author: SAUNDERS, J.

text:
    Jennifer STEWART v. Harold G. STEWART.
    No. 11-1334.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      James Ogden Middleton II, Attorney at Law, Alexandria, LA, for Plaintiff Appellant, Jennifer Stewart.
    Ronald D. Brandon, Attorney at Law, Many, LA, for Defendant Appellee, Harold G. Stewart.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   SAUNDERS, J.

1, Appellant appeals the judgment of the trial court awarding joint legal custody, shared physical custody, co-domiciliary status to each parent, orders that the child remain at his current elementary school, and orders family counseling. We find that the trial court did not abuse its discretion as to the custody decree. Accordingly, we affirm the judgment of the trial court.

FACTS & PROCEDURAL HISTORY

This appeal concerns the custody arrangement of a minor child, S.S., who is now six years old. The Sabine Parish School Board has determined that S.S. is developmentally delayed, according to its last evaluation in 2010, and S.S. participates in the special education program at Zwolle Elementary School in Many, Louisiana. Appellee, Harold Gabriel Stewart (hereinafter “Appellee”), sells tires for his parents’ business and operates the former community enterprise lawn care business. Appellee pled guilty to a felony, is serving five years of supervised probation, one result of which is $7,316.03 paid in restitution to the Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles. Appellee filed for divorce from the child’s mother, Jennifer Marie Stewart (hereinafter “Appellant”), and for custody of S.S. on August 16, 2010. Appellant is a teacher with a master’s degree in education. During the divorce and custody proceedings, Appellant filed multiple Petitions for Protection from Abuse under the Domestic Abuse Act setting forth allegations of abuse and violence against Appel-lee. Each of these petitions was denied.

On August 18, 2010, the Court ordered interim shared physical custody, with the father having custody one week and the mother having custody the next week, on an alternating basis. On September 20, 2010, the parties agreed in court that each parent and S.S. would undergo a mental health evaluation. They also |2agreed to an interim order continuing the visitation schedule on a week to week basis. The trial court appointed Louis Lowrey, M.A. (hereinafter “Lowrey”), a licensed professional counselor and marriage and family therapist, as evaluator in the case.

On March 3, 2011, the parties appeared in court for a hearing on the final divorce, which was granted to Harold on the grounds of adultery on part of Appellant. The custody hearing was held on June 16 and 17 of 2011. After two days of testimony, the trial court rendered a judgment to the following effects: joint legal custody of S.S. by each party, shared physical custody of S.S. on an alternating weekly basis, co-domiciliary status of each parent, that S.S. shall remain at his current school, and that the parties shall attend and participate in family counseling and shall split the costs thereof. It is from this judgment that the Appellant appeals. We affirm the judgment of the trial court for the reasons discussed herein.

ASSIGNMENTS OF ERROR

1.By ordering a co-domiciliary legal custody regime, the trial judge misapplied La.R.S. 9:335 in the conspicuous absence of a Joint Plan of Implementation or a finding of good cause for such omission. Such legal error requires a de novo review of the record, or, at the very least, a reversal and remand.
2. By failing to engage in the analysis required by La.Civ.Code art. 134 by omitting any discussion of one of the 12 factors set forth therein in light of the evidence adduced. Such legal error requires a de novo determination of the ignored factors in light of the record, or, in the alternative, a reversal and remand.
3. Without engaging in any articulated review of the record and the factors listed in La.Civ.Code art. 134, the trial court clearly abused its discretion in its custody award with respect to the parents alternating physical custody of the special needs child every other week and in its failure to designate a domiciliary parent.
4. By refusing to exclude the testimony of the court[-]appointed mental health evaluator in light of the objections lodged due to |3the absence of any specialized training in custody evaluations coupled by egregious professional negligence.
5. By unreasonably rejecting the testimony of Dr. James R. Logan on the need to carefully tailor the physical custody plan for this special needs child in this ease to ensure stability in the child’s life and designate a domiciliary custodian empowered to make the educational, medical and educational decisions for SS.

LAW AND ANALYSIS

A court of appeal cannot set aside a finding of fact of the trial court unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the findings of fact are reasonable in light of the evidence viewed entirely, an appellate court may not reverse those findings even if it would have weighed the evidence differently. Id. Specifically,

[t]he standard of review in child custody matters has been clearly stated by this court:
The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.
Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365.

Gremillion v. Gremillion, 07-492, p. 4 (La.App. 3 Cir. 10/3/07), 966 So.2d 1228, 1231-32, writ denied, 10-2125 (La.12/10/10), 51 So.3d 726.

In her first assignment of error, Appellant argues that the trial court erred as a matter of law by incorrectly applying La.R.S. 9:335, thereby requiring a de novo review of the record, or, alternatively, reversal and remand. Specifically, she argues that the court erred by appointing the parents co-domiciliaries without issuing an implementation plan or finding good cause for such an omission. We disagree with this assignment of error, and affirm the judgment of the trial court.

14Joint custody decrees are governed by La.R.S. 9:335, which states in pertinent part:

A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.
(3) The implementation order shall allocate the legal authority and responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.

La.R.S. 9:335.

This is an issue res nova for this court. We recognize that our brethren from the first circuit in Caro v. Caro stated “La.R.S. 9:335 does not require a specific form be used for the implementation plan.” 95-0173, p. 3 (La.App. 1 Cir. 10/6/95), 671 So.2d 516, 518. The court there held that the judgment awarding joint custody, designating a domiciliary parent, ordering visitation, and setting holiday schedules qualified as the implementation order. Id. “The fact that the order was not entitled ‘implementation plan,’ is of no consequence.” Id. See also Angelette v. Callais, 10-2279 pp. 4-5 (La.App. 1 Cir. 5/6/11), 68 So.3d 1122, 1125 (reiterating that La.R.S. 9:335 does not require that a specific form be used for the implementation plan, and that a joint custody decree may serve as the | implementation plan). Furthermore, the first circuit in Caro explained that decision-making authority not addressed in the judgment is covered by the La.R.S. 9:335 B(3), which “gives the domiciliary parent authority for any decision not provided for in the implementation plan.” Caro at 518.

In the instant case, the trial court issued a joint custody decree which includes the following:

AFTER DUE AND REVERENT CONSIDERATION OF THE LAW, FACTS, EVIDENCE, TESTIMONY, SUBMISSIONS AND ARGUMENTS OF LEARNED COUNSEL, IT IS ORDERED, ADJUDGED AND DECREED that:
1. The parties shall enjoy joint legal custody of the subject child;
2. The parties shall enjoy shared physical custody of the subject child on an alternating weekly schedule;
3. Each party shall enjoy co-domiciliary status;
4. The subject child shall remain enrolled at Zwolle Elementary School; and
5. The parties shall attend and participate in family counseling with Robin D. Miley, PLC, P.O. Box 7354, Nachitoches, Louisiana 71457-7354, 318.238.2442, with costs thereof equally divided between the parties.

This joint custody decree assigns legal and physical custody, co-domiciliary status, addresses the child’s education, and orders the parties to attend family counseling. We find that the judgment in the record, dictating logistics of the custody arrangement as it does, qualifies as an implementation plan for the purposes of La.R.S. 9:335. Caro, at 518. We also find that the decision-making authority not addressed in the joint custody decree resides with the two parents as co-domiciliaries. Id. For these reasons, we find that the trial court did not abuse its discretion in failing to issue an implementation plan in addition to the joint custody decree.

Appellant, in her second assignment of error, argues that the trial court erred by failing to engage in the analysis required by La.Civ.Code art. 134, in that the | ficourt did not include any discussion of one of the twelve relevant factors set forth therein in light of the evidence adduced. We find no merit in this contention.

“The wording of Article 134 illustrates that the court is not bound to make a mechanical evaluation of all factors listed.” Breaux v. Breaux, 96-214, p. 4 (La.App. 3 Cir. 7/17/96); 677 So.2d 1106, 1108. Rather, “[e]ach ease should be decided on its [own] facts in light of these factors.” Id. Absent a clear showing of an. abuse of discretion, an award of custody by a trial court will not be disturbed. Mayeux v. Mayeux, 93-1603 (La.App. 3 Cir. 6/1/94); 640 So.2d 686.

Gautreau v. Gautreau, 96-1548, p. 6 (La.App. 3 Cir. 6/18/97), 697 So.2d 1339, 1345, writ denied, 97-1939 (La.11/7/97), 703 So.2d 1272.

In the case sub judice, the trial court’s judgment did not contain a detailed explanation of its reasons for judgment. ■ Had Appellant so desired, she could have requested reasons from the court. La.Code Civ.P. art. 1917 provides in pertinent part:

A. In all appealable contested cases, other than those tried by a jury, the court when requested to do so by a party shall give in writing its findings of fact and reasons for judgment, provided the request is made not later than ten days after the mailing of the notice of the signing of the judgment.

La.Code Civ.P. art. 1917.

Appellant did not request findings of fact and reasons for judgment. Moreover, no exhaustive analysis of La.Civ.Code art. 134 is required under the law. Gautre.au at 1345. Accordingly, we find that the trial court did not abuse its discretion in failing to include an analysis of the factors listed in La.Civ.Code art. 134 in its judgment.

In her third assignment of error, Appellant argues that the trial court erred by ordering weekly alternating physical custody of S.S. and by failing to designate only one domiciliary parent. We reject this argument.

An award of joint custody along with the allocation of physical custody is governed by the following:

17[T]he legislature amended La.R.S. 9:335(A)(2)(b) in 1995 and it now reads as follows: “To the extent feasible and in the best interest of the child, physical custody of the children should be shared equally.” (emphasis added). This amendment, by adding the phrase “and in the best interest of the child” and substituting “should” for “shall,” strengthens the best interest of the child standard as the primary concern in custody determinations.
We decline to adopt the assertion that the law mandates an equal sharing of physical custody. La.R.S. 9:335(A)(2)(b) does not put the two on equal footing. That portion of the statute reads, “[t]o the extent it is ... in the best interest of the child, physical custody of the children should be shared equally.” La. R.S. 9:335(A)(2)(b). Clearly, a prerequisite for the equal sharing of physical custody is that it be in the best interest of the children.

Brown v. Brown, 96-743, pp. 5-6 (La.App. 3 Cir. 2/26/97), 692 So.2d 458, 460-461.

“In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.” La.Civ.Code art. 131. The factors to consider when determining the best interest of the child include the following:

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

La.Civ.Code art. 134.

Here, both of the parties live in Sabine Parish, and S.S.’s elementary school is there as well. The record indicates that both parents were actively involved in S.S.’s life prior to divorce. For example, the father bathed S.S. and put him to bed on many nights. The mother teaches at his school and actively participates in S.S.’s educational and behavioral development. Based on these facts, it appears that the trial court did not abuse its discretion by designating such an arrangement.

We now turn to the co-domieiliary status issue. Appellant points out that both the second and fourth circuits have held that the law does not allow for a designation of co-domiciliary parents. The fourth circuit in Molony v. Harris explains:

The trial court herein ordered that “the parties are designated co-domiciliary parents and shall communicate as it relates as to the health, education, welfare of the minor child.” This designation does not comply with the mandate of La.R.S. 9:335(B) that the court “shall designate a domiciliary parent.” Although La.R.S. 9:336 provides that “[j'joint custody obligates the parents to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision-making authority,” we find no authority for the court to designate the parties as co-domiciliary parents. See Ketchum v. Ketchum, 39,082, p. 11 (La.App. 2 Cir. 9/1/04), 882 So.2d 631, 639 (noting that there is “no authority in the law for a designation of ‘co-domiciliary’ parents.”)

Molony v. Harris, 10-1316, pp. 19-20 (La.App. 4 Cir. 2/23/11), 60 So.3d 70, 82.

We respectfully note the holdings of our brethren courts, but we find that a designation of co-domiciliary parents is within the trial court’s authority pursuant to La. R.S. 9:335. If a designation of co-domiciliary parents is in the best interest of the child, then we see no reason to reverse such a decision of the trial court. | nHere, the parents have a bitter relationship and do not share the same opinions on a number of matters surrounding S.S.’s upbringing. This factor weighs against co-domicil-iaryship of the parents, since in sharing authority equally, they must agree in order for a decision to be made.

However, each parent is able to provide a stable and adequate environment for S.S. Each parent has a permanent home for S.S., and each parent actively participated in S.S.’s life prior to the decline of the parents’ relationship. Furthermore, the community property issues between the parents have not yet been resolved. These factors weigh strongly in favor of the co-domieiliary parent designation. We find, then, that the trial court did not abuse its discretion in assigning co-domiciliary status to each parent.

In her fourth assignment of error, Appellant argues that the trial court erred by failing to exclude the report, testimony, and opinions of the court-appointed mental health professional in the case. Particularly, Appellant claims that the court-appointed expert was unqualified under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and La.Code Evid. Art. 702. We find no merit in this contention.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

La.Code Evid. art. 702.

This court in State v. Brannon explains how experts’ qualifications are tested in Louisiana:

In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana [s]upreme [c]ourt adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony which requires the trial court to act in a gatekeeping function to ensure that any and all | inscientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697. To assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, the Supreme Court suggested the following general observations are appropriate: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the methodology is generally accepted by the relevant scientific community. Daubert, 509 U.S. at 592-594, 113 S.Ct. 2786. In Foret, supra, the court adopted these observations as a helpful guide for our lower courts in considering this difficult issue. Id. Thus, Louisiana has adopted Daubert’s requirement that in order for technical or scientific expert testimony to be admissible under La.Code Evid. 702, the scientific evidence must rise to a threshold level of reliability. DaubeH’s general “gatekeeping” applies not only to testimony based upon scientific knowledge, but also to testimony based on “technical” and “other specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226. The trial court may consider one or more of the four DaubeH factors, but that list of factors neither necessarily nor exclusively applies to all experts or in every case. Id. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determinations. Kumho, supra at 526 U.S. 142, 119 S.Ct. 1167.
State v. Allen, 41,548, pp. 11-13 (La.App. 2 Cir. 11/15/06), 942 So.2d 1244, 1254-55.

State v. Brannon, 07-431 (La.App. 3 Cir. 12/5/07), 971 So.2d 511, 517-18 writ denied, 07-2465 (La.5/9/08), 980 So.2d 689.

Here, Appellant points to the fact that the court-appointed mental health professional, Lowery, prior to this case had never served as an expert custody evaluator. She also notes that Lowrey has not attended seminars that trained him specifically to serve as a custody evaluator. However, Lowrey is a licensed professional counselor and a licensed marriage and family therapist. He has testified as an expert in marriage and family therapy in the trial court below and other district courts across the state. He earned a master’s degree in counseling and additional training as a qualified divorce mediator from the College of Law at Loyola University New Orleans. Due to these factors, we find that Lowrey was |nqualified to serve as an expert in the case. Accordingly, we find that the trial court did not abuse its discretion by including Lowrey’s testimony, report, and opinions in considering the case.

In her last assignment of error, Appellant contends that the trial court erred by disregarding the testimony of Dr. James R. Logan, Ph.D. We reject this final contention. As Appellee explains in his brief, Dr. Logan was tendered without objection as an expert in psychology. Appellant attempted to have Dr. Logan recognized as an expert in the field of developmental disabilities, which was objected to by Appellee. The trial court did not allow Dr. Logan as an expert in developmental disabilities due to lack of evidence thereof. Dr. Logan’s testimony did not reveal that he had any significant experience in dealing with children that would qualify him to being an expert in this specialized field. At trial, the court noted that for many years, Dr. Logan served as a director, doing more administrative tasks like coordinating psychiatric consultations and chairing the group that formulated guidelines for developmental disabilities, rather than dealing with patients firsthand. Based on this evidence and on the record before us, we find it reasonable that the trial court refused to qualify Dr. Logan in the field of developmental disabilities. Accordingly, the trial court did not abuse its discretion.

CONCLUSION

We find that the trial court did not abuse its discretion as to any of Appellant Jennifer Marie Stewart’s assignments of error. The joint custody decree serves to function as an implementation plan specifying the custody arrangements for the child S.S. The co-domiciliary parent designation is upheld as in the best interest of the child. The trial court’s appointment of expert Mr. Louis Lowery, P.L.C. is also upheld, as is the refusal of the trial court to qualify Dr. James R. Logan as an | ^expert in the specialized field of developmental disabilities. All costs of appeal are assessed to Appellant Jennifer Marie Stewart.

AFFIRMED.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    James SMITH v. CITY OF VIDALIA.
    No. 11-1358.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      C. Daniel Street, Monroe, LA, for Plaintiff/Appellant, James Smith.
    Brian P. Bowes, Margaret Blackwell, Hudson, Potts & Bernstein, L.L.P., Monroe, LA, for Defendant/Appellee, City of Vidalia.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   DECUIR, Judge.

| Mames Smith filed this workers’ compensation claim against his employer, the City of Vidalia, seeking medical authorization for a diskogram to be performed. By the time of trial, the recommended disko-gram had been authorized, but the claimant sought penalties and attorney fees for the delay. Additionally, the employer contested the allegation of a work-related accident, suggesting that the claimant fabricated the unwitnessed accident. After trial on the merits, the workers’ compensation judge found an unreasonable delay in the authorization of the diskogram, but that finding was immaterial as the judge also found insufficient proof of a work-related accident. The WCJ found the claimant was not credible, had lied to the court, and had committed fraud in the pursuit of workers’ compensation benefits, thereby forfeiting his right to receive those benefits. His claim was dismissed with prejudice. For the following reasons, we affirm.

In the spring of 2009, Smith was working as a lineman helper. His crew was assigned to cut down a tree. He testified that when he picked up a log to throw it into the backhoe, he heard a pop in his back, was unable to straighten up initially, and experienced pain. Smith described the log as three feet long, fourteen inches in diameter, and about two hundred pounds. He testified that he immediately reported the incident to his supervisor, and they filled out an accident report in the office. Smith was then told to go home. A doctor’s appointment was scheduled for Smith for the following day. According to Smith, he suffered from back and leg pain as a result of the accident.

The City of Vidalia initiated workers’ compensation payments, paying both indemnity and medical benefits. During the course of treatment, a diskogram was requested and approved. Not until a second diskogram was requested did the City hesitate to authorize benefits. The City sought more information from the medical ^provider, which was not forthcoming. The City requested further information several times. Finally, when a second medical provider agreed with the request for a diskogram, the City authorized the test. Nevertheless, Smith proceeded with his claim for benefits, requesting at trial penalties and attorney fees for the delay in authorizing the diskogram.

By the time of trial, however, the City disputed Smith’s allegations of an accident and injury. The City showed significant discrepancies in Smith’s deposition and trial testimony concerning prior back problems and his ability to perform certain activities. The City also offered a surveillance video of Smith doing various chores in his workshop. The City also relied on the fact that the accident was unwitnessed. The WCJ reached the following conclusions:

During [Smith’s] trial testimony he admitted to post-accident activity, including using a chain saw, stacking wood, tearing down a chicken pen, building a privacy fence, assisting with the installation of an electrical home, cutting down a pear tree and building frames for doors in his shop. He assisted with the moving of a piano and drove to Monroe and [Hattisburg], The activities described do not depict the activities of one who is unable to engage in employment. The activities described do not depict one who is temporarily and totally disabled. This factor is recognized in the medical evidence and is recognized by this Court. The performance of the post-accident activities certainly discredits claimant’s version of the accident and his contentions concerning the nature and extent of any disability. In consideration of his post-accident activities, this Court cannot reach a conclusion that claimant was involved in an accident while working in the course and scope of his employment. His credibility has been shattered by his post-accident conduct. Further, claimant specifically testified during court that he cannot do welding anymore. A review of the surveillance tape clearly shows his performance of welding activities. The welding activity was performed in a manner that depicts one free from pain or discomfort. This Court is convinced that claimant lied when he said he could no longer do welding. Claimant gave false testimony during trial proceedings concerning the welding activity. This Court is convinced false statements were also made concerning claimant’s [ability] to perform work activities. The false statement [was] made willfully and for the specific purpose of obtaining benefits. Thus, claimant has committed fraud in pursuit of workers’ compensation benefits and he has forfeited his right to receive those benefits.

[(¡Whether or not a claimant has discharged his burden of proof, and the credibility of the witnesses and the claimant, are questions of fact to be decided by the workers’ compensation judge. Davis v. Claiborne Elec. Co-Op., Inc., 45,806 (La.App. 2 Cir. 12/15/10), 56 So.3d 321. Regarding the standard of review, the jurisprudence of this court holds:

The trial court’s determinations with regard to the credibility of witnesses and the discharge of the claimant’s burden of proof are factual issues and should not be disturbed on appeal in the absence of manifest error. Bruno [v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992)].... Furthermore, where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed unless manifestly erroneous. Novak v. Texada, Miller, Masterson & Davis Clinic, 514 So.2d 524 (La.App. 3 Cir.), writ denied, 515 So.2d 807 (La.1987).

Guilbeaux v. Office of Dist. Attorney, 07-89, p. 3 (La.App. 3 Cir. 5/30/07), 957 So.2d 959, 961.

In oral reasons for judgment, the workers’ compensation judge specifically noted that her determination was based on credibility. After reviewing the record, we cannot say the findings of the workers’ compensation judge are manifestly erroneous or clearly wrong. Accordingly, Smith’s appeal has no merit and we hereby affirm the dismissal of his claim. Having found that Smith did not establish a work-related accident and resulting disability, we need not address the remaining issue regarding penalties and attorney fees raised by the City in brief to this court.

The judgment is affirmed, at Appellant’s cost.

AFFIRMED.


author: AMY, Judge.

text:
    Hope DAUZAT, on behalf of her minor child, Jayden BRADFORD v. The AVOYELLES PARISH SCHOOL BOARD, et al.
    No. 11-1359.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Ronald J. Fiorenza, Provosty, Sadler, DeLaunay, Fiorenza & Sobel, APC, Alexandria, LA, for Defendant/Appellant, Avo-yelles Parish School Board.
    Cory P. Roy, Marksville, LA, for Plaintiff/Appellee, Hope Dauzat.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

LThe plaintiff in this matter filed suit, alleging that her minor child had been injured while a passenger on a public school bus. After a trial, the trial court entered judgment in favor of the plaintiff, awarding general damages, special damages, and costs. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Hope Dauzat, brought this action on behalf of her minor child, Jayden Bradford, seeking damages for injuries that she alleged were the result of an incident which occurred on a school bus operated by the defendant, the Avoyelles Parish School Board. According to the plaintiff, on March 16, 2010, Jayden was riding home on the bus when the bus driver backed into a grassy, wet area and the bus became stuck. The plaintiff alleges that, as a result, Jayden was thrown out of his seat and that he injured his right knee. The plaintiffs testimony was that Jayden told her about the accident as soon as he came home and that his knee was red and swollen. Because Jayden’s complaints did not resolve, the plaintiff testified that she took Jayden to the doctor approximately a month after the incident and that he saw a doctor approximately four times regarding his knee injury. The record also indicates that Jayden missed school approximately ten days after the alleged incident.

Contrary to the plaintiffs position, the defendant asserted that no such accident happened and, if it did, the plaintiff could not prove that Jayden’s injuries, if any, were a result of the accident. In support of this contention, the school bus driver, Eugenia Lemoine, testified that, on March 16, 2010, the bus became stuck |2when she backed it into a relatively flat, wet, and grassy area. However, she testified that there was no sudden jerk or stop and that, to her knowledge, none of the children fell out of their seats as a result of the maneuver. Further, according to Ms. Lemoine, none of the children complained that they were hurt.

After a bench trial, the trial court rendered judgment in favor of the plaintiff. The trial court awarded general damages in the amount of $4,500.00, special damages in the amount of $987.16, and costs, including the cost of obtaining medical records.

The defendant appeals, asserting that:

1. The Trial Court manifestly erred by finding the defendant failed to conform his or her conduct to the appropriate standard of care.
2. The Trial Court manifestly erred by finding that the defendant’s allegedly substandard conduct was a cause-in-fact of the plaintiffs injuries.
3. The Trial Court manifestly erred by finding that The Avoyelles Parish School Board was vicariously liable for the alleged injuries of the plaintiff.

Discussion

Applicability of the Common Carrier Doctrine and Findings of Fact

The heart of the defendant’s first two assignments of error is that the plaintiff failed to meet her burden of proof. The defendant contends that the plaintiff failed to prove that the defendant was negligent, and that the plaintiff failed to prove that Jayden’s injuries, if any, were the result of that negligence.

The defendant bases its assignments of error on its assertion that the applicable legal standard is a straightforward application of La.Civ.Code arts. 2316 and 2320 and not the common carrier doctrine. A panel of this court discussed lathis issue in Amos v. St. Martin Parish School Bd., 00-808, pp. 2-3 (La.App. 3 Cir. 12/6/00), 773 So.2d 300, 302-03, stating:

It is well settled in our jurisprudence that the owner and operator of a school bus is classified as a “common carrier,” owing a heightened standard of care to the passengers he or she undertakes to transport. Dunn v. Gentry, 94-1164 (La.App. 3 Cir. 4/5/95), 653 So.2d 783, writ denied, 95-1148 (La.6/16/95), 655 So.2d 335; Robertson v. Travis, 393 So.2d 304 (La.App. 1 Cir.1980), writ denied, 397 So.2d 805 (La.1981); Bruno v. Fontan, 338 So.2d 713 (La.App. 4 Cir. 1976). Whether termed the highest standard of care, highest degree of vigilance, care and precaution for the safety of those transported, or the strictest diligence, the duty owed by a common carrier in Louisiana to its passengers is stringent. King v. King, 253 La. 270, 217 So.2d 395 (1968); Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963); Hopkins v. New Orleans Ry. & Light Co., 150 La. 61, 90 So. 512 (1921). As such, when an injury to a passenger occurs, the burden shifts to the defendant carrier to show that he or she was entirely free of even the slightest negligence contributing to the resulting injury. King, 253 La. 270, 217 So.2d 395; Wise, 151 So.2d 356; Hopkins, 90 So. 512. Reviewing the jurisprudence, we find the doctrine applies in all circumstances where a passenger suffers an injury when boarding, traveling aboard, or disembarking a common carrier’s vehicle. King, 217 So.2d 395; Dunn, 653 So.2d 783; Favorite v. Regional Transit Auth., 552 So.2d 487 (La.App. 4 Cir. 1989); Robertson v. Travis, 393 So.2d 304 (La.App. 1 Cir.1980), writs denied, 397 So.2d 805, 806 (La.1981); Bruno, 338 So.2d 713; Landry v. Travelers Indem. Co., 155 So.2d 102 (La.App. 1st Cir.1963).

The record indicates that the alleged injury occurred on a school bus. Thus, the common carrier doctrine is applicable and the plaintiff only had to show that Jayden, while a passenger on the school bus, suffered an injury and failed to reach his destination safely. Galland v. New Orleans Pub. Serv., Inc., 377 So.2d 84 (La.1979). Once the plaintiff shows proof of an injury to a passenger, the burden shifts to the defendant to show that it is free from negligence. Id.

Having addressed that initial consideration, we turn to the defendant’s assertion that the trial court erred in finding that the plaintiff met her burden of proof. An appellate court reviews the trial court’s findings of fact under the manifest error-clearly wrong standard of review. Allerton v. Broussard, 10-2071 (La.12/10/10), 50 So.3d 145. After reviewing the record as a whole, if the appellate court finds that (1) a reasonable factual basis does not exist for a finding of fact, and (2) the record establishes that the fact finder is clearly wrong or manifestly erroneous, only then may the appellate court reverse a trial court’s findings of fact. Id. In so doing, the appellate court should be mindful that “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.” Id. at 147. However, “where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.” Laday v. Doe, 10-1110, p. 4 (La.App. 3 Cir. 3/16/11), 59 So.3d 516, 520 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)).

Although the defendant argues that the plaintiff failed to prove that Ms. Lemoine, the bus driver, was negligent in backing the bus into a wet, grassy area, we have already determined that the common carrier doctrine is applicable in this case. Accordingly, it was not incumbent on the plaintiff to prove that Ms. Lemoine was negligent. Under the common carrier doctrine, the plaintiff only had to show that Jayden was injured and that he was a passenger on the school bus when he was injured. Once the plaintiff made that showing, the burden shifted to the defendant to show that Ms. Lemoine was not negligent. See Galland, 377 So.2d 84.

Further, the defendant asserts that Landry v. Traveler’s Indem. Co., 155 So.2d 102 (La.App. 1 Cir.1963) is applicable in this case. They assert, pursuant thereto, that a plaintiff may not recover under the common carrier doctrine “where the opposing parties present witnesses in equal numbers, even though the evidence does not show the slightest negligence on the part of defendant.” Id. at 105. | ¡¿However, “it is not the number of witnesses which balance the scale of justice. It is the evaluation of the testimony of the witnesses which count.” Russo v. Mula, 49 So.2d 622, 625 (La.App. 1 Cir.1950). See also Duhon v. Slickline, Inc., 449 So.2d 1147 (La.App. 3 Cir.), writ denied, 452 So.2d 172 (La.1984).

A review of the record indicates that the plaintiff testified that Jayden told her that he had been injured on the bus as soon as he returned home and that she observed swelling and redness in his knee at that time. According to the plaintiff, after Jay-den continued to have complaints, she took him to the doctor. Medical records submitted into evidence show that Jayden was initially treated by Dr. Vincent Goux and was later seen by Dr. Darron McCann. Dr. McCann’s records indicate that he diagnosed Jayden with bilateral knee contusions. The defendant’s sole witness, Ms. Lemoine, testified that none of the children fell out of their seats and that no one told her that they had been hurt. However, Ms. Lemoine testified that she was unable to watch all of the children while she was backing up the bus, so she might not know if one of the children fell out of his or her seat.

In its reasons for judgment, the trial court credited the plaintiffs testimony that Jayden told her about the injury when he arrived home. There are inconsistencies in the record, e.g., the plaintiff testified that she found out about the incident as soon as Jayden returned home and Dr. McCann’s records indicate that the plaintiff found out about the incident approximately a week later. However, these inconsistencies are not so contradictory for this court to find that the trial court’s determination that Jayden was injured while he was a passenger on the school bus is manifestly erroneous.

Further, while Ms. Lemoine testified that there was no sudden jerk or stop when she backed into the wet, grassy area, she also testified that the bus became stuck and that she had to wait for another bus to tow her out of the wet, grassy | Barea. Given this testimony, in addition to her testimony that she might not know if one of the children fell out of his or her seat while she was backing up, we find no error in the trial court’s conclusion that the defendant failed to rebut the presumption of negligence.

These assignments of error are without merit.

Vicarious Liability

In its remaining assignment of error, the defendant asserts that the trial court erred in finding it vicariously liable for Ms. Lemoine’s alleged negligence. The defendant bases this on its assertion that the trial court erred in finding that the plaintiff had met her burden of proof. As previously discussed, we find no error in the trial court’s determination that the plaintiff met her burden of proof pursuant to the common carrier doctrine. Accordingly, the defendant is vicariously liable because Ms. Lemoine was its employee and was in the course and scope of her employment at the time of the accident. La.Civ.Code art. 2320; Dunn v. Gentry, 94-1164 (La.App. 3 Cir. 4/5/95), 653 So.2d 783.

This assignment of error is without merit.

DECREE

The judgment of the trial court in favor of the plaintiff, Hope Dauzat, on behalf of her minor child, Jayden Bradford, is affirmed in all respects. Costs of this proceeding are allocated to the defendant, the Avoyelles Parish School Board.

AFFIRMED.

      . Jayden Bradford’s first name has various spellings in the record. We adopt the spelling used in the petition.

      . The petition indicates that the plaintiff tiled suit against the Avoyelles Parish School Board and a John Doe defendant. However, according to the record, the School Board was the only defendant present at trial and judgment was only rendered against the School Board.

      . Although the transcript indicates that portions of the trial court’s reasons for judgment were unintelligible, it appears that the trial court considered that Jayden was "a guest passenger on a school bus” in rendering judgment.


author: SAUNDERS, Judge.

text:
    STATE in the Interest of P.M. & H.M.
    No. 11-1362.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Annette Fuller Roach, 15th JDC Public Defenders Office, Lake Charles, LA, for Appellant, D.A.
    Diane Elaine Cote, Lafayette, LA, for Appellee, State of Louisiana, Department of Children and Family Services.
    Brett Anthony Stefanski, Attorney at Law, Crowley, LA, for Appellee, P.M. and H.M.
    Scott J. Privat, Privat & Privat, Crowley, LA, for Appellant, R.M.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   SAUNDERS, Judge.

|, This case involves the involuntary termination of parental rights of a mother and father of two children under La.Ch. Code art. 1015(5). The trial court found that neither parent substantially complied with the case plan nor was there any reasonable expectation that either parent’s conduct would significantly improve in the near future. Further, the trial court found that termination of each parent’s parental rights was in the best interest of the children. As such, the trial court terminated the mother and father’s parental rights and certified the children for adoption. We reverse.

FACTS AND PROCEDURAL HISTORY:

The Department of Children and Family Services (DCFS) became involved with a cohabiting family composed of mother, D.A., father, R.M., and two children, P.M. and H.M., following an incident where R.M. whipped P.M. with a belt. The DCFS created a safety plan and D.A. attended domestic violence counseling. The safety plan provided that R.M. was permitted only supervised visits with the children.

Thereafter, R.M. and D.A. apparently reconciled and R.M. requested that a new safety plan be enacted. The following day, the DCFS received an anonymous call that R.M. was with D.A. and the children at the house of D.A.’s sister. Upon arriving, the workers observed the four family members sleeping on an air mattress on the living room floor. The children were removed from the home and placed in the State’s custody on December 8, 2008.

A petition was filed on December 12, 2008, to adjudicate the children as in need of care. On January 5, 2009, the parties agreed that the children be adjudicated as such. A case plan wherein, inter alia, D.A. and R.M. would obtain |2steady housing and employment, seek mental health treatment, and attend parenting classes was established.

On August 20, 2010, a petition for termination of parental rights and certification for adoption was filed. A trial was held on May 6, 2011, wherein judgment was reached by the trial court that terminated the parental rights of D.A. and R.M. and certified the children for adoption. D.A. and R.M. have timely appealed.

ASSIGNMENTS OF ERROR D.A. AND R.M.:

1. The trial court erred in terminating the parental rights of D.A. and R.M. via concluding that her failure to more timely seek mental health treatment was sufficient to prove by clear and convincing evidence that she has not substantially complied with their case plan and that there was no reasonable expectation for further improvement in their condition or conduct in the near future nor reasonable expectation that they would complete the case plan as deemed necessary for the safe return of the children.

2. The trial court erred in finding that termination was in the best interest of the children.

ASSIGNMENT OF ERROR NUMBER ONE:

D.A. contends in her first assignment of error that the trial court erred in terminating her parental rights. We find merit in this contention.

The trial court’s factual findings regarding involuntary termination of parental rights are reviewed under the manifest error/clearly wrong standard. State ex rel. H.M.D., 09-508 (La.App. 3 Cir. 4/7/10), 35 So.3d 426.

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the |8law, Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship, State in Interest of Delcuze, 407 So.2d 707 (La.1981). However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. Lehman v. Lycoming County Children’s Servs. Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982); see also State in the Interest of S.M., 98-0922 (La.10/20/98), 719 So.2d 445, 452. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. See, e.g., State in the Interest of S.M., 719 So.2d at 452; State in the Interest of A.E., 448 So.2d 183, 186 (La.App. 4 Cir.1984); State in the Interest of Driscoll, 410 So.2d 255, 258 (La.App. 4 Cir.1982).
The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. LA. CHILD. CODE[ ] art. 1001. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens. The potential loss to the parent is grievous, perhaps more so than the loss of personal freedom caused by incarceration. State in the Interest of A.E., 448 So.2d at 185.

State in the Interest of J.A., 99-2905, pp. 7-9 (La.1/12/00), 752 So.2d 806, 810-11.

The trial court terminated D.A.’s parental rights under La.Ch.Code art. 1015(5), which states:

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 |4of 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.

In this case, there is no dispute that the children have been removed from D.A.’s custody via court order for at least a year. The dispute is whether the State carried its burden to prove, by clear and convincing evidence, that D.A. has not had some substantial compliance with her case plan and that one cannot reasonably expect D.A. to show significant improvement in her conduct or condition presently.

D.A.’s case plan was dated December 31, 2008. It required of her the following: establish and maintain housing; obtain employment; attend parenting classes; pay twenty dollars monthly of parental contributions to social services; undergo psychological evaluation and obtain an assessment with Crowley Mental Health and follow-through with any recommendations they make; complete substance abuse treatment; attend counseling at Faith House for battered women; and participate in home visits and visitation with the children.

In a report dated April 29, 2009, it was noted that D.A. did not establish housing or obtain employment. However, D.A. had applied for work at two different businesses. Further, D.A. attended five of six sessions in parenting classes, three of which D.A. participated extensively. Additionally, D.A. applied for and was placed on a waiting list to attend another parenting class to improve her mothering skills. D.A. also has attended several sessions at Faith House for battered women and substance abuse treatment wherein she was administered several urine drug screens. D.A.’s results were negative on all administered screens.

As of the April 2009 report, D.A. failed to contribute the twenty dollars monthly. However, according to the report, she brought snacks for the visits with |sthe children as well as presents for holidays and birthdays. Further, D.A. attended all visits during the supervision period, demonstrated attempts to utilize alternative discipline methods when the children misbehaved, showed appropriate affection for the children, and read books and colored with the children. Finally, D.A. assisted in changing H.M.’s diapers and helping P.M. in using the restroom.

On May 11, 2009, the trial court issued a judgment that reunification was not possible at that time, but that reunification was still the goal. On November 28, 2009, a second report noted that D.A. still failed to establish housing or obtain employment. However, the report noted that D.A. had placed applications at multiple businesses to no avail.

D.A. was involved with a mentoring program from May 2009 to November 2009. The goals of that program were to assist D.A. with finding a job and housing and discussion of anger management and parenting issues. D.A. was reportedly cooperative with this program.

D.A. attended a psychological evaluation with Dr. Bergeron on June 11, 2009, wherein she admitted to depression due to separation from her children. Dr. Berger-on recommended mental health services. Due to D.A.’s housing location, she was only able to attend one appointment at Crowley Mental Health, as her location disqualified her for their services. She was then referred to Lake Charles Mental Health. D.A. contacted Lake Charles Mental Health about services, but was told she did not meet its criteria for services.

As of the November 2009 report, D.A. has failed to contribute the twenty dollars monthly. However, according to the report, she brought snacks for the visits with the children as well as presents for the holidays and birthdays. Further, D.A. attended all visits during the supervision period, demonstrated attempts to utilize alternative discipline methods when the children misbehave, showed Inappropriate affection for the children and assisted the children by changing H.M.’s diapers and helping P.M. in using the restroom. It was noted that D.A. struggled to discipline P.M. However, most parties have reported that P.M. has been difficult to discipline, including P.M.’s foster parents and therapist. Since, P.M. has been diagnosed with ADHD and been reacting favorably to the prescribed medication.

On December 7, 2009, the trial court issued a judgment that reunification was not possible at that time, but that reunification was still the goal. In March of 2010, D.A. completed an anger management course. On June 1, 2010, another report was issued. Its contents were identical to the November 2009 report. On June 1, 2010, the trial court issued a judgment that reunification was not possible at that time, but that adoption was now the goal.

On August 20, 2010, a petition was filed to terminate DA’s parental rights. On April 19, 2011, a report was issued on this matter. In that report, it noted that D.A. had obtained housing with the children’s father, R.M. Although D.A. had attempted to get a job previously, she no longer intended to do so due to reunification with the children’s father who had a steady income.

After a thorough review of the record, we find that the trial court erroneously terminated D.A.’s parental rights. She has substantially complied with her case plan for services. The areas in which she lacked were due to economic difficulties that hindered her attempt to obtain appropriate housing. Because she lacked a consistent housing location, she has failed to fully complete the mental health treatment portion of her case plan due to failing to meet the criteria for the services. The record indicates that she has reunited with the children’s father who has a steady income. This steady income has helped D.A. obtain housing. This fact leads one to reasonably expect D.A. to show significant improvement in her conduct or condition and should help D.A. completely comply with her case plan. 1^Accordingly, we reverse the trial court’s judgment terminating D.A.’s parental rights.

D.A. ASSIGNMENT OF ERROR NUMBER TWO:

In her second assignment of error, D.A. asserts that the trial court erred in finding that termination was in the best interest of the children. This assignment of error is pretermitted.

Prior to termination of parental rights, the grounds for termination must be established, and, thereafter, the trial court may terminate parental rights if termination is in the best interest of the child. La.Ch. Code art. 1037(B). We reversed the trial court’s judgment terminating D.A.’s parental rights in her assignment of error number one because the State failed to establish the grounds necessary to terminate D.A.’s parental rights under La.Ch.Code art. 1015(5). Therefore, any discussion of this issue is extraneous.

R.M. ASSIGNMENT OF ERROR NUMBER ONE:

R.M. contends in his first assignment of error that the trial court erred in terminating his parental rights. We find merit in this contention.

Again, in this case, there is no dispute that the children have been removed from R.M.’s custody via court order for at least a year. The dispute is whether the State carried its burden to prove, by clear and convincing evidence, that he has not had some substantial compliance with his case plan and that one cannot reasonably expect R.M. to show significant improvement in his conduct or condition in the near future.

R.M.’s case plan and compliance mirrors that of D.A. His case plan included the following: stable, independent housing; obtaining and maintaining income; meeting with a case worker three times a month; obtaining mental health treatment; attending a psychological evaluation; working with mentoring mom | «program budgeting; applying for housing assistance/vocational assistance; paying a parental contribution; and visiting with his children.

During the time the children were placed in the State’s custody, R.M. worked odd jobs with a neighbor and applied for jobs with local businesses and oilfield employers. Since, he completed five of six sessions of parenting classes and has been steadily employed. He has improved his living situation to where he and D.A. are living in a home together that is appropriate for the children. Both D.A. and R.M. reported no domestic altercations since the children were placed in the State’s custody. R.M. testified that he completed anger management classes and parenting classes.

Finally, the primary concern with R.M.’s parenting skills to help him gain control of his anger in correcting his children. His testimony at the hearing was that he understood alternative methods of discipline and intended to use those rather than physical methods.

After a thorough review of the record, we find that the trial court erroneously terminated R.M.’s parental rights. He has substantially complied with his case plan for services. Much like D.A., the lack of a consistent location for housing has been the source of his failure to complete the mental health aspect of his case plan. The record indicates that he now has a more stable housing situation and also has a stable income. This fact leads one to reasonably expect R.M. to comply fully with his case plan. Accordingly, we reverse the trial court’s judgment terminating his parental rights.

R.M. ASSIGNMENT OF ERROR NUMBER TWO:

R.M.’s second assignment of error is the trial court erred in finding that termination was in the best interest of the children. This assignment of error is preter-mitted for the reasons stated in D.A.’s assignment of error number one.

CONCLUSION:

D.A. and R.M. each raise two assignments of error. Both assert that the trial court erroneously terminated their parental rights. We find merit to these assignments. These findings pretermit the remaining assignments of error. There are no court costs to assess in this matter.

REVERSED.


text:
    STATE in the Interest of D.D.
    No. 11-1384.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2012.

      Michael Harson, District Attorney, Michelle M. Breaux, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defen-danf/Appellant, D.D.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

liThe State filed a petition charging the juvenile defendant with second degree murder and aggravated battery. After an adjudication hearing, the trial court adjudicated the juvenile as delinquent and imposed a disposition of secure placement until the juvenile attained the age of twenty-one without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence. The juvenile appeals. For the following reasons, we affirm and remand the matter to the trial court with instructions.

Factual and Procedural Background

After Joseph Nelson died as a result of a single stab wound to his heart, the juvenile defendant, D.D., was taken into custody. The State filed a petition alleging that D.D. should be adjudicated as delinquent on the basis that he committed second degree murder, a violation of La.R.S. 14:30.1, and aggravated battery, a violation of La.R.S. 14:34. The State subsequently sought to transfer D.D., who was fourteen years old at the time of the incident, to adult court. However, the trial court denied the State’s motion to transfer.

A delinquency hearing was held on May 11 and 12, 2011, and June 24, 2011, on the second degree murder charge. The evidence presented at the hearing | awas that, on September 18, 2010, D.D. was hanging out with a group of boys, which included D.K.M., KM., T.S., D.M., M.M., and the victim, Joseph Nelson. The group was playing basketball and rambling around their neighborhood in Lafayette, Louisiana. All of the boys testified that D.D. was “fussing” with Mr. Nelson. There was testimony that D.D. wanted Mr. Nelson’s watch and cell phone. As the boys were walking to a local supermarket, D.D. and Mr. Nelson got into a fistfight after D.D. continued to state that he was going to take the watch and the cell phone. According to the testimony, Mr. Nelson bloodied D.D.’s lip and D.D. lost the fight.

All of the boys, with the exception of D.K.M., testified that, after losing the fight, D.D. left the group and returned with a shotgun. According to those witnesses, D.D. stated that he did not want to shoot Mr. Nelson with the gun, but that he wanted to hit him on the head with it and send him to the hospital. Eventually, some of the group convinced D.D. to put the gun away. D.D. again left the group, but returned a short time later. D.K.M., K.M., and M.M. testified that D.D. was smoking a “blunt,” and that D.D. stated something like after he “hit the weed, [he was] going to kill him.” There was testimony that D.D. approached Mr. Nelson, pulled a knife out of his back pocket, and started swinging it at Mr. Nelson. Although Mr. Nelson attempted to back away, one of D.D.’s blows connected. According to the testimony, D.D. fled and Mr. Nelson started running | ..¡towards Cameron Street, where he eventually collapsed. Although Mr. Nelson was transported to the hospital, he died as a result of the wound. The autopsy report indicated that Mr. Nelson suffered a single stab wound to the heart.

The trial court adjudicated D.D. delinquent on the count of second degree murder. After a disposition hearing, the trial court ordered D.D. “confined in secure placement until the child attains the age of 21 years, without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence.” The trial court also denied D.D.’s request that he receive credit for time served.

D.D. appeals, asserting that:

1) The juvenile judge erred in concluding that the State proved that the killing was not justified, as defined in La.Code Crim. P. art. 20.
2) The juvenile judge erred in not concluding that D.D.’s voluntary intoxication precluded the presence of specific intent, a necessary element of the crime of second degree murder.

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. See State in the Interest of S.M., 11-271 (La.App. 3 Cir. 6/8/11), 67 So.3d 1274; State in Interest of C.D., 95-160 (La.App. 5 Cir. 6/28/95), 658 So.2d 39. We note several errors patent.

First, the petition does not note D.D.’s place of birth as required by La.Ch. Code art. 845. However, this is a defect as to form only. La.Ch.Code art. [4749(B). Louisiana Children’s Code Article 748(D) provides that “[fjailure to comply with formal requirements of this Article shall not be grounds for dismissal of a petition or invalidation of the proceedings unless it results in substantial prejudice.” D.D. has not alleged any prejudice as a result of the defect. Therefore, we find this error to be harmless. See State ex rel. J.W.D., Jr., 05-1135 (La.App. 3 Cir. 2/1/06), 921 So.2d 1165.

Second, the record does not indicate that D.D. was informed of his rights when he appeared to answer the petition, as required by La.Ch.Code art. 855. However, D.D. was represented by counsel and denied all the charges against him. The fifth circuit has found that, in those circumstances, “the juvenile’s rights were adequately protected and the fact that he was not so advised caused him no prejudice in connection with his rights.” State in the Interest of J.G., 94-194, p. 10 (La.App. 5 Cir. 7/26/94), 641 So.2d 633, 639. Thus, we find that any error in failing to advise D.D. of his rights in this case was harmless. See also State in the Interest of K.G., 34,535 (La.App. 2 Cir. 1/24/01), 778 So.2d 716.

Third, the record does not indicate that the trial court informed D.D. of the 15two-year prescriptive period for filing an application for post-conviction relief, as required by La.Code Crim.P. art. 930.8. As stated in State ex rel. D.J., 08-345, p. 15 (La.App. 3 Cir. 8/28/08), 995 So.2d 1, 11, “[a]lthough the Children’s Code contains no similar provision, this court has previously held that this notice should be given.” Accordingly, the trial court is ordered to provide appropriate written notice to D.D. within ten days of the rendition of this opinion and to file written proof in the record that D.D. received the notice. See State v. Guillory, 07-422 (La.App. 3 Cir. 10/31/07), 970 So.2d 670.

Fourth, the record indicates that the trial court denied D.D.’s request for credit for time served. Louisiana Children’s Code art. 898(A) requires that “[t]he court shall give a child credit for time spent in secure detention prior to the imposition of disposition.” However, because D.D.’s disposition is secure placement is until he has reached the age of twenty-one years, and not for a term of years, we find this error is harmless. See State in the Interest of D.S., 95-1019 (La.App. 5 Cir. 4/16/96), 673 So.2d 1123, writ denied, 96-1237 (La.6/21/96), 675 So.2d 1086.

Finally, the minutes from D.D.’s disposition hearing require correction. The transcript indicates that the trial court imposed “confinement in secure placement until [D.D. reaches] the age of 21 years, without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence.” However, the minutes from the disposition hearing indicate that “the court ordered that the juvenile be placed in secured custody until the age of twenty-one (21).” Where the minutes conflict with the transcript, the transcript prevails. State v. Salameh, 09-1422 (La.App. 3 Cir. 5/5/10), 38 So.3d 568 (citing State v. Guillory, 00-386 (La.App. 3 Cir. 11/2/00), 773 So.2d 794, writ denied, 00-3334 (La.11/9/01), 801 So.2d 362). Accordingly, we remand to the trial court for the limited ^purpose of correcting the minutes from the disposition hearing to accurately reflect the transcript.

Self-Defense

In his first assignment of error, D.D. contends that the State did not meet its burden of proof regarding D.D.’s assertion of self-defense. A panel of this court discussed the appropriate standard of review in State in the Interest of J.M., 99-136, pp. 2-3 (La.App. 3 Cir. 6/2/99), 742 So.2d 6, 7, stating:

In a case involving a juvenile, the State has the burden of proving, beyond a reasonable doubt, the commission of the alleged delinquent act. La.Ch.Code art. 883. This burden of proof is no less strenuous than that required in the criminal proceeding against an adult. State In Interest of Tatom, 463 So.2d 35 (La.App. 5 Cir.1985). On review, the standard for due process, fashioned by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is applicable to determine whether the evidence was sufficient to support an adjudication of delinquency in a Juvenile matter. State In Interest of T.L., 514 So.2d 217 (La.App. 5 Cir.1987). Essentially, while we review whether the evidence in support of the adjudication of a Juvenile is sufficient; we must determine, viewing the evidence in a light most favorable to the prosecution, whether any rational trier of fact could find from the evidence adduced, proof of guilt beyond a reasonable doubt. State In Interest of Wilkerson, 542 So.2d 577 (La.App. 1 Cir.1989). Furthermore, it is well settled that appellate review in juvenile delinquency proceedings extends to both law and facts. La. Const. Art. V, § 10(B) (1974); State In Interest of Batiste, 367 So.2d 784 (La.1979). In Wilkerson, 542 So.2d 577, 581, the court stated:
In a juvenile case, when there is evidence before the trier of fact that, upon its reasonable evaluation of credibility, furnished a factual basis for its finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Reasonable evaluation[s] of credibility and reasonable inferences of fact should not be disturbed upon review.

Further, when a defendant asserts a claim of self-defense, the burden lies on the State to establish beyond a reasonable doubt that the defendant did not act in self-defense. State v. Alexander, 04-788 (La.App. 3 Cir. 11/17/04), 888 So.2d 401 (citing State v. Brown, 414 So.2d 726 (La.1982)).

|7P.P. was charged with second degree murder, a violation of La.R.S. 14:30.1. That statute states, in pertinent part that “[sjecond degree murder is the killing of a human being ... [wjhen the offender has a specific intent to kill or to inflict great bodily harm[.]” Louisiana Revised Statutes 14:20 provides that a homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

D.D. contends that he had a reasonable fear for his own safety. According to D.D., it was known that Mr. Nelson was a good boxer. There was testimony that Mr. Nelson had formal boxing training and had won several fights. D.D. also argues that the evidence establishes that he believed that Mr. Nelson was armed, because Mr. Nelson had shown D.D. a pocketknife earlier in the day. Furthei’, D.D. contends that the evidence shows that he reasonably believed that he was going to be “jumped” by the other boys.

|sHowever, the State offered testimony from five eyewitnesses, D.K.M., K.M., T.S., M.M., and D.M. Although there were slight variations in their testimony, they all testified to the same general sequence of events. All testified that the group, with the addition of Mr. Nelson and D.D., hung out at various locations in their neighborhood. There was testimony that Mr. Nelson and D.D. got in a fistfight because D.D. wanted Mr. Nelson’s watch and cell phone. The witnesses further testified that Mr. Nelson bloodied D.D.’s lip and that D.D. lost the fight.

K.M., T.S., M.M., and D.M. testified that, after losing the fight, D.D. left the group and returned with a shotgun. According to their testimony, D.D. threatened to hit Mr. Nelson on the head with the gun, but was convinced to leave and put the gun away. However, D.D. returned a short time later. D.K.M., KM., and M.M. testified that, when D.D. returned, he was smoking a “blunt.” They also testified that D.D. stated something to the effect of, after he “hit the weed, [he was] going to kill him.”

According to testimony, D.D. then approached the victim, pulled out a knife, and started swinging it at Mr. Nelson. D.K.M. at first testified that Mr. Nelson was not hitting D.D., but that he was “ducking and weaving.” However, D.K.M. also stated that Mr. Nelson punched D.D. before D.D. stabbed him. K.M. testified that, until D.D. took out the knife, Mr. Nelson was swinging a t-shirt at D.D. and laughing. According to K.M., once D.D. took out the knife, Mr. Nelson started backing away from D.D. T.S. and M.M. both testified that, once Mr. Nelson saw the knife, he tried to run from it and was trying to block D.D.’s blows with his shirt. D.M. testified that Mr. Nelson “put up his fists” before D.D. took out the knife. The boys testified that, after D.D. stabbed Mr. Nelson, D.D. fled.

[ ¡Although there was testimony that Mr. Nelson had a pocketknife earlier in the day, there was also testimony that Mr. Nelson no longer had the pocketknife at the time of his final encounter with D.D. The testimony was conflicting concerning D.D.’s knowledge that Mr. Nelson no longer had the pocketknife. Further, one witness, D.K.M., testified that he warned D.D. that the other boys were going to “jump” D.D. However, the other boys denied that they planned to do so.

The record reveals that the evidence, when viewed in a light most favorable to the prosecution, was sufficient to meet the State’s burden of proof that D.D. did not act in self-defense. According to the record, after losing the initial fight, D.D. left the group at least once, if not twice. On both occasions, when he returned to the group, he had armed himself. Further, several of the witnesses testified that D.D. threatened to kill Mr. Nelson. There was no testimony that Mr. Nelson threatened D.D. with death or great bodily harm. To the contrary, two witnesses, D.K.M. and K.M., testified that Mr. Nelson was laughing immediately before D.D. took out the knife.

Thus, there is evidence in the record sufficient to support a finding that D.D. was the aggressor in his final encounter with Mr. Nelson. “A person who is the aggressor or who brings on a difficulty cannot claim the right of 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.” La.R.S. 14:21. See also State v. Loston, 03-977 (La.App. 1 Cir. 2/23/04), 874 So.2d 197, writ denied, 04-792 (La.9/24/02), 882 So.2d 1167.

The State submitted evidence sufficient to prove that D.D. was the aggressor in his final encounter with Mr. Nelson and, therefore, could not claim the right of | inself-defense. Accordingly, we find no error in the trial court’s finding that D.D. did not act in self-defense.

In relation to his assertion of self-defense, D.D. also contends that the trial court should have reduced the charge to manslaughter based on a theory of “imperfect self-defense.” The first circuit addressed the concept of “imperfect self-defense” in State v. Morris, 09-422, p. 17 (La.App. 1 Cir. 9/11/09), 22 So.3d 1002, 1012, stating:

The theory of the imperfect right of self-defense acknowledges that there are homicides which fall short of self-defense, but holds that those homicides should not constitute murder, where the defendant’s honest but erroneous belief of imminent harm is less than reasonable, Louisiana law does not provide for any mitigating circumstance resembling the theory of “imperfect self-defense.” See State v. Johnson, 98-1407, pp. 7-8 (La.App. 1st Cir. 4/1/99), 734 So.2d 800, 805-06, writ denied, 99-1386 (La.10/1/99), 748 So.2d 439.

As there is no provision for “imperfect self-defense” in Louisiana law, D.D.’s assertion to the contrary must fail.

This assignment of error is without merit.

Intoxication

D.D. also asserts that he was so intoxicated- at the time of the offense that he could not form specific intent. According to D.D., he consumed enough marijuana and “Four Loko” (an alcoholic beverage that also contains caffeine) on the date of the offense that he could not form specific intent.

A defendant’s voluntary intoxication may be asserted as a defense “where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime.” La. R.S. 14:15(2). “It is, however, an affirmative defense, and the burden is on defendant to prove by a preponderance of the evidence that he was in fact intoxicated at the time of the offense.” State v. Mack, 45,552, p. 3 (La.App. 2 Cir. 8/11/10), 46 So.3d 801, 803. See also State v. Bias, 10-1440 (La.App. 3 Cir. 5/4/11), 63 So.3d 399, writ denied, 11-1063 (La.11/14/11), 75 So.3d 939.

The record indicates that D.D. was interviewed the day after the stabbing. A DNA sample was taken at that time, but D.D.’s blood-alcohol content was not tested. The State’s witnesses testified that D.D. consumed both marijuana and alcohol on the date of the offense, but their testimony concerning the amount and timing of D.D.’s consumption varied. D.M. and D.K.M. both testified that D.D. consumed one “blunt” and one can of Four Loko. M.M. testified that D.Dl consumed two “blunts” and one can of Four Loko. Similarly, K.M. recalled that D.D. consumed three “blunts” and two cans of Four Loko. According to T.S.’s testimony, he could not recall what, if anything, D.D. consumed on that date. However, D.K.M., K.M., and M.M. did testify that, immediately before the stabbing, D.D. was smoking marijuana.

D.D. also offered the testimony of Dr. Donald Harper, an expert in the fields of neurology, psychopharmacology, and forensic neurology. The trial court limited the scope of Dr. Harper’s testimony to hypothetical situations, stating that “this Court will decide whether that hypothetical does or doesn’t fit that situation.” Dr. Harper testified that a single Four Loko was the rough equivalent of five cans of beer plus two to three cups of coffee. According to Dr. Harper, hypothetically, two “blunts” and one can of Four Loko would have been sufficient to significantly intoxicate D.D. and affect his behavior and thinking. However, Dr. Harper conceded that he could not state with certainty the effect of those substances on D.D.’s behavior because of the unknown amounts and timing of the ingestion of those substances.

The trial court found that there was not sufficient evidence to show that D.D. was intoxicated such as to negate the formation of specific intent. To the contrary, 112the trial court found that D.D.’s actions showed that he was capable of forming specific intent. The trial court stated:

[T]he mere amount is not as relevant as the question of the behavior of this defendant, as to whether he — the intoxication precluded specific intent. And this defendant took two actions to indicate that he intended to — that he knew what he was doing and he intended to inflict great bodily harm or death upon the victim in this case.
First of all, he clearly stated that he was going to kill him, which clearly indicates that he understood what he was going to do. And then he took two actions to try to do that. One time, he retrieved a weapon, a gun. He was talked into returning that. And then he came back — not only armed himself with a knife, but secreted the knife — hid it— so that the victim in this case would not know that he had come back with a weapon.
All of that indicates sufficient forethought, planning, and understanding to clearly convince this Court, beyond a reasonable doubt, that the defendant in this case had specific intent to kill the victim in this case and did so when he stabbed him.

Given the surfeit of evidence indicating that D.D. was capable of “sufficient forethought, planning, and understanding” and the lack of evidence showing the amounts and timing of D.D.’s ingestion of any intoxicating substances, we find no error in the trial court’s determination that D.D. was not so intoxicated that he could not form specific intent at the time of the offense. See Bias, 63 So.3d 399.

This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the juvenile defendant, D.D.’s, adjudication and disposition for the charge of second degree murder. We remand to the trial court with instructions to correct the minutes of the disposition hearing to accurately reflect the transcript of the disposition imposed by the trial court. Further, we instruct the trial court to inform D.D. of the provisions of La.Code Crim.P. art. 930.8 by sending D.D. appropriate written notice within ten days of | ,3the rendition of this opinion and to file written notice in the record that D.D. received the notice.

AFFIRMED. REMANDED WITH INSTRUCTIONS.

      . Initials are used to protect the juveniles’ identities. However, as the victim is deceased, his name will be used. La.Ch.Code art. 811.1(G). See also Uniform Rules— Courts of Appeal, Rule 5-2.

      . According to the record, no formal motion to sever was filed. However, on May 11, 2001, at the adjudication hearing, the following colloquy occurred:
      MS. PREJEAN [attorney for D.D.]: I would move to continue all pending cases to Your Honor's next court date, pending—
      THE COURT: You mean other than this one?
      MS. PREJEAN: Yes, ma’am. Pending disposition of this case and depending on how this case ends.
      THE COURT: Ms. Breaux, are you—
      MS. PREJEAN: We would — I mean, depending on how this case — Your Honor rules, we may or may not be having a disposition hearing, and I would request that all charges — all pending cases be referred until after such time.
      MS. BREAUX[attorney for the State]: I truly have no opposition with that. I would rather handle one at a time.
      The trial court then reset all other pending cases for its July 2011 docket. We further note that, at the disposition hearing, the State’s attorney listed the remaining charges, pending against D.D., including the aggravated battery charge, and informed the trial court that "the State will hold all of these charges.” The trial court acquiesced to this request. Accordingly, the record indicates that the trial court granted D.D.'s oral motion to sever. See La.Ch.Code art. 873.

      . We observe that, in brief, D.D. asserts that there are two errors patent relating to time delays and sentencing. Finding no error patent in regard to D.D.'s contention regarding time delays, we decline to address that issue herein.

      . Louisiana Children’s Code Article 855(B) states, in relevant part:
      If the child is capable, the court shall then advise the child of the following items in terms understandable to the child:
      (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.