthermore, with regards to the arrearages amount due, the state contends that it cannot modify the California judgment since it does not have the appropriate jurisdiction.

In June 1994, the Caddo Parish Juvenile Court found the amount of arrearages was $5,000 and that future support would end when the child became a major in September 1994. No one appealed this ruling, and it became a final judgment. A valid and final judgment in favor of the 17plaintiff is conclusive between the same parties and all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment. La. R.S. 13:4231(1). Furthermore, the record shows that the judgment was paid in full in 1998. In late 2002, California decided to apply nearly all payments to interest and imposed a judgment for more than $58,000 for the same claim previously asserted by California in Louisiana in 1989 and 1990, and which was adjudicated and paid in full. Clearly, the California claim was paid in full and their present action in Louisiana is an attempt to circumvent the prior ruling.

The Louisiana Assistant District Attorney’s argument that the only thing that can be considered is the consent judgment is like the proverbial ostrich. The situation presented in this case looks, sounds, and walks like res judicata and full payment.

Conclusion

The judgment of the juvenile court denying Watkins’ peremptory exception of res judicata and no cause of action is hereby reversed.

IT IS ORDERED, ADJUDGED, AND DECREED that judgment be entered in favor of John Watkins dismissing this action.

CARAWAY, J., dissents with written reasons.

MOORE, J., concurs in the result only.

CARAWAY, J.,

dissenting.

hi respectfully dissent. The interstate child support order in this case is entitled to full faith and credit as a California judgment. The underlying facts for the present and former California judgments, which are not fully known from the partial record before us, may not be second guessed, characterized with horror, and weighed in the court of equity by Louisiana judges, particularly when the defendant, Watkins, appeared in the 2003 California proceeding and consented to the entry of judgment.

Of the few available defenses against the constitutional power of full faith and credit, Watkins has meekly argued only two: California’s lack of personal jurisdiction over him in the rendition of the 2003 consent judgment and partial payment. La. Ch.C. art. 1306.7(A)(1) and (6). It can hardly be said that personal jurisdiction was lacking when Watkins appeared before the California tribunal and consented to judgment. The payment history asserted by Watkins relates to his payments made prior to the 2003 judgment. On the other hand, Watkins’ primary defense now asserted is res judicata, a defense not listed in Article 1306.7 as appropriate consideration for a Louisiana court. If California’s claim against him in 2003 was the same claim previously adjudicated in California in the 1980’s and collected in Louisiana in the 1990’s, the California court in 2003 was the court to measure res judica-ta. Watkins never urged res judicata in California. Instead Watkins consented to a second judgment. Louisiana should give full faith and credit to that judgment.

APPLICATION FOR REHEARING

Rehearing denied.

CARAWAY, J., would grant rehearing.

      . There was a September 1978 preliminary judgment setting child support at $150.

      . Actually, two petitions were filed bearing docket numbers 41,596 and 49,071. Docket number 41,596 was dismissed because the issues were resolved in docket number 49,-071.

      . This correspondence from California referred to docket number 41,596 of the Caddo Juvenile Court; as stated, 41,596 was dismissed as the issues were resolved in docket number 49,071.

      . Louisiana Children's Code article 1306.2(B) provides: “In a proceeding for arrearages, the prescriptive period under the laws of this state or of the issuing state, whichever is longer, applies.”

      .We note that at $400 per month and with interest continuing to apply, that Watkins would probably never pay off this debt. The manner in which California operates is similar to the antiquated plantation store operation.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Johnny WILSON, Appellant.
    No. 42,075-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      Larry English, Shreveport, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Joseph Andrea Gregorio, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

11 This criminal appeal by defendant, Johnny Wilson, Jr., arises from the 26th Judicial District Court, Parish of Bossier, State of Louisiana. In accordance with a plea agreement, Wilson pled guilty to two counts of attempted forcible rape, in violation of La. R.S. 14:42.1 and La. R.S. 14:27. The trial court sentenced Wilson to 20 years at hard labor on each count, with the sentences to be served consecutively. After granting a timely filed motion to reconsider sentence, the trial court ordered five years of the second 20-year sentence to be served concurrently with the first and the remaining 15 years being served consecutively. Wilson now appeals alleging an excessive sentence. For the following reasons, we affirm Wilson’s convictions and remand the matter to the trial court for re-sentencing.

FACTS

Wilson lived with his wife of three years, Louella, three stepdaughters, and two sons. In February 2003, Louella found out that Wilson had been sexually molesting her oldest daughter and notified the police. On April 7, 2003, Wilson was indicted with two counts of Aggravated Rape of a Juvenile, four counts of Second Degree Cruelty to a Juvenile, and one count of Aggravated Second Degree Battery. On January 6, 2006, as part of a plea agreement Wilson pled guilty to two counts of the reduced charge of attempted forcible rape, with all other charges being dismissed. The trial court sentenced Wilson to 20 years at hard labor on each count, with the sentences to be served consecutively. On a motion to reconsider sentence, the trial court ordered five years of the second 20-year ^sentence to be served concurrently and the remaining 15 years to be served consecutively.

LAW AND DISCUSSION

Sentencing

In his sole assignment of error, Wilson argues that his sentence is excessive in that his actions arose out of a single course of conduct, and that he had no prior criminal history. Wilson further points out that he was the stepfather of the victims, lived with the victims, and was responsible for the majority of their care. The state argues that this sentence is not excessive given the facts involved and that Wilson received a great benefit in his sentencing exposure as a result of the plea agreement. We agree.

The trial court shall exercise its sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829, 831 (La. 1981). The trial court has broad discretion to sentence within the statutory limits, and the appellate court will not set aside a sentence as excessive absent a showing of manifest abuse of discretion. State v. Hardy, 39,233 (La.App.2d Cir.01/26/05), 892 So.2d 710, 712-713.

Concurrent sentences arising out of a single course of conduct are not mandatory. State v. Pickett, 25,315 (La. App.2d Cir.12/10/93), 628 So.2d 1333, writ denied, 1994-0348 (La.05/20/94), 637 So.2d 476; State v. Nelson, 467 So.2d 1159 (La. App. 2d Cir.1985). Consecutive sentences under certain circumstances are not necessarily excessive. State v. Ortego, 3382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980).

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688, 698 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.06/24/98), 715 So.2d 641, 643. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049, 1051-52 (La.1981); State v. Haley, 38,258 (La. App.2d Cir.04/22/04), 873 So.2d 747, 753, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Bonanno, 384 So.2d. 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are | ¿viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985).

As a result of the plea agreement, Wilson pled guilty to the reduced charge of aggravated rape with the dismissal of all other pending charges. After Wilson entered his guilty plea, a presentence investigation (“PSI”) was ordered. According to the PSI, the oldest child related that Wilson had anal sex with her on two occasions. The youngest child indicated Wilson had penetrated her vagina digitally, but seemed confused about what exactly happened. The victims were nine and five years old at the time of the incidents. The middle daughter denied any abuse. In an interview with investigators, Wilson admitted performing anal sex on his oldest stepdaughter on one occasion.

At the sentencing hearing, Louella testified regarding the trauma she and her children endured and her desire that Wilson be sentenced “a long, long time to sit down and think about what he done and what he put me and my kids through because I have to deal with this for the rest of my life with my kids.” Louella did acknowledge going to the district attorney at one time to drop the charges, but she testified it was because she was being “manipulated” by Wilson’s family and not because she did not believe he had committed a crime. Wilson, his mother and father testified during the sentencing hearing that Wilson and his family assisted Louella with her children and that Wilson had no prior convictions.

At the conclusion of the sentencing hearing, the trial court noted that the only information contained in the PSI favorable to Wilson was the fact |fithat he had no prior criminal history. According to the trial court, “the rest of [the PSI] was kind of like reading a horror story.” The trial court stated that Louella alleged she and the children had been the victims of abuse for many years, suffering whippings with extension cords. The victims’ bodies bore scars from the whippings. Wilson alleged he acted in self-defense because Louella “was crazy.” The trial court also noted that Wilson’s original sentencing exposure was life imprisonment, and he received a substantial benefit in the reduction of the sentencing exposure as a result of the plea agreement. The trial court further noted that Wilson still denied his guilt and showed no remorse whatsoever for his actions against the innocent young children.

In reviewing the guidelines in La. C. Cr. P. art. 894.1, the trial court found that: there would be an undue risk that Wilson would commit another crime during a period of suspended sentence or probation; Wilson was in need of a custodial environment that could be provided most effectively at a custodial institution; and, a lesser sentence would deprecate the seriousness of the crimes. As aggravating conditions, the trial court determined that Wilson’s actions had caused significant permanent injury; that Wilson knew or should have known that the victims were particularly vulnerable or incapable of resistance due to their extreme youth; and, that Wilson’s conduct manifested deliberate cruelty to the victims. Although Wilson made much of the fact that being the children’s caretaker was a mitigating factor, the trial court found that Wilson used his status as a stepfather to facilitate the commission of the offenses.

| (¡After a brief hearing on Wilson’s motion to reconsider, the trial court agreed to modify Wilson’s sentence and five years of the second 20-year sentence were ordered to run concurrent with the first 20-year sentence. Thus, a review of the record indicates that the trial court was fully aware of sentencing considerations of La. C. Cr. P. art. 894.1 and within the guidelines when it sentenced Wilson to two consecutive 20-year sentences, five years to run concurrent.

The 20-year sentences for the two counts of attempted forcible rape are not grossly disproportionate to the seriousness of the offenses, nor do they constitute needless infliction of pain and suffering. Wilson took advantage of his position as a stepfather to commit heinous criminal acts against children who were unable to defend themselves. Clearly, he has left his family with a lifetime of physical and emotional scars; the very same family members he claimed to care for. The sentence does not shock our sense of justice. Wilson was subject to greater penalties had the state proceeded with the original charges brought against him. The trial court did not abuse its discretion in imposing consecutive sentences, five years to run concurrent. Accordingly, the sentence is not excessive.

Errors Patent

We note that the record reveals several errors patent. An appellate court may notice sentencing errors as error patent. State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790. According to La. R.S. 14:42.1(B), when the trial court imposes sentence for forcible rape, “[a]t least two years of the sentence imposed shall be without benefit of |7probation, parole, or suspension of sentence.” Louisiana R.S. 14:27(D)(3) limits the maximum term for an attempted offense to one-half of the maximum term for the base offense. Sentences imposed in accordance with this statute should be imposed “in the same manner” as the offense attempted.

When a trial court fails to order service of sentence without benefits in a case in which an indeterminate time period to be so served is mandated by the statute of conviction, it is “necessary for the appellate court to remand the matter to the trial court for re-sentencing.” This is required because the exercise of judicial discretion is needed to tailor the sentence to the individual defendant and because a defendant is not entitled to an illegally lenient sentence. La. R.S. 15:301.1(A); State v. Williams, supra. Here, the trial court failed to specify what portion of Wilson’s sentence would be served without benefit of probation, parole, or suspension of sentence. Therefore, the matter will be remanded for the trial court to specify what portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence.

In addition, although Wilson received proper La. C. Cr. P. art. 930.8 advice at the original sentencing, at the conclusion of the hearing on Wilson’s motion to reconsider sentence, the trial court failed to “re-advise” Wilson of the time delays for filing an application for post-conviction relief. In an abundance of caution, by way of this opinion, we now advise Wilson that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two | Syears after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 and 922.

The record also reveals that Wilson failed to designate the record when filing his motion for appeal. Wilson’s motion for appeal states it is being filed in accordance with La. C. Cr. P. art. 914 and 914.1; however, no designation of record was made. Despite this failure, the record as submitted is sufficient to review Wilson’s assigned errors. La. C. Cr. P. art. 914.1.

CONCLUSION

For the foregoing reasons, Wilson’s convictions are affirmed and the matter is remanded to the trial court for re-sentencing in accordance with La. R.S. 14:42.1 and La. R.S. 14:27(D)(3).

AFFIRMED IN PART; REMANDED FOR RE-SENTENCING.