author: GENOVESE, Judge.

text:
    Wilson ACOSTA v. B & B OILFIELD SERVICES, INC.
    No. 12-122.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Paul D. Gibson, W. Corey Grimley, Donald H. Knecht, Jr., Gibson, Gruenert & Zaunbrecher, P.L.L.C., Lafayette, LA, for Plaintiff/Appellant, Wilson Acosta.
    Peter J. Butler, Jr., Richard G. Passler, Breazeale, Sachse & Wilson, L.L.P., New Orleans, LA, Bernard E. Boudreaux, Jr., Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, Anthony M. Fazzio, Law Offices of Anthony M. Fazzio, Lafayette, LA, for Defendant/Appellee, R & T Oilfield Services, Inc., f/k/a B & B Oilfield Services, Inc.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| ,In this revocatory action, Wilson Acosta appeals the trial court’s award of sanctions in the amount of $7,500.00 in attorney fees plus expenses of $65.04 in favor of R & T Oilfield Services, Inc. (R & T) f/k/a B & B Oilfield Services, Inc. (B & B, Inc.). R & T answered the appeal seeking an increase in the amount of sanctions awarded by the trial court and an additional amount of sanctions for the filing of a frivolous appeal. For the reasons that follow, we affirm and render.

FACTS AND PROCEDURAL HISTORY

The instant matter instituted by Mr. Acosta is predicated on an action involving the parties filed in Iberia Parish. In Iberia Parish, B & B, Inc. named Mr. Acosta, among additional defendants, in a lawsuit for the alleged theft of its intellectual property and trade secrets. Mr. Acosta filed a reconventional demand in that litigation asserting that the allegations against him were unfounded and that they were made in bad faith.

During the pendency of the Iberia Parish matter, Mr. Acosta filed a Petition for Revocation against B & B, Inc. in Lafayette Parish wherein he alleged as follows:

4.
On March 22, 2010, a new Louisiana limited liability company was formed under the name of B & B Oilfield Services, LLC (“B & B, LLC”). At roughly the same time, B & B, INC. ceased conducting business and transferred/sold all or substantially all of its assets to B & B, LLC. As of the date of the filing of this matter, B & B, Inc.’s status with the Louisiana Secretary of State is listed as “inactive.”
B & B, Inc.’s actions in divesting itself of all or substantially all of its assets, and allowing its status to become inactive, have both caused and/or increased its insolvency. These actions of B & B, INC. are prejudicial to the rights of the Petitioner to recover from B & B, INC. on its demand in the above-listed Iberia Parish case.
6.
Therefore, as an obligor of B & B, INC., Petitioner is entitled to bring this revocatory action to have B & B, INC. annul the sale and/or transfer of any and all assets that caused and/or increased the insolvency of B & B, INC.

By means of a First Amended Petition for Revocation filed October 1, 2010, Mr. Acosta formally named R & T Oilfield Services, Inc. and B & B, LLC, as Defendants in the revocatory action. In his Second Supplemental and Amended Petition for Revocation filed December 23, 2010, Mr. Acosta asserted that after the Iberia Parish suit had been filed, B & B, Inc. changed its name to R & T Oilfield Services, Inc. “and sold or divested itself of all or substantially all of its assets, and is no longer conducting business.” Mr. Acosta further averred that:

6.
B & B, INC. has sold or transferred all or substantially all of its assets to other, separate entities, and in doing so, (1) has rendered itself incapable of doing business and generating income, (2) the sale or transfer of its assets was made for no[,] or nominal!,] consideration, to its own detriment and the detriment of its creditors, (3) the sale or transfer was a sham transaction designed to hide assets and deter creditors from seeking and collecting information on these assets, and/or (4) after the sale or transfer of assets, any consideration received, nominal or otherwise, was disbursed to former employees, directors, officers and/or shareholders, to the detriment of its creditors.
I ⅞8.
Therefore, by selling all of its assets, B & B, INC. rendered itself incapable of doing business. It has no employees, no physical address, does not generate any revenue, and has no occupational license. Obviously, B & B, INC. has sold off all of its assets and shut down its business, and by doing so, has increased its insolvency.
9.
Furthermore, in shutting down its business and selling all of its assets, B & B, INC. either disbursed any proceeds of the sale to its shareholders or other persons, and/or sold or transferred the assets for no or nominal consideration, all to the detriment of its creditors. In doing so, B & B, INC. again here has increased its insolvency.
10.
As set forth in the original petition, as an obligor of B & B, INC., Petitioner is entitled to bring this revocatory action to have B & B, INC. annul the sale and/or transfer of any and all assets to B & B, LLC, or any other entity, that caused or increased the insolvency of B & B, INC.

On March 31, 2011, R & T filed the Motion for Summary Judgment and Sanctions which gives rise to the present appeal. R & T asserted that the pleadings, discovery responses, and affidavit “demonstrate that [Mr.] Acosta ‘fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact’ as required by [La.Code Civ.P.] art. 966(C)(2) and, thus, summary judgment should enter dismissing this revocatory action.” The trial court agreed and granted the motion for summary judgment.

On the issue of sanctions, R & T argued that they were entitled to judgment pursuant to La.Code Civ.P. arts. 863(D) and 1420(D) “on the grounds that because the petition and discovery answers, the accompanying [ajffídavit, and the accompanying [mjemorandum, demonstrate that [Mr.] Acosta never has had admissible evidence to support the filing of this revocatory action, the [c]ourt should exercise its discretion in entering a judgment ordering sanctions against |4[Mr.] Acosta and his lawyers in favor of R & T.” Following a contradictory hearing, the trial court requested post-hearing briefs setting forth a timeline of when “the information of the details of the asset purchase agreement” was provided, “as well as the fees and expenses incurred past that date.”

The trial court rendered a Judgment on Motion for Sanctions on September 29, 2011, which reads, in pertinent part, as follows:

In light of the information available to Plaintiff, Wilson Acosta and his counsel as of February 15, 2011, the continued pursuit of the litigation after that date was without reasonable basis. R & T [Oilfield] Services, Ine[.] has submitted to the [c]ourt the billing records of its counsel from February 15, 2011 forward regarding defense of this lawsuit. After review of same, the [c]ourt finds it is appropriate to award attorney fees to R & T Oilfield Services, Inc. in the amount of $7,500[.00] plus expenses of $65.04. Furthermore, Plaintiff is east[ ] with all court costs incurred in this matter.

ASSIGNMENTS OF ERROR

On appeal, Mr. Acosta presents the following assignments of error for our review:

1. The trial court was clearly wrong in imposing sanctions pursuant to [La.Code Civ.P.] art. 863 against Plaintiff/Appellant in favor of Defendant/Appellee.
2. The trial court abused its discretion in imposing sanctions in the amount of $7,500[.00], expenses of $65.04, and all court costs incurred in this matter by Defendant/Appellee, in favor of Defendant/Appellee, pursuant to [La.Code Civ.P.] art. 863.

LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 863, which authorizes the imposition of sanctions, provides as follows:

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose Laddress shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
F.A sanction authorized in Paragraph D shall not be imposed with respect to an original petition which is filed within sixty days of an applicable prescriptive date and then voluntarily dismissed within ninety days after its filing or on the date of a hearing on the pleading, whichever is earlier.
IfiG. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.

When considering the imposition of sanctions on appeal, an appellate court must apply two standards of review which are explained as follows:

A trial court’s determination regarding the imposition of sanctions is subject to the manifest error or clearly wrong standard of review. Once the trial court finds a violation of La.[Code Civ.P.] art. 863 and imposes sanctions, the determination of the type and/or the amount of the sanction is reviewed on appeal utilizing the abuse of discretion standard. Stroscher v. Stroscher, 2001-2769 (La. App. 1st Cir.2/14/03), 845 So.2d 518, 526; Connelly v. Lee, 96-1213 (La.App. 1st Cir.5/9/97), 699 So.2d 411, 414, writ denied, 97-2825 (La.1/30/98), 709 So.2d 710.

Slaughter v. Bd. of Sup’rs of S. Univ. and Agric. and Mech. Coll., 10-1114, p. 6 (La. App. 1 Cir. 8/2/11), 76 So.3d 465, 469-70, writ denied, 11-2112 (La.1/13/12), 77 So.3d 970; Mor-Tem Risk Mgmt. Servs., Inc. v. Shore, 43,169 (La.App. 2 Cir. 3/19/08), 978 So.2d 588.

In this case, Mr. Acosta argues that the trial court erred in imposing sanctions pursuant to La.Code Civ.P. art. 863. The crux of Mr. Acosta’s argument is that the revocatory action was brought in good faith and was prompted by the sale of the assets of B & B, Inc., which rendered it insolvent and judgment proof in the recon-ventional demand asserted in Iberia Parish. He argues that because of R & T’s failure to provide the necessary information relative to the sale, “he had no choice but to file to avoid potential prescription.” Ultimately, Mr. Acosta concludes that “the suit was not frivolous, a reasonably objective inquiry was conducted prior to filing suit, and no sanctions should have been awarded to Defendant/Appellee, R & T.” However, the trial court made it abundantly clear that the imposition of sanctions was grounded not in the filing of the revo-catory action, but rather “in the continued pursuit of the litigation” after R & T supplied him with the relevant information.

|7The reasoning of the trial court is further evidenced in the transcript of the hearing on the Motion for Summary Judgment and for Sanctions which reads as follows:

[COUNSEL for Mr. Acosta]:
Again, Your Honor, our whole reason for filing this action is, there’s a recon-ventional demand in a New Iberia lawsuit that, if — that we’re trying to make sure that there are funds available to pay that, should the Court in New Iberia rule in our favor.
THE COURT: Well, no. I understand why you did it. But the point is, is that, just because you want to be sure you can collect on the judgment doesn’t mean that you can just willy-nilly file suits and make claims.
So, you know, the initial filing of the suit, maybe, I understand. But, then, we came to court. There was an exception that was granted. You were given time to amend. You went back and amended. You alleged some things that, obviously, you had no basis to allege in that suit.
And, you know, courts do use sanctions very sparingly, but this is not a situation where a suit was filed to protect prescription, and, then, when the facts were learned, it was dismissed. This is a suit — And I’m not sure when it was filed, but it’s been going on for some time.

Even assuming that Mr. Acosta lacked sufficient time to perform a proper investigation before instituting this action, after having done so, he failed to abide by the affirmative duties imposed by La. Code Civ.P. art. 863. Not only could the information on the sale of the assets have been procured in the Iberia Parish lawsuit, but, after having filed the revocatory action, Mr. Acosta needlessly continued to pursue this action. Notably, the original Petition for Revocation was filed in September of 2010, the First Amended Petition for Revocation followed in October of 2010, and a Second Supplemental and Amended Petition for Revocation was filed in December of 2010. Finally, Mr. Acosta received the Irrelevant discovery responses in February of 2011. In fact, as of July 25, 2011, the date of the hearing on the Motion for Summary Judgment and for Sanctions, counsel for Mr. Acosta was directly asked by the trial court, “[W]hat evidence do you have that this transaction renders this corporation insolvent or increased its insolvency?” Counsel for Mr. Acosta conceded, “[TJhere is none.” For the foregoing reasons, we find no manifest error in the trial court’s imposition of sanctions for “the continued pursuit of the litigation[.]”

With respect to the amount of sanctions imposed, Mr. Acosta asserts on appeal that the award was an abuse of the trial court’s discretion. Conversely, in its Answer to Appeal, R & T seeks “to have the trial court judgment amended to increase the amount of sanctions[.]” When determining the appropriateness of the amount of a sanction award, the jurisprudence instructs:

A trial court has considerable discretion as to the type and severity of sanctions to be imposed, once it determines that sanctions are appropriate. Alambro v. Alfortish, [02-1081 (La.App. 5 Cir. 4/29/03), 845 So.2d 1162, writ denied, OB-1947 (La.10/31/03), 857 So.2d 486], The trial court must consider four factors to determine the appropriate sanction award: 1) what conduct is being punished or is sought to be deterred?; 2) what expenses or costs were caused by the violating rule?; 3) were the costs or expenses “reasonable” as opposed to self-imposed, mitigatable, or the result of a delay in seeking the intervention of the court?; and 4) was the sanction the least severe to achieve the purpose of the rule? Id. The goal to be served by imposing sanctions pursuant to [La.Code Civ.P.] art. 863 is not wholesale fee shifting, but rather the correction of an abuse of litigation by the awarding of reasonable, not necessarily actual, attorney fees. Id.

Thibodeaux v. Billiott, 04-1308, p. 8 (La. App. 5 Cir. 3/1/05), 900 So.2d 110, 115; Levert v. Martinez, 06-11 (La.App. 5 Cir. 9/26/06), 939 So.2d 615, unit denied, 06-2807 (La.1/26/07), 948 So.2d 174.

In the instant matter, the amount of the sanction award was calculated by the trial court after requesting post-hearing briefs from counsel of a timeline of events and documentation of the amounts of fees and expenses incurred. Therein, R & T | flargued that it had produced all necessary documentation by February 15, 2011. In response, Mr. Acosta asserted that the pivotal date was May 5, 2011, when additional information was provided. Ultimately, the trial court agreed with R & T and made its calculation using February 15, 2011, as the operable date. It then rendered an award based upon the documentation relative to attorney fees and expenses incurred after that date. Although the trial court did not award R & T the actual total amounts of fees and expenses it incurred after February 15, 2011, considering the goal as explained in Thibo-deaux, we find no abuse of discretion in the sanction award of $7,500.00 in attorney fees plus expenses of $65.04.

Finally, in its Answer to Appeal, R & T seeks damages for the filing of a frivolous appeal pursuant to La.Code Civ.P. art. 2164, which provides:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

In recently applying La.Code Civ.P. art. 2164, this court has stated the following:

“Damages for frivolous appeals, like sanctions at the trial court level, are utilized to curtail the filing of appeals that are intended to delay litigation, harass another party, or those that have no reasonable basis in fact [or] law.” Johnson v. Johnson, 08-60, p. 5 (La.App. 4 Cir. 5/28/08), 986 So.2d 797, 801, unit not considered, 08-1418 (La.10/3/08), 992 So.2d 1001. Although we are mindful that La.Code Civ.P. art. 2164 must be strictly construed, “[f]rivo-lous appeal damages will be awarded if the appellant is trying to ‘delay the action’ or ‘if the appealing counsel does not seriously believe the law he or she advocates.’ Hester v. Hester, 97-2009, p. 5 (La.App. 4 Cir. 6/3/98), 715 So.2d 43, 46.” Johnson, 986 So.2d at 801. Additionally, “[a]n appeal may also be deemed frivolous if it does not present a ‘substantial legal question.’ Tillmon v. Thrasher Waterproofing, 00-0395, p. 8 (La.App. 4 Cir. 3/28/01), 786 So.2d 131, 137.” Johnson, 986 So.2d at 801.

Bandaries v. Cassidy, 11-1267, p. 7 (La. App. 3 Cir. 3/7/12), 86 So.3d 125, 133.

1 ^Considering the matter presently before us, including the record and arguments advanced herein, we find Mr. Acosta’s appeal of the imposition of sanctions and the amount thereof fails to “present a ‘substantial legal question.’ ” Id. Accordingly, we find that R & T is entitled to an award of damages for the filing of a frivolous appeal by Mr. Acosta.

DECREE

We find no manifest error in the trial court’s decision to award sanctions in favor of R & T Oilfield Services, Inc. f/k/a B & B Oilfield Services, Inc. Further, we find no abuse of the trial court’s discretion in the amount of sanctions imposed; therefore, we affirm the trial court’s judgment of $7,500.00 in attorney fees plus expenses of $65.04. Additionally, we render judgment herein in favor of R & T Oilfield Services, Inc. f/k/a B & B Oilfield Services, Inc. and against Wilson Acosta in the amount of $2,500.00 for the filing of a frivolous appeal by Mr. Acosta. All costs of these proceedings are assessed to Wilson Acosta.

AFFIRMED AND RENDERED.

      . As the caption reflects, Mr. Acosta instituted the present action naming B & B Oilfield Services, Inc. as a Defendant. By means of his First Amended Petition for Revocation, Mr. Acosta named as additional Defendants, R & T Oilfield Services, Inc. and B & B Oilfield Services, LLC. The judgment from which the present appeal is taken is in favor of R & T Oilfield Services, Inc.

      . R & T responded with exceptions of no cause of action and lis pendens. The trial court maintained R & T's exception of no cause of action and granted Mr. Acosta leave to amend his pleadings. R & T’s exception of lis pendens was overruled.

      . R & T then filed another exception of no cause of action which was overruled by the trial court.

      . The record does not contain a formal judgment on the grant of this motion.

      . Although not included in his assignments of error, nor briefed to this court, Mr. Acosta asserts that “this Honorable Court should REVERSE the trial court’s granting of R & T’s Motion for Summary Judgment." We note that the judgment of September 29, 2011, from which this appeal is taken does not address the motion for summary judgment. Additionally, since Mr. Acosta failed to identify the trial court’s grant of summary judgment as an assignment of error on appeal, this ruling of the trial court is not properly before this court and will not be addressed. Uniform Rules — Courts of Appeal, Rule 1-3 and Rule 2-12.4.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Dennis BABINEAUX v. LUBA and Dennis Babineaux Electrical Service.
    No. 12-129.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      David R. Bankston, Attorney at Law, Lafayette, LA, for Plaintiff-Appellee, Dennis Babineaux.
    Christopher R. Philip, Attorney at Law, Lafayette, LA for Defendants-Appellants, LUBA and Dennis Babineaux Electrical Service.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

11 Claimant, Dennis Babineaux, filed a disputed claim for compensation seeking to have his status changed to permanent total disability (PTD). The Workers’ Compensation Judge (WCJ) found claimant to be permanently and totally disabled and reinstated his benefits, subject to a reverse offset for amounts he was receiving from Social Security. His claims for penalties and attorney’s fees were denied. Defendants, LUBA and Dennis Babineaux Electrical Service, devolutively appealed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Claimant was a self-employed electrical contractor. He injured his back in the course and scope of his employment on June 14, 2000. He ultimately underwent an anterior cervical decompression and fusion in December of that same year. Claimant was awarded temporary total disability (TTD) benefits from June 1, 2000, through March 28, 2002, and supplemental earnings benefits (SEB) from March 28, 2002. On August 6, 2010, after his demand to LUBA to convert his indemnity benefits to PTD status was denied, Claimant filed a claim seeking additional disability benefits based on his claim that he was permanently and totally disabled and for penalties and attorney’s fees for the alleged failure to convert his status or to take any action whatsoever to investigate his condition. Defendants terminated SEB on November 30, 2010. Following trial, the WCJ rendered judgment in favor of Claimant, finding him permanently and totally disabled. In her oral reasons for judgment, the WCJ further found that Claimant had established “by clear and convincing evidence, unaided by any presumption of disability, that he was physically unable to engage in any employment or self-employment regardless of the nature or character of the employment or self-employment.” The WCJ also found that Claimant could not be rehabilitated to achieve suitable gainful employment. The WCJ did not award any penalties or attorney’s fees to Claimant. A second judgment, which included an order |2recognizing Appellant’s right to a social security offset, was signed on September 14, 2011. It is from this judgment that Appellant now appeals. Appellant asserts that Claimant did not prove by clear and convincing evidence that he was permanently and totally disabled. After our review of the evidence and the applicable law, we affirm the judgment in favor of Claimant in its entirety.

DISCUSSION

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error.

Brown v. A M Logging, 10-1440, pp. 10-11 (La.App. 1 Cir. 8/4/11), 76 So.Sd 486, 493, (citing Tillery v. State, Dep’t of Pub. Safety and Corr., 07-1228 (La.App. 1 Cir. 2/8/08), 984 So.2d 742).

Moreover, whether or not a claimant has carried his burden of proof and whether the testimony submitted is credible are also questions of fact that must be determined by the trier of fact, and the trier of fact’s determinations of these issues are subject to the manifest error standard of review. Allman v. Washington Parish Police Jury, 04-600 (La.App. 1 Cir. 3/24/05), 907 So.2d 86.

Since Claimant has not filed an answer to appeal or his own appeal, the WCJ’s refusal to award penalties or attorney’s fees is not reviewed herein. Furthermore, the entitlement to the reverse offset or the amount thereof is not in dispute. Thus, the only issue before this court is Claimant’s disability status.

Pursuant to Louisiana Revised Statutes 23:1221(2)(c), in order to obtain PTD status, the claimant must prove:

by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while | .¡working in any pain, notwithstanding the location or availability of any such employment or self-employment.

In the case now before us, the WCJ found that Claimant met this burden of proof and was totally and permanently disabled. The WCJ based this decision on medical records and deposition testimony of Claimant’s treating physicians documenting permanent nerve damage directly related to the work injury and continued severe muscle spasms and on the testimony of Claimant and his wife. The WCJ chose not to rely on the testimony of the vocational rehabilitation specialist, Ted Deshotels, who testified for the defense. The WCJ also noted that the surveillance tapes submitted by the defense did not show any activity inconsistent with Claimant’s testimony and that, since the tapes had been made several years ago, they did not show the gradual deterioration of Claimant’s condition over time. Under the manifest error standard of review, we must give great deference to the WCJ, who as the fact finder “is in the superior position to assess the demeanor and tone of voice that are crucial to the issue of credibility.” Jones v. Walpole Tire Serv., Inc., 38,206, p. 4 (La.App. 2 Cir. 3/3/04), 867 So.2d 927, 931 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)).

Claimant has been treating with a pain management specialist, Dr. Matthew Mitchell, since 2004. Dr. Mitchell’s records and deposition evidence his opinion that Claimant is permanently and totally disabled. Claimant’s chiropractor, Dr. Robert Lejeune, sees him weekly. Dr. Lejeune is also of the opinion that Claimant is fully disabled and will be so disabled for the rest of his life. Dr. Patrick Juneau is the neurosurgeon who performed surgery on Claimant in 2000. It is his opinion that Claimant is permanently and totally disabled from any sort of employment.

Claimant has been receiving epidural steroid injections every three to four months. Claimant testified that sometimes the injections work and that sometimes they do not provide much relief. He testified that the spasms prevent him from 1 ^sleeping and that they make it hard for him to do anything. Claimant also uses a muscle stimulator several times a week. He suffers from muscle atrophy and weakness in his left arm and leg. Claimant testified that he has not been employed for wages since his injury in 2000. Claimant’s wife, Lydia Babineaux, also testified at trial. She corroborated his testimony concerning the severity and frequency of his muscle spasms.

Mr. Deshotels is the only witness who testified for the defense. He is a vocational rehabilitation specialist who began working with Claimant in May of 2003. It was his opinion that Claimant was capable of performing odd-lot or sheltered employment and that Claimant had the capability and aptitude for retraining for gainful employment. However, Mr. Deshotels did not see Claimant in the period from June 28, 2004 to December, 2010. He also testified that he would defer to the doctors as to any restrictions on employment.

After reviewing the medical records, deposition testimony, and trial testimony, we find no manifest error in the WCJ’s ruling that Claimant is permanently and totally disabled.

DECREE

For all of the foregoing reasons, the judgment finding Claimant to be permanently and totally disabled is affirmed. All costs of this appeal are assessed to Defendants-Appellants, LUBA and Dennis Babi-neaux Electrical Service.

AFFIRMED.


author: AMY, Judge.

text:
    STATE IN the INTEREST OF C.P.
    No. 12-192.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Michael Harson, District Attorney, Michelle Breaux, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Janet L. Brown, Carolyn Cole, Office of Public Defender, Lafayette, LA, for Defendant/Appellant, C.P.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

| lAfter the juvenile defendant allegedly punched a classmate, the State filed a petition charging him with simple battery. The trial court adjudicated the juvenile as delinquent and imposed a disposition of sixty days, suspended, and six months unsupervised probation. The juvenile appeals. For the following reasons, we affirm and instruct the trial court to inform the juvenile of the provisions of La.Code Crim.P. art. 930.8.

Factual and Procedural Background

According to the record, the juvenile defendant, C.P., and the victim, B.A., were both elementary school students on May 18, 2011. The record indicates that C.P. was born in June of 2000. C.P. and B.A. were in the school cafeteria to watch a play when, after B.A. said something that “wasn’t really smart,” they started calling each other names. According to B.A., the two started poking each other in the shoulder. B.A. testified that C.P. eventually told him “if you touch me one more time, I will hit you.” B.A.’s testimony was that he then “sarcastically” poked C.P. in the shoulder, and C.P. responded by hitting B.A. in the forehead. In his testimony, C.P. denied that he and B.A. had been poking each other. According to C.P., another classmate was encouraging B.A. to hit C.P. Therefore, C.P. told B.A. that he would hit B.A. if B.A. hit him first. C.P. testified that B.A. eventually hit him on the leg, so C.P. retaliated by hitting B.A. on the forehead. The two boys traded a few blows until the fight came to the attention of a teacher.

The police were called, and C.P. was arrested. The State eventually filed a petition charging C.P. with simple battery, a violation of La.R.S. 14:35, and seeking to adjudicate him as a delinquent. After a hearing, the trial court found |2that C.P. committed a battery when he hit B.A. in the face and that it was not in self-defense. The trial court imposed a sixty day suspended sentence and six months of unsupervised probation.

C.P. appeals, asserting that:

I. The trial court erred in adjudicating C.P. delinquent for the offense of Simple Battery. The state failed to prove the elements of the offense beyond a reasonable doubt, in that it failed to prove that the victim did not consent to the battery.
II. The trial court erred in finding that C.P.’s actions were not justified under La.R.S. 14:19(A).

Discussion

Errors Patent

Although the Louisiana Children’s Code is silent as to whether an error patent review is appropriate for a juvenile criminal proceeding, this court has previously found that La.Ch.Code art. 104 and La. Code Crim.P. art. 920 mandate such a review. State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081. We note two errors patent.

First, we observe that the record does not indicate that the trial court complied with the requirements of La.Ch.Code art. 855. When the child appears to answer the petition, Article 855 calls for the trial court to “first determine that the child is capable of understanding statements about his rights under this Code.” If the trial court resolves that question in the positive, Article 855 then directs the trial court to advise the juvenile defendant of certain rights under the Children’s Code. However, when the juvenile defendant is represented by counsel at the | shearing and enters a plea of not guilty, the trial court’s failure to comply with Article 855 has been found to be harmless error. State in the Interest of K.G., 34,535 (La.App. 2 Cir. 1/24/01), 778 So.2d 716.

Here, C.P. answered the petition on September 28, 2011. The minutes from that date do not indicate that the trial court complied with Article 855 and the record does not contain a transcript from that hearing. However, the minutes indicate that C.P. was represented by counsel and that he entered a denial to the charge against him. Accordingly, we find that any error in this regard was harmless.

Second, there is nothing in the record that reflects that the trial court informed C.P. of .the two-year prescriptive period for seeking post-conviction relief as mandated by La.Code Crim.P. art. 930.8. See State in the Interest of T.S., 04-1111 (La.App. 5 Cir. 3/1/05), 900 So.2d 77. Thus, we instruct the trial court to inform C.P., in writing, of the delays for post-conviction relief within ten days of the rendition of this opinion and file proof of the notice in the record.

Sufficiency of the Evidence

In his first assignment of error, C.P. contends that the State failed to prove that he committed simple battery. Specifically, he contends that the State did not prove that B.A. did not consent to the battery, an argument that concerns the sufficiency of the evidence.

|4The supreme court discussed sufficiency of the evidence claims in juvenile delinquency proceedings in State in the Interest of D.P.B., 02-1742, pp. 4-6 (La.5/20/03), 846 So.2d 753, 756-57 (footnote omitted)(first alteration in original), stating:

In a juvenile proceeding, the state’s burden of proof is the same as in a criminal proceeding against an adult — to prove beyond a reasonable doubt every element of the offense alleged in the petition. La. Ch.Code art. 883; In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). When defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Matthews, 464 So.2d 298 (La.1985).

Further, the trial court’s findings of fact in a juvenile case are subject to the manifest error standard of review. State in the Interest of J.M., 99-136 (La.App. 3 Cir. 6/2/99), 742 So.2d 6 (citing State in the Interest of Wilkerson, 542 So.2d 577 (La. App. 1 Cir.1989)). Accordingly, the appellate court should not disturb reasonable evaluations of credibility and reasonable inferences of fact absent manifest error. Id.

C.P. was charged with simple battery, a violation of La.R.S. 14:35, and is defined as “a battery committed without the consent of the victim.” Battery is defined in La. R.S. 14:33 as “the intentional use of force or violence upon the person of another[.]”

The gist of C.P.’s argument is that because B.A. poked C.P. after C.P. warned him that he would hit B.A. if B.A. touched him again, B.A. consented to |sthe battery. In brief, C.P. argues that “[t]he state did not present any evidence other than the victim’s testimony to show that the victim did not consent to the hit.” However, in State v. Davis, 45,662 (La.App. 2 Cir. 11/3/10), 57 So.3d 1066, writ denied, 10-2677 (La.4/25/11), 62 So.3d 85, the second circuit found that, under the facts of that case, the testimony of the victim alone was sufficient to establish lack of consent to simple battery. See also State v. Helou, 02-2302 (La.10/23/03), 857 So.2d 1024. Further, B.A.’s testimony indicates that C.P. initiated any physical conflict, as B.A. testified that C.P. poked him first. We observe that C.P. testified that there was no poking and that B.A. hit him first. Contrary to C.P.’s statement, Officer Lafitte of the Lafayette Parish Sheriffs Department testified that, immediately after the incident, C.P. told him that there had been poking and that B.A. started it. B.A. also testified that he did not expect C.P. to “do anything” after C.P. told B.A. that he would hit B.A. if B.A. touched him again. B.A; also demonstrated the method in which he “sarcastically” poked C.P.

The trial court provided oral reasons, finding that C.P. punched B.A. in the face. Striking someone in the face is sufficient to constitute the use of force or violence upon the person of another. La.R.S. 14:33. Further, the trial court discounted C.P.’s testimony and found that the two boys had been poking each other. The trial court stated that “while poking is bad, poking is not the same as punching somebody in the face.” It was the trial court’s role to make findings of fact and determinations of credibility, which should not be disturbed by this court absent manifest error. State in the Interest of J.M., 742 So.2d 6. The record indicates that C.P.’s testimony, especially concerning whether the boys were poking each other and the sequence of events, was contradicted by B.A.’s testimony and the testimony of Officer Lafitte. Further, the trial court was in the best position to observe the witnesses, especially with regard to B.A.’s | ^demonstrations of his actions. Viewed in the light most favorable to the prosecution, B.A.’s testimony alone was sufficient to establish that he did not consent to the battery. See Davis, 57 So.3d 1066. Accordingly, we find no error in the trial court’s determination that C.P. hit B.A. in the face and that B.A. did not consent to the battery.

This assignment of error is without merit.

Self-Defense

C.P. also contends that the trial court erred in finding that he did not act in self-defense.

Louisiana Revised Statutes 14:19(A) addresses the use of force or violence in defense, stating:

The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.

This court has held that, in non-homicide cases, the burden of proof lies on the defendant to prove self-defense by a preponderance of the evidence. State v. Wright, 99-1137 (La.App. 3 Cir. 3/1/00), 758 So.2d 301, writ denied, 00-1614 (La.3/9/01), 786 So.2d 118. Further, the defendant must show that the force used was necessary to ward off the attack. Id. Additionally, the aggressor in a conflict cannot assert self-defense “unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” State v. Robinson, 37,043, p. 7 (La.App. 2 Cir. 5/14/03), 848 So.2d 642, 646.

“The issue of self-defense requires a dual inquiry: (1) an objective inquiry into whether the force used was reasonable under the circumstances; [and] (2) a |7subjective inquiry into whether the force was apparently necessary.” State v. Anderson, 98-492, p. 10 (La.App. 3 Cir. 10/28/98), 721 So.2d 1006, 1011, writ denied, 98-2976 (La.3/19/99), 739 So.2d 781. For instance, in State v. Golson, 27,083 (La.App. 2 Cir. 6/21/95), 658 So.2d 225, writ denied, 97-165 (La.10/10/97), 703 So.2d 600, the second circuit found that the defendant’s actions in shooting his wife three times after she made “stabbing motions” with a pair of fingernail clippers was not necessary to prevent an imminent assault, even though the defendant testified he thought his wife had a knife.

Here, there is sufficient evidence in the record to support a conclusion that C.P.’s actions were neither reasonable nor necessary under the circumstances. B.A. testified that the boys were poking each other in the shoulder, and the trial court accepted that testimony. B.A. demonstrated this for the trial court. Notably, there was no testimony that the poking was in any way injurious or threatening to either boy. C.P. testified that he thought that B.A. was going to hit him; however, C.P. denied that there was any poking and testified that B.A. hit him in the leg before he hit B.A. in the forehead. The trial court discredited this testimony.

Further, there was testimony that, as a result of C.P.’s actions, B.A. had bruising and swelling on his forehead. Although an ambulance “checked [C.P.] out” after the incident, C.P. indicated that he did not need any treatment. Given this evidence, a reasonable person could have concluded that the force was unnecessary under the circumstances and was not apparently necessary to prevent an imminent offense. Accordingly, we find that the trial court did not err in finding that C.P.’s actions were not a reasonable response to B.A.’s actions.

Additionally, the record would also support a finding that C.P. was the aggressor in the confrontation. Although the trial court did not explicitly state that C.P. initiated the poking, there is evidence in the record that may support such a I «conclusion. C.P. testified that he was worried that B.A. would hit him and that another boy, C.F., was encouraging B.A. to hit C.P. However, C.P. also testified that B.A. hit him before he hit B.A. In her reasons for judgment, the trial judge rejected this contention and found that C.P. threw the first punch. At a minimum, there is evidence that indicates that C.P. elevated the fracas from a verbal argument and “childish poking” to a physical fight.

This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the juvenile defendant, C.P.’s, adjudication and disposition for the charge of simple battery, a violation of La.R.S. 14:35. We instruct the trial court to inform C.P., in writing, of the provisions of La.Code Crim.P. art. 930.8 for post-conviction relief within ten days of the rendition of this opinion and file proof of the notice in the record.

AFFIRMED WITH INSTRUCTIONS.

      . Pursuant to Uniform Rules — Courts of Appeal, Rules 5-1 and 5-2, initials are used throughout this opinion to protect the identity of the juvenile defendant, the victim, and the witnesses, as applicable.

      . These items, listed under La.Ch.Code art. 855(B) are, in relevant part:
      (1) The nature of this delinquency proceeding.
      (2) The nature of the allegations of the petition.
      (3) His right to an adjudication hearing.
      (4) His right to be represented by an attorney, his right to have counsel appointed as provided in Article 809, and his right in certain circumstances authorized by Article 810 to waive counsel.
      (5) His privilege against self-incrimination.
      (6) The range of responses authorized under Article 856.
      (7) The possible consequences of his admission that the allegations are true, including the maximum and minimal dispositions which the court may impose pursuant to Articles 897 through 900.[....]


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Kenneth BELL, Sr.
    No. 12-195.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      James C. Downs, District Attorney, 9th Judicial District Court, Numa V. Metoyer, III, Assistant District Attorney, 9th Judicial District Court, Alexandria, LA, for PlaintifflAppellee, State of Louisiana.
    Edward John Marquet, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Kenneth Bell, Sr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   THIBODEAUX, Chief Judge.

| T Following an incident where Defendant, Kenneth Bell, Sr., stabbed the victim, Lalisa Harris, nine times with a knife, the State charged him with attempted second degree murder. Following a trial, the jury returned a verdict of attempted second degree manslaughter. The trial judge sentenced Defendant to twenty years at hard labor, the maximum sentence. Defendant now appeals and alleges that the twenty-year sentence is excessive. For the following reasons, we affirm.

I.

ISSUE

We shall consider whether the trial court erred by imposing an excessive sentence.

II.

FACTS AND PROCEDURAL HISTORY

The victim, Lalisa Harris, traveled to the Bell residence to visit her children and Ethel Bell, Defendant’s wife. Ms. Harris and Ms. Bell visited for approximately fifteen minutes before Defendant arrived. Ms. Harris testified that almost immediately, Defendant attempted to provoke a fight with her, prodding Ms. Bell to “tell her [Ms. Harris] why you’re mad” and cursing Ms. Harris. Ms. Harris testified that she left the living room and proceeded to the laundry room. Without provocation, Defendant followed Ms. Harris and violently pushed her. She testified that, in response, she threw a radio at Defendant. The radio ricocheted off Ms. Bell’s shoulder and glanced off Defendant’s face. According to Ms. Harris, Defendant then proceeded to the kitchen, grabbed a large knife and chased her through the house. Ms. Harris attempted to flee through the back door but tripped and fell. She testified that | ^Defendant positioned himself on top of her and stabbed her nine times. While stabbing her, Defendant yelled, “I gonna kill you bitch!” Ms. Harris explained that she attempted to defend herself by grabbing the knife with her hands and by kicking. As a result, Ms. Harris received multiple stab wounds to her hands, the bottom of her foot, ankle, and thigh. Though the emergency room physician who treated Ms. Harris testified that her wounds were not fatal, Ms. Harris lost full mobility of one of her hands.

III.

LAW AND DISCUSSION

Defendant argues that his maximum sentence of twenty years is constitutionally excessive. A jury convicted Defendant of attempted manslaughter. Louisiana Revised Statutes 14:31(B) provides for a range of punishment for the offense of manslaughter of not more than forty years at hard labor. The Louisiana attempt statute, in pertinent part, provides that the offender “shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fíne, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.” La.R.S. 14:27(D)(3). Accordingly, the maximum sentence of incarceration Defendant could have received in this case was twenty years for the crime of attempted manslaughter, which was the sentence imposed on him.

In discussing excessive sentences, this court stated in State v. Doucet, 09-1065 (La.App. 3 Cir. 5/5/10), 36 So.3d 1105, 1112, writ denied, 10-1195 (La.12/17/10), 51 So.3d 19:

To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and | ¡¡suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion. State v. Guzman, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted).
The following factors help to decide whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals: “the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment[,] and a comparison of the sentences imposed for similar crimes.” State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citing State v. Smith, 99-606, 99-2015, 99-2019, 99-2094 (La.7/6/00), 766 So.2d 501).

Defendant argues that he is not one of the most serious offenders warranting a maximum sentence and that he received “a legally unjustifiable sentence.” He asserts that the trial court failed by not ordering a pre-sentencing investigation (PSI). Defendant notes that the trial court made no comments on his criminal history, and he lists mitigating factors — his age and the poor health of his wife — that he contends should have factored into a lower sentence. Finally, Defendant argues that a comparison of sentences imposed for similar crimes suggests that his sentence is excessive.

While it is true that the trial court did not order a PSI, it was completely within its discretion not to order one prior to sentencing. La.Code Crim.P. art. 875; State v. Hayden, 98-2768 (La.App. 4 Cir. 5/17/00), 767 So.2d 732. A PSI is an aid to the trial court and is not a right of the defendant. Id. We find no error in the trial court’s failure to order a PSI.

We note that the trial court took cognizance of the requirements of La.Code Crim.P. art. 894.1 and considered a variety of mitigating and aggravating factors affecting Defendant’s sentence. The trial court is not required to list every aggravating or mitigating circumstance as long as the record reflects adequate compliance. See State v. Hutcherson, 34,540 (La.App. 2 Cir. 4/4/01), 785 So.2d 140. Here, the trial court articulated several aggravating circumstances that contributed to its assessment of the maximum sentence. In particular, the court referenced the brutality of the attack, the fact that Defendant chased the victim through the house, the use of a dangerous weapon in the offense, Defendant’s use of threats and actual violence during the attack, Defendant’s deliberate cruelty in continuing to stab the victim despite her efforts to defend herself, and Defendant’s apparent intent to “teach the victim a lesson.” Moreover, the trial court opined that undue risk existed such that, during a period of suspended sentence or probation, Defendant would commit another crime. It is clear from the record that the trial court weighed these factors against Defendant’s age as well as the impact his imprisonment would have on his wife.

Defendant urges us to compare his sentence with the sentences given in several other cases. Although a comparison of sentences imposed for similar crimes can be helpful, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Smith, 846 So.2d at 789 (quoting State v. Batiste, 594 So.2d 1, 3 (La.App. 1 Cir.1991)). The trial court is in the best position to evaluate the aggravating and mitigating factors of a particular case, and “it is within the purview of the trial court to particularize the sentence.” Id. Here, the trial court carefully particularized the sentence to the offender and to the crime. The trial judge heard all of the testimony, including the victim’s emotional account of being chased through the house, pinned down, and repeatedly stabbed with a deadly weapon. He also reviewed the documentary evidence, including gruesome and graphic photographic evidence depicting the victim’s numerous wounds.

Both the testimonial evidence and documentary evidence in this case were impactful. Considering the facts of the case and the above jurisprudence, we cannot say that the maximum sentence of twenty years is so shocking that it disturbs this court’s sense of justice. This was a serious offense committed without regard for [fihuman life, which resulted in serious injury to the victim. Accordingly, the trial court did not abuse its vast discretion when it sentenced Defendant to the maximum sentence of twenty years for the offense of attempted manslaughter.

IV.

DISPOSITION

We affirm Defendant’s twenty-year sentence pursuant to his conviction for attempted manslaughter.

AFFIRMED.

      . At the time of the crime, Defendant did not live at the Bell residence.


text:
    STATE IN the INTEREST OF R.E. & R.C.
    No. 12-196.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Robert J. Elliott, State of Louisiana, Department of Children and Family Services, Alexandria, LA, for Appellee, State of Louisiana, Department of Children and Family Services.
    Guy R. Smith, Leesville, LA, for Appel-lee, L.E. (Father).
    Lisa K. Nelson, Williams & Nelson, Leesville, LA, for Appellant, M.E. (Mother).
    Ronald K. Seastrunk, Leesville, LA, for Appellee, State of Louisiana, Office of District Attorney.
    Bradley O’Neal Hicks, Dowden & Hicks, Leesville, LA, for Appellee, Unknown Father.
    Heather Cooley, Acadiana Legal Services, Alexandria, LA, for Appellees, R.E. (child), R.C. (child).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR and MARC T. AMY, Judges.
   AMY, Judge.

liThe State took the two subject children into custody due to allegations of neglect, inadequate housing, and drug use. After the mother gave birth to a third child, the State took that child into custody as well in light of the mother’s continued substance abuse. Custody of the mother’s eldest child was later transferred to the child’s father and the State pursued termination of the mother’s parental rights to the youngest two children given ongoing concerns regarding the mother’s alleged substance abuse. The trial court granted the termination of parental rights and certified the children as eligible for adoption. The mother appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record(s) in the appeals of this termination of parental rights matter indicate(s) that the State of Louisiana, through the Department of Children and Family Services (DCFS), has responded to various reports regarding M.E.’s care of her children since 2007. The instant matter was instituted in August 2010 when the State investigated a report that M.E. was “high on somas” and the children were in the home with her.” The investigating State employee stated in the affidavit in support of the requested instanter order that she found the home to be “dirty with trash, food, and clothing.” M.E. reported to her that “she took two trazadones that day” and had “smoked marijuana on three occasions while being pregnant.” The affidavit also provides that M.E. “told another worker that she had taken two somas that day and two valiums the day before.” M.E. was unable to 12produce prescription bottles for the substances at that time. The employee explained that M.E. “was barely able to stand alone without falling[,]” that she had been “diagnosed bipolar and she [was] not taking her medication[,]” and that she “threatened suicide more than once throughout the interview[.]” The trial court ordered that M.E.’s two minor children, R.E. (born 6/21/02) and R.C. (born 4/12/09), be placed in the temporary custody of the State, through the DCFS.

The following month, the State filed a petition seeking a hearing to determine whether or not the two children should be adjudicated as children in need of care. The trial court continued the State’s custody during that time and, in November 2010, adjudged the children to be in need of care.

During that same period, on November 1, 2010, M.E. gave birth to R.C. (II). On December 20, 2010, the State received a report that M.E. was “high on Marijuana” on Thanksgiving and took valium for which she did not have a prescription. The affidavit in support of the resulting instanter order reported that, upon investigation, M.E. “tested positive for marijuana and benzodiazepines.” The State’s employee explained that M.E. admitted to the drug use due to depression. R.C. (II) was taken into custody and custody was thereafter continued. In January 2011, the State filed a petition to have R.C. (II) declared a child in need of care and continued in the custody of the State. The trial court rendered the judgment of adjudication in February 2011.

On August 30, 2011, the State filed a petition for termination of parental rights and certification of adoption for R.C. and R.C. (II). The State alleged that |SM.E. had not substantially complied with the case plan designed for reunification with the children, particularly in light of persistent substance abuse and failure to provide financial support for the children. Therefore, the State sought termination pursuant to La.Ch.Code art. 1015(4)(b) and/or (5). The State acknowledged that less than one year had passed since R.C. (II) had been placed in its custody and sought to proceed with the termination as the State had been working with M.E. for more than a year in the case involving R.C. The trial court subsequently entered an order granting the State “permission to proceed to termination, and [allowing it] to file this petition, even though one full year has not passed since the minor child, R.C. (II), was removed and placed in [the State’s] custody.”

After a hearing, the trial court recognized M.E.’s persistent substance use and determined that termination of parental rights was in the best interests of the two minor children. Accordingly, it terminated M.E.’s parental rights due to a failure to substantially complete her case plan and her failure to provide significant contributions to the care and support of the children. The trial court additionally certified the children as eligible for adoption.

M.E. appeals, assigning the following as error:

The Trial Court committed manifest error by finding that the State had met its burden of proof, and that it was in the best interest of the minor children, R.C. and R.C. [II], for the parental rights of them biological mother, [M.E.] to be terminated.

Discussion

Burden of Proof — Termination of Parental Rights

A termination of parental rights proceeding involves a two-pronged inquiry. First, the State must present clear and convincing evidence of one ground of |germination pursuant to La.Ch.Code art. 1015. See La.Ch.Code art. 1035(A). See also State ex rel H.A.S., 10-1529 (La.11/30/10), 52 So.3d 852. Additionally, the trial court must determine that the requested termination is in the best interest of the child(ren). See La.Ch.Code art. 1039. On appeal, a trial court’s decision regarding whether parental rights should be terminated is reviewed pursuant to the manifest error standard. State ex rel. H.A.S., 52 So.3d 852.

Grounds for Termination■ — La.Ch.Code art. 1015

In this case, the State asserted that termination of M.E.’s parental rights was appropriate pursuant to the grounds expressed in La.Ch.Code art. 1015(4)(b) and/or (5), which provide:

The grounds for termination of parental rights are:
(4) 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:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

The trial court’s judgment indicates that it found both of those grounds proven and, additionally, that it concluded that termination of parental rights was in the best interests of the children. We address these determinations in turn.

|ifjg.Ch.Code art. 1015(í)(b) — Care and Support

M.E. first questions the State’s contention that she demonstrated an intention to permanently avoid parental responsibility by failing to provide significant contributions to the children’s care and support for a period of six consecutive months. M.E. acknowledges in her brief to this court that the case plan required that she provide “$10 per month for the care of the children while they were in foster care.” She testified at trial, however, that she had been told by the State that she did not have to make these payments in light of her income being limited to Social Security disability payments. Citing State ex rel. C.L.H., 11-189 (La.App. 3 Cir. 6/1/11), 66 So.3d 647, writ denied, 11-1420 (La.7/12/11), 67 So.3d 470, M.E. also suggests in her brief that evidence of certain in-kind support should be considered significant contribution to the children’s care and support.

As a preliminary matter, we find no merit in M.E.’s contention that the trial court’s failure to squarely address the ground involving financial contributions in its reasons for ruling indicates that the trial court found termination appropriate only under the alternative ground of failure to substantially comply with the case plan. Instead, the judgment of termination clearly reflects a finding that the State proved by clear and convincing evidence that both parents “have each failed to provide significant contributions, to the care and support of their minor child[ren.]” Having reviewed the record, we find no manifest error in that determination.

It is undisputed that the attendant case plan(s) included a financial support component. Namely, the case plan(s) provided that “[M.E.] will support her children in foster care and agree to pay $10 per month per child while unemployed and if employed will pay $25 per month per child in child support[.]” Further, the ^record supports a decision that M.E. failed to provide this sum throughout the children’s foster care, which well exceeded the time frame of six consecutive months as required by La.Ch.Code art. 1015(4)(b).

Instead, the focus of M.E.’s assignment regarding this ground is that she was entitled to fairly rely on a State employee’s statement that she did not have to make these payments in light of her meager income and, also, that she made significant in-kind contributions by supplying diapers and gifts. Catherine Weinnig, the case worker assigned to this matter, testified that when she took over the case file, she “read that they asked her to do $10 a month and [M.E.] said [a supervisor] had said not to[.]” However, Ms. Weinnig confirmed that the case plan consistently included the $10 financial support and that, notwithstanding previous advice to not pay the support in light of the meager finances, “she still needs to show that she needs to provide for the children’s financial needs.” In this regard, Ms. Weinnig told M.E. that: “[Y]ou have to show me that you can buy diapers and provide for the children’s clothing. So, I asked her to provide some kind of funds for the caretaker.”

Although M.E. suggests in her brief that her in-kind gifts constituted a significant contribution, the trial court was within its role as fact finder to accept Ms. Weinnig’s testimony that: “[M.E.] hasn’t been able to or given financial support for them. One time when we went up to the house she did give us a pack of diapers that she had there and she’s given some clothes and shoes for birthday[s] |7and things like that.” Ms. Weinnig further stated that, to her knowledge, M.E. had not provided any payment to the children’s custodial caretakers and that to the extent items were provided to the children, they were “probably not” worth $10.

In light of the evidence demonstrating only sporadic and limited contributions, we do not find manifest .error in the trial court’s determination that M.E. failed to provide significant contributions to the children’s care and support for any period of six consecutive months. While M.E. cites State ex rel. C.L.H., 66 So.3d 647, for the proposition that in-kind gifts can be found to be significant contributions, the present case is distinguishable. Significantly, we point out that C.L.H. involved review of an underlying determination by the trial court that the State failed to meets its burden of proving a lack of financial contributions. Id. The appellate panel concluded that the trial court’s decision was not manifestly erroneous in light of evidence that the mother in that case provided “shoes, clothing, and school supplies.” Id. at 652. The present case, however, stems from a trial court’s determination that the State did, in fact, sustain its burden of proving a lack of significant financial contribution. As explained above, the evidence of sporadic and limited gift giving supports the trial court’s decision on this ground. See In the Interest of TMS, 08-810 (La.App. 3 Cir. 11/5/08), 999 So.2d 21.

This assignment lacks merit.

La.Ch.Code art. 1015(5) — Substantial Parental Compliance

Although the State need only prove one ground for termination in order to proceed to the second prong of the termination inquiry, M.E. also challenges the trial court’s determinations that the State demonstrated her failure to substantially comply with the case plan prepared in her case and that there is no reasonable expectation of significant improvement in her conduct in the near future. M.E. | ^points to her attendance at parenting classes, as required by the case plan. She also contends that the State has inadequately assisted her in obtaining the type of mental health treatment and counseling recommended- for her. With that type of assistance, M.E. contends a reasonable expectation of improvement would be a reasonable possibility.

As provided for by La.Ch.Code art. 1036(C), a lack of parental compliance with a case plan may be evidenced by one or more of the following:

(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.

We have addressed La.Ch.Code art. 1036(C)(4) above, insofar as the trial court determined that M.E. failed to contribute to the costs of the children’s foster care as ordered by the case plan. Additionally, and without question, the focus of the State and the trial court was M.E.’s inability to redress her continued substance abuse, the most consistent problem preventing reunification. Given the affidavit |9in support of the instanter order and Ms. Weinnig’s testimony, it is clear that M.E.’s drug use was the chief condition leading to the children’s removal.

Notably, M.E. testified at trial that she began using drugs at the age of nine and, although she was twenty-eight years of age at the time of trial, her longest period of sobriety had been one year. While the testimony indicated that M.E. periodically sought assistance with this problem, her success was not consistent. For instance, one stay at a rehabilitation facility was cut short when she left voluntarily due to her grandmother having a stroke and another period of treatment was terminated when she left to have a tooth pulled and the care facility would not allow her to stay in light of a prescription for a pain medication. Also, her case file with an addictive disorders clinic was closed after she was released due to a positive drug test. Her one time substance abuse counselor testified that, during her time with that clinic, M.E. tested positive for benzodiazepines, marijuana, and cocaine. The last positive test was in September 2011, the month before the termination hearing.

Further, the case plan also required M.E. to continue with medications necessary for her mental health and to “continue going to mental health in order to maintain her stability.” The evidence in this area generally supported a finding that, to the extent it was available to her, M.E.’s adherence to available treatment was not maintained. She remarked that she did not receive treatment at the mental health unit in her area in light of a conflict with an employee. We point out that we include reference to confusing evidence regarding mental health treatment only for I mthe sake of completeness. Instead, the principle focus of the State and its evidence was the failure to maintain sobriety. Sufficient evidence of the failure to comply with that aspect of the case plan essentially renders the failure to comply with the mental health aspect of the case plan redundant.

Given this evidence, we find no manifest error in the trial court’s determination that the State presented clear and convincing evidence that M.E. failed to substantially comply with her case plan.

We further find support for the trial court’s determination in that the State demonstrated that there was a lack of reasonable expectation of significant improvement in the near future as is additionally required by La.Ch.Code art. 1015(5). Louisiana Children’s Code Article 1036 provides that:

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.

(Emphasis added.) Certainly the State demonstrated an established pattern of substance abuse so as to find that there was a lack of any reasonable expectation of significant improvement in that conduct in the near future.

Finally, M.E. points out that one year had not elapsed between the time that R.C. (II) was removed from her custody and the time the petition for termination was filed. Noting that La.Ch.Code art. 1015(5) permits the trial court to allow the proceedings inside of that time period with special permission, M.E. suggests that the trial court’s failure to “articulate for the record” its reasons for granting the permission in this case constitutes reversible error.

11 t However, the petition for termination specifically detailed the course of events underlying the change of custody of all three children and requested “that it be allowed to proceed to termination ... with respect to [R.C. (II) ], even though less than one year has passed since minor child, was removed and placed in the care, custody and control of petitioner.” The State observed in the petition that, although less than one year had elapsed, the State had been working with M.E. for more than a year with respect to R.C. Thereafter, the trial court entered an order expressly granting the State “permission to proceed to termination, and [allowing it] to file this petition, even though one full year has not passed since the minor child, R.C. (II), was removed and placed in [the State’s] custody.” In light of this progression of the proceedings and the trial court’s obvious acceptance of the State’s basis for proceeding as it was, we leave the trial court’s judgment undisturbed.

We find that M.E.’s arguments regarding the grounds for termination are without merit.

Best Interests

Finally, M.E. contends that the trial court was manifestly erroneous in finding that the termination of parental rights was in the best interests of the children as is required by La.Ch.Code art. 1039. She notes that reunification is presumed to be in a child’s best interests and that the foster parents in this case are not yet certified for adoption.

With regard to the best interests criteria, Ms. Weinnig explained to the trial court that the children have been in the care of relatives and that the children have bonded with the couple. She described the foster mother as very attentive. She also stated that, although the couple has not yet been certified for adoption insofar as they still have a few classes to attend, adoption is their goal. Given this | ^evidence of a prospective new home for the children and given M.E.’s history of difficulties, we find no manifest error in the trial court’s determination that termination of parental rights was in the best interests of both R.C. and R.C. (II).

This argument lacks merit.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment of termination of parental rights to the minor child, R.C. We further affirm the trial court’s certification of R.C. as eligible for adoption. Costs of this proceeding are assigned to the appellant, M.E.

AFFIRMED.

      . We discuss both consolidated matters herein, but set forth separate decretal language given the separate case captions for each of the children at issue. See State in the Interest of R.C., 12-197 (La.App. 3 Cir. 6/6/12), 91 So.3d 1291.

      . The initials of the children and the parent(s) are used herein pursuant to Uniform Rules— Courts of Appeal, Rule 5-2. See also Uniform Rules — Courts of Appeal, Rule 5-1.

      . We reference the youngest child as R.C. (II) in light of the initial shared with the older sibling.

      . The State sought and obtained a transfer of custody of R.E. to the child’s biological father, L.E. R.E. is not the subject of the present proceeding. Further, L.E. voluntarily surrendered his rights to R.C. and R.C. (II), insofar as he was married to M.E. and, therefore, the legal father of the two youngest children. Additionally, State sought termination of the parental rights of "John Doe” as the biological father of R.C. and R.C. (II). The trial court ultimately terminated those rights as well. As the fathers’ rights have not been appealed, we do not address them further.

      . As testified to at trial, these payments were $674.00 per month.

      . The testimony at trial, including that of M.E., seemingly assumed a full failure to make financial contributions from the time R.C. was removed from the home. However, we note the "case plan reviews" provided that: "[M.E.] stated she has paid her support payments but the worker only saw proof of the initial two months[J” Notwithstanding this reference to two initial payments, the period of nonpayment after the initial point of payment would have been greater than six months as the first case plan requiring financial support was approved by the trial court on September 28, 2010, and the petition for termination was filed on August 30, 2011. There is no indication that any payments were made toward the care and support of R.C. (II), who was taken into custody in December 2010.

      . Ms. Weinnig's testimony indicates that there may be some confusion as to a certificate received by M.E. with regard to the parenting classes. Ms. Weinnig opined that the certificate may have been for attendance rather than for completion of the course. Ms. Wein-nig explained that it appeared that M.E. may have attended the courses, but did not graduate.

      . In brief oral reasons for ruling, the trial court remarked that:
      Of course, in looking at [M.E.]’s circumstances, the Court is convinced clearly that she’s got problems with drugs that she’s not going to be able to overcome anytime soon. I deal with drug — with addicts in Drug Court all the time.... They’re really difficult clients to get through Drug Court and as rigorous a program as that is, it's difficult for them. [M.E.], that's the only problem that this Court has had with you and I told you in the beginning all you had to do was stay clean. And, I now you have — she has prescriptions for some of this medication, but the Marijuana and the Cocaine, that’s not prescribed by anybody, any doctor I know of.

      . [M.E.] explained that her general practitioner prescribed medication, at times, for anxiety. However, according to her substance abuse counselor, no prescription was contained in the agency’s file in this regard.


text:
    STATE in the Interest of R.C.
    No. 12-197.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.
    Robert J. Elliott, State of Louisiana, Department of Children and Family Services, Alexandria, LA, for Appellee, State of Louisiana, Department of Children and Family Services.
    Guy R. Smith, Leesville, LA, for Appel-lee, L.E. (Father).
    Lisa K. Nelson, Williams & Nelson, Leesville, LA, for Appellant, M.E. (Mother).
    Ronald K. Seastrunk, Leesville, LA, for Appellee, State of Louisiana, Office of District Attorney.
    Bradley O’Neal Hicks, Dowden & Hicks, Leesville, LA, for Appellee, Unknown Father.
    Heather Cooley, Acadiana Legal Services, Alexandria, LA, for Appellees, R.E. (child), R.C. (child).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR and MARC T. AMY, Judges.
   AMY, Judge.

hFor the reasons provided in the companion case, State in the Interest of R.E. & R.C., 12-196 (La.App. 3 Cir. 6/6/12), 91 So.3d 1282, 2012 WL 2016239, we affirm the trial court’s judgment of termination of parental rights to the minor- child, R.C. (II). We further affirm the trial court’s certification of R.C. (II) as eligible for adoption. Costs of this proceeding are assigned to the appellant, M.E.

AFFIRMED.


author: DECUIR, Judge.

text:
    Anna Nicole Hanks TRAHAN v. Mitchell Lee TRAHAN.
    No. 12-173.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2012.

      Henry R. Liles, Attorney at Law, Lake Charles, LA, for PlaintiffiAppellee, Anna Nicole Hanks Trahan.
    Evelyn M. Oubre, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Mitchell Lee Trahan.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   DECUIR, Judge.

| ¶ Mitchell Trahan petitioned the court to nullify a community property partition on the grounds of lesion. The trial court rejected the petition and rendered judgment in favor of Trahan’s former wife, Anna Hanks Trahan. In reviewing the trial court’s decision, we quote its reasons for judgment:

The Court has reviewed all of the cases submitted by counsel for the parties, as well as other jurisprudence. The Court finds that the “Joint Stipulation” submitted to the Court for its approval on October 11, 2007, complied with the requirements of La. C.C. AH. 2329. Further, the parties acknowledged and recognized the Court’s judgment terminating their community property regime. Accordingly, the judgment of October 11, 2007 is a valid judgment terminating the parties’ community regime retroactive to August 29[,] 2007.
The parties also executed a “Community Property Partition” agreement which was submitted to the Court for its approval on October 15[,] 2007. Mr. Trahan argues this partition should be rescinded for lesion. An extrajudicial partition may be rescinded on account of lesion. La. Civ. C. AH. 81⅛. However, a compromise may not be attacked on the basis of lesion. La. Civ.C. AH. 3082. At the time the partition agreement was presented to the Court, the parties had terminated their community property regime and sought to settle the community existing between them. In Mrs. Trahan’s petition for divorce, she alleged that community property existed between the parties and reserved her right to seek the partition of their community property at a later date. Although the partition had not been set for trial, the parties submitted stipulations regarding the partition of their community property. The Court adopted the partition agreement and made it a judgment of the Court. The Court finds that when it rendered judgment on the partition, the partition became a judicial partition, which was not subject to being set aside for lesion. In addition, the Court notes that the parties entered into the community property partition agreement through mutual consent settling and distributing the assets and debts of the community.
For the foregoing reasons, the Court finds that the parties’ “Community Property Partition” is not subject to attack based on lesion.

We find error in the trial court’s judgment. The joint stipulation and attached community property partition were properly signed, witnessed, and notarized, and Mr. Trahan specifically waived his right to have the documents reviewed by counsel. Nevertheless, the requirements of La.Civ.Code art. 2329 |2were not fulfilled. The statute contains the following pertinent language: “Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules.” (Emphasis added.)

Louisiana jurisprudence consistently holds that an agreement entered into by the parties for the purpose of settling their community property partition suit is a transaction or compromise and cannot be attacked on the basis of lesion. Dornier v. Live Oak Arabians, Inc., 602 So.2d 743, 747-748 (La.App. 1 Cir.), writ denied, 608 So.2d 177 (La.1992). More specifically, the actual partition in this case was adopted and made the judgment of the court. “Once this was accomplished, the partition became a judicial partition not subject to being set aside on account of lesion under Louisiana Civil Code article 814. Our conclusion on this point finds support in this court’s decision in Lapeyrouse v. Lapeyrouse, 98-0271 (La.App. 1st Cir.2/19/99), 729 So.2d 682.” Junca v. Junca, 98-1723, p. 6 (La.App. 1 Cir. 12/28/99), 747 So.2d 767, 770, writ denied, 00-1120 (La.6/2/00), 763 So.2d 601.

These cases presuppose, however, that the requirements of Article 2329 have been met, and that a trial court has found that a party’s agreement serves his best interests and he understands the governing law. In the instant case, Mr. Trahan was not represented by counsel, and he made no certification to the trial court that he thought this agreement was in his best interest and was aware of the governing laws. In Matter of Boyer, 616 So.2d 730, 732 (La.App. 1 Cir.), writ denied, 620 So.2d 882 (La.1993), the first circuit explained:

Clearly, article 2329 imposes certain procedural limitations on the spouse’s ability to implement a contract for the termination of the legal regime during their marriage. The trial court must be satisfied that the spouses both agree to the change, that the spouses understand the rules and principles underlying a change in the matrimonial |,.¡regime, and that the agreement appears to serve the best interest of the spouses.

This court has held similarly in Williams v. Williams, 99-1101 (La.App. 3 Cir. 4/12/00), 760 So.2d 469, unit denied, 00-1929 (La.10/27/00), 772 So.2d 123, and Poirier v. Poirier, 626 So.2d 868 (La.App. 3 Cir.1993), writ denied, 94-161 (La.3/11/94), 634 So.2d 389.

We point out, however, that the law provides no procedural instruction as to how a trial court should ascertain the best interests of the parties or their knowledge of governing principles and rules.. As discussed in Katherine S. Spaht & Richard D. Moreno, “Louisiana Civil law Treatise, Matrimonial Regimes (3d ed. 2007 & Supp. 2012)” § 8.6, “Nothing is said about the proof or the form that the court’s finding will take or how it must be expressed.” It is clear that a hearing is not required. Boyer, 616 So.2d 730. Nor is it necessary for the parties to be questioned or even present. Lapeyrouse, 729 So.2d 682. In this particular case, however, Mr. Trahan was not represented by counsel, made no appearance in court, and made no certification or indication to the court that he understood the governing principles and was acting in his own best interest. Similarly, the trial court’s judgment does not include a finding of the parties’ understanding of the governing principles or a finding that their best interests have been served. Under these facts, we find the statutory requirements have not been fulfilled.

The judgment of the trial court is reversed and this matter is remanded to the trial court for further proceedings on the merits. Costs of the appeal are assessed to Anna Hanks Trahan.

REVERSED AND REMANDED.