author: DAVID E. CHATELAIN, Judge Pro Tem.

text:
    STATE of Louisiana v. Kevin WILLIS.
    No. 10-865.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      James P. Lemoine, District Attorney, Renee W. Dugas, Assistant District Attorney, Colfax, Louisiana, for State of Louisiana.
    Brian K. Thompson, Attorney at Law, Alexandria, Louisiana, for Defendant/Appellant, Kevin Willis.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.
   DAVID E. CHATELAIN, Judge Pro Tem.

liThe defendant, Kevin Willis (Kevin), appeals the judgment on his motion to modify child support because the trial court deviated from the legislatively established Louisiana Child Support Guidelines (Guidelines) without providing written or oral reasons. We reverse and remand with instructions to proceed according to La.R.S. 9:315.1.

BACKGROUND AND PROCEDURAL HISTORY

Kevin and Heather Willis (Heather) are the parents of seven-year-old Karmen. Kevin is unmarried and has been subject to a child support obligation of $747.24 per month since November 6, 2007. This award was based on the Guidelines, which determined that Kevin was responsible for 42.09% of a total support obligation of $1,536.51 per month. In addition to the basic support obligation based on the parties’ combined income, the total obligation included $100.00 per month for child care, $142.56 for Karmen’s health insurance, and $365.00 for private school tuition. The original child support is being collected and distributed through the State of Louisiana (State) pursuant to La.R.S. 46:236.1.1-46:236.16., and it remains a party in these support proceedings.

On January 6, 2010, Kevin was terminated from a job that paid $25.36 per hour, and he then filed the motion to modify child support that is the subject of this appeal because of his unemployment. He has since obtained work but is now earning only $16.00 per hour. When he was terminated, Kevin also lost the employee benefits that had previously provided health insurance for Karmen. Heather has since acquired a health insurance policy for Kar-men with a monthly premium of $230.00.

12Furthermore, Heather, who has physical custody of Karmen, recently moved residences, and Karmen is no longer able to attend the Montessori Educational Center (MEC), the private school she had attended when the original child support obligation was determined. There are two private schools near Heather’s new residence, but, at the time of trial, it was unclear whether Karmen would be attending either. Karmen’s tuition for the 2009-2010 school year at MEC was twelve monthly payments of $388.33, but no evidence was presented regarding the tuition for either of the private schools Karmen may attend for the 2010-2011 school year. Heather also testified that her child care costs consisted of babysitting at the rate of $100.00 per week during Karmen’s summer break and other school holidays. Finally, Heather’s monthly income has increased from $3,212.50 to $4,333.33 since the 2007 support'award.

The hearing officer who initially considered the request for modification recommended that Kevin’s support obligation be lowered to $650.00 per month; the record does not indicate whether this figure was based on calculations under the Guidelines or if Kevin was still unemployed at that time. At trial, the State submitted a worksheet calculating the support obligation under the Guidelines based on the parties’ current salaries, Karmen’s health insurance premiums, eighteen weeks of child care at $100.00 per week, and the 2009-2010 tuition for Karmen’s old private school. Using these numbers, the State suggested to the trial court that, based upon the Guidelines, Kevin is responsible for 39.02% of the $1,782.84 total support obligation, which equals $695.66.

At a hearing on May 14, 2010, the trial court ruled, “[bjecause of the circumstances, I’m going to deviate from the formula and order that [Kevin] pay | a$650[.00] per month.” It did not make any findings regarding the proper amount under the Guidelines or give any further reasons for its ruling.

DISCUSSION

On appeal, Kevin contends that the trial court failed to comply with La.R.S. 9:315.1(B)(1) by failing to give specific oral or written reasons for deviating from the Guidelines. Generally, La.R.S. 9:315-9:315.26 establish these Guidelines and govern their application to child support cases. Subpart A of La.R.S. 9:315.1 requires their use in any proceeding to establish or modify child support and further establishes a rebuttable presumption that the amount derived by such use is the appropriate amount of child support.

Louisiana Revised Statutes 9:315.1(B)(1) goes on to set substantive standards and procedural requirements that the trial court must meet to award an amount of child support that differs from the Guidelines:

The court may deviate from the guidelines set forth in this Part if their application would not be in the best interest of the child or would be inequitable to the parties. The court shall give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. The reasons shall be made part of the record of the proceedings.

The procedural requirements for deviating from the Guidelines are twofold. First, the trial court must use the Guidelines to calculate an amount of support and include a finding regarding that amount in the record. Second, the trial court must give written or oral reasons that describe with particularity the facts and circumstances of the case which make awarding the amount generated by the Guidelines either contrary to the child’s best interest or inequitable to the parties.

In Lanclos v. Lanclos, 614 So.2d 170, 175 (La.App. 3 Cir.1993), we discussed the purpose of the Guidelines generally and the procedural requirements in La. R.S. 9:315.1(B)(1):

[W]e do not hold that a trial court has no discretion in setting child support awards. The act provides for guidelines, and not rigid adherence. The trial court’s judicial discretion should be protected in order to prevent inequities. The intended purpose of the guidelines is to provide consistency and certainty in child support awards. In order to serve that purpose, an evidentiary basis for deviation must be properly presented and, if accepted by the trial court, the reasons for deviation must be clearly stated.

Furthermore, in Hildebrand v. Hildebrand, 626 So.2d 578 (La.App. 3 Cir.1993), we held that a trial court’s failure to comply with La.R.S. 9:315.1 by using the Guidelines and giving reasons for deviating therefrom invalidates the corresponding judgment that deviates from the Guidelines. Without an accurate calculation of the amount provided for by the Guidelines and the trial court’s reasons for deviating from this amount, appellate courts cannot adequately evaluate the trial court’s judgment. These procedural requirements not only demand that the trial court give the Guidelines proper consideration, but they also provide appellate courts with a mechanism to preclude substantive review of support cases in matters like this where the trial court has failed to apply the Guidelines or fully evaluate the necessary factors before choosing to deviate from the Guidelines.

In this case, the trial court did not meet either of the procedural requirements established in La.R.S. 9:315.1(B)(1). It failed to derive an amount of support through application of the Guidelines, and it did not give any specific reason why deviation from the Guidelines was justified. Accordingly, because we find the trial court’s failure to comply with La.R.S. 9:315.1(B)(1) rendered the child support award |fiinvalid, we do not reach the issue of whether the deviation is warranted under the substantive standards.

In response to this appeal, the State does not contest Kevin’s assignment of error. Rather, it suggests that this court should either apply the Guidelines and award an amount thereunder or affirm because the amount of the support award was less than that provided for under the Guidelines and, therefore, constitutes harmless error. Without considering the merits of either argument, we find, as elaborated upon below, that a remand is necessary because there is not sufficient evidence in the record to calculate an amount of support under the Guidelines. See Hildebrand, 626 So.2d 578.

No evidence was introduced to establish the monthly cost of Karmen’s private school tuition after May 2010. While the parties testified that Karmen may attend one of two available private schools, no testimony or other evidence established which of these schools she would be attending or what the tuition would be. Because the trial court had previously found that private school education was an extraordinary expense to be included in the calculation of support under the Guidelines and neither party contested this issue at trial, calculations under the Guidelines in this case must include the child’s tuition, if any.

The evidence regarding tuition for Karmen’s former school also does not suffice. The record clearly shows that Kar-men would not continue attending that school after the 2009-2010 school year, and there is no evidence to suggest that further payments on this tuition would be owed when any modified child support obligation would take effect. The 2009-2010 registration contract submitted into evidence establishes twelve monthly payments due from July 2009 to May 2010, and Heather testified that the final payment was still due when the hearing on this motion | (¡occurred on May 14, 2010. However, the trial court’s judgment does not apply retroactively, so Kevin’s child support obligation for May 2010, which corresponds to the final tuition installment, would not be affected. Thus, the cost of private school education to be included in the Guidelines calculation should be the monthly cost of tuition at whichever school Karmen will be attending when the support obligation would take effect.

Additionally, although the record establishes that Karmen will require child care, the evidence is insufficient to determine the average monthly cost of this care. Heather testified only that she was planning to hire a babysitter at the rate of $100.00 per week for summer break and the school holidays for Easter, Christmas, Thanksgiving, and Spring Break. However, there is no testimony or other evidence stating how many total weeks these holidays comprise. The attorney for the State argued to the trial court that Heather would need child care for a total of eighteen weeks, but such argument by a party does not constitute testimony regarding the facts of a case. Maurice v. Prudential Ins. Co., 02-993 (La.App. 4 Cir. 10/23/02), 831 So.2d 381; Attardo v. Salvador, 96-1170 (La.App. 4 Cir. 2/5/97), 688 So.2d 1296, writ denied, 97-584 (La.4/18/97), 692 So.2d 453 (holding that counsel’s arguments and allegations, no matter how artfully made, are not evidence); see also Boquet ex rel. Billiot v. SWDI, LLC, 07-738 (La.App. 1 Cir. 6/6/08), 992 So.2d 1059, writ denied, 08-2086 (La.9/4/09), 17 So.3d 958; Breitenbach v. Stroud, 06-918 (La.App. 1 Cir. 2/9/07), 959 So.2d 926. While the State is a party to these proceedings, the attorney representing the State did not give the oath or affirmation required of witnesses by La.Code Evid. art. 603 and cannot otherwise be considered a witness.

|7On remand, La.R.S. 9:315.1 requires the trial court to calculate the amount of support provided for by the Guidelines before considering whether to deviate from those Guidelines. To do this, it must first receive evidence regarding both the average monthly tuition for the school that Karmen will be attending when its modified support award will take effect and the average amount of time per month that Karmen will require child care before it can accurately calculate the amount of support provided for by the Guidelines. If the court still believes that deviation is warranted in this case, it must give specific reasons which include particularized facts and circumstances that make application of the Guidelines not in the best interest of the child or inequitable to the parties.

DECREE

We reverse the judgment of the trial court and remand with instructions to comply with the procedural requirements of La.R.S. 9:315.1(B)(1).

REVERSED AND REMANDED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    Henry Adam BALTAZAR, Et Al. v. Dennis R. WOLINSKI, Et Al.
    No. 10-0757, 10-0758.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Charles Benjamin Landry, C. Benjamin Landry, APLC, Lafayette, LA, for Plaintiff/Appellant, Henry Adam Baltazar.
    John W. Penny, Jr., Penny & Hardy, Lafayette, LA, for Defendants/Appellees, Dennis R. Wolinski, Kirkpatrick Industrial Supply, Incorporated, Continental Casualty Company.
    William H. Eckert, Rhonda J. Thomas, Robin L. Jones, Ungarino & Eckert, L.L.C., Metairie, LA, for Intervenor/Ap-pellee, United States Fire Insurance Company.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   PETERS, J.

liThe plaintiff in this automobile accident litigation, Henry Adam Baltazar, appeals a jury’s quantum award as well as the trial court’s judgment with regard to his employer’s workers’ compensation insurer’s intervention action. For the following reasons, we amend in part, affirm in part, reverse in part, and render judgment.

DISCUSSION OF THE RECORD

This litigation arises from an October 2, 2005 vehicular accident on the Interstate 10 Atchafalaya Basin Bridge in St. Martin Parish, Louisiana. The accident occurred when a tractor-trailer rig driven by Dennis Wolinski struck the rear of a tractor-trailer rig driven by Mr. Baltazar and pushed Mr. Baltazar’s rig forward into the rear of another vehicle. At the time of the accident, Mr. Wolinski was operating his rig in the course and scope of his employment with Kirkpatrick Industrial Supply, Inc., and Mr. Baltazar was operating his vehicle in the course and scope of his employment with SNL Distribution. United States Fire Insurance Company provided workers’ compensation coverage to SNL Distribution.

Mr. Baltazar brought suit to recover the damages he sustained, naming a number of parties as defendants, including Mr. Wo-linski, Kirkpatrick Industrial Supply, and its liability insurer, Continental Casualty Company (hereinafter sometimes referred to collectively as “the defendants”). United States Fire Insurance Company (United States Fire) intervened in Mr. Balta-zar’s action, seeking reimbursement of all workers’ compensation benefits paid to him, or paid on his behalf, as a result of the accident.

|2On September 21, 2009, at the beginning of the five-day jury trial, the litigants stipulated that the workers’ compensation intervention would not be mentioned to the jury and that the determination of the amounts owed the intervener would be deferred to a later day. Additionally, because liability was not a serious issue, the jury trial proceeded to determine the extent and duration of Mr. Baltazar’s injuries. After completion of the evidentiary phase of the trial, the jury returned its verdict, awarding Mr. Baltazar the following amounts in damages:

A. Past, present and future physical pain and suffering $17,000.00
B. Past, present and future mental pain and suffering $25,000.00
C. Past medical expenses $75,000.00
D. Future medical expenses $ 5,000.00
E. Permanent injury or disability $ 0.00
F. Loss of enjoyment of life $ 5,000.00
G. Past lost wages and employment benefits $20,000.00
H. Future lost wages and employment benefits $ 0.00

On October 19, 2009, the trial court signed a final judgment incorporating the jury’s verdict. After the trial court rejected Mr. Baltazar’s motion for a judgment notwithstanding the verdict and motion for new trial, the trial court granted Mr. Bal-tazar’s motion to appeal the October 19, 2009 judgment by an order executed on November 23, 2009. On January 20, 2010, the trial court executed a final judgment awarding United States Fire two-thirds of the jury award, or $98,000.00, and awarding the remaining $49,000.00 to Mr. Balta-zar’s attorney for his attorney fees and costs of the litigation. Mr. Baltazar timely appealed this judgment as well. Both appeals have been consolidated and are now before us in the form of three assignments of error:

1. The trier of fact committed manifest error in awarding the Petitioner damages which were either unreasonably low or below the lowest award a reasonable trier of fact should award considering the injuries suffered by Petitioner-Appellant, his Impermanent disabilities, his past and future wage losses, and his clear loss of earning capacity.
2. The trial court erred in granting a money judgment to the Intervenor in the amount of $98,000.00 on the Petition for Intervention where the Intervenor introduced no evidence and testimony of compensation actually paid by it or Petitioner-Appellant’s employer.
3. Alternatively, the trial Court erred in its interpretation of La.R.S. 23:1103 as it pertains to the employer and employee or his dependent, as it pertains to judgments obtained by an attorney at law pursuant to La.R.S. 9:5001, resulting in an unconstitutional taking. Additionally, there is a conflict in the Third Circuit cases, which interpret La.R.S. 23:1103 as applied to La.R.S. 9:5001.

OPINION

Assignment of Error Number One

The first assignment of error raised by Mr. Baltazar addresses the sufficiency of the quantum awards for past, present, and future pain and suffering; permanent injury or disability; past lost wages and employment benefits; and future lost wages and unemployment benefits. He argues that these awards are unreasonably low and should be increased to the lowest award a reasonable trier of fact could have awarded. The disposition of this assignment of error is based primarily on an evaluation of the medical evidence presented at trial.

The evidentiary record establishes that Mr. Baltazar sought medical treatment immediately after the accident at the emergency room of Lady of Lourdes Regional Medical Center in Lafayette, Louisiana, and was treated and released. His primary complaints at this time were that of blurred and double vision and a fractured nose. After being examined by the emergency room doctor and subjected to a CAT scan, he was released to go home.

|4Mr. Baltazar began treatment with Dr. Keith Mack, a Lafayette, Louisiana general practitioner, three days after the accident, from October 5, 2005, through February 3, 2006. Dr. Mack recommended conservative care, medication, physical therapy, and x-rays, and referred Mr. Bal-tazar to specialists for treatment of the nasal fracture and his eye problems.

On October 11, 2005, Dr. C. Barrett Alldredge, a Lafayette, Louisiana surgeon, performed surgery to repair Mr. Balta-zar’s fractured nose. Dr. Alldredge discharged Mr. Baltazar, noting on December 15, 2005, that he had no permanent problems or disability resulting from his nose injury or surgery.

On November 8, 2005, Dr. Cheryl Neu, an opthamologist, examined Mr. Baltazar. She concluded that an eye inflammation was probably causing his light sensitivity and headaches, and she prescribed steroid drops to treat the inflammation. Ten days later, on November 18, 2005, Dr. Neu discharged Mr. Baltazar from her care, stating that there would be no long-term complications or disabilities resulting from his eye problems.

Mr. Baltazar’s primary physician for the treatment of the remainder of his injuries was Dr. Leo A. deAlvare, a Lafayette, Louisiana neurologist who first saw him on January 24, 2006, or almost four months after the accident. On this initial visit, Mr. Baltazar related a history of bleeding from the nose and forehead, dizziness, and confusion immediately after the accident, but he denied losing consciousness. He informed Dr. deAlvare that the night after the accident he was agitated and confused and vomited several times. According to Mr. Baltazar, in the first two weeks after the accident, he stayed confused, often got lost, and suffered severe pain. He complained that at the time of the January 24, 2006 visit, he was suffering from intermittent | ¿headaches, neck and low back pain, swelling on the bridge of his nose, and clicking and pain when opening and closing his jaw.

After recording the history given and examining his patient, Dr. deAlvare concluded that, in addition to his broken nose, Mr. Baltazar had suffered a closed head injury with a mild concussion, which had already resolved itself; a temporomandib-ular joint (TMJ) injury; a flexion-extension injury (whiplash) resulting in an ongoing cervical myofascial syndrome; and a bilateral sacroiliac joint injury. He attributed Mr. Baltazar’s headache complaints to the TMJ injury, attributed his neck pain complaints to the whiplash injury, and concluded that the ongoing cervical myofascial syndrome was exacerbated by the TMJ dysfunction. Dr. deAlvare also noted that Mr. Baltazar manifested some depressive symptomology, which he suggested was possibly related to the closed head injury but more probably related to an adjustment disorder and sleep disturbance, both of which were probably related to chronic pain syndrome. The doctor related all of his findings to the accident at issue in this litigation.

Dr. deAlvare prescribed medication for Mr. Baltazar’s depression, pain, and inflammation and to aid in his sleeping difficulties. He also referred Mr. Baltazar to a physical therapist for assistance with the pelvis and cervical spine complaints and to Dr. James A. Pearce, a Lafayette, Louisiana general dentist who specializes in the treatment of TMJ, for treatment of the TMJ disorder. Dr. deAlvare continued to treat Mr. Baltazar and saw him for the last time in April of 2009, or approximately five months before the trial on the merits began.

Pursuant to Dr. deAlvare’s recommendation, Dr. Pearce treated Mr. Baltazar beginning February 23, 2006, for TMJ. Dr. Pearce diagnosed Mr. Baltazar with TMJ capsulitis and myofascial pain of the muscles of mastication on the left side of his face Land head. Dr. Pearce treated Mr. Baltazar’s condition with splint therapy and concluded that he had reached his maximum medical improvement on November 28, 2006.

When Dr. deAlvare saw Mr. Baltazar the second time, on March 16, 2006, he noted that the prescribed physical therapy had helped tremendously with his patient’s lower back complaints, but that Mr. Balta-zar was still having discomfort in his neck and continuing to suffer headaches every two to three days. The results of an MRI of the cervical spine were unremarkable, but Mr. Baltazar suffered pain when looking straight up. Dr. deAlvare continued Mr. Baltazar on the prescription medication and physical therapy. The only reason that Mr. Baltazar was not cleared to return to work at this time was due to his neck pain.

By May 9, 2006, when Mr. Baltazar returned to Dr. deAlvare, his lower back had improved, he was sleeping well, and his depression was under control. His primary complaints at that time related to his continued neck pain and headaches. Dr. deAlvare began treating Mr. Baltazar with cervical epidural steroid injections for the pain. When Mr. Baltazar returned to the doctor on August 17, 2006, his back was at eighty-five percent improvement, with occasional discomfort but no severe pain; and the frequency of the headaches was down to only one per week. The steroid injections were effective, but the positive effect, according to Mr. Baltazar, lasted only one week. At this time, Dr. deAlvare recommended two more steroid injections.

The November 21, 2006 office visit resulted in the doctor recommending more steroid injections. However, by the February 22, 2007 examination, Mr. Baltazar’s headache complaints had increased. Dr. deAlvare concluded that the increase in 17headaches was related to the side effects of the splint therapy associated with the TMJ treatment.

On April 26, 2007, Dr. deAlvare found Mr. Baltazar to be depressed and anxious to go back to work. Dr. deAlvare sent Mr. Baltazar for a functional capacity evaluation (FCE). The results of the FCE performed on June 11 and 12, 2007, revealed that, despite Mr. Baltazar’s maximum effort during the evaluation, his neck and upper thoracic pain limited his ability to do elevated work. Additionally, the test results suggested that his back pain limited his forward bending and sitting, kneeling, and standing for more than twenty minutes.

Despite the negative results of the FCE, at a July 30, 2007 office visit, Dr. deAlvare suggested that Mr. Baltazar attempt a thirty-day work trial with restrictions: no flexing forwarding, no lifting in that position greater than twenty pounds, and no overhead work at all. However, Mr. Bal-tazar did not return to work, explaining to Dr. deAlvare at a June 12, 2008 office visit that he could find no light-duty employment.

At a January 8, 2009 office visit, Dr. deAlvare found that Mr. Baltazar was still exhibiting objective evidence of spasms in his neck, and on the last time he saw Mr. Baltazar, in April of 2009, Dr. deAlvare had concluded that his patient was approaching maximum medical improvement. In his testimony, Dr. deAlvare stated that Mr. Baltazar had permanent American Medical Association anatomical impairment ratings of ten percent for his neck and ten percent for his lower back. Dr. deAlvare testified that the FCE rating was also permanent. With regard to future medical care, Dr. deAlvare testified that Mr. Baltazar would need maintenance-type medical treatments for the future; specifically one to three visits with him a year, plus Isfour weeks of physical therapy a year, and approximately $300.00 worth of medications for pain, depression, and sleeplessness each month.

While undergoing treatment from Dr. deAlvare, Mr. Baltazar also performed physical therapy from January 25, 2007, through .April 5, 2007, with Roxanne H. Touchet at the McLeod-Trahan-Sheffield Physical Therapy Services in Lafayette, Louisiana. In her reports, Ms. Touchet stated that Mr. Baltazar had regularly attended his ten physical therapy sessions and had progressed well. At the April 5, 2007 session, Ms. Touchet reported that Mr. Baltazar was able to lift seventy-five pounds from the floor to his waist and overhead safely and that Mr. Baltazar felt able to return to work.

Glen Hebert, a Lafayette, Louisiana, vocational rehabilitation counselor, met with Mr. Baltazar on July 10, 2007. According to Mr. Hebert, on that day, Mr. Baltazar could lift seventy-five pounds, but could only maneuver twenty pounds. He explained that heavy work requires lifting over fifty pounds throughout the day and moving ten to twenty pounds continuously and that at that time Mr. Baltazar was not employable as a heavy-duty truck driver because of his lifting restrictions. Additionally, although Mr. Hebert believed Mr. Baltazar was capable of driving a school bus or short truck on short trips, he was of the opinion that Mr. Baltazar should not be driving an eighteen-wheeler truck because of his anxiety and depression. Mr. Hebert testified that before the accident, Mr. Baltazar could earn $44,605.00 to $56,770.00, while now, after the accident, his earning potential is restricted to $15,000.00 to $16,000.00.

JgDr. Susan R. Andrews, a Metairie, Louisiana clinical neuropsychologist, saw Mr. Baltazar on August 13 and 14, 2007, or almost two years after the accident. The purpose of her examination and evaluation was to assist Mr. Baltazar with rehabilitation so that he could return to work. Based on the history provided her and her examination and testing results, Dr. Andrews concluded that Mr. Baltazar sustained a mild traumatic brain injury in the accident and this resulted in a post-concussion syndrome difficulty. She suggested that Mr. Baltazar suffered from an anxiety disorder, depression, a cognitive disorder, and a personality change due to the head injury. Dr. Andrews testified that Mr. Baltazar had frontal lobe problems, which affected his attention and his verbal memory, as well as right posterior involvement, resulting in reduced fine motor coordination and a loss of spatial orientation. She found him to be very honest on the testing. Dr. Andrews testified that the brain does heal itself over time, but she recommended cognitive rehabilitation for Mr. Baltazar.

Dr. deAlvare referred Mr. Baltazar to Dr. David J. Barczyk, a Lafayette, Louisiana chiropractic physician, who first saw Mr. Baltazar on September 12, 2008. Dr. Barczyk treated Mr. Baltazar for low back pain, neck pain, and headaches until May of 2009. According to Dr. Barczyk, Mr. Baltazar had a restricted range of motion in his cervical spine and a lumbar strain, with muscle spasms and that his prognosis was not good. While Dr. Barczyk was able to provide Mr. Baltazar with some relief through treatment, he could provide no sustained relief.

The medical evidence introduced by Mr. Baltazar reflects that he sustained a number of injuries in the October 2, 2005 accident, with full recovery in most cases. His fractured nose was repaired by surgery, and Dr. Alldredge released him without any residuals on December 15, 2005, or slightly over two months after the accident. |1(l Dr. Neu treated Mr. Baltazar for an eye inflammation that contributed to his light sensitivity and headaches and released him on November 18, 2005, or one and one-half months after the accident. Dr. Pearce treated Mr. Baltazar for a TMJ injury and released him as having reached maximum medical improvement on November 28, 2006, or slightly less than one year and two months after the accident. Dr. deAlvare treated Mr. Baltazar over a period of over forty months for a number of complaints. His final conclusion was that Mr. Baltazar was still suffering from depression and anxiety forty months post-accident and that he suffered from a permanent anatomical impairment rating of ten percent in the neck and ten percent in the lower back. According to Dr. deAl-vare, Mr. Baltazar would be unable to return to work at his former occupation and would require maintenance-type medical treatment for the remainder of his life. Dr. deAlvare’s final diagnosis and prognosis is supported by the testimony of Mr. Hebert, Dr. Barczyk, and Dr. Andrews.

Dr. Walter Stanley Foster, a Lafayette, Louisiana orthopaedic surgeon, saw Mr. Baltazar professionally on May 21, 2008. According to Dr. Foster, Mr. Baltazar’s neck examination was objectively normal at the time, and he was of the opinion that Mr. Baltazar was capable of driving a tractor-trailer rig. He based this conclusion on the April 2007 physical therapy report that stated Mr. Baltazar could lift seventy-five pounds from the floor to his waist and then overhead, as well as the June 2007 FCE which suggested Mr. Baltazar could perform heavy lifting with limitations on flexion and overhead work. In Dr. Foster’s opinion, Mr. Baltazar should have fully recovered from his injuries in three to six months after the accident, and there was no orthopedic reason that, as of April or June of 2007, Mr. Baltazar could not work as a tractor-trailer truck driver.

|nDr. Kevin J. Bianchini, a Metairie, Louisiana neuro and clinical psychologist, evaluated Mr. Baltazar on March 24 and 25, 2008. Based on his evaluation and his review of the medical and physical therapy records associated with Mr. Baltazar’s treatment, Dr. Bianchini concluded that Mr. Baltazar had suffered a mild, uncomplicated concussion, with no permanent damage. While he suggested that such a concussion should resolve itself within one to three months, it could take as much as one year for full recovery. In his opinion Mr. Baltazar did have depressive symptoms, but they did not arise from damages suffered from the accident, but from other life factors. Although he did not believe Mr. Baltazar to be a malingerer, Dr. Bian-chini was of the opinion that Mr. Baltazar was psychologically and cognitively capable of returning to work.

Dr. Rennie W. Culver, a Metairie, Louisiana, psychiatrist, interviewed and evaluated Mr. Baltazar on February 25, 2008. Based on this approximately three-hour interview and examination, Dr. Culver concluded that Mr. Baltazar was, in fact, a malingerer, finding that Mr. Baltazar’s claims to have trouble with his long-term memory were inconsistent with the nature of the medical problems.

Burt Ashman, of Lafayette, Louisiana, was accepted at trial as an expert in vocational rehabilitation. Mr. Ashman performed a vocational evaluation of Mr. Bal-tazar on September 4, 2009. He testified that Mr. Baltazar had not suffered any loss of earning capacity as a result of the accident. Mr. Ashman based this conclusion on Dr. deAlvare’s August 6, 2007 decision to return Mr. Baltazar to work with restrictions and the reports from Dr. Bian-chini, Dr. Foster, and Ms. Touchet.

Thus, the medical evidence favorable to the defendants was primarily derived from the testimony of three physicians who examined or evaluated Mr. Baltazar on | 12one occasion each, and two and one-half years after the accident. Additionally, the one vocational expert testifying for the defendants based his conclusion that the defendant suffered no loss of earning capacity as a result of the accident based on the reports of the defense doctors and Dr. deAlvare’s attempt to return Mr. Baltazar back to work with restrictions in August of 2007.

It is obvious from the damage awards that the jury concluded that Mr. Baltazar sustained significant injuries in the accident, and that he will require medical treatment in the future. However, it is equally obvious that the jury verdict is a rejection of Mr. Baltazar’s assertion that he sustained a permanent disability or that he suffered a loss of income in the future. On appeal, Mr. Baltazar questions the sufficiency of only the general damage award for physical pain and suffering and the special damage award for lost income prior to trial. Additionally, he argues that it was error for the jury to award nothing in general damages for the permanent disability testified to by Dr. deAlvare and nothing in special damages for his future loss of income.

General Damages

In considering whether an award of general damages is excessive or inadequate, we are guided by the decision in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), wherein our supreme court noted that “the discretion vested in the trier of fact is ‘great,’ and even vast, so that an appellate court should rarely disturb an award of general damages.” Under Youn, “[t]he initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the ‘much discretion’ of the trier of fact.” Id. at 1260. Only after the initial inquiry is answered in the affirmative should the appellate court increase or | ^reduce the award. Id. In making the initial inquiry, the reviewing court should not use “a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case.” Id. at 1260. Such prior awards should be considered only after the reviewing court concludes that there has been an abuse of discretion. Id.

In deciding not to award Mr. Balta-zar any damages for permanent injury or disability, the jury apparently disregarded Dr. deAlvare’s testimony that Mr. Baltazar had permanent American Medical Association anatomical impairment ratings of ten percent for his neck and ten percent for his lower back, instead choosing to believe Dr. Foster’s testimony that Mr. Baltazar had no objective symptoms of permanent injury. “[WJhere there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Accordingly, while we may well have reached a different verdict, following the supreme court’s guidance set forth in Youn we will not disturb the jury’s decision on the question of damages for permanent injury or disability.

However, the jury’s decision to award Mr. Baltazar only $17,000.00 for past, present, and future physical pain and suffering was an abuse of discretion. As a result of this accident Mr. Baltazar suffered a mild concussion, a broken nose, TMJ, eye injuries, headaches, and whiplash that affected his neck and back. He underwent surgery to repair the broken nose, splint therapy for the TMJ, and physical therapy and epidural shots for his back and neck injuries. His treating physician testified that he ludid not reach maximum medical improvement for his back and neck injuries until April of 2009. Given the extensive nature of his injuries, as well as the painful procedures necessary to recover from them, we find that the jury’s award of $17,000.00 for past, present, and future physical pain and suffering was abusively low.

The supreme court has held that when a jury’s award for damages is excessively low, even when the jury awards no damages for a particular item, this court can only increase the award “to the lowest amount which is reasonably within the court’s discretion.” Ryan v. Zurich Am. Ins. Co., 07-2312, p. 7 (La.7/1/08), 988 So.2d 214, 219. Accordingly, we will raise Mr. Baltazar’s award for physical pain and suffering to the lowest point that was reasonably within the discretion of the trier of fact. Youn, 623 So.2d 1257. In adjusting the award, we refer to prior awards in similar cases to determine the lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

In Winstead v. Watson, 19,641 (La.App. 2 Cir. 05/04/88), 528 So.2d 691, the second circuit found that the lowest amount the trial court could have awarded to the plaintiff for a fractured jaw, memory loss, and a concussion was $10,000.00. The fifth circuit affirmed an award of $95,832.00 for past and future physical injuries, pain, and suffering to a plaintiff who suffered a basi-lar skull fracture, with a mild to moderate concussion, followed by headaches, dizziness, and loss of balance, partial loss of peripheral vision, a partial hearing loss, intermittent shoulder and neck pain, post-concussion syndrome, and post-traumatic stress disorder. Burgard v. Allstate Ins. Co., 04-1394 (La.App. 5 Cir. 5/31/05), 904 So.2d 867, writ denied, 05-1743 (La.1/13/06), 920 So.2d 240. In Williams v. Aymond, 05-1547 (La.App. 3 Cir. 12/6/06), 945 So.2d 823, writ denied, 07-5, (La.3/9/07), 949 So.2d 442, writ denied, 07-69 (La153/9/07), 949 So.2d 449, and overruled in part on other grounds, Hebert v. Webre, 07-95 (La.App. 3 Cir. 12/5/07), 971 So.2d 1238, this court affirmed an award of $44,500.00 in general damages when the plaintiff suffered from a deviated septum, neck and back spasms, headaches, and nose bleeds for over a year. After reviewing these awards, and the evidence presented at trial, we conclude that the lowest amount the jury could have awarded to Mr. Baltazar for his past, present, and future physical pain and suffering is $80,000.00. Accordingly, we amend the trial court’s judgment of October 19, 2009, to reflect this increased award.

Special Damages

Special damages, such as lost wages, are those which can be fixed with pecuniary certitude. Am. Druggists Ins. Co. v. Henry Contracting, Inc., 505 So.2d 734 (La.App. 3 Cir.), writ denied, 511 So.2d 1156 (La.1987). “An appellate court, in reviewing a jury’s factual conclusions with regard to special damages, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong.” Guillory v. Lee, 09-75, p. 16 (La.6/26/09), 16 So.3d 1104, 1118.

Mr. Baltazar first contends that the jury’s award of $20,000.00 in special damages for past lost wages and employment benefits is abusively low. The plaintiff has the burden of proving past lost wages and time missed from work due to his injury. Stark v. Nat’l Tea Co., 94-2633 (La.App. 4 Cir. 5/16/95), 655 So.2d 769, writ denied, 95-1801 (La.11/3/95), 661 So.2d 1380; Daigle v. U.S. Fid. & Guar. Ins. Co., 94-304 (La.App. 1 Cir. 5/5/95), 655 So.2d 431. Past lost wages are susceptible of mathematical calculation, and the award is not subject to the much discretion rule. Stark, 655 So.2d 769; Daigle, 655 So.2d 431.

lifiOur review of the record shows that there is no reasonable basis for the jury’s finding that Mr. Baltazar’s past lost wages and employment benefits amounted to only $20,000.00. The accident took place on October 2, 2005. Mr. Baltazar’s treating physician, Dr. deAlvare, did not release Mr. Baltazar to return to work until July 30, 2007, and then only with restrictions. That is to say, Mr. Baltazar was not released to work until twenty-two months after the accident. Although Dr. Foster testified that Mr. Baltazar “should” have recovered from his injuries within three to six months after the accident, Dr. Foster did not examine Mr. Baltazar until May 21, 2008. Further, Dr. Foster testified that there was no orthopedic reason that Mr. Baltazar could not have returned to work as of April or June of 2007, still eighteen months after the accident. Thus, in the record before us there is no basis for any finding other than that Mr. Baltazar was unable to work for at least eighteen months after the accident. The only evidence concerning the value of Mr. Balta-zar’s past lost wages and employment benefits was provided by Dr. R. Douglas Womack, a Lafayette, Louisiana consulting economist, who stated in his report that the value of Mr. Baltazar’s lost earnings and lost employer-paid insurance benefits from the date of the accident until September 21, 2009 — 3.97 years — totaled $132,672.00. Using these values, the only ones provided at trial, Mr. Baltazar’s lost earnings and lost employer-paid insurance benefits for the eighteen months after the accident equaled $50,127.96. We find that, given this evidence, the jury’s award of $20,000.00 for past lost wages and employment benefits was clearly wrong, and accordingly increase this award to $50,127.96.

Mr. Baltazar also contends that the jury erred in refusing to award him future lost wages and employment benefits. We explained loss of earning capacity in Batiste 17v. New Hampshire Ins. Co. 94-1467, p. 3-4 (La.App. 3 Cir. 5/3/95), 657 So.2d 168, 170, writ denied, 95-1413 (La.9/22/95), 660 So.2d 472 (citations omitted):

Loss of earning capacity is not the same as lost wages. Rather, earning capacity refers to a person’s potential. Earning capacity is not necessarily determined by actual loss. While the plaintiffs earnings at the time of the accident may be relevant, such figures are not necessarily indicative of his past or future lost earning capacity. The plaintiff need not be working or even in a certain profession to recover this type of award. What is being compensated is the plaintiffs lost ability to earn a certain amount, and he may recover such damages even though he may never have seen fit to take advantage of that capacity.
In determining whether a personal injury plaintiff is entitled to recover for the loss of earning capacity, the trial court should consider whether and how much plaintiffs current condition disadvantages him in the work force. The trial court should thus ask itself what plaintiff might be able to have earned but for his injuries and what he may now earn given his resulting condition.
The very nature of lost earning capacity makes it impossible to measure the loss with any kind of mathematical certainty. The facts of each case must take into account a variety of factors, including the plaintiffs condition prior to the accident, his work record prior to and after the accident, his previous earnings, the likelihood of his ability to earn a certain amount but for the accident, the amount of work life remaining, inflation, and the plaintiffs employment opportunities before and after the accident.

In deciding not to award Mr. Baltazar any future lost wages or employment benefits, the jury apparently concluded that as of the date of trial, Mr. Baltazar’s earning capacity was no longer impaired. Based on our review of the record, we cannot conclude that there was no reasonable factual basis for the jury’s conclusion on this element of damages, or that its finding was clearly wrong.

Assignment of Error Number Two

In this assignment of error, Mr. Balta-zar asserts that the trial court erred in awarding United States Fire a judgment on its intervention. Specifically, Mr. Bal-tazar points to the evidentiary record, which contains no evidence to establish any payments |isby United States Fire, much less the amount awarded. United States Fire does not dispute the fact that it failed to introduce any evidence at the December 18, 2009 hearing to establish the amount of workers’ compensation benefits it paid directly to Mr. Baltazar or on his behalf. Instead, it argues that prior to the hearing Mr. Baltazar’s trial counsel had stipulated to the amount paid.

Our supreme court has stated that “a plaintiffs stipulation has the effect of a judicial admission or confession and binds all parties and the court.” Miller v. Lammico, 07-1352, pp. 23-24 (La.1/16/08), 973 So.2d 693, 709. Louisiana Civil Code Article 1853 provides that “[a] judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full poof against the party who made it. A judicial confession is indivisible and it may be revoked only on the ground of error of fact.” This court has previously held that “[a] judicial confession must be explicit and not merely implied.” First Homestead Fed. Sav. and Loan Ass’n v. Coleman, 446 So.2d 551, 553 (La.App. 3 Cir.1984).

The record contains a number of references to the payment of workers’ compensation benefits both leading up to trial on the merits, at the trial on the merits, and thereafter. After United States Fire filed its petition of intervention on September 29, 2006, Mr. Baltazar answered the petition on December 3, 2007, denying “for lack of sufficient information to justify belief therein” that the interve-nor had paid him workers’ compensation benefits. This denial requires that the intervenor prove the allegations of fact set forth in its petition. First Homestead Fed. Sav. and Loan Ass’n, 446 So.2d 551.

The first reference relied on by United States Fire to establish that a stipulation had been entered into is found in a twenty-six page document entitled “PRETRIAL | ^STIPULATION” filed by counsel for Mr. Baltazar, purportedly on behalf of all counsel of record, on August 4, 2009. While this filing clearly establishes that United States Fire paid workers’ compensation benefits to Mr. Baltazar, it leaves the amount of those benefits as an element of proof at trial.

The language relied upon by United States Fire in the pretrial stipulation is found in the section entitled “ESTABLISHED FACTS” and reads as follows:

Intervenor, UNITED STATE[sic] FIRE INSURANCE COMPANY states:
Intervenor, United States Fire Insurance Company, has paid at least $160,292.36 in worker’s [sic] compensation benefits to, or on behalf of, Adam Baltazar.

United States Fire asserts that this language should be construed to constitute a stipulation by Mr. Baltazar that the inter-venor was owed at least $160,292.36. However, in making this argument, United States Fire ignores the references to its claim in the sections of the stipulation entitled “CONTESTED ISSUES OF FACT” and “CONTESTED ISSUES OF LAW,” both of which reference its claim as contested. Additionally, under the section of the pretrial stipulation entitled “EXHIBITS,” United States Fire asserted that it would introduce at trial the “[p]rint-out of indemnity and medical benefits paid to, or on behalf of, Adam Baltazar.” Also, under the “WITNESSES” section of the pretrial stipulation, the forty-sixth witness listed is “[a] representative of SNL, or Bobby Duhon” who would testify “to any and all employment records of Henry Adam Baltazar, any and all policies of Reinsurance, and/or workers’ compensation benefits." (Emphasis added.) Finally, under one of the very last sections of the pretrial stipulation, which is entitled “WORKMEN’S COMPENSATION INTERVENTION,” the following language appears:

Plaintiff, HENRY ADAM BALTA-ZAR, individually and on behalf of his minor children, JALEEZ BALTAZAR and JALEEYA BALTAZAR, contends:
The intervenor was the worker’s [sic] compensation insurer of the Plaintiffs employer at the time of his alleged injuries which give rise to this lawsuit; that at such time the Plaintiff was in the course and scope of his employment; and that the intervenor has paid and perhaps is still paying compensation benefits and medical bills pursuant thereto. Further, interve-nor must prove all such amounts paid at trial.

(Emphasis added.)

Thus, the document entitled “PRETRIAL STIPULATION” is less a stipulation and more a summary of the positions of the various parties. With regard to United States Fire’s intervention, it acknowledges that some workers’ compensation benefits were paid either directly to Mr. Baltazar or on his behalf, but the amount clearly remained an issue to be proven at trial. We find United States Fire’s reliance on this document as support for its position to be misplaced.

We find no support for United States Fire’s stipulation argument in the trial transcript either. Before the jury trial began on September 21, 2009, the litigants entered into a stipulation that relieved counsel for United States Fire from sitting through the entire jury trial. However, this stipulation did not relieve United States Fire of its obligation to prove the amount of its intervention by competent evidence. The stipulation that was entered into arose from the following exchange between the trial court and the various litigants:

Is,BY THE COURT: I believe y’all have a stipulation or an agreement you want to put on the record about the intervenor.
COUNSEL FOR INTERVENOR: Bill Eckert on behalf of the intervenor. I believe we have a stipulation and agreement of counsel that there will be an acknowledgment that the worker’s [sic] comp lien exists, but that there will be no mention of worker’s [sic] comp or worker’s [sic] comp payments to the jury; and that the determination of the lien amounts would be deferred to a rule day post-trial. So that my presence here throughout the entire trial would not be necessary. Is that what everyone else understands to be the case?
COUNSEL FOR DEFENDANTS: I think that’s the general discussion we had.
COUNSEL FOR INTERVENOR: Any objections to that?
COUNSEL FOR PLAINTIFFS: No objections.
BY THE COURT: Okay. So that will be what’ll be done. And you won’t have to wait and attend the trial. And then when we have the rule day, whatever arguments y’all have about what is-what should be reimbursed and what shouldn’t be reimbursed, we’ll take up then.
COUNSEL FOR INTERVENOR: And just for the record, I think we’ll come close to an agreement as to what’s related, what’s not related. We’ve already started that discussion last week. So I think there may be a few thousand dollars here and there that the Court may have to rule upon.
COUNSEL FOR DEFENDANTS: And just to protect the plaintiff and the defendant, we’re agreeing that there is a lien, because it was in the course and scope; but the amount of what is recoverable, we may have some differences with the intervenor about. Right, Ben?
COUNSEL FOR PLAINTIFFS: Right. And also the question of Moody fees and sharing of expenses as well.
| ^COUNSEL FOR INTERVENOR: Correct. That all will be deferred until a hearing.

We construe the discussion that occurred after the stipulation that United States Fire’s counsel would not be required to sit through the jury trial as nothing more than a statement that negotiations were underway to determine the amount in dispute, but that no such agreement had been reached. Nothing in this exchange suggests that the plaintiffs relieved the inter-venor of proving up the amount of his claim.

On October 5, 2009, United States Fire filed a motion to “set intervention amounts for hearing.” In its motion, United States Fire acknowledged that the trial stipulation “acknowledged the existence of the lien subject to later determination and ruling from the court as to the intervention amount.”

The intervention issues first came to trial on November 25, 2009, but this hearing failed to address the issues because of the late filing of a memorandum by United States Fire. With regard to the intervention issues, the following exchange took place:

COUNSEL FOR INTERVENOR: Good morning, Judge. May it please the Court? Bill Eckert on behalf of intervenor, U.S. Fire.
Just from a point of reference, at the — on the morning of trial, we appeared and had a status conference with the Court and with counsel. Essentially, there was an agreement. I don’t want to call it a stipulation, but we read into the record an understanding or agreement that my presence at trial was not going to take place for fear of influence, prejudicing the jury, what have you. It was agreed that we would submit the cost of the intervention and the recovery of the intervention via post-trial | ^motions and memoranda, which is why we’re here today, Judge.
We have submitted a motion and a memoranda. I apologize for the lateness of the memoranda. It was circulated, but not as soon as I would have liked.
Essentially, Judge, the worker’s [sic] comp carrier paid approximately $164,000. The amounts — the actual amounts paid, I don’t believe there’s any dispute on those amounts paid. Where there may be any dispute is whether it’s reasonable and/or an amount that is fully recoverable. But I believe we have a stipulation as to the amount. So we’ll just have to then break it down into categories from that point forward.
BY THE COURT: Well, let’s see. [COUNSEL FOR PLAINTIFFS], you agree with the $164,000?
COUNSEL FOR PLAINTIFFS: Judge, I just want to make sure that there’s an amount of $11,000 that was litigation-related. I want to make sure that was removed.
COUNSEL FOR INTERVENOR: I’m fairly certain, Judge, that that $11,000 payment which was part of the pending worker’s [sic] comp 1008, that that has been taken away from the total amount, so that the amount is $164,000. I’m pretty sure.
COUNSEL FOR PLAINTIFFS: Also, Judge—
BY THE COURT: Well, let me ask you, [COUNSEL FOR PLAINTIFFS].
COUNSEL FOR PLAINTIFFS: Yes, sir.
BY THE COURT: Maybe this would be pertinent at this point. Since I only got this memorandum this morning, I’m assuming you only got it this morning.
COUNSEL FOR PLAINTIFFS: Yes, sir.
BY THE COURT: Have you had a chance to get prepared for this, or you want to have another hearing so you |24can get adequately prepared about his memorandum?
COUNSEL FOR PLAINTIFFS: I would prefer a little more time, Judge. I mean, we can go through it today. It just may take a little more time, since I just got it last night.
BY THE COURT: Well, no. I mean, you know, I’m not ready either, because I just got it this morning, too.
COUNSEL FOR PLAINTIFFS: Okay. Well, Judge, if we could maybe defer it to another date.
BY THE COURT: I would like to do that, so that everybody knows and we don’t have to take time to check and see all that today.
COUNSEL FOR PLAINTIFFS: Okay.
COUNSEL FOR INTERVENOR: And, Judge, I have no problem with that. In fact, we contacted counsel yesterday to try to work that out, and there was no agreement that could be reached.

United States Fire argues that the above exchange is simply another indication that Mr. Baltazar’s counsel agreed to at least the $164,000.00 figure, and, as such, the basic amount was not in dispute. Thus, United States Fire argues, it was not required to provide evidence of all the payments made to Mr. Baltazar or on his behalf at the December 18, 2009 hearing.

At the December 18, 2009 hearing, both counsel for Mr. Baltazar and United States Fire argued their positions to the trial court concerning the intervention. During the hearing, Mr. Baltazar’s counsel introduced various exhibits addressing the expenses his law firm incurred in pursuing Mr. Baltazar’s claim, as well as his contingency fee contract. As previously stated, United States Fire introduced nothing in support of its claim at this hearing.

12sThe facts before us present a most unusual case. It is abundantly clear from the record that United States Fire paid substantial workers’ compensation benefits to, and on behalf of, Mr. Baltazar. What is not established by the evidence is the amount of those benefits. Regardless of the information contained in a record, we are bound to render judgment solely on the evidence properly admitted. We must agree with Mr. Baltazar that, based on the evidentiary record before us, United States Fire failed to establish by a preponderance of evidence the amount it paid to or on behalf of Mr. Baltazar. We find that the trial court erred in awarding any amount to the intervenor United States Fire. Accordingly, we reverse the trial court’s judgment awarding United States Fire $98,000.00 as well as the award of attorney fees to Mr. Baltazar’s counsel.

Assignment of Error Number Three

Mr. Baltazar argues, in the alternative, that the trial court erred in its interpretation of La.R.S. 23:1103 in setting the amount of attorney fees awarded to him in the January 20, 2010 judgment. Because we reverse that judgment on other grounds, we do not address this issue.

MOTION TO STRIKE ANSWER TO APPEAL

In their brief on appeal, the defendants assert that they filed an answer to Mr. Baltazar’s appeal on December 14, 2009, wherein they sought a reversal of the jury’s awards to Mr. Baltazar for mental pain and suffering, past medical expenses, and future medical expenses. Mr. Balta-zar responded to this assertion by filing a motion to strike the answer to appeal. We grant Mr. Baltazar’s motion as neither the trial court record nor the records of this court contain an answer to Mr. Baltazar’s appeal. |2fiThus, we will not consider any issues addressed in the defendants’ brief purportedly raised in the defendants’ answer to appeal.

DISPOSITION

For the foregoing reasons, we amend the trial court’s October 19, 2009 judgment to award Mr. Baltazar $30,000.00 in past, present, and future physical pain and suffering and $50,127.96 for past lost wages and employment benefits. We affirm that October 19, 2009 judgment in all other respects. We reverse the trial court’s January 20, 2010 judgment awarding United States Fire Insurance Company $98,000.00 and awarding Mr. Baltazar’s attorney $49,000.00 for his attorney fees and costs. We render judgment denying United States Fire Insurance Company’s claims on intervention. We grant Mr. Bal-tazar’s motion to strike the defendants’ answer to the appeal. We assign all costs of this appeal one-third to the plaintiff, Henry Adam Baltazar; one-third to the defendants, Dennis Wolinski, Kirkpatrick Industrial Supply, Inc., and Continental Casualty Company; and one-third to the intervenor, United States Fire Insurance Company.

AMENDED IN PART, AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Additionally, loss of consortium claims were filed on behalf of Mr. Baltazar's two minor children. However, neither the other defendants nor the loss of consortium claims are a part of this appeal.

      . Mr. Hebert testified that he met with Mr. Baltazar only once because he understood that Mr. Baltazar was using another vocational rehabilitation expert to find employment.

      . Although filed in the record of the proceedings, the pretrial stipulation was never introduced into evidence at any of the many hearings held in conjunction with this litigation.

      . The pretrial stipulation is signed by counsel for Mr. Baltazar but lists the names and addresses of all the counsel of record after his signature, including that of counsel for United States Fire.

      . Certain issues involving court costs were addressed at this hearing as well. However, that judgment had no effect on the intervention issue.


author: GENOVESE, Judge.

text:
    STATE of Louisiana In the Interest of J.Y.M.
    Nos. 10-841, 10-842.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.
    Rehearing Denied Jan. 26, 2011.

      P.J.M., In Proper Person, Lake Charles, LA, for Defendant/Appellant.
    Robert J. Elliott, Department of Children and Family Services, Alexandria, LA, for Appellee, Louisiana Department of Children and Family Services.
    Stacey C. Naquin, Assistant District Attorney, Jennings, LA, for Appellee, State of Louisiana.
    Edward T. Nichols, Jr., Lake Charles, LA, for Defendant, Y.L.S.
    Elizabeth Thornhill, Lake Charles, LA, for the Minor Child, J.Y.M.
    Douglas K. Hall, Lake Charles, LA, for Defendant, P.J.M.
    Catherine L. Stagg, Lake Charles, LA, for Defendant, P.J.M.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GENOVESE, Judge.

IjP.J.M., the biological father of the minor child, J.Y.M., appeals the judgment of the trial court terminating his parental rights and certifying the minor child to be eligible for adoption. Additionally, P.J.M. has filed with this court a Motion for Clarification and for Verification of Jurisdiction. For the following reasons, we affirm the trial court’s judgment and deny the motion.

FACTUAL AND PROCEDURAL HISTORY

On January 6, 2010, the State of Louisiana, through its Department of Social Services, Office of Community Services (State), filed a Petition for Termination of Parental Rights and Certification of Minor Child for Adoption. The minor child, J.Y.M. (date of birth December 18, 2003), was taken into the State’s custody on March 10, 2009, and was adjudicated as a child in need of care by judgment signed June 16, 2009. According to the State’s petition:

The ... removal [of J.Y.M. on March 10, 2009] is not the first time that said minor child was removed, adjudicated[,] and placed in the custody of [the State]. [J.Y.M.] was originally removed from the care of [P.J.M.] on September 28, 2007, and was subsequently adjudicated as a child in need of care on December 19, 2007. The minor child remained in the care of [the State] until November 21, 2008, when she was returned to the care of [P.J.M., where] she remained for only [four] months prior to being removed again.
[]
The first removal occurred after [the State] received and validated a report for “Lack of Adequate Supervision.” The report and subsequent investigation ... revealed that [P.J.M.] would leave his then three[-]year[-]old daughter alone and unsupervised while he would run | ^errands; such as going to the store. In addition[,] the first investigation revealed that there had been other validated reports of “Lack of Adequate Supervision [ ]” when [P.J.M.] and [J.Y.M.] resided in both Beauregard Parish, Louisiana[,] and/or Houston, Texas.
[]
The second removal occurred after it was learned that [P.J.M.] had created a website on the internet[ ] and had placed on that website[] approximately [fifty-four] video clips wherein he interviewed his daughter concerning the time she spent in foster care with the [State], As a result of the video clips and [an] incident that resulted in [P.J.M.] being arrested, [J.Y.M.] was again removed and placed in the care, custody[,] and control of [the State]. Shortly after the second removal[,] both [P.J.M.] and [J.Y.M.] were evaluated by a psychologist, [John Simoneaux, Ph.D.], who diagnosed that [P.J.M.] was suffering from a “delusional disorder,” of the “[persecutory] and grandiose types.” Dr. Simoneaux[ ] further wrote in his report[ ] that the condition of [P.J.M.] directly and adversely affected his ability to serve as the primary care giver for this child.

The petition requested that P. J.M.’s parental rights be terminated under the provisions of La.Ch.Code art. 1015(4) and La. Ch.Code art. 1015(5). Specifically, the State |.^alleged that P.J.M. “has failed to work any part of his plan for reunification.” The State also listed each instance where P. J.M. did not comply with his case plan for services. According to the State, P.J.M. failed:

(1) to obtain and maintain safe stable housing for himself and his daughter; (2) to be cooperative with ... his case worker, in any manner and is often belligerent, insulting, threatening[,] and uses defamatory, insulting, degrading[,] and inappropriate language; (3) to keep [the State] informed of any changes in living arrangements and to provide his address and/or phone number; (4) to contact his [case] worker weekly, to give any updates and/or to plan home and family visits; (5) to provide [the State] with written verification of income and financial resources; (6) to obtain employment sufficient to meet his and/or the needs of his family; (7) to cooperate with support enforcement and verify employment, income[,] and other resources; (8) to pay the assessed amount of child support and/or to pay the parental contributions of [fjifity [d]ollars ($50.00) per month to the State of Louisiana, until he is [assessed] a greater amount by Support Enforcement; (9) to address all legal issues in a timely manner to avoid future arrest; (10) to provide [the State] with information on how to contact the minor child’s mother, [Y.L.S.]; (11) to provide names of relatives, addresses[,] and any other appropriate possible resources for his daughter; (12) to provide information on family health, family medical issues, and/or family medical histories; (13) to attend and participate in therapy sessions at the mental health clinic in his parish of domicile/residence and keep his [case] worker informed of dates and appointments; (14) to comply with any treatment plan developed for him and to gain insight into the nature and extent of his mental health condition; (15) to sign consents for the release of information so that [the State] could obtain and/or receive documentation from the various service [providers] including reports on therapy; (16) to write a daily schedule and behavior plan concerning protective issues dealing with privacy issues such as bath time, sleeping arrangements!,] and discuss same with his [case] worker; (17) to maintain visits with his child in a positive and nurturing manner in a supervised and therapeutic setting; (18) to be supportive of his child’s needs for a protective placement; (19) to discuss how his videotaping compromised his child’s ability to be credible and accept responsibility for the emotional abuse she experienced as a result of his actions; (20) to be supportive of his daughter’s therapy and discuss same with his [case] worker; (21) to interact positively with department staff while in the presence of his daughter; (22) to provide a written affidavit concerning immunizations; and/or (23) to work any other portion of the provisions of the submitted case plan, not enumerated above.[]

|4On March 9, 2010, a termination hearing was held relative to the parental rights of Y.L.S. and P.J.M. Following said hearing, the trial court rendered judgment in favor of the State and terminated the parental rights of Y.L.S. and P.J.M. A judgment to that effect was signed on April 26, 2010. P.J.M. appeals.

ASSIGNMENTS OF ERROR

P.J.M. asserts the following assignments of error:

1. The [t]rial [c]ourt did not have jurisdiction to hold a trial on a petition for termination of parental rights while the appeal on the judgments of adjudication and disposition were still pending on Appeal Docket Number JAC 09-001335. It was a violation of ethics and procedure for a district attorney who had already recused himself to participate in the trial. Therefore on March 9, 2010, Judge Lilynn Cutrer did not have jurisdiction to file and sign the [Judgment of Termination of Parental Rights and Certification for Adoption as to J.Y.M.].
2. No court in Louisiana has the jurisdiction to deprive a person of any right other than life, liberty, or property. There exists, in law, no due process to deprive [P.J.M.] of a parental right or [J.Y.M.] of her right to be parented by [P.J.M.], Furthermore, no court in Louisiana has the jurisdiction to use civil proceedings to deprive a person of life or liberty before judgment [ ] pursuant to the Louisiana Constitution Article 1.2[ ] and the 6th Article in amendment to the Constitution of the United States of America. When the [S]tate petitions for the deprivation of any right other than life, liberty, or property[,] the [S]tate implicates and invokes the wrath of the 8th Article in amendment to the Constitution of the United States of America.
8. The [S]tate did not have grounds for a cause of action demanding the termination of the affiliation of [P.J.M.] with [J.Y.M.,] [b]ut the [S]tate has stated facts in support of grounds for a cause of action that, in fact, solely implicate the [S]tate as the real and proximate cause of the acts of man that cause[] damage and injury to [P.J.M.] and obliges the [S]tate by whose fault it happened to repair it pursuant to the Louisiana Civil Code Article 2815. The [S]tate has effectively brought and stated grounds for a law suit [sic] against itself[,] and the [S]tate is preemptively counterclaiming at the same time.
4. The mother, [Y.L.S.], is not subject to the laws of the United States of America nor the State of Louisiana. The affiliation between [Y.L.S.] and [J.Y.M.] were terminated improperly because the [t]rial [c]ourt did not have personal jurisdiction over the mother, [Y.L.S.], since she did not reside in the state[,] and she was not ever served with |sprocess within the state.
5. The parental rights of [Y.L.S.] were terminated improperly pursuant to the Louisiana Children’s Code because the record is bereft of any indication that she was ever adjudicated!,] even in abstentia.

LAW AND DISCUSSION

Standard of Review

Our Louisiana Supreme Court has stated the following relative to the termination of parental rights:

An appellate court reviews a trial court’s findings as to whether parental rights should be terminated according to the manifest error standard. State ex rel. K.G.[,] 02-2886, p. 4 (La.3/18/03), 841 So.2d 759, 762. This court has repeatedly set forth the concerns regarding the involuntary termination of parental rights by OCS, as follows:
In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent.
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 providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve [^permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven.
Title X of the Children’s Code governs the involuntary termination of parental rights. [La.Ch.Code] art. 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. The State need establish only one ground, [La.Ch.Code] art. 1015, but the judge must also find that the termination is in the best interest of the child. [La.Ch.Code.] art. 1039. Additionally, the State must prove the elements of one of the enumerated grounds by clear and convincing evidence to sever the parental bond. [La.Ch.Code] art. 1035(A).
Id. at 4-5, 841 So.2d at 762-63 (citing State in the Interest of J.A., 99-2905 (La.1/12/00), 752 So.2d 806, 810-811; State ex rel. C.J.K., 00-2375 (La.11/28/00), 774 So.2d 107) (citations omitted).

State ex rel. D.L.R., 08-1541, pp. 11-12 (La.12/12/08), 998 So.2d 681, 687-88.

In the case at bar, the trial court found that the State had met its burden of proof by clear and convincing evidence that the termination of the parental rights of P.J.M. was in the best interest of the minor child, J.Y.M.

Assignment of Error No. 1

P.J.M. contends that it was error for the trial court to conduct the termination hearing on March 9, 2010, when an appeal of the trial court’s judgment dated June 16, 2009, wherein J.Y.M. was adjudicated as a child in need of care, had been filed and was still pending before this court. Citing La.Ch.Code art. 336, the State argues that the trial court acted within its authority when it allowed the termination hearing to proceed.

17Louisiana Children’s Code Article 336 provides:

A. Except as provided by Paragraphs B and C of this Article, the effect of a judgment shall not be suspended by an appeal, unless the trial court or a court of appeal directs otherwise.
B. A parent shall have the right to appeal suspensively from any ruling terminating his parental rights, including a judgment of adoption, notwithstanding the power of the court to order the commencement or continuation of temporary custody of the child with persons other than the parents.
C. A suspensive appeal shall not suspend the execution of the judgment insofar as the judgment relates to custody or child support.

Pursuant to La.Ch.Code art. 336(A), the trial court’s adjudication judgment did not suspend the proceedings in this matter; therefore, the trial court did not err by proceeding with the termination hearing prior to receiving this court’s disposition on P. J.M.’s pending appeal of the adjudication judgment.

Assignment of Error No. 2

P.J.M. challenges the State’s authority to remove J.Y.M. from his custody and to proceed with terminating his parental rights, stating “[tjhere can exist no lawful process, procedure, or scheme to deprive [P.J.M.] of a parental right or to deprive [J.Y.M.] of her right to be parented by [P.J.M.]” The Louisiana Children’s Code grants the State such authority.

Title X of the Louisiana Children’s Code governs involuntary termination of parental rights. The authority that P.J.M. challenges is specifically granted to the State by La.Ch.Code art. 1001, which provides:

The purpose of this Title is to protect children whose parents are unwilling or unable to provide safety and care adequate to meet their physical, emotional, and mental health needs, by providing a judicial | sprocess for the termination of all parental rights and responsibilities and for the certification of the child for adoption. In all proceedings, the primary concern is to secure the best interest of the child if a ground justifying termination of parental rights is proved. Termination of parental rights is to be considered the first step toward permanent placement of the child in a safe and suitable home, and if at all possible, to achieve the child’s adoption. The procedural provisions of this Title shall be construed liberally. The proceedings shall be conducted expeditiously to avoid delays in resolving the status of the parent and in achieving permanency for children.

Our review of the record reveals that the State has followed the procedural mandates contained within the Louisiana Children’s Code, and that there is no manifest or legal error in the trial court’s judgment. Therefore, we find no merit to PJ.M.’s second assignment of error.

Assignment of Error No. 3

P.J.M., in brief, asserts that “[t]he [S]tate did not have grounds for a cause of action demanding the termination of the affiliation of [P.J.M.] with [J.Y.M.]” The State asserts that when it filed its Petition for Termination of Parental Rights and Certification of Minor Child for Adoption in January of 2010, J.Y.M. had been in the custody of the State for fifteen of the last twenty-two months. The State also argues that it has proven that P.J.M. has failed to substantially comply with his case plan and that there is no reasonable expectation of improvement in his conduct or living conditions.

Louisiana Children’s Code Article 1036 governs proof of parental misconduct and states that a lack of parental compliance with the family case plan and the lack of any reasonable expectation of significant improvement in the near future may be evidenced as follows:

C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
|9(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the'costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the 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.

Catherine Weinnig, the foster care manager in charge of J.Y.M.’s case, testified at the termination hearing as to her involvement in this matter since J.Y.M. entered the State’s custody in March of 2009. According to Ms. Weinnig, part of P.J.M.’s 11 ncase plan included maintaining stable housing, keeping her informed of his living arrangements, and paying fifty dollars per month for his contribution towards J.Y.M.’s care. However, Ms. Weinnig testified that the only part of the case plan that P.J.M. ever complied with was visitation; yet, even his visitations stopped after September 25, 2009.

Dr. John Simoneaux, a psychologist, testified at the termination hearing that he evaluated both P.J.M. and J.Y.M. Dr. Si-moneaux diagnosed P.J.M. with delusional disorder, persecutory and grandiose type, as well as narcissistic personality disorder. According to Dr. Simoneaux, P.J.M.’s prognosis is poor because his disorder is difficult to treat; most often, individuals with this disorder often see no need for treatment. Dr. Simoneaux opined that P.J.M.’s disorder manifested itself through P.J.M.’s belief that J.Y.M. was sexually abused while in the State’s custody from September of 2007 through November of 2008. Dr. Simoneaux further opined that PJ.M.’s actions towards J.Y.M. constituted emotional abuse and that his disorder adversely affected his ability to properly parent J.Y.M. It was Dr. Simoneaux’s opinion that it would be in the best interest of J.Y.M. that she not return to the care of P.J.M.

Also called to testify was Terri Theaux, a licensed professional counselor. Ms. Theaux was accepted as an expert in the field of mental health counseling. Ms. Theaux testified that she counseled JY.M. and that it was also her opinion that it would be in the best interest of JY.M. that she not return to the care of P.J.M.

At trial, there was no evidence offered to refute the State’s evidence that P.J.M. failed to substantially comply with his case plan. Further, the record also clearly supports the State’s assertion that P.J.M. demonstrates unhealthy behavior. The trial | n court did not err in concluding that PJ.M.’s ability to care for J.Y.M. is clearly impeded by his behavioral disorder, which remains untreated, and that it would be in the best interest of J.Y.M. that she not return to the care of P.J.M.

Based on our thorough review of the record in these proceedings, we find no manifest error by the trial court. We also find that the trial court was not clearly wrong in finding that the State satisfied its burden under La.Ch.Code art. 1015. We further conclude that it is in the best interest of the minor child, J.Y.M., that the parental rights of P.J.M. be terminated and that she be certified for adoption.

Assignments of Error No. 4 & No. 5

P. J.M.’s final two assignments of error present questions relative to the propriety of the trial court’s termination of Y.L.S.’s parental rights. The claims of Y.L.S. are not before this court. Y.L.S., who was represented by court-appointed counsel at the trial of this matter, has not filed an appeal. Further, P.J.M. is not the proper party to assert rights on behalf of Y.L.S. Therefore, we do not consider the issues set forth in PJ.M.’s fourth and fifth assignments of error.

Motion for Clarification and for Verification of Jurisdiction

P.J.M. has filed with this court a Motion for Clarification and for Verification of Jurisdiction. The law does not recognize such a motion or procedural device. This court has already addressed the issue of jurisdiction under Assignments of Error numbers 2, 4, and 5 of this opinion. Additionally, P.J.M. is not the proper party to assert any alleged rights of his wife, Y.L.S. PJ.M.’s motion is, therefore, denied.

DECREE

For the foregoing reasons, the trial court’s judgment dated March 9, 2010, terminating the parental rights of P.J.M. relative to the minor child, J.Y.M., is 112affirmed. P.J.M.’s Motion for Clarification and for Verification of Jurisdiction is denied. All costs of these proceedings are assessed against Defendant/Appellant, P.J.M.

AFFIRMED.

      . Pursuant to Uniform Rules — Courts of Appeal, Rule 5-1 and 5-2, the initials of the parties are used to protect and maintain the privacy of the minor child involved in this proceeding.

      . J.Y.M. is the minor daughter of Y.L.S. and P.J.M. Y.L.S. is a citizen of Honduras. P.J.M. was granted legal custody of J.Y.M. by the Honduran courts and returned to the United States with J.Y.M.

      .Though the parental rights of Y.L.S., the biological mother of J.Y.M., were also terminated, she has not appealed the judgment, and her respective rights are not at issue herein.

      . Louisiana Children’s Code Article 1015(4) provides:
      Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
      (a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child’s parent continue to be unknown.
      (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.
      (c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.

      . Louisiana Children’s Code Article 1015(5) provides:
      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.

      . This list is P.J.M.’s entire case plan. According to the State, P.J.M. failed to comply with every element of his case plan.

      . The trial court's June 16, 2009 judgment wherein J.Y.M. was adjudicated as a child in need of care was affirmed by this court. See State in the Interest of J.Y.M., 09-1335 (La.App. 3 Cir. 8/4/10), 45 So.3d 1128.