author: THIBODEAUX, Chief Judge.

text:
    CeCe SLOAN v. Renee MOUTON, et al.
    No. 11-804.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      John Edmund McElligott, Jr., Kyle Li-ney Mark Gideon, Theodore Glenn Edwards, IV, Christopher Joseph Piasecki, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, Lafayette, LA, for Plaintiff/Appellee, CeCe Sloan.
    Michael J. Breaux, Michael J. Breaux, L.L.C., Lafayette, LA, for Defendant/Appellant, Shelter Mutual Insurance Co.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.

      . Louisiana Code of Civil Procedure Article 1465.1 provides in pertinent part:
      A. Any party may serve upon the plaintiff or upon any other party whose medical records are relevant to an issue in the case a request that the plaintiff or other authorized person sign a medical records release authorizing the health care provider to release to the requesting party the medical records of the party whose medical condition is at issue. The release shall be directed to a specific health care provider, shall authorize the release of medical records only, and shall state that the release does not authorize verbal communications by the health care provider to the requesting party. La.Code Civ.P. art. 1465.1(A).

   THIBODEAUX, Chief Judge.

_JjThe plaintiff, CeCe Sloan, sustained injuries when her vehicle was struck by the vehicle of an underinsured driver. The defendant, Shelter Mutual Insurance Company, appeals from disputed elements in the jury verdict and the judgment awarding damages to the plaintiff. Ms. Sloan answered the defendant’s appeal and assigns various errors in the jury verdict and the judgment. For the following reasons, we amend in part and affirm the judgment of the trial court.

I.
ISSUES
We must decide:
(1) whether the trial court manifestly erred in granting additur and increasing the plaintiffs general damages by $70,000.00;
(2) whether the trial court manifestly erred in finding that the defendant had accepted the additur and waived its option for a new trial on damages;
(3) whether the trial court manifestly erred in finding that the accident caused the injuries to the plaintiffs shoulders and thumbs;
(4) whether the trial court manifestly erred in denying the plaintiffs motions in limine based upon the defendant’s ex parte communications with the plaintiffs physicians;
(5) whether the jury manifestly erred in its award of only $1,600.00 in future medical expenses; and,
(6) whether the jury manifestly erred in its award of $11,000.00 for past lost wages and zero for future lost wages.

II.

FACTS AND PROCEDURAL HISTORY

CeCe Sloan, age fifty-five at the time of trial, was injured in a motor vehicle accident in April of 2007, when the driver of another vehicle ran a stop |2sign, striking her vehicle and causing her to spin around and crash into a telephone pole. She sustained injuries to her head, chest, shoulders, arms, thighs, knees, and hands, including deep tissue bruising, the development of large cysts in her breasts, torn ligaments in her hands, and severe carpal metacarpal joint laxity in her thumbs. Her injuries required surgery to both hands with the placement of screws and pins into the joints. Ms. Sloan had nightmares after the crash and suffered anxiety, depression, sleeplessness, and nervousness.

The tortfeasor, Renee Mouton, and her insurer, U.S. Agencies Casualty Insurance Company, stipulated to liability, and Ms. Sloan settled with them for their policy limits of $10,000.00. Ms. Sloan received $5,000.00 in medical pay and $15,000.00 in tender from her uninsured-underinsured motorist (UM) carrier, Shelter Mutual Insurance Company. She proceeded to trial against Shelter for the remainder of her damages. The jury found that the accident had caused Ms. Sloan’s injuries and awarded her $120,450.00 in total damages. The jury’s award was comprised of:

$ 47,850.00 Past medical expenses
$⅞ ⅜ 1,600.00 Future medical expenses
$ 11,000.00 Past lost wages
■ -0- Loss of future earning capacity
$ 20,000.00 Past and future physical pain and suffering
$ 10,000.00 Past and future mental pain and suffering
-0- Loss of enjoyment of life $ 30,000.00 Permanent disability_
$120,450.00 Total damages

Ms. Sloan filed a motion for additur. The trial judge granted an additur of $70,000.00, increasing the award for physical pain and suffering by $30,000.00 (from $20,000.00 to $50,000.00); increasing the award for mental pain and suffering by $25,000.00 (from $10,000.00 to $35,000.00); and adding $15,000.00 for loss of enjoyment of life. The additur resulted in the following awards:

$ 47,850.00 Past medical expenses
1,600.00 Future medical expenses
11,000,00 Past lost wages
-0- Loss of future earning capacity
$ 50,000.00 Past and future physical pain and suffering
$ 35,000.00 Past and future mental pain and suffering
$ 15,000.00 Loss of enjoyment of life
$ 30,000.00 Permanent disability_
$190,450.00 Total damages

Shelter appealed, assigning three errors in the trial court’s judgment: (1) the jury’s finding of causation; (2) the judge’s finding of waiver by Shelter of its right to a new trial; and, (3) the judge’s additur in the amount of $70,000.00.

Ms. Sloan answered the appeal, assigning errors of her own in the trial court’s judgment: (1) the judge’s failure to exclude testimony following ex parte communications between Shelter and two physicians; (2) the jury’s failure to award a reasonable amount for past lost wages and future loss of earning capacity; and, (3) the jury’s failure to award a proper amount for future medical expenses.

We amend the award of future medical expenses by increasing it from $1,600.00 to $10,000.00. We affirm all other awards for the reasons set forth below.

m.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two tiered test must be applied in order to reverse the findings of the trial court:

a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
b. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

IV.

LAW AND DISCUSSION

Causation

Shelter contends that the jury erred in finding that the injuries to Ms. Sloan’s hands and shoulders were caused by the motor vehicle accident. Shelter concedes that the evidence on causation was conflicting. It, nonetheless, argues that the credible evidence was that Ms. Sloan’s shoulder bursitis and thumbs laxity conditions were not related to the accident. This argument has no merit. To overturn a jury finding, there must be no factual basis in the record to support the jury’s determination. Fleming v. Acadian Geophysical Services, Inc., 02-264 (La.App. 3 Cir. 10/02/02), 827 So.2d 623, unit denied, 02-2717 (La.1/10/03), 834 So.2d 440.

Here, three physicians testified that Ms. Sloan’s shoulder and hand injuries were causally related to the vehicular accident on April 6, 2007. Dr. Mitchell Dugas, Dr. Peter Vizzy, and Dr. Darrell Henderson, who performed the bilateral reconstructive hand surgeries, all positively testified regarding causation as to Ms. Sloan’s injuries. Shelter argues that Dr. Dugas, Ms. Sloan’s internist who treated her from April to November after the accident, did not record any complaints regarding her hands and shoulders, indicating that these problems were not related to the accident. Dr. Dugas, however, testified that, based upon his review of her entire chart and radiology reports, the shoulder and thumb issues were related to the April 6, 2007, motor vehicle accident.

Dr. Dugas first saw Ms. Sloan on April 24, 2007, and his major focus at that time was the lumps in her breasts, the crying, nightmares, sleeplessness, anxiety, and intrusive thoughts of the accident. He was concerned about cancer | ¿and ordered an ultrasound and mammogram of her breasts. He ruled out cancer, determining that the lumps were due to fluid build-up caused by deep tissue bruising and bleeding into the chest as a result of the injuries suffered in the automobile accident. Dr. Dugas did note issues with muscular pain and range of motion issues in the neck and bilateral shoulder area. On her third visit, Ms. Sloan had shortness of breath issues. Due to the trauma of the accident and the chest injuries, Dr. Dugas was concerned with her heart and lungs. He ordered chest x-rays, ultrasound, and an EKG. When he saw Ms. Sloan in October of 2007, he documented a sharp pain in her left hand and found crepitus, or crunching and popping, when he palpated it. He gave her steroid injections. By November, Ms. Sloan had bilateral thumb pain and lingering right shoulder pain. Dr. Dugas ordered x-rays of her right shoulder and referred her to the orthopedic surgeon, Dr. Peter Vizzy.

Dr. Vizzy testified that Ms. Sloan’s shoulder injuries and her thumb injuries were consistent with trauma from the motor vehicle accident where she was struck from the front, spun around, and was struck from the back. Dr. Vizzy found painful response and breakaway weakness in her shoulder, consistent with impingement bursitis, a tendonitis condition, and rotator cuff impingement, objectively confirmed on an MRI. Dr. Vizzy treated her shoulder with injections. Her shoulder was getting stronger and was about seventy percent (70%) improved by late January of 2008, but it was not without pain at this point.

With regard to her hands, Dr. Vizzy testified that Ms. Sloan had point tenderness at the carpal metacarpal (CMC) joint on both hands, which is at the base of the thumbs, at the very bottom. When he palpated these areas, the thumbs actually subluxed, or came in and out of their joints. Dr. Vizzy’s December 2007 x-rays, as well as the x-rays from November of 2007, showed the joint laxity in her thumbs but did not show any degenerative joint disease. Dr. Vizzy testified,J^however, that the joint condition can lead to arthritic changes. He testified that her previous physical therapy and hand braces had stopped helping and he injected Ms. Sloan’s thumbs with a steroid called Kena-log. When he saw Ms. Sloan in March of 2008, he talked to her about the possibility of surgery. By August of 2008, Ms. Sloan was developing arthritis due to inflammation in the CMC joints caused by the movement/laxity.

Dr. Vizzy confirmed that people like Ms. Sloan, who suffer multiple injuries over their bodies in accidents such as hers, hurt so much from injuries to their major extremities that they do not describe pain, or even broken bones, in their fingers, toes, ankles, and other small bones until months after the accident. Thus, he customarily tells emergency room patients to let him know if new pains become apparent. Dr. Vizzy specifically testified that the mechanism of injury to both of Ms. Sloan’s hands was very consistent with someone holding on to the steering wheel with both hands and being impacted during a crash, and that more likely than not, the trauma from the automobile accident produced the sub-luxation and CMC joint laxity. He further testified that because Ms. Sloan’s problems were not due to a degenerative condition, but involved a ligament and stability situation, he wanted a hand specialist to see her. He referred her to Dr. Robert Morrow. Dr. Vizzy testified that because hand surgery is aimed at relieving pain, but is not expected to completely restore strength and function, it should not be rushed into and could reasonably involve multiple people, including Ms. Sloan’s ultimate choice of having the surgery some time later by Dr. Henderson.

Dr. Morrow saw Ms. Sloan about eleven months after Dr. Vizzy’s treatment. Dr. Morrow ordered an MRI of Ms. Sloan’s hands in December of 2008, nineteen months after her accident. He found degenerative changes with some spur formation and testified that thumb laxity can occur without trauma and is more likely to develop in women over age fifty than in men. Dr. Morrow said he |7did not have enough information to relate the thumb problems to the accident and ultimately opined that it was more probable that they were not related. He did, however, recommend hand surgery to Ms. Sloan. Orthopedic surgeon Dr. Gary Porubsky, who examined Ms. Sloan in August of 2009 on behalf of Shelter, did not relate her thumb problems to the accident, opining that they were age-related and that she would have complained to Dr. Dugas before October of 2007 if the injuries were due to the April accident.

Dr. Darrell Henderson, a hand surgeon in Lafayette for forty-four years, saw Ms. Sloan in May of 2010. He performed reconstructive surgery, called first metacarpal arthroplasty, on her right hand in August of 2010 and on her left hand in late December of 2010, shortly before trial. Dr. Henderson testified that her hand injuries were definitely caused by trauma and were the result of holding so tightly to the steering wheel with both hands that when the airbag did not deploy, all of her force pushed on the steering wheel which basically pushed back on the base of her thumbs tearing the ligaments in the thumbs. He testified that when he went in to reconstruct the ligament that runs from the base of the thumb, the first metacarpal, to the second metacarpal, he found the ligament “torn apart very cleanly from the base of the second metacarpal.” Dr. Henderson said it was just lying there, and he was able to “very effectively use it to reattach that tendon to the second metacarpal.”

Dr. Henderson illustrated the mechanics of the injury to the jury and distinguished subluxation caused degeneratively by arthritis and subluxation caused by injury. Dr. Henderson testified that when he operated on Ms. Sloan in December of 2010, he had done five exact operations that month, and only one patient had degeneration from arthritis, while the others were trauma victims who had had some kind of accident. He said that Ms. Sloan did not have arthritis |sthroughout the joint, which was pristine except for the spurs that had grown into the joint some time after the accident.

Accordingly, based upon the testimony of Dr. Dugas, Dr. Vizzy, and Dr. Henderson, the jury clearly had a reasonable basis for finding that the accident caused the injuries to Ms. Sloan’s shoulders and hands.

Additur

■ Shelter contends that the trial judge erred in increasing Ms. Sloan’s general damages by $70,000.00. We disagree ■with Shelter and affirm the trial court’s granting of additur. The jury’s original verdict awarding only $60,000.00 was abusively low where it was to cover all physical pain and suffering, past and future, all mental pain and suffering, past and future, loss of enjoyment of life, and permanent disability.

Specifically, at the end of trial, the jury awarded Ms. Sloan $30,000.00 for permanent disability, $20,000.00 for past and future physical pain and suffering, $10,000.00 for past and future mental pain and suffering, and zero for loss of enjoyment of life. Pursuant to La.Code Civ.P. art. 1814, the trial judge may grant additur if he is of the opinion that the jury’s verdict is so inadequate that a new trial should be granted for that reason only. After a hearing on Ms. Sloan’s motion for additur, the trial judge found three awards inadequate, and he increased the physical pain and suffering award to $50,000.00; he increased the mental pain and suffering award to $35,000.00; and, he awarded $15,000.00 for Ms. Sloan’s loss of enjoyment of life. “In reviewing a judgment reformed in accordance with a remittitur or additur, the court shall consider the reasonableness of the underlying jury verdict.” La.Code Civ.P. art. 2083(B).

Here, the record reveals that Ms. Sloan suffered painful physical injuries as a result of the accident, and her mental injuries were severe enough to |ncause post-traumatic stress in the form of nightmares and intrusive thoughts during the day, an inability to sleep, nervousness and anxiety. The record reveals that during the accident, Ms. Sloan held so tightly to her steering wheel with both hands, in order to brace herself for the crash, that the pressure she exerted actually bent and deformed the steering wheel. She suffered blunt force trauma with deep tissue bruising to her chest, and she developed post-traumatic cystic accumulations in her breasts. Ms. Sloan also had severe soft tissue injuries to her head, shoulders, forearms, thighs, and knees, some of which took months to heal. She had stinging pain in the tops of both hands which increased and intensified as her thumb strength weakened, ultimately leading to reconstructive surgeries and impairment to both hands.

Ms. Sloan, historically, had very physical occupations and used her hands extensively in her earlier work as an environmental lab assistant, as a landscape gardener, as a nurse’s assistant performing healing touch massage therapies, as a stress counselor performing reflexology therapy, and she was reportedly pursuing a therapy license in reflexology. She also restored houses and enjoyed cooking. Ms. Sloan endured four years of treatment, extensive therapy, two hand surgeries with the possibility of future surgeries, and was left with a permanent impairment to both hands of approximately twenty-five percent. The jury awarded her $30,000.00 for the permanent disability but only $20,000.00 for past and future physical pain and suffering and $10,000.00 for past and future mental suffering.

Louisiana jurisprudence supports the trial judge’s finding that additur of $30,000.00 was appropriate for physical pain and suffering in Ms. Sloan’s case. See Miller v. Chicago Ins. Co., 306 So.2d 355 (La.App. 3 Cir.), judgment affirmed, 320 So.2d 134 (La.1975) (affirmed additur of $20,000.00 to a $21,000.00-award for multiple physical injuries where there was a twenty percent disability, and the | ¶ nrange of general damage awards for similar injuries was $35,000.00 to $100,000.00); Greer v. State ex rel. Dep’t of Transp., 06-417 (La.App. 3 Cir. 10/4/06), 941 So.2d 141, writ denied, 06-2650 (La.1/8/07), 948 So.2d 128 (physical pain and suffering awards increased from $3,000.00 to $75,000.00 for shoulder, hip, and knee injuries); Pertuit v. State Farm Ins. Co., 04-176 (La.App. 5 Cir. 6/29/04), 877 So.2d 1101 ($90,000.00 in general damages for injury to right hand); Boudreaux v. Schwegmann Giant Supermarkets, 585 So.2d 583 (La.App. 4 Cir. 1991), writs denied, 590 So.2d 593, 595 (La.1992) (general damage award increased from $50,000.00 to $75,000.00 for injury to left hand).

Our jurisprudence also supports the trial judge’s additur of $15,000.00 for Ms. Sloan’s loss of enjoyment of life. “Loss of enjoyment of life, sometimes known as hedonic damages, refers to the detrimental alterations of a person’s life or lifestyle or a person’s inability to participate in the activities or pleasures of life that were formerly enjoyed.” McGee v. A C And S, Inc., 05-1036, p. 4 (La.7/10/06), 933 So.2d 770, 773. Given the conceptual difference between pain and suffering and loss of enjoyment of life, a separate award for loss of enjoyment of life is warranted and is not duplicative of the award for pain and suffering, if the damages resulting from loss of enjoyment of life are sufficiently proven. Id. Here, the impairments to Ms. Sloan’s hands prevented her from cooking, gardening, holding her grandchild, and for a while, even holding a glass of water. Ms. Sloan, who was described by friends and co-workers as a “do-er” and outdoor person, was assessed a twenty-five percent impairment to her hands and would not be able to do the hand intensive activities that she had enjoyed before, except in a supervisory capacity, including landscape gardening and some home improvement activities.

In Basco v. Liberty Mutual Insurance Co., 05-143 (La.App. 3 Cir. 8/17/05), 909 So.2d 660, we reversed the jury’s rejection of an award for future loss of enjoyment of life and awarded the plaintiff $40,000.00 where decreased |nrange of motion and weakness in his left arm and hand resulted in a permanent impairment of ten to fifteen percent and curtailed the plaintiffs hunting and fishing activities and prevented his dancing and volunteer activities. Accordingly, the trial judge did not abuse his discretion in conservatively increasing the jury’s award from zero to $15,000.00 for Ms. Sloan’s loss of enjoyment of life.

The record further reveals that Dr. Du-gas treated Ms. Sloan with antidepressant medication for crash-related intrusive thoughts, nightmares, anxiety, depression, nervousness, sleeplessness, and crying bouts. Dr. Dugas testified that emotional problems were one of his major concerns initially. These symptoms were confirmed by friends and co-workers of Ms. Sloan. Accordingly, the trial judge’s additur of $25,000.00 to the $10,000.00 jury verdict for past and future mental pain and suffering was proper. See Cluse v. H & E Equip. Servs., Inc., 09-574 (La.App. 3 Cir. 3/31/10), 34 So.3d 959, writ denied, 10-994 (La.9/17/10), 45 So.3d 1043 (awarded $40,000.00 -for emotional suffering and mental anguish as a result of wrongful conversion of property); Taylor v. Progressive Sec. Ins. Co., 09-791 (La.App. 3 Cir. 4/7/10), 33 So.3d 1081, writ denied, 10-1024 (La.9/17/10), 45 So.3d 1044 (affirmed $125,000.00 for mental anguish to accident victim); Grieff v. Parish of Jefferson, 98-1262 (La.App. 5 Cir. 12/13/00), 780 So.2d 425, writs denied, 01-330, 01-341 (La.4/12/01), 789 So.2d 592, 593 (awarding $52,000.00 for past and future mental anxiety suffered after deputy fell from building’s steps); Berthelot v. Aetna Cas. and Sur. Co., 623 So.2d 14 (La.App. 1 Cir.1993) (awarding $50,000.00 in general damages for posttraumatic stress caused by electrical shock from beer dispensing trailer at church fair).

Shelter’s Waiver of its Option for a New Trial

Finally, Shelter contends that the trial judge erred in denying Shelter a new trial as an alternative to granting the addi-tur. We disagree. Counsel for |12Shelter unequivocally consented to the additur as a procedural matter, stating: “I’m going to consent to the additur under protest and we will waive our right to a new trial, and we’ll simply go the appeal route or pay [the additur].” Accordingly, the trial court did not err in finding that Shelter had consented to the additur and waived its right to a new trial. Notwithstanding, Shelter argues that the trial court did not get Shelter’s consent in writing earlier in the proceedings. We do not find a requirement that the consent be in writing.

The pertinent statute, La.Code Civ.P. art. 1814, provides as follows:

If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, it may indicate to the party or his attorney within what time he may enter a remittitur or additur. This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case may be, as an alternative to a new trial, and is to be entered only if the issue of quantum is clearly and fairly separable from other issues in the case. If a remittitur or additur is entered, then the court shall reform the jury verdict or judgment in accordance therewith.

The purpose of this legislation is “[to serve] judicial efficiency by allowing the parties to avoid a possibly unnecessary new trial and then to seek appellate review of the correctness of the judgment reformed by additur or remittitur.” La. Code Civ.P. art. 1814, Comment, (b).

Here, the three-day trial ended on February 24, 2011. Following the jury’s verdict, counsel for Ms. Sloan asked counsel for Shelter if he would consent to an addi-tur if the trial court was inclined to grant it. Counsel for Shelter would not commit. Ms. Sloan’s counsel filed a motion for addi-tur. A hearing on additur was held on March 25, 2011. The transcript of that hearing is forty-eight pages long. Much argument was heard from counsel for Ms. Sloan in support of additur on several of the jury’s awards. Likewise, much argument was heard from counsel for Shelter in opposition to any increase in the jury’s awards. At the end of the hearing on additur, the trial judge indicated that he was going to increase three of | mthe jury’s awards that he found inadequate and that he would grant the additur as to those awards, as discussed above. Counsel for Shelter did not object further or ask for a new trial at that time.

Counsel for Ms. Sloan prepared a “Final Judgment” and sent it to Shelter’s counsel for review. Counsel for Shelter sent correspondence to counsel for Ms. Sloan, objecting to the proposed judgment, stating that the judgment should order Shelter to file a written acceptance or refusal of the additur within a specified period of time. The letter asked that a new judgment be submitted to counsel for Shelter which followed these directions.

Counsel for Ms. Sloan then filed a “Motion to Enter Judgment,” attached the proposed judgment, and expressed the belief that Shelter had consented to the additur or waived its objection after the hearing on additur. Shelter filed an opposition to the plaintiffs Motion to Enter Judgment, and the trial court had a hearing on that motion and opposition on April 15, 2011. Finally, at the end of the April hearing, Shelter specifically stated that it waived the consent to additur under protest and preserved its right for appeal.

As stated, we find no requirement for written consent. In Accardo v. Cenac, 97-2320 (La.App. 1 Cir. 11/6/98), 722 So.2d 302, cited by Shelter, the record did not contain evidence of an official acceptance or rejection of the trial court’s additur. There, where the defendant drafted the judgment and included the additur, the appellate court inferred that the defendant was willing to accept additur “rather than face the alternative of having the matter remanded to the trial court for the granting of a new trial.” Id. at 307. There, the appellate court stated:

An appeal of a judgment reformed by additur is allowed by La. C.C.P. art. 2083, by either the party seeking the reformed judgment or the party adversely affected by the reformed judgment, even after having consented to such. Hodapp v. American Indemnity Company, 618 So.2d 32 (La.App. 3 Cir. 1993); Karl v. Amoco Production Company, 492 So.2d 1279 (La.App. 3 Cir. 1986). In such cases, the party is said to have consented under protest, thereby preserving its right to appeal. See, e.g., Fleming v. Smith, 93-488 (La.App. 5 Cir. 5/31/94), 638 So.2d 467; Richard v. Domingue, 542 So.2d 797 (La.App. 3 Cir.1989). Accordingly, the trial court did not act without authority in granting an additur, with the defendant’s consent, and in denying plaintiffs’ alternative request for a new trial. Further, the plaintiffs and the defendant both have the right to appeal the granting of the additur; thus, the appeal is properly before us.

Id. (footnote omitted).

Similarly, the court in Cox v. Julian, 03-107 (La.App. 5 Cir. 5/28/03), 846 So.2d 986, found that the defendant tacitly agreed to additur where the record did not indicate that the defendant agreed to or objected to the additur. There, the court reasoned that the appeal was devolutive and that the defendant had already paid the judgment amount which included the additur.

In Corbello v. Iowa Production, 01-567 (La.App. 3 Cir. 12/26/01), 806 So.2d 32, aff'd in part and rev’d in part, 02-826 (La.2/25/03), 850 So.2d 686, where the record contained no transcript of the hearing on the motions for a judgment notwithstanding the verdict, or new trial, or remit-titur, we stated: “Nothing in the record indicates that Plaintiffs were given the opportunity to choose a new trial on the issue, rather than the remittitur. Accordingly, we conclude that the trial court committed error when it granted the remitti-tur.” Id. at 39. Conversely here, while the trial court did not specifically ask for written consent and give Shelter additional time to decide, we do not find reversible error because opportunity was presented to Shelter at the end of trial, by the plaintiff, and at the end of the hearing on additur, one month after the jury entered its verdict, and Shelter did not commit to or ask for a new trial. As previously indicated, the transcript on the hearing on additur is forty-eight pages long. The | ^purpose of additur is judicial economy, as explained above. In this case, Shelter not only failed to commit to a new trial twice, but Shelter caused an additional hearing on a “Motion to Enter Judgment” six weeks after the hearing on additur and over two months after the jury verdict.

Ex-Parte Communications

In answering Shelter’s appeal of the above three issues, Ms. Sloan has assigned errors of her own. She contends that Shelter engaged in ex-parte communications with Dr. Mitchell Dugas, and with Dr. Robert Morrow, and that Shelter’s examination of those physicians at trial should have been excluded by the trial court. We find that the ex-parte communications were in absolute violation of La. Code Evid. art. 510, which provides a privilege for communications between a personal injury litigant and her physician, except for trial testimony and procedurally proper discovery; and, they were in absolute violation of La.Code | mCiv.P. art. 1465.1, which mandates the release of a plaintiffs written medical records, but prohibits verbal communications between the healthcare provider and the party requesting the medical records. Notwithstanding the defendant’s violations of these articles, however, we will not reverse the trial court for the failure to exclude the testimony of Dr. Dugas and Dr. Morrow in this case, because the result would be the same.

More specifically, Shelter’s counsel met with Dr. Dugas at some time prior to taking his deposition, allegedly to obtain a translation of the doctor’s hand written notes. In Coutee v. Global Marine Drilling Co., 04-1293 (La.App. 3 Cir. 2/16/05), 895 So.2d 631, reversed on Jones Act negligence per se issue, 05-756 (La.2/22/06), 924 So.2d 112, we found that the trial court had abused its discretion in allowing the testimony of one of the plaintiffs treating physicians who accepted documents from defense counsel, engaged in telephone conversations, and met with defense counsel. In Coutee, we found that, after the ex-parte communication, the physician, who had not previously so noted in his records, offered his opinion that the plaintiff may have intentionally magnified his symptoms. There, we found that this testimony impacted the trial and that, absent the physician’s testimony, the case might have been decided differently.

In Coutee, however, where the plaintiff did not learn of the communication until the day of trial, we distinguished the defendant’s cited case because the communication took place prior to the physician’s deposition, and there was ample notice to the plaintiff of the communication and an opportunity to 117prepare a rebuttal. Similar to Coutee, in Boutte v. Winn-Dixie Louisiana, Inc., 95-1123 (La.App. 3 Cir. 4/17/96), 674 So.2d 299, we determined that the physician’s testimony appeared to have startled the plaintiffs counsel and cast a cloud over the plaintiffs credibility as a witness.

Here, following the ex parte communication before Dr. Dugas’ deposition was taken, counsel for Ms. Sloan had the opportunity to question Dr. Dugas, during his deposition, regarding the scope of the meeting. Subsequently, Dr. Dugas testified that Ms. Sloan’s shoulder and thumb injuries were likely related to her automobile accident. The apparent impact of the ex parte communication that occurred in Coutee and Boutte does not exist in this case with regard to Dr. Dugas’ testimony.

The ex parte communications with Dr. Morrow are more problematic because Shelter wrote to Dr. Morrow and requested a conference and verbal communications with him in violation of La.Code Civ.P. art. 1465.1. The correspondence further requested Dr. Morrow’s assistance in cross-examining Dr. Henderson, whose opinion differed from Dr. Morrow’s. Additionally, counsel for Shelter consulted with Dr. Morrow outside the courtroom immediately prior to trial to go over a medical textbook and to discuss his opinion on joint degeneration and on causation. The trial court allowed Ms. Sloan’s counsel to question Dr. Morrow regarding this last communication just before the jury was brought in. The trial court then found that counsel for Shelter did communicate with the doctor, but said it was not improper this time. He then instructed Shelter’s counsel not to communicate with any other doctors for the rest of trial without first speaking .to opposing counsel or the court. The trial court then told Dr. Morrow to remain in the witness box, and he called in the jury.

118Even though Dr. Morrow said that his opinion on causation had not changed since his deposition, the event in the courthouse surprised Ms. Sloan’s attorney to some extent and put the court in the position of making a hasty decision on whether to exclude a doctor’s testimony immediately before the jury was brought into the courtroom. Notwithstanding, in this case the jury apparently placed more weight on the testimony of Dr. Dugas, Dr. Vizzy, and Dr. Henderson, finding that Ms. Sloan’s injuries were causally related to her accident. Therefore, even if the trial court had excluded the testimony of Dr. Morrow, the result would be the same.

We find that, in the instance of the ex-parte communications with Dr. Morrow, the written correspondence sought, and the consultation in the courthouse immediately before trial accomplished, verbal communications with the plaintiffs physician that are specifically prohibited by La. Code Civ.P. art. 1465.1. Such violations’ need not be prejudicial, as the prohibition of verbal communication in La.Code Civ.P. art. 1465.1 is absolute. However, as Dr. Morrow’s testimony had no discernible impact on the jury verdict, we will not reverse on this issue.

Future Medical Expenses

Ms. Sloan further contends that the jury manifestly erred in awarding only $1,600.00 in future medical expenses and seeks an increase to $10,000.00 for that element of damages. We agree. Dr. Henderson testified that Ms. Sloan’s first metacarpal arthroplasty surgery would likely have to be repeated in each hand in approximately ten years, at a cost of around $11,000.00 per hand. Dr. Morrow testified that she could develop symptoms that would require another surgery, but that he thought it was too early to tell. Dr. Porubsky testified that most people do not have to have the surgery repeated in ten years. At the time of trial, however, |19Ms. Sloan’s left hand was still in a splint from the first surgery, and she had not yet begun physical therapy on the left hand.

Dr. Henderson testified that Ms. Sloan would be in physical therapy for approximately six to nine months before maximum medical improvement was achieved and that her post-surgery physical therapy costs would range from $5,000.00 to $15,000.00, depending upon how well she did. Based upon the foregoing, the jury’s award of $1,600.00 for all future medical expenses was an abuse of discretion.

The award of future medical expenses •must be supported by medical testimony indicating both their need and probable cost. Holliday v. United Servs. Auto. Ass’n, 569 So.2d 143 (La.App. 1 Cir. 1990). “However, when the need for future medical care has been demonstrated but cost is not susceptible of determination, the court may make a reasonable award.” Id. at 146 (citing Guillory v. Avondale Shipyards, Inc., 448 So.2d 1281 (La.1984), and Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971)).

Thibeaux v. Trotter, 04-482, p. 9 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, 1133, writ denied, 04-2692 (La.2/18/05), 896 So.2d 31.

Accordingly, we amend the jury’s award of $1,600.00 and increase that award by $8,400.00, for a total award of $10,000.00 for future medical expenses.

Past Wage Loss & Loss of Future Earning Capacitg

Ms. Sloan contends that the jury manifestly erred in awarding only $11,000.00 in past lost wages, and she seeks an increase to $40,000.00 for that element of damages. We must disagree.

Special damages for lost wages must be proved with reasonable certainty. Skipper v. Berry, 99-1433 (La.App. 3 Cir. 3/15/00), 762 So.2d 56. To recover for actual wage loss, a plaintiff must prove positively that she would have been earning wages but for the accident in question. It is the plaintiffs burden to Prove the amount of work missed due to injuries caused by the accident. Boyette v. United Servs. Auto. Ass’n, 00-1918 (La.4/3/01), 783 So.2d 1276.

At the time of the accident, Ms. Sloan was a part-time stress counselor with Volunteers of America, working one-on-one with victims of Hurricane Katrina. She began working with them in November of-2005. In 2006, she made approximately $2,000.00 per month. In 2007, she was making $20.00 per hour and averaging 93.57 hours per month. Ms. Sloan’s position with Volunteers of America was funded by grants. The organization began phasing out the stress counselor positions and dropped Ms. Sloan from the program on October 30, 2007. For the ten years prior to her employment with Volunteers of America in November of 2005, Ms. Sloan testified that she restored houses and performed healing touch therapy. However, during this period, she did not file tax returns and was listed as a dependent on her partner’s tax returns. Ms. Sloan testified that she was listed as a dependent because she was supported by her partner.

The jury also heard testimony that by July of 2007, after the accident in April, Ms. Sloan was traveling to Arkansas to supervise the building of a cabin there. Accordingly, the jury apparently found Ms. Sloan’s lost earnings as a result of the accident speculative except for the wages she could have earned at Volunteers of America between the accident in April and the end of the counseling position in October of 2007. Because there is a reasonable basis for the jury’s award, we will not disturb it.

Finally, Ms. Sloan contends that the jury manifestly erred in not awarding any damages for her loss of future earning capacity. She seeks $12,000.00 for six months of post-trial therapy and disability to her left hand, which was still in a splint at the time of trial. Again, we must disagree.

In determining a proper award for loss of future wages, the fact finder considers the plaintiffs pre-injury physical condition, work history, consistency of |21the plaintiffs work, the amount the plaintiff could have earned but for the accident, and the probability that the plaintiff would have continued to earn wages over the remainder of her life. Dugas v. Derouen, 01-1397 (La.App. 3 Cir. 7/3/02), 824 So.2d 475, writ denied, 02-2131 (La.11/15/02), 829 So.2d 426.

While Ms. Sloan’s hands suffered some impairment, there was medical testimony that she could supervise landscaping and the physical types of work that she had done in the past, and that she could perform the healing touch therapy. However, while Ms. Sloan had gotten to level five of the healing touch training in the 1980’s, there was no proof of income from that type of work in the ten years before the accident. Her desires to obtain a license in reflexology, which is more hand intensive, were speculative. Moreover, Ms. Sloan was successfully supervising property development and the building of a cabin in Arkansas in July of 2007 following the accident in April. While that property was allegedly donated, and there was no proof of income from it, the jury could have reasonably determined that Ms. Sloan was not prevented from working and earning income as a result of the accident.

V.

CONCLUSION

Based upon the foregoing, we amend the trial court judgment to increase the award of future medical expenses from $1,600.00 to $10,000.00, and we affirm the judgment in all other respects. Costs of this appeal are assessed to the defendant.

AFFIRMED AS AMENDED.

      . .We note that the judgment described and requested by Shelter would not have been a final appealable judgment, and it would have been subject to being set aside by the trial court. See VaSalle v. Wal-Mart Stores, Inc., 01-462 (La.11/28/01), 801 So.2d 331, holding that a ruling giving defendants a choice between additur and new trial is an interlocutory ruling, not a final judgment, as it does not determine the merits of the action.

      . Louisiana Code of Evidence Article 510 provides in pertinent part:
      B. (1) General rule of privilege in civil proceedings. In a non-criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives.
      (2) Exceptions. There is no privilege under this Article in a noncriminal proceeding as to a communication:
      (a) When the communication relates to the health condition of a patient who brings or asserts a personal injury claim in a judicial or worker’s compensation proceeding.

      E. Waiver. The exceptions to the privilege set forth in Paragraph B(2) shall constitute a waiver of the privilege only as to testimony at trial or to discovery of the privileged communication by one of the discovery methods authorized by Code of Civil Procedure Article 1421 et seq., or pursuant to R.S. 40:1299.96 or R.S. 13:3715.1.

      G. Sanctions. Any attorney who violates a provision of this Article shall be subject to sanctions by the court.

      . See Hortman v. Louisiana Steel Works, 96-1433 (La.App. 1 Cir. 6/20/97), 696 So.2d 625, writ denied, 97-1919 (La. 11/7/97), 703 So.2d 1268.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    AMERICAN POSTAL WORKERS UNION, AFL-CIO HEALTH PLAN v. Yolanda TIPPETT, Ronald Tippett, Broussard & Hart, LLC.
    No. 11-881.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      Brian W. Arabie, Arabie Law Firm, Lake Charles, LA, for Plaintiff/Appellee, American Postal Workers Union, AFL-CIO Health Plan.
    Steven Broussard, Broussard & Hart, LLC, Lake Charles, LA, for Defendants/Appellants, Yolanda Tippett and Ronald Tippett.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

11 Defendants, Yolanda Tippett and Ronald Tippett, appeal the trial court’s judgment in favor of Plaintiff, American Postal Workers Union, AFL-CIO Health Plan (Health Plan), awarding Plaintiff $48,610.86, representing reimbursement for medical expenses paid by the Health Plan for medical treatment received by Mr. Tippett as a result of an automobile accident. For the following reasons, we affirm as amended.

FACTS AND PROCEDURAL HISTORY

Ronald Tippett was involved in an automobile accident on April 15, 2003, which resulted in a lawsuit being filed against the tortfeasor and his insurer. As a result of the injuries sustained in the accident, Mr. Tippett incurred medical expenses in the amount of $48,610.86 which were paid by the Health Plan pursuant to a health insurance policy issued through his wife’s employment as a postal worker. The Tip-petts elected to settle their claims against the tortfeasor and his insurer for $653,712.25, and that lawsuit was dismissed. The Health Plan made demand upon the Tippetts for reimbursement of all the medical expenses it paid on behalf of Mr. Tippett. The Tippetts maintained that the Health Plan was not entitled to any reimbursement. Consequently, the Health Plan instituted the instant litigation, seeking reimbursement of the $48,610.86 it paid on behalf of Mr. Tippett.

The Health Plan filed a Motion for Summary Judgment, asserting that there were no disputed material issues of fact and that the Health Plan was entitled to judgment for $48,610.86 as a matter of law. Following a hearing on April 11, |¾2011, the trial court rendered judgment in favor of the Health Plan. The Tippetts appeal.

ASSIGNMENTS OF ERROR

The Tippetts present the following assignments of error for our review:

1. The trial court erred in finding that Ronald Tippett had been “made whole” as a result of the settlement of his tort claim, and[,] therefore, [the] Health Plan was entitled to reimbursement under its contract.
2. Alternatively, should this [c]ourt affirm the trial court’s decision ordering reimbursement, then it is submitted the trial court was in error for not reducing the reimbursement for [Mr.] Tippett’s attorney fees and litigation expenses in connection with obtaining the recovery for [the] Health Plan.

LAW AND DISCUSSION

In their first assignment of error, the Tippetts contend that the trial court erred in ordering reimbursement to the Health Plan because they have not been “made whole” from the settlement of their claims with the tortfeasor. To the contrary, the Health Plan asserts that the Tippetts are contractually obligated to reimburse it for the medical expenses which it paid on behalf of Mr. Tippett stemming from the accident with the tortfeasor.

An insurance policy is a contract between the parties. Innovative Hospitality Sys., LLC v. Abraham, 10-217 (La. App. 3 Cir. 4/6/11), 61 So.3d 740, writ denied, 11-845 (La.6/17/11), 63 So.3d 1036. While the parties are generally free to agree to whatever terms and conditions they wish to contractually oblige themselves, any provisions which are against public policy are not enforceable. Id.

In this instance, the provisions of the insurance policy included a reimbursement provision which states as follows (emphasis added):

When others are responsible for injuries
If you or your dependent’s injury is caused by another person or entity, the Health Plan will pay benefits for that injury or illness according to the terms of the Brochure in effect at the time services are provided. If the Health Plan pays any benefits for |sthat injury or illness, when you or your dependent receive money or have a right to receive money from any source, including underinsured and uninsured automobile coverage, as a result of this injury or illness, you or your dependent must reimburse the Health Plan for any expenses we paid for that injury or illness. The amount owed to the Health Plan will not be reduced for attorney’s fees or costs nor because you or your dependent was not fully compensated for the injury or illness unless the Plan agrees in writing to a reduction.
Following Mr. Tippett’s injury, Mrs. Tippett completed a Health Plan questionnaire about Mr. Tippett’s accident and signed the following statement:
I have read and understand that the subrogation and workers’ compensation provisions of the American Postal Workers Union Health Plan Brochure. I understand that the Health Plan, by operation of law and contract, has a right to full reimbursement for medical bills paid as a result of an accident, injury, or illness if any recovery from any source is made on account of that accident, injury, or illness.

The provisions of the insurance policy unambiguously mandate reimbursement of the medical expenses paid on behalf of Mr. Tippett regardless of whether the insured was “fully compensated” or “made whole.” However, these provisions do not end the inquiry. Next, we must determine if the contractual provisions are violative of public policy.

The Louisiana Commissioner of Insurance issued Directive 175 (emphasis added) on January 8, 2003, which sets forth, in pertinent part, as follows:

|4While insurers are free to include whatever provisions they choose in their policies, the provisions must be consistent with the laws and public policy of Louisiana. It has long been the public policy of this state, as expressed in Louisiana jurisprudence, that subrogation provisions in insurance contracts cannot harm the insured. This same rule of public policy applies to reimbursement provisions in insurance contracts. Further, an insurer invoking a subrogation or reimbursement provision is required by the public policy of this state to contribute to the attorney’s fees incurred in obtaining a recovery from the third party.

The provisions of the insurance policy whereby the contract requires that an insured reimburse the Health Plan for medical expenses it paid on his/her behalf, regardless of whether the insured is “fully compensated,” runs afoul of Directive 175 since no consideration is given as to whether enforcement of same would necessarily result in harm to the insured. If there is a determination that enforcement of the contractual reimbursement provisions results in harm to the insured, then the insurance policy would be inconsistent with the public policy provisions set forth in Directive 175.

Despite the Tippetts’ contention that they had not been made whole via settlement, the trial court concluded that they owed full reimbursement to the Health Plan, reasoning as follows:

[I]f you’ve settled a case or the case is [sic] gone to trial and it has been taken care of throughout all of the appeal’s process in that manner then you have been made whole whether or not your client believes they [should have] received more money or not.
The made-whole doctrine applies and based on the fact that you settled the case, you were satisfied that your clients were made whole and therefore they have to honor their contract.

In this case, the Tippets filed a lawsuit against the tortfeasor. The Tippetts were aware that Mr. Tippett’s medical expenses had been paid by the Health Plan. Following the accident, Mrs. Tippett signed the Health Plan questionnaire expressly acknowledging the Health Plan’s right of reimbursement for the medical ^expenses that it paid. Additionally, there was correspondence between the Health Plan and counsel for the Tippetts advising them of the amounts paid out and the Health Plan’s right of reimbursement. When the Tippetts reached their settlement with the tortfeasor for $653,712.25, they were aware of their contractual obligation to reimburse the Health Plan. The Tippetts voluntarily agreed to a settlement amount with full knowledge of their contractual obligation of reimbursement and the amount thereof; therefore, they cannot evade that obligation by subsequently asserting that the amount of settlement was insufficient for them to have been made whole.

For the foregoing reasons, notwithstanding the issue of attorney fees, we find no error in the judgment of the trial court ordering the Tippetts to reimburse the Health Plan for the medical expenses it paid.

In their second assignment of error, the Tippetts contend that should this court affirm the trial court’s decision relative to reimbursement, then the amount of the award must be reduced for attorney fees and litigation expenses that they incurred in obtaining recovery of the medical expenses incurred. We agree as to attorney fees.

As quoted above, Directive 175 negates any policy provision which results in harm to the insured. Moreover, the directive expressly provides that “an insurer invoking a subrogation or reimbursement provision is required by the public policy of this state to contribute to the attorney! ] fees incurred in obtaining a recovery from a third party.” In this instance, it was only through the expenditure of time, effort, and resources of counsel for the Tippetts that any recovery was obtained from the tortfeasor. The amount of that recovery undisputedly includes an amount for medical expenses which enures to the benefit of the Health Plan. Directive 175 specifically states that an insurer is required by public policy to contribute to the | (¡attorney fees incurred in obtaining a recovery from a third party. The trial court failed to award the Tippetts any contribution toward attorney fees in violation of Directive 175. The judgment of the trial court must, therefore, be amended to provide for such contribution.

The record indicates that the Tippetts paid their attorney one-third of the settlement amount less the amount designated for property damage. We find that the Health Plan’s contribution toward attorney fees should likewise be one-third of the amount that it is to receive. Accordingly, the $48,610.86 in reimbursement owed by the Tippetts to the Health Plan must be reduced by $16,203.62 (one-third of $48,610.86) for attorney fees.

DECREE

For the reasons assigned, the judgment of the trial court in favor of American Postal Workers Union, AFL-CIO Health Plan, in the amount of $48,610.86 is reduced and amended to $32,207.24. As amended, the judgment of the trial court is affirmed. Costs of this appeal are assessed equally among the parties.

AFFIRMED AS AMENDED.

      . Broussard & Hart, LLC was also named as a Defendant in the instant matter. Although judgment was rendered only against the Tip-petts, the appeal filed with this court included Broussard & Hart, LLC. However, that entity acknowledges in brief that it was "inadvertently” included in the motion for appeal, and, "since no judgment was rendered against Broussard & Hart, LLC, [it] should not be considered as a party to this appeal.”

      . The Louisiana Commissioner of Insurance has the authority to make rules and regulations in order to make effective the implementation of the Insurance Code. These directives have the force and effect of law. See La.R.S. 22:2(E); La.R.S. 22:11(A).


author: AMY, Judge.

text:
    Richard L. GILL v. Gabrielle A. BENNETT & Laurie Bridges.
    No. 11-886.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.
    Rehearing Denied Jan. 18, 2012.

      Madison Clay Williams, Williams & Nelson, Leesville, LA, for Plaintiff/Appellee, Richard L. Gill.
    Gabrielle A. Bennett, Ft. Polk, LA, In Proper Person.
    Laurie Bridges, Merryville, LA, In Proper Person.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   AMY, Judge.

hThe plaintiff brought this action, seeking to resolve a custody dispute. After a hearing, the trial court awarded joint custody to the mother and father and awarded visitation to the grandmother. The grandmother appeals. For the following reasons, we affirm.

Factual and Procedural Background

The subject of this custody dispute, Madison Bennett, was born in 2005 to the plaintiff, Richard Gill, and the defendant, Gabrielle Bennett (now Harmon). The record indicates that, at the time of Madison’s birth, Mr. Gill resided in Louisiana and Mrs. Harmon, along with her mother, Laurie Bridges, resided in Indiana. There was testimony that, in 2006, Ms. Bridges became Madison’s primary caretaker. Ms. Bridges subsequently obtained an Order of Permanent Guardianship from the Elkhart (Indiana) Superior Court.

In January 2009, after a paternity test confirmed that Mr. Gill was Madison’s father, Ms. Bridges, Mrs. Harmon, and Madison moved to Louisiana. The record indicates that Ms. Bridges and Madison initially moved in with Mr. Gill and his family, but that, as relations between the parties became increasingly problematic, Ms. Bridges and Madison moved out. Mr. Gill later filed this action, seeking custody of Madison.

In response to Mr. Gill’s custody petition, Ms. Bridges filed several pleadings in the trial court. In her answer, Ms. Bridges asserted that, although Mr. Gill was Madison’s biological father, he was not her legal parent. Ms. Bridges later filed a petition seeking a declaration that she was Madison’s “de facto” parent. Mr. Gill filed an exception of no cause of action regarding this latter | ¡.assertion, which was granted by the trial court. After a trial, the trial court awarded joint custody to Mr. Gill and Mrs. Harmon and designated Mr. Gill as the domiciliary parent. The trial court also found that Ms. Bridges was not entitled to legal custody. However, the trial court found that, as contemplated by La.Civ.Code art. 136(B), exceptional circumstances existed and that Ms. Bridges was entitled to reasonable visitation. Thus, the trial court awarded Mrs. Harmon visitation on alternating weekends and awarded Ms. Bridges visitation for one weekend per month.

Ms. Bridges appeals, asserting as error that:

1) The trial court erred through an unwarranted abuse of discretion by [its] failure to adjudicate legal parentage of Madison Kay Bennett, a minor child.
2) The trial court erred through an unwarranted abuse of discretion by reckless disregard of defendant/appellant, Laurie Bridges, right to be heard and her status, as a person acting as a parent “de facto.[”]
3) The trial court erred by its failure to establish a jurisdictional basis over the subject matter.
4) The trial court erred through and [sic] unwarranted abuse of discretion by overruling mover[’]s objection against admitting inaccurate Child Custody Evaluations ... as evidence.

Discussion

Jurisdiction

In her pro se brief to this court, Ms. Bridges contends that, due to the existence of a guardianship order issued by the Elkhart Superior Court, the Louisiana trial court lacked jurisdiction to make a custody determination.

|sThe Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at La.R.S. 13:1801-1842, governs the jurisdiction of the Louisiana district courts to hear child custody matters. Jurisdiction for determinations of initial child custody is governed by La.R.S. 13:1813, which states, in relevant part:

A. Except as otherwise provided in R.S. 13:1816, a court of this state has jurisdiction to make an initial child custody determination only if:
(2) A court of another state does not have jurisdiction or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under R.S. 13:1819 or 1820; and
(a) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.

Particularly relevant to this litigation is La.R.S. 13:1815, which addresses the trial court’s jurisdiction to modify custody where another state has previously made a child custody determination. It states, in relevant part:

Except as otherwise provided in R.S. 13:1816, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under R.S. 13:1813(A)(1) or (2) and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under R.S. 13:1814 or that a court of this state would be a more convenient forum under R.S. 13:1819[J

Accordingly, La.R.S. 13:1819(A) provides that the trial court “may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum[,]” and lists the relevant factors that the trial court should take |4into consideration when making such a determination. Furthermore, La.R.S. 13:1810 provides that a Louisiana court “may communicate with a court in another state concerning a proceeding arising under” the UCCJEA, that “[t]he court may allow the parties to participate in the communication,” and that, with some exceptions, the court shall make a record of the communication.

The record indicates that when Mr. Gill filed his Petition for Custody, there was an Order of Permanent Guardianship issued by the Elkhart Superior Court on December 12, 2007. Evidence adduced at a hearing on a Motion to Recuse the trial court judge indicates that on April 6, 2009, Mr. Gill filed a Petition to Terminate Guardianship in the Elkhart Superior Court. On June 5, 2009, the Indiana trial court issued an order terminating Ms. Bridges’ guardianship, noting that the case file did not contain a proof of service of process for Mr. Gill and finding that:

based upon the fact that the Permanent Guardian, minor child, mother and father all reside in Louisiana and the Court believes that the appropriate forum to address any further guardianship or custody related issues lies in the State of Louisiana. Accordingly, the Court finds Louisiana as a more convenient forum for purposes of addressing “Guardianship-like” and any “custody[-]like” issues.

The Indiana trial court also noted that it had conferenced, via telephone, with the Louisiana trial court on that date.

Louisiana Revised Statutes 13:1802(3) defines a “child custody determination” as “a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child.” Further, a guardianship proceeding is considered a “child custody proceeding” according to |sLa.R.S. 13:1802(4). Thus, the Order of Permanent Guardianship issued by the Elkhart Superior Court constituted a child custody determination made by a court of another state, pursuant to La.R.S. 13:1815. However, before the Louisiana trial court made any determination of custody, the Indiana trial court declined jurisdiction, finding that Louisiana was a more convenient forum and terminating the Indiana Order of Permanent Guardianship.

Therefore, as the Indiana trial court declined jurisdiction, the record supports a finding that the Louisiana trial court had jurisdiction under La.R.S. 13:1813(A)(2). With regard to the requirements of La. R.S. 13:1813(A)(2)(a) and (b), we note that there is evidence in the record that Mr. Gill is a longtime resident of Louisiana and has substantial connections to the state, that the other interested parties in this case, Mrs. Harmon and Ms. Bridges, relocated to Louisiana along with Madison, and that Madison started school in Louisiana. We find no error in the trial court’s assumption of jurisdiction in this case.

This assignment of error is without merit.

Legal Parentage

Ms. Bridges also contends that the trial court erred in failing to adjudicate Madison’s “legal parentage.” Ms. Bridges’ brief appears to address two issues with regard to Madison’s “legal parentage”: 1) that the trial court failed to recognize her as Madison’s parent, which will be discussed elsewhere in this opinion, and 2) that Mr. Gill had no legal relationship to Madison, and therefore no standing to assert his right to custody.

In Jones v. Coleman, 44,543, pp. 7-8 (La.App. 2 Cir. 7/15/09), 18 So.3d 153, 159, the second circuit addressed a biological parent’s relationship to his or her children, stating:

| (¡The United States Supreme Court has declared it “plain beyond the need for multiple citation” that a biological parent’s right to “the companionship, care, custody, and management” of his children is a liberty interest far more important than any property right. In re Adoption of B.G.S., 556 So.2d 545 (La.1990), citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Even when the natural father has not lived continuously with his child, he enjoys a similar constitutional protection of his paternal interest when he develops and maintains a substantial relationship with his child by accepting responsibility for the child’s future. In re Adoption of B.G.S., supra, citing Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).

Furthermore, in In re Adoption of B.G.S., 556 So.2d 545, 551-52 (La.1990) (quoting Deville v. LaGrange, 388 So.2d 696, 698 (La.1980)), the Louisiana Supreme Court stated that “[pjarenthood itself confers a right to custody, but that right of parenthood may be forfeited by conduct which denies or rejects one’s child.”

As an initial consideration, we note that Ms. Bridges first asserted her theory that Mr. Gill had no standing to seek custody or visitation in her Petition for Third Party Custody. However, a review of the record supports a finding that Mr. Gill is Madison’s biological father. The record indicates that all of the parties to this litigation acknowledge that Mr. Gill is the biological father of Madison. Given the constitutional protections extended to biological fathers, Mr. Gill is clearly entitled to assert his parental rights. Accordingly, we find no error in the trial court’s alleged failure to address the issue of parentage.

This assignment of error is without merit.

17Evidentiary Issues

Ms. Bridges also contends that the trial court erred in admitting “inaccurate” child custody evaluations into evidence. It is not clear to this court that she has adequately briefed this assignment of error. We note that the gist of Ms. Bridges’ argument is that the trial court intentionally excluded her from its judgment ordering child custody evaluations and that she was unable to pay for a child custody evaluation.

The trial court’s authority to order psychological evaluations in child custody matters stems from La.R.S. 9:831, which states:

A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.
B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party.

The language of Article 831 is permissive and thus, it is within the discretion of the trial court to order such evaluations. Cerwonka v. Baker, 06-856 (La.App. 3 Cir. 11/2/06), 942 So.2d 747.

The trial court ordered that “the parties” undergo psychological evaluations. Costs of the evaluations were assessed 75% to Mrs. Harmon and 25% to Mr. Gill. The record indicates that, at a status conference, there was some confusion about whether Ms. Bridges was included in that order. The trial court told Ms. Bridges that “my expectation [was] ... that I wanted her to get examined if that’s what she wanted to do and Dr. [John] Simo-neaux thought he was — he would need. Now, if 18you intend to assert any type of action for visitation or whatever, then you would have to be examined.” Ms. Bridges responded that she intended to be examined.

Pursuant to this order, Dr. Simoneaux performed the child custody evaluations and issued a twenty-two page report. At trial, Dr. Simoneaux was accepted as an expert in the field of clinical psychology without objection. He testified regarding his examinations of the parties and his conclusion that it would be in Madison’s best interest for Mr. Gill to be awarded domiciliary status. However, at trial, when Mr. Gill moved to introduce Dr. Si-moneaux’s report into evidence, Ms. Bridges objected, alleging that Mr. Gill and Mrs. Harmon should have paid for her examination. The trial court overruled the objection, noting that the order for examination “was rendered quite a long time ago” and that Ms. Bridges would have the opportunity to question Dr. Simoneaux regarding any deficiencies in the report. We note that, at the earlier status conference, the trial court did not address whether Mr. Gill and Mrs. Harmon were responsible for paying for Ms. Bridges’ evaluation.

Ms. Bridges questioned Dr. Simoneaux regarding the materials he reviewed in making his conclusions, whether he considered the factors delineated in La.Civ.Code art. 134, and whether he considered the credibility of the parties. With regard to Ms. Bridges’ examination, or lack thereof, Dr. Simoneaux testified that she cancelled at least three appointments with his office. In its reasons for ruling, the trial court found that Ms. Bridges did not obtain a custody evaluation due, primarily, to financial concerns.

Our review of the record indicates that the trial court expected that, if Ms. Bridges intended to assert a right to custody, she would obtain a custody evaluation. Therefore, the trial court left the decision of whether an evaluation would be performed up to Ms. Bridges. Thus, we find no abuse of discretion in |9either the trial court’s order requiring child custody evaluations for the parties, or in the trial court’s admittance of Dr. Simoneaux’s report into evidence.

This assignment of error is without merit.

Custody Determination

In Ms. Bridges’ remaining assignment of error, she asserts that the trial court erred in failing to recognize her as Madison’s “de facto” parent. She bases this assertion on her previous status as Madison’s permanent guardian and the period of time in which she was Madison’s primary caretaker.

This court has found no Louisiana authority, statutory or otherwise, which establishes a “de facto” parental status. However, we note that “[o]ver the years, there has been litigation between ‘psychological parents’ and parents regarding custody and visitation of children. Most often the cases involved grandparents of children seeking custody or visitation with the children with whom they bonded.” Black v. Simms, 08-1465, p. 5 (La.App. 3 Cir. 6/10/09), 12 So.3d 1140, 1143.

Louisiana Civil Code Article 133 governs the award of custody to nonparents, stating:

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

Before custody is awarded to a nonparent, the nonparent bears the burden of proving that a grant of custody to the parent would be detrimental to the child and that an award of custody to the nonparent is in the best interest of the child. LeBlanc v. Guillory, 10-164 (La. App. 3 Cir. 5/5/10), 38 So.3d 490. Furthermore, where there is a conflict between parents and nonparents, the parent has a | mparamount right to custody of the child, and may only be deprived of that right for compelling reasons. Id.

This court reviews child custody decisions under the abuse of discretion standard. Beard v. Schenker, 06-1116 (La.6/16/06), 931 So.2d 355. Thus, “the determination of the trial judge in child custody matters is entitled to great weight and his discretion will not be disturbed on review in the absence of a clear showing of abuse.” Id. at 357 (quoting AEB v. JBE, 99-2668, p. 7 (La.11/30/99), 752 So.2d 756, 761).

The record indicates that a child custody examination was conducted for each of the parties, with the exception of Ms. Bridges. Dr. Simoneaux, the psychologist who performed the examinations, recommended in his report that Madison reside primarily with Mr. Gill. In his testimony, Dr. Simo-neaux stated that he did not see any indications that Madison would come to substantial harm if she remained in Mr. Gill’s custody. Mrs. Harmon testified that, in her opinion, Madison should live with Mr. Gill. According to Mrs. Harmon this was because, at the time of trial, she was very emotional and not very stable. Mrs. Harmon acknowledged that it was not good for Madison to be in that kind of environment constantly. Most notably, when asked whether she felt there was any risk of substantial harm to Madison if custody remained with Mr. Gill, Ms. Bridges answered “not if she is allowed visitation with us.”

After considering the evidence and hearing the testimony and arguments of the parties, the trial court found that both parents were fit but that it would be in Madison’s best interest to live primarily with Mr. Gill. Thus, the trial court awarded joint custody to Mr. Gill and Mrs. Harmon and designated Mr. Gill as the domiciliary parent. The trial court noted that Ms. Bridges wanted custody but that she conceded that she would likely not be entitled to it. Finding no authority |nwhich would permit him to do so, the trial court declined to designate Ms. Bridges as a “de facto” parent. However, the trial court considered the length and quality of Ms. Bridges’ relationship with Madison and, finding extraordinary circumstances, awarded her visitation pursuant to La.Civ. Code art. 136.

We note that, although Ms. Bridges contends that the trial court did not issue reasons, the trial court issued written reasons in its “Ruling of the Court” on May 10, 2011, and signed a corresponding judgment on June 13, 2011. Based upon our review of the record, Ms. Bridges did not show that an award of custody to Mr. Gill and/or Mrs. Harmon would result in substantial harm to Madison. Given the great deference afforded the decision of the trial court in child custody matters, we find no error in the trial court’s award of custody to Mr. Gill. See LeBlanc, 38 So.3d 490; Pounders v. Rouse, 528 So.2d 672 (La.App. 2 Cir.1988).

This assignment of error is without merit.

DECREE

For the foregoing reasons, the judgment of the trial court concerning custody and visitation for Madison Bennett is affirmed. All costs of this proceeding are assessed to the appellant, Laurie Kay Bridges.

AFFIRMED.

      . The record indicates that Mr. Gill and Ms. Bennett were unmarried at the time of Madison's birth. After she moved to Louisiana, Ms. Bennett married Jesse Harmon. Accordingly, we will refer to her as Mrs. Harmon in this opinion.

      . Prior to trial, the parties entered into a stipulated interim custody order that provided for joint custody between Mr. Gill and Mrs. Harmon and awarded Mr. Gill domiciliary custody. During a phase-in period, Ms. Bridges was awarded specified visitation. At the end of the phase-in period, Ms. Bridges' visitation was to be limited to when Madison was with Mrs. Harmon. The trial court also ordered that the parties undergo custody evaluations. However, Ms. Bridges was not evaluated, which the trial court attributed to financial concerns.

      . We note that La.R.S. 13:1819 is substantially similar to Ind.Code § 31-21-5-8 (2011).

      . Ms. Bridges filed a Motion to Recuse, which was referred to another judge pursuant to La.Code Civ.P. arts. 154 and 155. Although a transcript of the Motion to Recuse is not contained in the record, the relevant pages are file-marked by the minute clerk as Ms. Bridges’ in globo exhibit filed on December 2, 2009 and the minutes from that date indicate that evidence was adduced at the hearing.

      . Ms. Bridges testified that Mr. Gill took a DNA test to establish his paternity of Madison. Although the DNA test results were not introduced into evidence, according to Ms. Bridges' testimony, the results indicated that Mr. Gill was Madison’s father. Additionally, in his testimony, Dr. John Simoneaux stated that he reviewed a laboratory report dated September 18, 2008, which indicated that there was a 99.999% probability that Mr. Gill was Madison’s biological father. We note that La.R.S. 9:397.3(B)(2)(b), which addresses the admissibility of blood or tissue sampling for determination of paternity states that "[a] certified report of blood or tissue sampling which indicates by a ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the father of the child creates a rebuttable presumption of paternity.”

      . In brief, Ms. Bridges requests that this court grant her "the legal status as ‘de facto parent’ to the minor child," and modify the trial court’s ruling to award "custody in fact in favor of” Ms. Bridges. Thus, we read Ms. Bridges' assignment of error as contesting only the award of custody and not the award of visitation pursuant to La.Civ.Code art. 136.


author: COOKS, Judge.

text:
    STATE of Louisiana in the Interest of B.K.N. & T.M.H.
    No. 11-1095.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      15th Judicial District Public Defender’s Office, Lafayette, LA, Annette Roach, Intermediate Appellate Counsel, Lake Charles, LA, for Defendant/Appellee, B.A.S.
    L. Antoinette Beard, Lafayette, LA, for Plaintiff/Appellant, State of Louisiana.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

l]The State of Louisiana, through the Department of Child and Family Services (hereafter the State) appeals the trial court’s denial of its petition to terminate the parental rights of B.A.S., the mother of the minor children at question. Finding no error in the trial court’s decision, we affirm

FACTS AND PROCEDURAL HISTORY

B.A.S. is the mother of the two minor children at issue in this appeal, B.K.N. (born in 2004) and T.M.H. (born in 2008). The children have different biological fathers. The State became involved with the children on or about March 3, 2009, when it received a report alleging B.A.S. had a drinking problem, was in a physically abusive relationship, and was unable to provide care for her children.

An oral instantur order was issued on March 5, 2009, placing the children into the custody of the State. The children were adjudicated children in need of care on May 19, 2009. They were eventually placed in a foster home in Rayne, Louisiana.

A case plan was instituted for B.A.S., requiring her to secure stable housing, maintain employment, attend and complete anger management, domestic violence and substance abuse programs, submit to a psychological evaluation and to provide $50.00 per month parental contribution for her children while in foster care. Pursuant to the case plan, B.A.S. maintained adequate housing and employment. She also completed a substance abuse program. However, it was discovered that B.A.S. had continued a “secret” relationship with R.J., the man who had abused her, and married him on October 5, 2010.

Following discovery of the marriage, a case plan was instituted for R.J., requiring him to secure stable housing, maintain employment, attend and complete anger management, domestic violence, and parenting programs. R.J. failed to even minimally comply with his case plan.

|2On December 13, 2010, there was a domestic altercation between B.A.S. and R.J. Immediately thereafter, B.A.S. moved out and began residing with her mother.

The case originated in Lafayette Parish, because B.A.S. was residing there at the time the children were removed. Since then, she has primarily resided in Calca-sieu Parish. Case management was transferred to Calcasieu Parish on December 29, 2009. On June 2, 2010, an order was issued transferring venue of the case to Calcasieu Parish. However, the Calcasieu Parish District Court refused to accept the transfer. On September 3, 2010, the State filed a Petition for Termination of Parental Rights and Certification of Adoption, seeking the termination of the parental rights of B.A.S. and of the two biological fathers.

The termination hearing was held on April 5, 2011. The trial court ordered the termination of both fathers’ parental rights, but denied the termination of B.A.S.’s parental rights. In its written reasons for judgment, the trial court noted that a “significant part” of the state’s argument for termination of parental rights against B.A.S. was her failure to complete anger management and substance abuse classes. The trial court found the major reason for this “non-compliance” was B.A.S.’s inability to pay for these programs. The trial court wrote:

... [I am] concerned that a significant part of the non-compliance of her case plan is directly related to lack of economic means. For the Department to suggest that an individual must undergo anger management and substance abuse classes and be forced to pay to go to those classes, is incomprehensible.... It would be unjust to terminate a parent’s rights because they were unable to afford services.

In line with that reasoning, the trial court ordered the State to provide services and courses to B.A.S. free of charge. Additionally, the trial court ordered the State to “find a mechanism of transport for her from Lake Charles to Lafayette or have the children placed closer to her residence.”

|sThe State has appealed the judgment, asserting they proved by clear and convincing evidence that B.A.S. failed to substantially comply with her case plan and there was no reasonable expectation of significant improvement in the near future. The State also contended the trial court erred in ordering it to provide free courses and services for B.A.S. The State also asserts it was error to order it to provide transportation to the mother for visits or, in the alternative, place the children closer to the mother’s residence.

ANALYSIS

This Court, in State ex. Rel. Q.P., 94-609, p. 3 (La.App. 3 Cir. 11/2/94), 649 So.2d 512, 515, set forth the burden of proof for termination of parental rights:

Parental rights to the care, custody, and management of children is a fundamental liberty interest warranting great deference and vigilant protection under the law. State in the Interest of C.P., 463 So.2d 899 (La.App. 2 Cir.1985). On this basis, the Louisiana legislature imposed statutorily strict procedural and evidentiary requirements which must be met before issuance of a judgment terminating parental rights. As explained in State in the Interest of /[.], 582 So.2d 269 (La.App. 1 Cir.), writ denied, 583 So.2d 1145 (La.1991), the evidentiary standard established in termination cases mandates that the State present proof by clear and convincing evidence of the parents’ failure to comply with all the enumerated conditions relied upon in the specific paragraph(s) of LSA-Ch.C. Art. 1015 before terminating parental rights. Accordingly, this heightened burden of proof requires the State to show not only that the existence of the fact sought to be established is more probable, but rather that the fact is highly probable or more certain. Hines v. Williams, 567 So.2d 1139 (La.App. 2 Cir.), writ denied, 571 So.2d 653 (La.1990). However, we are mindful that in assessing whether the clear and convincing evidentiary standard was followed in the lower court, we must determine whether the record reflects that the juvenile court manifestly erred. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Only if the court finds that the grounds for termination are proven by clear and convincing evidence, must it then examine whether termination of parental rights are in the best interest of the child. La.Ch. Code art. 1037.

Louisiana Children’s Code Article 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. The [4State need only establish by clear and convincing evidence one ground found in La.Ch.Code art. 1015, but it must also be found that termination is in the best interest of the child. La.Ch.Code art. 1039.

In this case, the State sought to terminate the mother’s parental rights pursuant to La.Ch.Code art. 1015(5), which provides:

(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.

With regard to B.A.S., the first requirement of La.Ch.Code art. 1015(5) has been met, as at least one year has elapsed between the time the children were removed from B.A.S.’s custody pursuant to a court order until the petition for termination was filed. However, the trial court did not agree with the State that it proved a substantial lack of compliance by B.A.S. with her case plan.

B.A.S.’s caseworker, who testified at trial, stated that prior to November, 2010, B.A.S. had maintained stable housing. However, she lost her housing due to economic reasons and had not been able to secure stable housing since that date.

The caseworker also noted B.A.S. attended and completed substance abuse classes; however, she continued to battle substance abuse problems. B.A.S. acknowledged at trial her struggles with alcohol and her frequent attempts to complete the substance abuse component of her case plan. She testified she completed the Lake Charles Addictive Disorder Clinic in April, 2010, but stated due to stress from the termination proceedings, she began drinking again in September, 2010. She committed herself to J.R. Briscoe Treatment Facility in |BMarch, 2011, and was released from that program the day before the termination hearing.

The caseworker also testified that B.A.S. did not complete her parenting courses, because she missed two classes. B.A.S. also missed two of her four anger management classes, which she was required to complete before she could begin domestic violence classes.

The caseworker also noted B.A.S. paid very little toward the support of her children while they have been in foster care. B.A.S. acknowledged she paid very little support, but stated she received calls from the foster mother and spent money buying the children clothes and other essentials.

B.A.S. testified as to the difficulty she had in maintaining employment to pay for her mandated courses, while trying to attend the same courses and adhere to the home visits and scheduled visits with her children. She specifically testified there were occasions where she had to decide between saving her job or complying with components of her case plan. She testified she attempted to find programs which were more affordable and tried to arrange an alternative visit location to avoid the expense of having to travel to Lafayette for each visit. She acknowledged she had been unable to comply with all aspects of her case plan, and asked the court to allow her more time to make the money necessary to comply with the case plan.

The trial court undoubtedly found B.A.S.’s testimony was credible, and specifically noted it was “concerned that a significant part of the non-compliance of her case plan [was] directly related to lack of economic means.” The trial court also found B.A.S. attempted to comply with her case plan, although she failed in many respects.

The trial court also did not agree with the State that it proved there was no reasonable expectation of significant improvement in the near future. The trial IfiCpurt recognized that B.A.S. had made sincere efforts to comply with her case plan. The trial court specifically found B.A.S. “is making attempts to better herself and address her problems ...” The trial court also noted B.A.S. agreed to seek aftercare treatment or live in a halfway house. The court stated at the next review hearing, B.A.S. would be required to show substantial compliance with aftercare.

Our Supreme Court in State in the Interest of L.L.Z. v. M.Y.S., 620 So.2d 1309, 1317 (La.1993), stated “a reasonable expectation of reformation is found to exist if the parent has cooperated with state officials and has shown improvement, although all of the problems that exist have not been eliminated.” The facts as presented in this record show that although there has been less than substantial compliance with the case plan, certain requirements of the plan have been undertaken by B.A.S. and/or completed. The trial court did not err in concluding the State failed to prove by clear and convincing evidence that there was no reasonable expectation of significant improvement in the near future.

Based on the record before us, we find the trial court did not manifestly err in concluding the State failed to meet its heavy burden of presenting clear and convincing proof of one of the statutory grounds for involuntary termination of B.A.S.’s parental rights and that termination of those rights are in the best interest of B.K.N. and T.M.H.

In its final assignment of error, the State argues the trial court exceeded the available options set forth in La.Ch.Code art. 1039 in ordering it to provide classes to B.A.S. free of charge and find transportation for her to visit with her children or place them closer to her. We disagree.

Louisiana Children’s Code Article 1039(B)(6) permits the trial court to “[m]ake any other disposition that is in the best interest of the child.” We find ordering the State to bear the costs of required classes assures fundamental fairness in this case and is in the best interest of the children. Without question, a timely ^resolution concerning the custody of the children, whether it is reunification or termination, is in the best interests of the children. As B.A.S. argues, poverty should not deprive her of the opportunity to complete her case plan and be reunited with her children. If concerns involving poverty are removed and B.A.S. still fails to substantially comply with her case plan, there can be no question the proceedings which led to termination afforded her fundamental due process.

The trial court’s written reasons clearly set forth that it felt a “significant” part of any non-compliance by B.A.S, in regard to her case, was “directly related to lack of economic means.” In State in the Interest of A.T., T.A. & J.A., 06-501, p. 6 (La.7/6/06), 936 So.2d 79, 83-84, the Louisiana Supreme Court noted in accordance with the Louisiana Children’s Code, “the State must undertake reasonable efforts to assist the parent in removing the obstacles to reunification.” The court then noted that “reasonable efforts” are defined by La.Ch.Code. art. 603(23) as “the exercise of ordinary diligence and care by department caseworkers and supervisors and shall assume the availability of a reasonable program of services to children and their families.” Id. at 84. Therefore, we find no error in the trial court’s decision ordering the State to provide classes to B.A.S. and find transportation for her to visit with her children or place them closer to her.

DECREE

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against appellant, the State of Louisiana.

AFFIRMED.