author: PETERS, J.

text:
    David Bradley ARDOIN, et ux. v. Dr. Douglas McKAY.
    No. 06-0171.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Jay Pucheu, Attorney at Law, Marks-ville, LA, for Plaintiffs/Appellants, David Bradley Ardoin and Elizabeth Ardoin.
    Marc W. Judice, Judice & Adley, Lafayette, LA, for Defendant/Appellee, Dr. Douglas McKay.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX and Judges JIMMIE C. PETERS and J. DAVID PAINTER.
   PETERS, J.

LThe plaintiffs in this medical malpractice case, David Bradley Ardoin and his wife, Elizabeth Ardoin, appeal a jury verdict rejecting their claim against the defendant, Dr. Douglas McKay. For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

This litigation arises from a September 23, 1997 surgical procedure performed on Mr. Ardoin by Dr. McKay at the Savoy Medical Center in Mamou, Evangeline Parish, Louisiana. However, Mr. Ardoin’s extensive medical history with Dr. McKay actually began in 1989 when the doctor, an orthopedic surgeon, performed a laminec-tomy and discectomy for a bulging disc at L5-S1. This initial surgical procedure proved successful, and Mr. Ardoin returned to work.

For the next four years, Mr. Ardoin saw Dr. McKay occasionally for pain in his legs or back. However, Mr. Ardoin’s involvement in a 1993 oilfield accident caused him to return to Dr. McKay with complaints of more severe pain in his neck and lower back. Over the period of the next three years, Dr. McKay treated Mr. Ardoin for his complaints and referred him to a number of other medical specialists in an effort to pinpoint the cause of his pain and symptoms. The other medical specialists included Dr. Robert Rivet, a neurosurgeon; Dr. Steven Snatic, a neurologist; Dr. Robert Franklin, a physiatrist; Dr. John Hum-phries, an orthopedic surgeon; Dr. James Domingue, a neurologist; and Dr. Thomas Bertuccini, a neurosurgeon. Although Mr. Ardoin related complaints of severe and constant pain in the neck and low back, these physicians were unable to find the source of his complaints. MRIs, bone scans, an EMG, a nerve conduction study, and a myleogram were all negative for isolating the cause of his constant pain. In fact, only Dr. Bertuccini would hazard a 12recommendation for follow-up treatment. Based on the longevity of the symptoms, he recommended that Mr. Ardoin undergo a lumbar discectomy.

Despite this inability to isolate the cause of Mr. Ardoin’s symptoms, Dr. McKay believed Mr. Ardoin to be totally disabled and continued to search for a medical reason for, and a solution to, his complaints. Agreeing with Dr. Bertuccini’s recommendation as to the next logical step, Dr. McKay concluded that Mr. Ardoin would be a good candidate for a new procedure with which he had been experimenting that entailed using a device of his own invention which had proven successful in its limited use. The device was a pie-shaped titanium steel “wedge,” which, when surgically placed between the vertebrae of a patient, helped decompress the intervertebral space and allow it to expand to its normal size. The wedge contained “teeth” on the surface to help keep it in place once inserted.

On three different occasions during the summer of 1997, Dr. McKay discussed with Mr. Ardoin and his wife the prospect of performing a fusion to stabilize the spine and inserting a wedge or wedges at the L4-5 level. Mr. Ardoin opted for the procedure, which was performed on September 23, 1997. According to Dr. McKay, throughout the surgery he was able to see directly into Mr. Ardoin’s back, observe the exposed nerve, and insert the wedges exactly where they should be placed. The doctor believed the surgery to be a success although an intra-operative fluoroscopy film revealed that one of the wedges was protruding two millimeters into the spinal canal.

IsFor the next fourteen months, Dr. McKay followed Mr. Ardoin’s progress and thought his patient was progressing. However, because of continued complaints from the patient, Dr. McKay referred him to Dr. John D. Jackson, a Metairie, Louisiana neurosurgeon, for a second opinion.

Dr. Jackson first saw Mr. Ardoin on December 3, 1998. According to Dr. Jackson, Mr. Ardoin informed him that, immediately after Dr. McKay’s surgery, he knew his back was not corrected and that his pain was still present. Mr. Ardoin’s initial complaint to Dr. Jackson was that of pain extending from his neck and upper extremities through his low back and lower extremities. Dr. Jackson reviewed x-rays of the lower back taken in December of 1997 and interpreted these to reflect a projection of the wedges posteriorly into the spinal canal at the L4-5 level. Dr. Jackson’s own x-ray revealed a six millimeter protrusion of a wedge into the spinal canal.

Dr. Jackson initially informed Mr. Ar-doin that he believed the lower back pain was caused by the protruding wedge. However, when he reviewed the results of a post-operative normal EMG study, Dr. Jackson decided to initially treat Mr. Ar-doin’s complaints conservatively.

Dr. Jackson’s continued conservative treatment for the next year and one-half resulted in no improvement in Mr. Ar-doin’s symptoms. On May 31, 2000, Dr. Jackson performed surgery on Mr. Ardoin wherein he removed the protruding wedge from .the disc space at L4-5 and decompressed the nerve roots by replacing the wedge with another type of spacer. Mr. Ardoin’s pain was not resolved by this subsequent surgery.

|40n August 17, 2000, the Ardoins filed a request for review of their malpractice claim by a medical review panel as provided for in La.R.S. 40:1299.47. In their claim, they asserted that Dr. McKay had committed medical malpractice by improperly placing the wedges during the surgical procedure of September 23, 1997, and by not informing them of the possibility of migration of the wedges. After reviewing the evidence presented, the medical review panel found no medical malpractice on the part of Dr. McKay. Specifically, it found that the condition corrected by Dr. Jackson’s surgery resulted from migration of the wedges, and not improper placement; that the Ardoins were properly informed of the procedure and the possible complication of migration; that the use of the non-FDA approved wedges was not a breach of the standard of care required of Dr. McKay; and that the doctor’s postoperative decision to wait and see if the complaints of pain would resolve themselves was an acceptable course of action and one similarly followed by Dr. Jackson. The medical review panel was comprised of three Lafayette, Louisiana orthopedic surgeons — Dr. John E. Cobb, Dr. David Muldowny, and Dr. John R. Budden. All three of the physicians testified at trial as witnesses for Dr. McKay.

After the medical review panel’s decision, the Ardoins filed the instant medical malpractice suit against Dr. McKay. In this suit, they again asserted that Dr. McKay failed to obtain informed consent for the procedure and that he improperly placed the wedges during the surgical procedure. After a jury rejected their claims, the Ardoins perfected this appeal.

APPLICABLE STANDARD OF REVIEW

As a preliminary matter, we must consider and respond to the Ardoins’ contention, ranked in their appellate brief as their “principle argument,” that the | fiappeal should be reviewed de novo. This contention is based on the interpretation of the jury verdict as being manifestly wrong and so contradictory that it should be ignored.

The verdict form provided to the jury was proposed by the Ardoins and was still labeled as “PLAINTIFF’S PROPOSED JURY VERDICT FORM” when it was returned to the trial court after the jury reached its verdict. The relevant part of this verdict form appears as follows:

1. Did plaintiff establish by a preponderance of evidence the standard of care applicable to Dr. McKay? Yes_ No /
2. Did Dr. McKay breach the standard of care? Yes No /
(If “Yes”, continue to No. 3. If “No”, report your verdict.)

In compliance with the instruction following the second interrogatory, the jury returned its verdict without answering the remaining interrogatories. The verdict was unanimous.

The questions raised by the jury verdict are the focus of both of the Ardoins’ assignments of error. In those assignments of error, they assert:

(1) The jury committed manifest error in finding that the plaintiffs failed to prove the standard of care where the panel members, a treating neurosurgeon and the defendant himself agreed on the standard of care in the testimony presented.
(2) The jury committed manifest error in answering the second Jury interrogatory when its answer to the first precluded an answer.

Basically, they argue that we should find manifest error in the responses to both interrogatories, perform a de novo review of the record, find that Dr. McKay breached the standard of care applicable to him, and award them damages for that breach.

|fiIn making this argument, they rely on the principle of appellate review as stated in Oubre v. Eslaih, 03-1133 (La.2/6/04), 869 So.2d 71. In that case, the supreme court stated that, “if a court finds that the trial court committed a reversible error of law or manifest error of fact, the court of appeal must ascertain the facts de novo from the record and render a judgment on the merits.” Id. at 76. The Ardoins argue that they established the standard of care through the testimony of at least five doctors, including Dr. McKay himself. That being the case, the Ardoins assert that the jury’s answer to the first interrogatory was manifestly erroneous and that we should ignore the response to the second interrogatory because, assuming the jury believed that no standard of care had been established, it should not have answered the second interrogatory.

We agree that the standard of care on both the question of informed consent and the placing of the wedges was well established by the trial record. However, there are a number of reasonable explanations for the jury’s responses to the interrogatories. One is that the jury did not appreciate the precise meaning of the first interrogatory. That is to say, the jury could well have thought that the two interrogatories were asking essentially the same question. Another is that the jury believed the standard of care was established, but by Dr. McKay, and not by the Ardoins.

A third and more likely explanation for the apparent inconsistency is that the parenthetical instruction following the second interrogatory, (If “Yes”, continue to No. 3. If “No” report your verdict.), was itself confusing. A negative answer to the first interrogatory essentially terminated the litigation and eliminated the need to answer the second interrogatory. However, because it contained no parenthetical | instruction similar to that following the second interrogatory, the jury could have construed the instruction as applying to both interrogatories and could have concluded that a verdict for the doctor required it to answer “No” to both interrogatories.

In any event, whatever the jury’s confusion may have been as to the first interrogatory, there can be no doubt it understood the second. This interrogatory asked for the jury’s verdict on the heart of the case — whether Dr. McKay breached the standard of care applicable to his treatment of Mr. Ardoin. The jury’s answer to that question and its compliance with the parenthetical instruction following that interrogatory leave no doubt concerning the jury’s belief on this issue.

Misleading or confusing interrogatories may constitute reversible error, but the manifest error standard of appellate review still applies except where the jury interrogatories are so inadequate or incorrect as to preclude the jury from reaching a verdict based on the law and the facts. Doyle v. Picadilly Cafeterias, 576 So.2d 1143 (La.App. 3 Cir.1991). We do not find that the exception applies in this case. Thus, we reject the Ardoins’ argument that we should review the verdict de novo.

Having concluded that the standard of care applicable to Dr. McKay was established, we turn to the issue of whether the jury committed manifest error in concluding that Dr. McKay did not breach that standard of care. In addressing this issue, we note that the Ardoins’ assignments of error relate solely to the answers to the interrogatories and their request for a de novo review. In doing so, they do not particularly specify, as an alternate assignment of error, manifest error on the merits |sof the jury’s findings on the standard of care issue. Under Uniform Rules— Courts of Appeal, Rule 1-3, this court “will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.” Thus, the question arises whether a review based on manifest error is properly before this court. We have answered that question in the affirmative for several reasons.

One reason is that nowhere in his appellate brief does Dr. McKay take the position that, if we reject the request for a de novo review, that action would terminate the litigation. Instead, he treats the appeal in - his brief as addressing manifest error and responds accordingly. Additionally, we are mindful of the supreme court’s decision in Nicholas v. Allstate Insurance Co., 99-2522, (La.8/31/00), 765 So.2d 1017, where the supreme court concluded that the appellate court should have addressed a particular issue in that litigation even though it had not been assigned as error. In reaching that conclusion, the supreme court cited La.Code Civ.P. art. 2129, which provides that an assignment of error is not necessary in any appeal, and La.Code Civ.P. art. 2164, which provides that an appellate court “shall render any judgment which is just, legal, and proper upon the record on appeal.” The Nicholas court also emphasized that Uniform Rules— Courts of Appeal, Rule 1-3, was applicable “unless the interest of justice clearly requires otherwise.”

Liberally construing the Ardoins’ argument in brief, we can glean from it that they are also challenging the verdict from the standpoint of manifest error as to its findings on the merits that there was no breach of the standard of care. Therefore, we will now address that issue.

OPINION

| sLouisiána Revised Statutes 9:2794 sets forth the burden of proof required in a medical malpractice case and provides in pertinent part:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., ... the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Our review of the factual findings of the jury must be conducted in accordance with the familiar precept announced by our supreme court that, “[i]f 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 though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Also, “[wjhere there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

“[EJxpert witnesses who are members of the medical profession are necessary sources of proof in medical malpractice actions to determine whether the defendant doctor possessed the requisite degree of skill and knowledge, or failed to exercise ^reasonable care and diligence.” Martin v. E. Jefferson Gen. Hosp., 582 So.2d 1272, 1277 (La.1991). “The determination of an expert’s credibility is also a factual question subject to the manifestly erroneous/clearly wrong standard of review.” Id.

Informed Consent Issue

With regard to the question of informed consent, La.R.S. 40:1299.40(A)(1) provides:

Notwithstanding any other law to the contrary, written consent to medical treatment means a handwritten consent to any medical or surgical procedure or course of procedures which: sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.

To meet the burden of proof in an informed consent case, a plaintiff must prove the existence of a material risk unknown to the patient, a failure on the part of the physician to disclose the risk, that disclosure of the risk would have led a reasonable person in the plaintiffs position to reject the procedure or to choose a different course of treatment, and injury arising from the procedure. Fremin v. Continental Ins. Co., 02-1157 (La.App. 3 Cir. 3/5/03), 839 So.2d 1137, writs denied, 03-966, 03-979, 03-981 (La.6/27/03), 847 So.2d 1271, 1272. With regard to the materiality issue, the supreme court in Hondroulis v. Schuhmacher, 553 So.2d 398, 412 (La.1989), stated:

The determination of materiality is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence. “Some” expert testimony is necessary to establish thisj^aspect of materiality because only a physician or other qualified expert is capable of judging what risk exists and the likelihood of occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient’s position probably would attach significance to the specific risk. This determination of materiality does not require expert testimony.

In reviewing an informed consent decision, we must not substitute our own factual findings for that of the trier of fact, and the evidence must be viewed in the light most favorable to the party who prevailed before the trier of fact. Thibodeaux v. Jurgelsky, 04-2004 (La.3/11/05), 898 So.2d 299.

The Ardoins argue that Dr. McKay failed to inform them of the existence of posterior migration of the wedge and that such a possibility was a material risk which would have lead Mr. Ardoin to reject the procedure and choose another course of treatment. Put another way, the Ardoins argue that Dr. McKay should have specifically informed them that posterior migration was a possibility of the procedure and that it might cause nerve irritation. The evidentiary record is clear that Dr. McKay did not make the specific disclosure suggested by the Ardoins.

Dr. McKay testified that he met with the Ardoins three times before the surgery and that at those meetings he used illustrations to explain the procedure, invited questions, and answered all questions that were asked. Four days before the surgery, Mr. Ardoin signed four different consent forms authorizing Dr. McKay to perform the anticipated procedure. One of the forms contained general warnings that the wedge or wedges “may sink into the bone,” or “may slip,” or “may become loose.” It further warned that the wedges could cause bleeding, leakage of spinal fluid, allergic reaction, or infection. Furthermore, it warned that the infection could result in blood clots, additional surgical intervention, and neurological weakness. However, one of l13the forms contained the statement that, should a wedge slip, it “should slip anteriorly and not cause any problems,” but made no mention of posterior slippage.

In support of their position, the Ardoins submitted the testimony of Dr. Cobb and Dr. Budden. Dr. Cobb testified that, when the surgeon places the wedge in the intervertebral space from the back, or pos-teriorly, he should expect any migration to be posteriorly. Thus, he always informs his patient that the chance of migration is greater posteriorly than anteriorly. Dr. Budden also testified that the risk of posterior migration into the spinal canal was one which should be related to the patient, but he did not believe that it was a significant risk.

On the other hand, Dr. Muldowny, whose orthopedic surgical practice emphasizes spine surgery, testified that the applicable standard of care does not require a specific warning that the instrumentation might migrate and pinch a nerve. He felt it would suffice “to make a more general statement that there may be ... a problem with the instrumentation that might damage a nerve that might require additional surgery.”

Obviously, the jury chose to believe Dr. Muldowny, and we find no manifest error in that conclusion with regard to the issue of informed consent. That is to say, we cannot say that the jury erred in concluding that a specific disclosure of the risk of posterior migration, in those terms, would have led a reasonable person in Mr. Ar-doin’s position to reject the procedure or to choose a different course of treatment. This aspect of the Ardoins’ argument has no merit.

Insertion of Wedges Issue

All of the physicians who testified stated that it would be a breach of the standard of care required of Dr. McKay if he placed the wedges in such a manner as hato touch a nerve. Specifically, had the wedges been placed where they protruded six millimeters into the spinal canal, that would have been a breach of the standard of care. Additionally, there was general agreement among the physicians who testified that migration is one of the hazards of the procedure and that the existence of migration does not indicate a breach of the standard of care.

In their opening statement, the Ardoins informed the jury that they would prove by a preponderance of the evidence that the wedges were initially placed by Dr. McKay in a position where they were protruding into the spinal canal and irritating nerve roots. They further asserted that the wedges continued to irritate the nerve roots until their removal by Dr. Jackson. It is not disputed that Dr. Jackson removed the wedges from a position where one was protruding six millimeters from its proper position and was impinging on a nerve. However, no physician testified that the wedges were protruding six millimeters when placed by Dr. McKay. Thus, the question is whether the Ardoins established by a preponderance of the evidence that Dr. McKay’s initial placement resulted in nerve root irritation, regardless of the extent of protrusion.

Dr. Stephen Pflug, a radiologist, testified for the Ardoins and is basically the only physician who testified that the initial placement breached the standard of care. He testified that, when he examined two x-ray images ordered by Dr. McKay on the date of the surgery, he observed that the wedge protruded approximately two millimeters into the spinal canal. However, he acknowledged on cross-examination that the normal posterior projection of the annulus fibrosis is about two millimeters, and, therefore, he could not state for a fact that the two millimeter protrusion | uimpinged on a nerve. Additionally, Dr. Muldowny testified that the two millimeter protrusion was not a breach of the appropriate standard of care.

According to Dr. Muldowny, the posteri- or margin of the spinal canal is not necessarily the same as the posterior margin of the bone. He suggested that there could be additional material such as a fibrous cartilaginous Ímplate that sticks beyond the bone that x-rays would not detect. Thus, the x-rays may provide a false picture concerning the location of the wedge, even to the extent of showing that it appears to be placed right on the edge of a nerve root. He testified that the surgeon performing the procedure can clearly see the nerve root and has a much better view of the wedge’s specific location in relation to that nerve root. He further noted that the outside portion of the disc itself, the annulus fibrosis, normally projects into the canal about two millimeters. In his opinion, Dr. McKay placed the wedges properly during surgery, and at least one migrated thereafter.

Even Dr. Jackson was of the opinion that Dr. McKay placed the wedges in proper position and that they migrated thereafter. Although he testified that, at the time he performed surgery to remove and replace the wedges, one had migrated backwards into the spinal canal and slightly laterally to the edge of the dura and was encroaching on the neural foramen, he further stated that “[t]hose things sometimes move” and that “that’s just one of the complications that can occur.”

Given the medical testimony, we find no error in the jury’s determination that Dr. McKay did not breach the standard of care in placing the wedges during the September 23, 1997 surgery.

PRESCRIPTION

After trial and before appeal, Dr. McKay filed a peremptory exception of prescription, urging the application of the one-year prescriptive period established in La.R.S. 9:5628. The jury’s verdict mooted that issue at the trial level, and the trial court never considered it. Dr. McKay has again urged that exception on appeal. Because we affirm the jury’s verdict in full, we find it unnecessary to address that exception.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects. We tax all costs of this appeal to David Bradley Ardoin and Elizabeth Ardoin.

AFFIRMED.

      . The device Dr. McKay had designed and was using was not yet approved by the FDA, but, subsequent to September 23, 1997, the date of the surgery involved in this case, Johnson & Johnson obtained the licensing right for the device (differing only in respect to the material used to form it), and it became FDA approved.

      . Neither the jury charges nor the closing arguments directed the jury’s attention to the interrogatories specifically. The closest that anyone came to guiding the jurors in their consideration of the specific interrogatories was when one of the attorneys told them to "follow the instructions on the sheet.”


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    STATE of Louisiana In the Interest of M. M.
    No. 05-1598.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Elizabeth A. Long, Sanford & Long, Lafayette, LA, for Appellants, B. T.
    Lloyd Dangerfield, Attorney at Law, Lafayette, LA, for Appellants, D. M.
    Allyson Edwards Prejean, Attorney at Law, Lafayette, LA, for the minor child, M.M.
    Debra K. Basile, Attorney at Law, Lafayette, LA, for Appellee State of Louisiana, Department of Social Services.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

_JjThe mother and father appeal the termination of their parental rights with regard to the minor child, M.M. Finding termination to be in the best interest of the child, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 6, 2002, at about 3:00 p.m., B.T. brought her twenty-four month old daughter, M. M., to the emergency room for treatment of injuries to her face and head. B.T. explained the injuries to the left side of her face, saying that M.M. ran into the door while chasing the dog through the house at 2:00 a.m. B.T. further stated that, because the child was woozy and vomiting, she put the child in the bathtub to keep her awake and that, upon taking M.M. out of the tub, she slipped and hit the right side of her face. The emergency room physician suspected abuse and called the child’s pediatrician. M. M.’s left eye was swollen shut and she had severe bruising on the left side of her face and bruising on the right side of her face. Her pediatrician felt the right side injury had been sustained two or three days prior to the left side injury. X-rays showed that the child had a right sided subdural hema-toma. The Office of Community Services was called in, and the State took custody of M.M. pursuant to an instanter order issued that day based on allegations of physical abuse and lack of supervision. B.T. was questioned by the police and her story with regard to the injury changed. She told the police that she had been out at a nightclub on the night of September 5 until the early morning hours of September 6, leaving M.M. in the care of her live-in boyfriend, L.F. She stated that when she woke up, she discovered the injuries to the child, and L.F. told her they happened as she had described to the emergency room personnel.

| ¿The child was placed with her paternal grandparents, where her father, D. M., was living at the time. M.M. was adjudicated a child in need of care, and the trial court approved case plans designed to allow the father and mother to work toward reunification. The trial court reviewed the case at about six month intervals and, as of the September 2003 hearing, the State’s goal changed from reunification to adoption. By the September 2004 hearing, B.T. had pled guilty to Second Degree Cruelty to a Juvenile. The court, at that hearing, reduced B. T.’s visitation to once a month. M.M. was removed from the home of her grandparents and placed with a non-related foster family after the discovery that the grandmother had a more extensive history of mental health problems than had previously been known.

In September 2004, the State filed a Petition for Termination of Parental Rights and Certification for Adoption. Testimony was taken over nine days during March, April, and May 2005. At the conclusion of the hearing, the trial court terminated the parental rights of B.T. and D. M., but ordered visitation for the paternal grandmother, S.M.B.T. and D.M. have each appealed the judgment. Both assert that the trial court erred in terminating their parental rights. Alternatively, D.M. argues that, if parental rights were correctly terminated, the paternal grandparents should have been given custody of the child. B.T. argues that when M.M. was removed from the paternal grandparents, a placement with one of her family members should have been considered.

DISCUSSION

In Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982), the United States Supreme Court recognized that natural parents have a fundamental liberty interest in the care, custody, and management of their child and that the natural parents’ interest does not “evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” The|aCourt went on to acknowledge that, while the State has an “urgent interest” in a child’s welfare and in providing the child with a permanent home, as long as there is reason to believe that a positive, nurturing parent-child relationship exists, the State’s interest must favor preservation over severance of natural familial bonds. Id. at 766, 102 S.Ct. at 1401 (quoting Lassiter v. Department of Soc. Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). Thus, the Court found that parents who are faced with the possibility of forced dissolution of their parental rights must be provided with fundamentally fair procedures in order to ensure that children’s legal bonds are not erroneously severed from fit parents. Id. at 753-54, 102 S.Ct. at 1395.
In order to terminate rights, the court must find that the State has established at least one of the statutory grounds contained in LSA-Ch.C. art. 1015 by clear and convincing evidence. State in the Interest of J.A., 752 So.2d at 811. Further, 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. LSA-Ch.C. art. 1037(A); State in the Interest of C.J.K. and K.K., 774 So.2d at 113.

State ex rel. J. M., 02-2089, pp. 7-10 (La.1/28/03), 837 So.2d 1247, 1251-53 (footnote omitted).

“Only one ground [for termination] need be established; however, the trial judge must also find that termination is in the child’s best interest.” State ex rel. J.P.A., 05-1160, p. 3 (La.App. 3 Cir. 4/19/06), 928 So.2d 736, 738. In this case, the petition for termination of parental rights indicated that the State sought to terminate the rights of both B.T. and D.M. pursuant to La.Ch.Code art. 1015(5). La. Ch.Code art. 1015(5) provides as follows:

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.

14It is undisputed that over a year has passed since M.M. was removed from her parent’s custody. The State contends that it has proven that neither parent has substantially complied with his or her case plan and that there is no reasonable expectation of an improvement in their conduct or conditions.

La.Ch.Code art 1036(D) sets out the means by which the State may show the lack of a reasonable expectation of improvement, as follows:

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.

We will examine the evidence adduced in the trial court to determine whether the State carried its burden with regard to each of the parents, keeping in mind that the trial court’s findings of fact with regard to termination issues are not to be overturned in the absence of manifest error. State ex rel. J.P.A., 928 So.2d 736. Parental Rights ofD. M.

With regard to D. M., the case plan approved by the court required that he obtain stable employment and housing, attend parenting classes, obtain a substance abuse evaluation and counseling, undergo a psychological evaluation, and pay child support. Although the testimony established that D.M. complied with parts of the | ¡¡plan, he did not obtain stable employment and housing. The testimony indicates that soon after M.M. was settled with his parents, D.M. lost interest in attempting to comply with his plan, seemingly content to cede his parental responsibilities to his mother. Although he paid rent to his parents for a time, he soon stopped. Further, he brought M.M. to visit B.T. in spite of having been instructed by his case worker that B.T. was to see the child only in State supervised settings. Dr. Bergeron, the clinical psychologist who administered the psychological evaluation, testified that while D. M.’s test results did not show alcohol dependence, they did show that D.M. was subject to periods of alcohol abuse, which would be a concern if he were the sole care giver. Dr. Bergeron further opined that the test results and consultation showed that D.M. had poor parenting skills and was not ready to be a care giver at that time. D.M. testified that he had not worked to comply with the plan because he didn’t like the way the case worker spoke to him and because she wasn’t nice. The trial court, in oral reasons for judgment, found that: “[D. M.] has failed to work the case plan, he’s failed to pay child support, he’s just failed to do kind of everything he should have done if he really wanted to keep his child.” This evaluation of the evidence is not manifestly erroneous. The evidence shows that D.M. failed to comply with the court approved case plan. The State has further shown the lack of a reasonable expectation of improvement in that the evidence shows that D.M. is “unwilling to provide an adequate permanent home for the child, ... based upon an established pattern of behavior.” La.Ch.Code art. 1036(D)(3).

Parental Rights of B.T.

The testimony established that the court approved case plan for B.T. included requirements that she attend parenting classes and anger management classes, that she | ^obtain psychological counseling and cooperate with the psychologist’s recommendations, maintain steady employment and housing, take responsibility for M.M. being placed in care, pay child support of fifty dollars a month, have no contact with L. F., and show that she was willing and able to protect her child from abuse.

The testimony establishes multiple failures to work toward compliance with the plan. Although B.T. did attend parenting and anger management classes, the case workers testified that she failed to apply what she had learned. She did not supply verification of employment or a copy of her lease so that the State could find out in whose name it was taken. However, B. T.’s most conspicuous failures are in connection with her failure to take responsibility for the situation, to discontinue her relationship with L. F., and her failure to show the ability and willingness to protect her child in the future.

The most striking feature of this case is the fact that it has never been established who abused M.M.B.T. has told a number of different stories, ranging from her own confession and guilty plea, to versions which implicate L. F., through versions in which she committed the abuse while drunk and/or under the influence of some unknown drug which was supposedly slipped into her drink. Under questioning by the trial judge, she testified that she did not know how the injuries to her child occurred. In light of the medical evidence that the injuries to the right and left sides of the child’s face took place two or three days apart, all the stories lack credibility.

Further, although she told each of her case workers that she was having no contact with L. F., B.T. became pregnant with his child and married him. At least [7one of her case workers testified that B.T. became angry and verbally abusive if asked about L. F.

Dr. Bergeron also evaluated B.T. With regard to her initial evaluation, he testified that her test results showed a “suppressed profile” which indicated deep seated psychological problems often associated with co-dependency. He defined co-dependency as having a lot of relationship problems. He opined that subconsciously B.T. feels that she does not deserve to have a relationship with a good man and that she tends to cope with problems in an unhealthy way, usually denial. He testified that the changing explanations of the injuries to M.M. indicate that B.T. is engaging in rationalization and trying to come up with a story that does not make her appear to be a bad person. Dr. Bergeron also stated that B.T. showed a tendency for periodic alcohol abuse. He opined that her Child Abuse Potential Inventory showed a tendency for neglect but not for abuse. Dr. Bergeron testified that when he discussed the co-dependency issue with her, she became extremely angry, and he saw the potential for explosive behavior. Dr. Ber-geron again evaluated B.T. about a year later. At that time, he noted that she had completed parenting training and anger management training. He stated that her test results, at this second visit, no longer showed a suppressed profile. While he stated in his report that he would not oppose a trial reunification, he noted that the best predictor of future behavior is past behavior. He opined that B.T. requires therapy but that the therapy needed depends on whether she is the abuser or someone who is protecting the abuser at the expense of the child.

On a referral from the Office of Community Services, and after her evaluation by Dr. Bergeron, B.T. consulted four times with Dr. Staci Guidry, a psychologist. | sThis attempted therapy was unsuccessful according to Dr. Guidry. Dr. Guidry testified that B.T. denied any parenting deficits, any history of dysfunctional relationships, or co-dependency problems. She denied that she had abused M.M. and denied that L.F. had abused M.M. Dr. Gui-dry testified that B.T. became defensive when she referred to possible problems.

Dr. Kenneth Bouillion, a clinical psychologist, testified that he has treated B.T. since September 2003. He stated that her testing was within normal limits and that she did not show any personality disorders. He felt that B.T. should be reunited with her child.

With regard to B. T., the trial court gave its oral reasons for judgment, as follows:

[B.T.’s] conduct is probably, of all the people involved, I find the most egregious. The willingness to lie, to lie repeatedly, to lie to protect probably the abuser of her child, or if — which is probably even worse than if she had done the actual abusing. I don’t know, and we’ll .probably never know, whether or not she did the actual abusing. I suspect she knows. But I can’t prove that. If you had to say, well, I think [L.F.] probably was the one — But she protected him, as opposed to protecting her child, which is really horrible.

In light of the record, we find that the State carried its burden of showing that, after more than two years of work with the Office of Community Services, B.T. has not substantially complied with her case plan and that there is no reasonable expectation of improvement based on her pattern of behavior. We find no error in the trial court’s determination that termination of parental rights is in the best interest of the child.

| ^Placement ofM. M.

Both B.T. and D.M. argue for placement of the child with family. D.M. argues that the child should have been returned to his parents, citing La.Ch.Code 1037(B) and (D), as follows:

B. When the court finds that the alleged grounds set out in any Paragraph of Article 1015 are proven by the evidentiary standards required by Article 1035 and that it is in the best interests of the child, it shall order the termination of the parental rights of the parent against whom the allegations are proven. The court shall enter written findings on both issues. The consideration of best interests of the child shall include consideration of the child’s attachment to his current caretakers.
D. A judgment terminating the parental rights of the parent shall grant custody of the child to the department, a relative who is of the age of majority and who is willing to adopt the child without an adoption subsidy, or other suitable person, in accordance with the best interest of the child.

Since M.M. was originally placed with her paternal grandparents, with apparent success, and became attached to them, D.M. argues that the court erred in not awarding custody to them. However, the trial court had sufficient evidence to support the conclusion that this would not have been in the best interest of the child. S. M., the paternal grandmother, failed to reveal the extent of her mental health problems. S.M. told the caseworkers that she had been sexually abused as a child and had received therapy for the problems resulting from that abuse. However, in the course of a home study, it was revealed that S.M. had been diagnosed with bi-polar disorder, obsessive-compulsive disorder, and post-traumatic stress disorder. It was further discovered that S.M. had not complied with treatment or medication. Additionally, S.M. began to display paranoid behavior and made inappropriate references to her own abuse and that of M.M. in front of the child. S.M. made many | incompIaints to the caseworkers about M. M.’s medical providers, which, when investigated, did not check out. Heidi Bouz, the case worker at the time M.M. was removed from the care of S. M., stated that S. M.’s problems were affecting M.M. in that S.M. was paranoid, was projecting her experiences onto M. M., and was overly protective. Case workers also stated that, before M.M. was removed from her grandparents, M. M.’s visitation with B.T. had become difficult because much of the time had to be spent comforting S.M. instead of supervising the visitation.

With regard to a placement with B. T.’s family, the testimony showed that her family members do not believe that B.T. could be responsible for the abuse to her child or that she would have allowed anyone to abuse her child.

The trial court found that the interest of the child would best be served by placing her in the custody of the State. Given the evidence with regard to the parent’s families, we find no error in this determination.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be paid one-half by B.T. and one-half by D. M.

AFFIRMED.


text:
    Alice MONCRIEF v. SUCCESSION OF Leslie Thomas ARMSTRONG.
    No. 05-1584.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      David A. Rothell, Attorney at Law, Shreveport, LA, for Plaintiff/Appellant, Alice Moncrief.
    Robert E. Plummer, Attorney at Law, Mansfield, LA, for Defendant/Appellant, Succession of Leslie Thomas Armstrong.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX and Judges JIMMIE C. PETERS and J. DAVID PAINTER.
   PETERS, J.

LThe plaintiff, Alice Moncrief, brought suit against the Succession of Leslie Thomas Armstrong (Succession), seeking compensation for services rendered to Mr. Armstrong before his death. The Succession answered her demands and reconvened against her, seeking to recover certain sums it claims Ms. Moncrief improperly took from Mr. Armstrong and/or his estate. After trial, the trial court rejected both the principal demand and the reconventional demand, and both Ms. Moncrief and the Succession have appealed. For the following reasons, we affirm the trial court’s judgment rejecting Ms. Moncriefs demand, reverse the trial court’s judgment rejecting the Succession’s reconventional demand, and render judgment in favor of the Succession and against Ms. Moncrief in the amount of $79,000.00.

DISCUSSION OF THE RECORD

Most of the underlying facts giving rise to this litigation are undisputed. In April of 1998, Leslie Thomas Armstrong and his wife of forty years, Betty Armstrong, divorced. Prior to their divorce, the couple had amassed a comfortable estate, which they amicably divided. As a result of the property division, Mr. Armstrong acquired, among other assets, immovable property situated in Gatesville, Texas, and 250 shares of stock in A.L.M. Corporation, an Alaska pipeline company.

In June of 1998, Mr. Armstrong and Ms. Moncrief began living together in Mr. Armstrong’s Texas home. At that time, Mr. Armstrong had retired from a career in pipeline construction work, mainly in Alaska, and Ms. Moncrief was employed as a nurse’s aid. She remained employed for approximately one year after the couple began living together.

Ii>ln September of 1998, Mr. Armstrong sold his Texas property and purchased a home on Toledo Bend Lake in Louisiana (sometimes hereinafter referred to as “the lake property”), which had previously been owned by Ms. Moncrief s father. The couple resided together on the lake property until Mr. Armstrong’s death on September 5, 2003. During the five years the couple resided on Toledo Bend Lake, they traveled, fished on the lake, visited friends in both Louisiana and Texas, and generally enjoyed life together. These activities occurred despite the fact that, within one year after the couple began living together, Mr. Armstrong developed significant health problems. Initially, Mr. Armstrong’s health problems related to his heart and resulted in two surgeries — one in 2000 and another in 2001. However, soon after developing heart difficulties, Mr. Armstrong was also diagnosed as suffering from cancer. He underwent surgery in 2001 for the removal of a malignant tumor in his lung and again in May of 2003 to remove a malignant tumor in his stomach. He lost his battle with cancer on September 5, 2003.

Despite his numerous hospitalizations and subsequent recovery periods, Mr. Armstrong maintained an active lifestyle, doing so even after being advised in the summer of 2003 that his cancer was terminal. In fact, in early August of 2003, Mr. Armstrong and Ms. Moncrief traveled to Alaska. However, while there, Mr. Armstrong became seriously ill and was transported on August 29, 2003, by air ambulance to the Christus Schumpert Hospital in Shreveport, Louisiana. Six days later he died in that hospital.

After Mr. Armstrong’s last will and testament was submitted for probate, Ms. Moncrief brought suit against the Succession, asserting that Mr. Armstrong had | ^promised to compensate her for services rendered to him during the years they lived together. The Succession responded to the suit by filing an answer denying Ms. Moncrief s assertions and by filing a recon-ventional demand asserting that Ms. Mon-crief improperly obtained certain funds belonging to the estate. The two-day trial on the merits began June 30, 2005. After completion of the evidence, the trial court took the issues under advisement and, on September 1, 2005, filed written reasons for judgment rejecting both the principal and reconventional demands. The trial court executed a judgment to that effect on September 6, 2005, and these appeals followed.

OPINION

Ms. Moncriefs Appeal

Mr. Armstrong executed his last will and testament on October 2, 1998, or some four months after he and Ms. Moncrief began living together. He did not mention Ms. Moncrief in that will. Instead, he named certain collateral relatives as his sole heirs in the event of his death. Nevertheless, Ms. Moncrief claims that Mr. Armstrong promised to compensate her for the services she rendered to him during the time they lived together by leaving her all of his Louisiana and Alaska property at his death. By her suit, she seeks to enforce that claim. She bases her right to enforcement of the alleged promise on the decision in Succession of Joublanc, 199 La. 250, 5 So.2d 762, 764 (1941), wherein the supreme court stated:

One who renders valuable services to another on his promise that in his will he will compensate to the extent of the value of the services the party rendering them is entitled to collect their value from the succession of the party for whom the services were rendered if he dies without having fulfilled his promise.

There is no dispute but that Ms. Moncrief rendered valuable services to Mr. Armstrong during the time they lived together. She basically performed all the duties j4of a spouse, and, when Mr. Armstrong’s health difficulties incapacitated him, she looked after his personal needs. Thus, the first question to be answered is whether the services rendered by Ms. Moncrief were in exchange for a promise that she would receive the Louisiana and Alaska property at Mr. Armstrong’s death. In an effort to satisfy her burden of proof on this question, Ms. Moncrief testified and called seven other witnesses (Jane Thornton, Sherry Laverne Wilson, Steve Moncrief, Fannie Faye Ortis, Sandra K. Cain, Laurie Rink, and Harry Dewayne Wilson) who testified concerning the extent of Mr. Armstrong’s promises.

Jane Thornton testified that she moved to Toledo Bend Lake in 2002, but had known Mr. Armstrong since 1993. She visited Mr. Armstrong and Ms. Moncrief at their Toledo Bend Lake home often and observed Ms. Moncrief s activities in cooking, keeping house, and caring for Mr. Armstrong’s personal needs. According to Ms. Thornton, as early as 1999, Mr. Armstrong confided in her that he intended to leave Ms. Moncrief the lake property and that he intended to set up a bank account in Texas for her. With regard to the A.L.M. Corporation stock, Ms. Thornton testified that, in a conversation which occurred just before the couple left for Alaska in August of 2003, Mr. Armstrong told her that he wanted to leave that stock to Ms. Moncrief because her son lived in Alaska and because “he owed it to her.”

Sherry Laverne Wilson is a hair dresser who lived on Toledo Bend Lake adjacent to Mr. Armstrong and Ms. Moncrief from the time they moved to the lake | ¡^property until Mr. Armstrong’s death. According to Ms. Wilson, on two or three occasions while she cut Mr. Armstrong’s hair, she and he discussed the need for Ms. Mon-crief to have financial security in the event of his death. The last occasion occurred, according to Ms. Wilson, a few days before the couple left for Alaska in August of 2003. Ms. Wilson testified that she broached the subject and told him: “I just hope to God that Alice is taken care of if something happens to you.” According to Ms. Wilson, Mr. Armstrong responded by stating, “[Wjell not yet but I can assure you she will be when we get back [from Alaska].” According to Ms. Wilson, Mr. Armstrong expressed his intention to give Ms. Moncrief the lake property and the stock in the Alaska corporation.

Steve Moncrief lives in Alaska and is Ms. Moncriefs son. He testified that he traveled to Louisiana from Alaska the day before Mr. Armstrong’s death and was en route to the hospital in Shreveport when he received a telephone call from Mr. Armstrong asking him to run some errands for him. Pursuant to Mr. Armstrong’s instructions, he immediately went back to the lake house and retrieved Mr. Armstrong’s October 1998 will. The next morning he was en route to Shreveport with the will when he received another telephone call informing him that Mr. Armstrong had died.

Fannie Faye Ortis testified that she had known Mr. Armstrong for approximately twenty years and had known Ms. Moncrief since 1965. She visited with them often when they lived on the lake property, despite the fact that most of that time she resided in Morgan City, Louisiana. Until his health began to fail, Mr. Armstrong never discussed his personal business with Ms. Ortis. However, she testified that, during a Labor Day 2001 visit, Mr. Armstrong confided in her that he [ ¿intended to provide for Ms. Moncrief. She credited her long-time, close friendship with Ms. Moncrief as the reason he felt the need to share this information with her. She testified that Mr. Armstrong repeated this comment to her in a telephone conversation which occurred shortly before the couple traveled to Alaska for the last time. According to Ms. Ortis, Mr. Armstrong assured her that, when he returned from Alaska, he intended to see to it that she received whatever property he owned in Louisiana and Alaska; the rest of his property, he intended to leave to his nieces and nephews.

Sandra K. Cain of Gatesville, Texas, works as a deputy voter registrar and deputy county clerk in the Coryell County Courthouse. She has known Mr. Armstrong since 1988 and has considered him a good friend since 1994. She testified that, shortly before the August 2003 Alaska trip, Mr. Armstrong telephoned her and asked that she contact his Texas attorney, William Hix, and inform Mr. Hix that he wanted to see Mr. Hix about changing his will. According to Ms. Cain, Mr. Armstrong told her that he wanted to leave Ms. Moncrief his Louisiana and Alaska property. Ms. Cain relayed this message to Mr. Hix, but Mr. Armstrong did not see Mr. Hix before traveling to Alaska. She further testified that, upon hearing that Mr. Armstrong was in the Shreveport hospital, she telephoned him and he again asked her to call Mr. Hix and ask him to come to Shreveport. She relayed this message to Mr. Hix, who informed her that he was not licensed to practice law in Louisiana and would not be able to assist Mr. Armstrong. She then relayed that message to Mr. Armstrong. The next time she telephoned the hospital, she was informed that Mr. Armstrong had died.

17Laurie Rink is a licensed practical nurse who had known Ms. Moncrief for twenty years and Mr. Armstrong for seven or eight years. Ms. Rink recounted a May 2003 event where she, her fiancé, and Mr. Armstrong were fishing on Toledo Bend Lake and Mr. Armstrong brought up the subject of Ms. Moncriefs future security. Mr. Armstrong expressed his feelings for Ms. Moncrief and told them that he wanted to make sure she was well taken care of. Specifically, he stated that the lake property was to be Ms. Moncriefs. The conversation went no further than that statement, and Ms. Rink never again discussed the matter with Mr. Armstrong.

Harry Dewayne Wilson is Mr. Armstrong’s step-grandson. He testified that he was visiting Mr. Armstrong one night at the lake property just before the Alaska trip and that Mr. Armstrong asked him what he thought he should do with his money. He testified that he informed Mr. Armstrong that the money should be used to “take care of Alice.” According to Mr. Wilson, Mr. Armstrong told him that Ms. Moncrief “would be getting the lake house and that she would be taken care of.”

Ms. Moncrief testified that, during Mr. Armstrong’s several surgeries, she maintained the household and cared for his personal and physical needs and that ultimately she became responsible for all aspects of his day-to-day needs. However, the extended duties imposed upon her were not what she anticipated in the beginning of the relationship. She described herself as nothing more than a lover and companion in the beginning, without any promises from either party. However, according to Ms. Moncrief, in 1998, or before the medical problems developed to any significant degree, she and Mr. Armstrong began discussing her future. He even proposed marriage, a proposal which she refused. It was not until 1999 that Mr. Armstrong first made her any kind of promise with regard to her future financial |sstability. She asserted that, at that time, he promised her the lake house and the contents of a bank account to be established in the future.

Ms. Moncrief candidly admitted that, after Mr. Armstrong’s medical difficulties truly manifested themselves, in her mind her relationship with Mr. Armstrong continued based on two factors — her continued feelings for Mr. Armstrong and his willingness to compensate her materially. Described another way, no matter how strongly Ms. Moncrief felt about Mr. Armstrong, she had no intention of remaining in the relationship unless he paid her something. She described this new relationship as having aspects of both romance and business.

“A party who demands performance of an obligation must prove the existence of the obligation.” La.Civ.Code art. 1831. As previously noted, Ms. Moncrief had the advantage of being able to use parole evidence as allowed by La.R.S. 13:3721. Concerning her burden of proof under that statute, La.R.S. 13:3722 provides: “When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.” In considering the scope of that burden of proof, we further note that La.Civ.Code art.1967 provides:

Cause is the reason why a party obligates himself.
InA party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

(Emphasis added.)

Additionally, Comment (f) to this Article states in part that “a party should place no reliance on his belief that he has entered a gratuitous contract when some formality prescribed for the validity of such a contract has been omitted. Thus, reliance on a gratuitous donation not made in authentic form is not reasonable. See C.C. Arts. 1523 and 1536 (1870).”

The promises credited to Mr. Armstrong were not in authentic form. Thus, Ms. Moncrief cannot and does not assert a gratuitous contract. Instead, she asserts that Mr. Armstrong’s promise was in exchange for her services. In considering the cause of the asserted contract as expressed by Ms. Moncrief s testimony, the trial court stated:

[Ms. Moncrief] never articulated or specified the actual agreement. While she referenced the decedent’s alleged assertions that he was going to give her certain property, or “take care of her,” she never stated the quid pro quo or what she had promised him in return. While there can be little doubt that she actually cooked, cleaned, maintained their house, and cared for him, there was no indication that this was any more than the actions of a loved one. If they had been married her actions would have clearly met her obligations as a spouse. C.C. Art. 98. While they were not married, they lived together as a husband and wife, without the benefits and obligations of marriage. It is the belief of this Court that they cared deeply for each other and that their respective behavior was based upon those feelings and not based upon some contractual agreement.

|1nIn other words, the trial court considered any promise on the part of Mr. Armstrong to be gratuitous. That being the case, it was unenforceable because it was not in authentic form. See La.Civ.Code art.1967.

The standard of appellate review of factual findings in a civil action is the manifest error/clearly wrong standard, and factual findings should not be reversed absent manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the reviewing court may not reverse. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Id.

Even assuming that Ms. Moncrief s testimony could be interpreted as representing mutual promises, she failed to establish those mutual promises with at least one credible witnesses other than herself. As pointed out by the trial court in its reasons for judgment, none of the witnesses called by Ms. Moncrief testified to an agreement between Mr. Armstrong and Ms. Mon-crief. At best, the testimony of these ■witnesses established an expressed intent on the part of Mr. Armstrong to take care of Ms. Moncrief by taking -certain actions in the future. That is to say, the conversations reflected Mr. Armstrong’s intent to change his will and reward Ms. Moncrief for her services, but did not evidence a contractual obligation to do so. Thus, we find no error in the trial court’s determination that Ms. Moncrief failed in |nher burden of proof to establish the existence of a contract between herself and Mr. Armstrong.

Ms. Moncrief asserts in the alternative that Mr. Armstrong gave her the stock in A.L.M Corporation prior to his death by manually delivering the stock certificate to her. Specifically, she asserts that, immediately before she and Mr. Armstrong left for Alaska, he gave her the stock certificate and expressed his intention to effect a transfer into her name while they were in Alaska. She acknowledges, however, that the transfer did not occur. According to Ms. Moncrief, when they arrived in Alaska, the corporate attorney was not available to make the official transfer during the first two weeks and thereafter Mr. Armstrong’s health precluded any additional efforts.

Gratuitous donations of incorporeal things are valid only if executed before a notary and two witnesses. La.Civ.Code art. 1536. The donation of stock, an incorporeal movable, falls within that provision. Blue v. Coastal Club, Inc., 524 So.2d 883 (La.App. 3 Cir.), twit denied, 525 So.2d 1044 (La.1988). However, the formalities of La.Civ.Code art. 1536 are not necessary if shares of stock are validly transferred pursuant to Louisiana stock-transfer legislation. Primeaux v. Libersat, 322 So.2d 147 (La.1975). Ms. Moncrief cites La.R.S. 10:8-307 and Ackel v. Ackel, 595 So.2d 739 (La.App. 5 Cir.1992), to argue that a purchaser .(a purchaser includes one who takes by gift pursuant to La.R.S. 10:1— 201(32) and (33)) who receives a certificated security in registered form without a necessary endorsement is entitled to have the endorsement supplied and that, as between the transferor and transferee, the transfer is complete upon delivery. Hence, she argues that the transfer from Mr. Armstrong to herself was valid. However, Ms. Moncriefs argument overlooks the law that the transfer provisions of the Commercial Code supersede the Civil Code in | ^matters of form only. See Fogg v. Fogg, 571 So.2d 838 (La.App. 3 Cir. 1990), writ denied, 575 So.2d 372 (La.1991). “The underlying validity of the donation is a ‘threshold’ requirement controlled by substantive rules on donations contained in the Civil Code.” Id. at 841. This means that the substantive requirements of a divestment and donative intent must be fulfilled in order to effect a valid donation. Id.

“To establish a donation inter vi-vos of a manual gift, the donee has the burden of proving by strong and convincing evidence donative intent of the donor.” Mertens v. Mertens, 96-391, p. 3 (La.App. 3 Cir. 10/9/96), 688 So.2d 1148, 1150, writ denied, 96-2716 (La.1/6/97), 685 So.2d 123. “A donation inter vivos (between living persons) is an act by which the donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who accepts it.” La.Civ.Code art. 1468. For purposes of a donation inter vivos, delivery is defined as relinquishing control or dominion over property and placing it irrevocably within the dominion of the do-nee. Mertens, 688 So.2d 1148; Brown v. Brown, 93-1105, 93-1106, 93-1107 (La.App. 3 Cir. 4/6/94), 635 So.2d 255, unit denied, 94-1667 (La.10/28/94), 644 So.2d 649; Succession of Serio, 597 So.2d 91 (La.App. 4 Cir.), unit denied, 600 So.2d 677 (La.1992).

In the present case, Mr. Armstrong never signed the stock certifícate transferring it to Ms. Moncrief, and the face of the stock certificate itself had a general stock redemption restriction which prohibited its transfer without compliance with the terms of the restriction. The record contains no evidence of compliance with that restriction. The trial court concluded that the failure to comply with the stock redemption agreement precluded transfer by manual gift. Thus, the trial court | -^concluded that Mr. Armstrong still owned the stock at the time of his death. While we agree with the ultimate disposition of this issue by the trial court, we further note that Ms. Moncriefs testimony itself clearly disclosed that there never was an irrevocable divestiture of the stock by the deceased. Ms. Moncrief gave the following testimony:

Q So we don’t have the original certificates here or a copy of the back, but it is your testimony that he did not sign the certificates?
A Correct.
Q And there was a place on the back to sign, correct?
A Correct.
Q Where he could put who it’s been transferred to and sign and date?
A Correct.
Q Do you recall in the deposition that you gave discussing about going to Alaska and taking care of the Alaskan stock?
A Correct.
Q And taking care of it referred to getting it into your name, correct?
A We were gonna try to see the attorney over there in Alaska for the A.L.M. Corporation, Terry Dragger, he was unavailable.
Q And did you get it in your name during the two weeks that you were there before he got sick?
A No.

Thus, by the plaintiffs own admission, she did not meet the burden of proving by strong and convincing evidence that the deceased intended to make a manual gift to her of the stock.

For the foregoing reasons, we find no merit in Ms. Moncriefs appeal.

Succession’s Appeal

114The Succession’s claims in its re-conventional demand arise from the fact that, after Mr. Armstrong’s death, Ms. Moncrief cashed two checks drawn on his account totaling $75,000.00 and withdrew $4,000.00 from his account using his ATM card. The trial court rejected without comment the Succession’s claims with regard to these funds. On appeal, the Succession asserts as error this aspect of the judgment of the trial court.

The only evidence concerning the facts surrounding these transactions came from Ms. Moncriefs testimony. According to Ms. Moncrief, Mr. Armstrong brought three personal checks with him to Alaska in August of 2003. At some point, he signed them in blank, and Ms. Moncrief acquired possession of the three checks. It is not disputed that she used one of the checks to pay Air Ambulance Specialists, Inc. $26,360.00 as its charges for transporting Mr. Armstrong from Alaska to Shreveport, Louisiana. According to Ms. Moncrief, some unknown person completed the other two checks, naming her as payee. One of the checks, drawn in the amount of $25,000.00 and dated August 3, 2003, cleared the drawee bank on September 8, 2003. The other check, drawn in the amount of $50,000.00 and dated July 31, 2003, cleared the drawee bank on September 15, 2003, essentially depleting the account. Ms. Moncrief acknowledged that between October 7, 2008, and December 4, 2008, she withdrew $4,000.00 from another account using Mr. Armstrong’s ATM card. Thus, it is clear that Ms. Moncrief converted these funds after Mr. Armstrong’s death. In fact, in her post-trial brief, Ms. Moncrief acknowledged receipt of the funds represented by the two checks and suggested that the trial court could reduce her principal demand by those amounts.

|1BIn its reasons for judgment, the trial court did not mention the reconventional demand, but characterized Ms. Moncriefs acquisition of these funds by saying that she had “helped herself to $75,000.00.” While the trial court did not mention the ATM withdrawals, it is clear that Ms. Moncrief made those withdrawals as well. Thus, the Succession proved the conversion of $79,000.00.

Considering that the trial court did not mention the reconventional demand in its reasons for judgment, the only inference that can be drawn from the record is that the trial court believed Ms. Moncrief had a claim against the succession in quantum meruit but that she should not be allowed to recover any more than what she had already received over the course of five years and what she had helped herself to after Mr. Armstrong’s death. This inference is supported from the language of a summary judgment previously rendered in this matter wherein the trial court stated that Ms. Moncrief “has a claim against the succession” and from the trial court reasons for judgment wherein the trial court concluded that Ms. Moncrief “has been adequately compensated.” Assuming this inference to be correct, we find that the trial- court erred in this regard. Such a ruling would be inconsistent with the reasons given for rejecting the principal demand.

The trial court concluded that Ms. Mon-crief failed to prove a valid claim against the Succession in her principal demand, and, as previously stated, we agree with that conclusion. Because the Succession owed her nothing, she was not justified in converting $79,000.00 to her personal benefit, and the Succession was entitled to judgment on its reconventional demand for the recovery of that amount.

| ^DISPOSITION

For the foregoing reasons we affirm the judgment of the trial court which rejected Alice Moncriefs claim against the Succession of Leslie Thomas Armstrong. We reverse the trial court’s rejection of the reconventional demand and award judgment in favor of the Succession of Leslie Thomas Armstrong and against Alice Mon-crief in the amount of $79,000.00. We tax all costs to Alice Moncrief.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Throughout the record, the parties refer to the “Alaska property" owned by Mr. Armstrong. However, it is clear from the record that Mr. Armstrong owned no property in Alaska — he merely owned stock in an Alaska Corporation.

      . Ms. Moncrief first filed a claim in the succession proceedings as a creditor. Thereafter, she filed a separate claim against the succession, and the trial court consolidated these two actions.

      . Ms. Moncrief actually called an eighth witness, Pat Angely. The Succession's representative objected to Ms. Angely’s testimony, and the trial court sustained the objection. Although her testimony was proffered at trial, Ms. Moncrief has not assigned as error the trial court's refusal to allow Ms. Angely to testify. Therefore, her testimony cannot be considered.

      . Because she filed her claim within one year of Mr. Armstrong's death, Ms. Moncrief was able to avail herself of the parol evidence exception provided in La.R.S. 13:3721(1) and (4). Recognizing her right to introduce parol evidence, the trial court freely admitted parol evidence during the trial.

      . We note that the burden of proof when parol evidence is allowed under La.R.S. 13:3721 is more stringent than the general rule of proof of obligations contained in La. Civ. Code art. 1846, which requires that an oral contract with a “price or value [] in excess of five hundred dollars ... must be proved by at least one witness and other corroborating circumstances” and which allows the plaintiff herself to serve as the witness to establish the existence of the oral contract, Suire v. Lafayette City-Parish Consolidated Government, 04-1459, 04-1460, 04-1466 (La.4/12/05), 907 So.2d 37. Louisiana Revised Statutes 13:3722 requires the testimony of a least one creditable witness other than the plaintiff and other corroborating circumstances. The purpose of the requirement that there be a creditable witness other than the plaintiff is to eliminate the possibility of fraud and perjury by witnesses who have a direct pecuniary or proprietary interest in the claim. Savoie v. Estate of Rogers, 410 So.2d 683 (La.1981).

      . The trial court also expressed its concern over the credibility of some of the witnesses. However, the issue of the credibility of these witnesses is immaterial because, regardless of whether the testimony is believed or not, the testimony failed to establish mutual promises in any event.

      . There was also evidence that, during their relationship, Mr. Armstrong had provided Ms. Moncrief with over $25,000.00 in cash, all living expenses, and a 1998 Lincoln automobile. Additionally, using Mr. Armstrong's credit card, Ms. Moncrief had purchased a John Deere riding lawn mower for $3,208.93 after his death.