author: GASKINS, J.

text:
    BROWN RADIATOR AND FRAME, Plaintiff-Appellee v. Fred D. KIDD, Sr., Defendant-Appellant. Fred D. Kidd, Sr., Plaintiff-Appellee v. Brown Radiator and Frame, Defendant-Appellant.
    Nos. 44,354-WCA, 44,355-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.

      Fred D. Kidd, Sr., in Proper Person.

      Snellings, Breard, Sartor & Inabnett by Donald J. Anzelmo, Monroe, for Brown, Radiator and Frame.
    Before GASKINS, MOORE and LOLLEY, JJ.
   GASKINS, J.

hThe claimant, Fred D. Kidd, Sr., appeals from a ruling by a Workers’ Compensation Judge (WCJ) dismissing his claim for permanent disability benefits. The claimant was also found to have committed fraud in violation of La. R.S. 23:1208 and was ordered to pay restitution of indemnity benefits, medical benefits and attorney fees. For the following reasons, we affirm the judgment.

FACTS

Mr. Kidd has a history of injuries to his right shoulder; he had filed prior workers’ compensation claims as a result. In 1989, while working as an alignment and brake specialist at Firestone, Mr. Kidd slipped and fell, injuring his right shoulder. He had three shoulder surgeries from December 1989 through September 1990 which included repair of the shoulder and a torn rotator cuff. He then had unsuccessful physical therapy and was released to return to work in January 1991. However, he did not return to work.

In January 1992, Mr. Kidd was released by his treating physician because his treatment and outcome were compromised by his low tolerance for pain and fear of anesthesia. He was assigned a 10-20 percent impairment of the upper right arm. In November 1992, after treatment by another physician and little progress with physical therapy, Mr. Kidd was assessed with a 28 percent disability of his right upper extremity. In August 1993, Mr. Kidd went to the emergency room complaining that he fell on his right shoulder while mowing a lawn. Treatment by other physicians was not | ¡¡successful and an MRI failed to reveal the source of the pain. At one point, a physician recommended a psychological evaluation for Mr. Kidd.

Mr. Kidd received a workers’ compensation judgment for his 1989 fall at Firestone. On April 9, 1996, the parties entered into a compromise settlement agreement for $36,136.45. In February 1997, Mr. Kidd went to work for Scott Cummins Salvage. Mr. Kidd admitted that he lied about his physical condition and educational background on his application. He said that he believed that he would not be hired if he told the truth. He worked there for a short time and then went to work for Brown Radiator and Frame (Brown).

After working for Brown for several years, Mr. Kidd asserted that he suffered another fall and shoulder injury at work on September 9, 2002. This injury is the basis for the present dispute. Mr. Kidd claimed that, while going out on an alignment rack to get an air hose, his feet went out from under him and he fell on the crossbeam of the alignment rack, injuring his right shoulder and arm. He stated that his coworkers, Chris Tramble, Mike Tramble, and Mitchell Jordan, were nearby when the accident occurred.

Mr. Kidd gave an inconsistent version of the accident in his deposition. At some points, he claimed that he fell on the rack beam. At other times he stated that he fell completely down into the pit under the rack. His testimony also varied regarding the severity of the impact on his shoulder. In one instance, he claimed that his shoulder was dislocated. This claim was never corroborated by the medical evidence.

laThe testimony of his witnesses was not entirely consistent with Mr. Kidd’s version of the accident. Chris Tramble acknowledged witnessing Mr. Kidd’s fall and assisting him up afterwards, although he made contradicting statements indicating that he did not see the mishap. Kidd v. Brown Radiator and Frame, 38,729 (La. App. 2d Cir.12/22/04), 890 So.2d 796, writ denied, 2005-0172 (La.3/24/05), 896 So.2d 1042. Mr. Kidd and Chris Tramble stated that Mike Tramble and Mitchell Jordan, the shop foreman, were nearby and that Mr. Jordan asked Mr. Kidd if he was okay. Mike Tramble denied witnessing the fall, but admitted observing Mr. Kidd get up from a lying down or seated position holding his shoulder on the day of the accident. Mr. Jordan denied witnessing or knowing about Mr. Kidd’s accident until after receiving notice of the workers’ compensation claim in November 2002. Mr. Jordan did recall that Mr. Kidd complained of a “crick” in his neck during September or October 2002. Kidd v. Brown Radiator and Frame, supra.

Mr. Kidd continued to work for a couple of weeks after the alleged accident. He went to the emergency room on September 22, 2002, complaining of a sore throat, a stiff and painful neck on the right side, and hypertension. He did not initially tell his treating physicians that he was hurt at work. Mr. Kidd worked at Brown until late October 2002. He filed his claim for temporary, total disability benefits in November 2002. Kidd v. Brown Radiator, supra.

After a hearing before a WCJ, a judgment was signed on November 17, 2003, finding that a work-related accident had occurred and awarding Mr. [4Kidd temporary, total disability benefits of $416.00 per week from January 7, 2003, through August 24, 2003. Mr. Kidd’s claims for mileage and reimbursement were denied for failure to meet his burden of proof. His claims for attorney fees and penalties were denied. The WCJ ordered an independent medical examination (IME) because there was a question as to whether continuing problems with the shoulder were work-related or attributable to degenerative changes.

Although temporary, total disability benefits were granted, the WCJ found:

When looking at that situation and other evidence that’s been presented to me today, I don’t find that the claimant is the most credible person that I’ve had come before me. Information indicates that he lied on applications with Scott Cummins, and he lied to the Social Security Administration. He had conflicts in his deposition testimony, and it may even be a situation that he lied to this Court about whether he was working for one, C & J Barbeque and Scott Cum-mins, at that same time that he was telling me that he was unable to work during that prior proceeding....
The only person that testified they actually witnessed the accident was one, Chris Tramble. I must say that I was impressed with the testimony of Mr. Tramble and felt that he actually corroborated the statements of the claimant. ...
The other person whose testimony I was impressed with was the testimony of Mitchell Jordan. Mr. Jordan said that he found the claimant to be a hard worker.... Now, Mr. Jordan said he didn’t see a slip-and-fall, but one thing Mr. Jordan did notice there was something going on with Mr. Kidd’s neck during the month of September and October. Something occurred....

Brown appealed that ruling. In an unpublished opinion, this court found that the rulings of the WCJ, awarding benefits but also ordering an IME, were incongruent and interlocutory and therefore, not an appealable | ¡¿final judgment. We dismissed the appeal and remanded the matter for further proceedings. Kidd v. Brown Ra diator and Frame, 38,729 (La.App. 2d Cir.7/2/04), 877 So.2d 358, writ granted, 2004-1961 (La.11/15/04), 887 So.2d 463. Brown took writs to the Louisiana Supreme Court. On November 15, 2004, that court granted the writ application and reversed our ruling. The supreme court remanded the case to this court for an opinion on the merits.

On December 22, 2004, this court affirmed the WCJ’s ruling that there was sufficient evidence of a work-related accident and that Mr. Kidd’s disability was caused by the accident. We also affirmed that part of the judgment granting temporary, total disability benefits and ordering an IME. Brown again took writs to the Louisiana Supreme Court; that application was denied. Kidd v. Brown Radiator and Frame, 39,729 (La.App. 2d Cir.12/22/04), 890 So.2d 796, unit denied, 2005-0172 (La.3/24/05), 896 So.2d 1042.

After the WCJ awarded temporary, total disability benefits, Mr. Kidd had additional surgery on his shoulder to repair the rotator cuff. In July 2005, Mr. Kidd filed a petition for benefits claiming that he is permanently and totally disabled as a result of his injury while working at Brown. He asked for penalties and attorney fees claiming Brown was aware of his permanent disability and refused to pay benefits.

On October 30, 2006, Brown filed a petition against Mr. Kidd claiming that he made false statements and representations in his original claim for temporary, total disability benefits and sought restitution of ^benefits as well as attorney fees. Mr. Kidd’s claim for permanent, total disability benefits and Brown’s claim for forfeiture of benefits based on fraud were consolidated. A hearing on these issues was held on April 24, 2008.

Regarding his permanent disability claim, Mr. Kidd testified that he can no longer perform the work he was doing at Brown and that he has pain in his shoulder three to four days per week. He stated that he stopped physical therapy because he does not always have transportation. The IME by Dr. Robert Holladay showed that, more likely than not, Mr. Kidd had rotator cuff tears in the shoulder before the accident at Brown and that he has only a mild aggravation of a preexisting condition.

In support of its fraud claim, Brown presented the testimony of Elizabeth Ray-etta Robinson, Mr. Kidd’s former girlfriend. Ms. Robinson stated that she had been in a relationship with Mr. Kidd for seven years. She testified that Mr. Kidd was not injured at Brown. According to Ms. Robinson, Mr. Kidd fell from a ladder while trimming hedges in his yard and injured his shoulder. He told her that he was tired of working and this would be a good way not to have to work. Shortly thereafter, Mr. Kidd claimed that he fell and was injured while working at Brown. Ms. Robinson helped Mr. Kidd fill out paperwork for his workers’ compensation claim. Ms. Robinson claimed that Mr. Kidd coached Chris Tramble as to how he should testify in the 2003 hearing. Ms. Robinson stated that Mr. Kidd paid $300 to another witness, Bo Eleam, for his testimony at the workers’ compensation hearing.

|7Ms. Robinson said that Mr. Kidd is not disabled. She stated that he uses a walking stick and shakes hands with his left hand only when he is out in public. According to her, Mr. Kidd can do anything with his right hand that he wants to do. Ms. Robinson related an incident which occurred while the temporary, total disability benefit claim was pending in which she had a broken water pipe at her house. Mr. Kidd dug out the pipe and repaired it. Because they knew that Brown had them under surveillance, Ms. Robinson stood watch while Mr. Kidd performed the work. She said that he also replaced a power steering belt on her car. Ms. Robinson related that, during an argument, Mr. Kidd was able to hold her down on the ground. According to Ms. Robinson, Mr. Kidd had no trouble accomplishing these strenuous tasks.

During the course of the temporary, total disability proceedings, Ms. Robinson said that she contacted the attorney who was then representing Brown and told her that Mr. Kidd was not injured at work. Ms. Robinson was subpoenaed to be a witness in May 2006 at a hearing involving the claim by Mr. Kidd for additional benefits. She was not served with the subpoena. However, on May 12, 2006, a couple of days before the hearing, Mr. Kidd contacted her and asked her to come to his house. When she went to his door, Mr. Kidd asked, “Why are you doing this? Why are you doing me like this?” She turned and walked toward the street; he came after her and shot her. He went into his house and made a phone call. When he came back to her, he was talking on the phone and mentioning a small car. As the | ^police arrived, he said, “Baby, please tell them it was a drive-by.” Criminal charges are pending against Mr. Kidd arising out of the shooting.

Mr. Kidd denied that he fell off a ladder. He claimed that Ms. Robinson was given to fits of rage. He said that she was angry because he did not give her any money from his workers’ compensation claim.

Chris Tramble testified that Mr. Kidd did not tell him what to say in court at the prior hearing. Several character witnesses were called on behalf of Mr. Kidd. Some of the witnesses stated that Ms. Robinson had a volatile temper and that she was “crazy.”

At the close of the hearing, the WCJ noted her misgivings in 2003 about Mr. Kidd’s credibility. The initial impression of lack of credibility, coupled with Ms. Robinson’s testimony, convinced the WCJ that Mr. Kidd had committed fraud. The WCJ found that Mr. Kidd made willful misrepresentations to the court for the purpose of obtaining benefits when he staged an accident at Brown and when he initiated proceedings to deliberately mislead the court. The WCJ stated that she believed the claimant fell from a ladder at home and injured his shoulder. She found that Mr. Kidd coached witnesses to testify on his behalf and coached Ms. Robinson to create documents on his behalf which were false. The WCJ stated that Mr. Kidd lied about the preexisting condition of his shoulder and about his involvement in other workers’ compensation claims. The WCJ ordered that all benefits be forfeited and that restitution be made of benefits previously paid. Mr. Kidd was also required to pay attorney fees and costs of litigation to Brown.

| qA judgment was signed by the WCJ on May 8, 2008, dismissing Mr. Kidd’s claims against Brown based on the finding that he committed fraud in violation of La. R.S. 23:1208. He was ordered to pay restitution of indemnity benefits in the amount of $14,248.41, medical expenses of $7,157.30, and attorney fees of $10,000.00.

During the trial, Mr. Kidd was represented by retained counsel. On appeal, he has been allowed to proceed informa pau-peris. His attorney withdrew; he now appeals the judgment in proper person.

Mr. Kidd argues that the WCJ erred in denying his claim for benefits. He claims that the WCJ erred in allowing Ms. Robinson to testify because she had outstanding warrants and restraining orders. He also claims that the WCJ erred in considering this matter because his claim for benefits has been before this court and the supreme court on two prior occasions.

DENIAL OF BENEFITS

Mr. Kidd argues that the WCJ erred in denying his claim for permanent, total disability benefits for the injury allegedly sustained at Brown. Mr. Kidd has not alleged that the WCJ erred in denying his claim based on the finding that he committed fraud. However, because the denial of Mr. Kidd’s claim was based upon the finding that he committed fraud, we will discuss these issues together.

Legal Principles

Misrepresentation and forfeiture under the Workers’ Compensation Act are regulated by La. R.S. 23:1208 which states, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the [ inprovisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The only requirements for a forfeiture of benefits under this statute are: (1) a false statement or representation; (2) willfully made; and (3) made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Construction Company, 1994-2708 (La.9/5/95), 660 So.2d 7; Thomas v. Hollywood Casino, 44,271 (La.App. 2d Cir.5/13/2009), 13 So.3d 717. All three requirements must be present before a penalty will be imposed. Gilcrease v. Wal-Mart Stores, Inc., 36,523 (La.App. 2d Cir.12/11/02), 843 So.2d 415. .There is no requirement of prejudice to the employer; when the statute is satisfied, benefits will be forfeited for the sole reason that the claimant has willfully and deliberately attempted to defraud the workers’ compensation system, and no further requirements are to be imposed. Freeman v. Chase, 42,716 (La. App. 2d Cir.12/5/07), 974 So.2d 25.

Forfeiture is a harsh remedy and must be strictly construed. An inadvertent and inconsequential false statement will not result in forfeiture of benefits. La. R.S. 23:1208 does not penalize any false statement, but only those willfully made for the purpose of obtaining benefits. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. Slater v. Mid-South Extrusion, 43,343 (La.App.n 2d Cir.8/13/08), 989 So.2d 252. The WCJ’s finding or denial of forfeiture will not be disturbed on appeal absent manifest error. Thomas v. Hollywood Casino, supra; Slater v. Mid-South Extrusion, supra. Under this standard, if the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Baker v. Stanley Evans Logging, 42,156 (La.App. 2d Cir.6/20/07), 960 So.2d 351, writ denied, 2007-1817 (La.12/14/07), 970 So.2d 533; Hubbard v. Allied Building Stores, Inc., 41,534 (La.App. 2d Cir.11/1/06), 942 So.2d 639.

Discussion

Mr. Kidd testified that he had more surgery on his shoulder after he was awarded temporary, total disability benefits and that he is now unable to do any work as a result of his alleged accident at Brown. However, the IME report showed that Mr. Kidd had a mild aggravation of a preexisting condition. This evidence and testimony were not sufficient to establish Mr. Kidd’s entitlement to permanent, total disability benefits.

Even if Mr. Kidd had shown entitlement to permanent, total disability benefits, the WCJ found that he made fraudulent misrepresentations in order to obtain workers’ compensation benefits. As a consequence, his present claim was denied and he was ordered to return benefits previously received.

Although forfeiture of benefits is a harsh remedy, we find that the WCJ was not manifestly erroneous in finding that Mr. Kidd violated La. R.S. 23:1208 and forfeited any right he may have had to workers’ | ^compensation benefits. The WCJ believed the testimony of Ms. Robinson wherein she stated that Mr. Kidd was not injured at Brown, but rather fell off a ladder at home. The WCJ found credible the testimony that Mr. Kidd coached his witness in the prior trial to testify that he saw the accident and that Mr. Kidd got Ms. Robinson to prepare documents for him falsely claiming that he was injured while working at Brown. The WCJ accepted Ms. Robinson’s testimony that Mr. Kidd shot her to prevent her from testifying in a subsequent hearing that he was not injured while working at Brown. This provided more than a sufficient basis for denying Mr. Kidd’s claim for permanent, total disability benefits and ordering that he return indemnity and medical benefits previously received. The WCJ did not err in her ruling and we affirm.

WITNESS TESTIMONY

Mr. Kidd argues that the WCJ erred in allowing Ms. Robinson to testify because she had outstanding warrants and restraining orders arising out of confrontations with him. In support of his argument, he attached copies of police reports regarding some charges against Ms. Robinson that he asserts arose from her violent behavior toward him. He also contends that the WCJ did not take note of a complaint he filed with the Louisiana Attorney Disciplinary Board against Brown’s former attorney. These arguments are without merit.

Legal Principles

An appellate court may not consider evidence not contained in the record either because it has been unsuccessfully offered into evidence or not | ^offered at all. Britton v. Morton Thiokol, Inc., 604 So.2d 130 (La.App. 2d Cir.1992). An appellate court may not consider documents attached to briefs which have not previously been introduced into evidence in the trial court. United Companies Financial Corporation v. Austin, 92-653 (La.App. 3d Cir.5/5/93), 618 So.2d 7.

The failure to object to any testimony at trial waives the right to challenge it on appeal. Osborne v. McKenzie, 43,658 (La.App. 2d Cir.10/22/08), 998 So.2d 137, writ denied, 2008-2555 (La.1/9/09), 998 So.2d 726; Breitenbach v. Stroud, 2006-0918 (La.App. 1st Cir.2/9/07), 959 So.2d 926; Parker v. Parker, 44,246 (La.App. 2d Cir.5/13/09), 12 So.3d 485; Graves v. Riverwood International Corp., 41,810 (La. App. 2d Cir.1/31/07), 949 So.2d 576, writ denied, 2007-0603 (La.5/4/07), 956 So.2d 621.

Discussion

The documents regarding warrants and restraining orders against Ms. Robinson and Mr. Kidd’s complaint against Brown’s former attorney were not raised in the proceedings below and were not filed into evidence. They were merely attached to Mr. Kidd’s brief filed in this court. Therefore, these documents are not properly before this court and may not be considered in the appeal of this matter.

[11] The fact that Ms. Robinson had outstanding warrants or restraining orders against her would not disqualify her as a witness. Evidence of her contentious relationship with Mr. Kidd might relate to her credibility. Mr. Kidd provided adequate evidence in that regard in the hearing.

luPRIOR CONSIDERATION

Mr. Kidd contends that this matter had been before this court and the supreme court on two prior occasions. Although he has made no argument in his brief concerning this assignment of error, it appears that he is either claiming that the matter is res judicata or that the WCJ did not have jurisdiction to hear the present matter. These contentions are without merit.

Mr. Kidd’s counsel below pled the exception of res judicata which was denied by the WCJ, who reasoned that the present case concerned issues of permanent, total disability benefits and forfeiture of benefits due to misrepresentation, claims that had not been heard previously.

La. R.S. 23:1310.8 provides in pertinent part:

A. (1) The power and jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified, including the right to require physical examinations as provided for in R.S. 23:1123; however, upon petition filed by the employer or insurance carrier and the injured employee or other person entitled to compensation under the Worker’s Compensation Act, a workers’ compensation judge shall have jurisdiction to consider the proposition of whether or not a final settlement may be had between the parties presenting such petition, subject to the provisions of law relating to settlements in workers’ compensation cases.
B. Upon the application of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.

11sThe WCJs have the power to annul prior judgments which are based on fraud or misrepresentation. See Martin v. Red Simpson, Inc., 96-1177 (La.App. 3d Cir.3/12/97), 692 So.2d 635.

The matters considered in these cases, one filed by Mr. Kidd and one filed by Brown, had not been presented to the WCJ previously. Further, the WCJ had the authority, under La. R.S. 23:1310.8, not only to deny the present claim for permanent, total disability benefits, but also to annul the prior judgment awarding temporary, total disability benefits based upon the fraud and misrepresentations committed by Mr. Kidd. The WCJ did not err in considering the issues raised in this matter, in denying permanent, total disability benefits to Mr. Kidd, and in ordering the forfeiture of benefits previously awarded based upon the misrepresentations made by Mr. Kidd.

CONCLUSION

For the reasons stated above, we affirm in all respects the decision of the WCJ. Costs in this court are assessed to the appellant, Fred D. Kidd, Sr.

AFFIRMED.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Ancillary SUCCESSION OF Emmitt TAYLOR.
    No. 44,471-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 24, 2009.
    Minnie May Taylor Fleming, In Proper Person.
    Patrick O’Neal Jefferson, for Appellee, Jacqueline Taylor Robinson.
    G. Warren Thornell, Shreveport, for Ap-pellees, Tina Maria Burnem Jacobs, Em-mitt Taylor, Jr., and Janice Taylor Allen.
    Gwendolyn King Runnels, In Proper Person.
    Arthur J. King, In Proper Person.
    James M. Manning, In Proper Person.
    Before PEATROSS, DREW and MOORE, JJ.
   MOORE, J.

1 iThe decedent’s sister, Minnie Taylor Fleming, appeals a summary judgment that (1) annulled a prior judgment of possession that had placed Ms. Fleming and her nieces and nephews in possession of the estate, and (2) placed the decedent’s three alleged children in possession. Finding that the record does not resolve all genuine issues of material fact, we reverse and remand for further proceedings.

Procedural History

The decedent, Emmitt Taylor, died intestate in Washington state in January 2001. His sister, Ms. Fleming, lives in Arkansas; one niece and two grandnephews all live in California; we will refer to them herein as “the petitioners.” In May 2007, the petitioners filed a petition for possession, alleging that the decedent owned a tract of land in Claiborne Parish. They also alleged that the decedent was a widower who had no children, so the petitioners were his sole heirs, with Ms. Fleming to receive a 1/3 undivided interest in the property, the niece 1/3, and the rest 1/9 each. They further alleged it was a small estate not requiring administration; the descriptive list valued the tract and minerals at $9,950. An attached verification, as well as the descriptive list, were signed by Elizabeth Taylor as Ms. Fleming’s agent. The petition for possession was signed by James R. Hatch as attorney for the estate.

Of special note is the attached “affidavit establishing jurisdiction and heirship” signed by John and Jeanette Harris, who are not parties to this action. They averred that the decedent “had no children and never adopted anyone.”

| ^Apparently, Mr. Hatch walked the petition through the clerk’s office to the judge’s chambers; Judge Clason signed the judgment of possession as requested on May 3, and it was filed in the conveyance records on May 4.

A few weeks later, in July 2007, Tina Jacobs of South Carolina, and Janice T. Allen and Emmitt Taylor Jr. of Washington state (collectively, “the movers”), filed the instant petition to annul the judgment of possession and reopen the succession. The movers alleged that Ms. Jacobs was the decedent’s daughter by his second marriage, and that Janice and Emmitt Jr. were the children of his first marriage. They attached copies of Washington state birth certificates listing the decedent as Janice and Emmitt Jr.’s father, and the decedent’s first wife as Tina’s mother. They alleged that they had no knowledge of the prior proceedings, and that as decedent’s only children they should be placed in possession of the estate, an undivided 1/3 each. They requested service on Ms. Fleming at a street address in Shongaloo, Louisiana, and long-arm service on the California petitioners. Their attorney, Warren Thornell, apparently walked the petition through to the judge’s chambers, as Judge Clason signed an order reopening the succession “immediately and without notice” that same day.

Elizabeth Taylor, who was never named a party, filed an answer in her own name, denying all the petitioners’ allegations for lack of sufficient information. This answer was signed by David M. Newell as “attorney for the petitioner.”

|sIn March 2008, the movers filed a petition for possession and rule nisi. In support of the rule, they attached two affidavits of jurisdiction, death and heirship, swearing that the movers were indeed the children of the decedent. They requested service on Ms. Fleming “through her counsel of record, David Newell, Esq.,” and long-arm on the other petitioners. They attached requests for admission, asking the petitioners to admit that their original allegations were incorrect and the affidavits they filed were false.

In April 2008, the movers filed a motion to appoint an attorney for one of the petitioners, Ms. Robinson, whom they had been unable to serve by long-arm. Judge Clason appointed Patrick Jefferson, who was also unable to contact Ms. Robinson but filed a general denial on her behalf.

The minutes recite that a hearing was held before Judge Fallin on April 14 in which the court upset and refixed the rule to annul the judgment of possession. There is no transcript attached, but the movers argued that at this hearing, Ms. Fleming and the other petitioners were properly served with citation of the petition and rule.

At a hearing before Judge Teat on May 12, the movers filed into evidence the copies of their birth certificates and the decedent’s death certificate, as well as the affidavits of James Battle, Suzanne Fleming and Joseph Cornell Wilson Sr., who are not parties to this action. They averred that by his two marriages, the decedent had three children, identified by name as the movers. The movers argued that because the petitioners had |4not answered the requests for admissions within 15 days, these were deemed admitted under La. C.C.P. art. 1467. Mr. Jefferson entered a general denial on behalf of his client, Ms. Robinson; Mr. Newell, on behalf of Ms. Fleming, stated that the requests for admissions “were properly served and no response was had.” He argued, however, that a petition to annul should be by ordinary process, not summary, and that he had no opportunity to speak to the movers or the people who swore the affidavits. He asked the court to set the matter for trial, not rule. Judge Teat gave Mr. New-ell until May 16 to file any exceptions or objections; none appear of record.

On May 27, the movers filed the instant motion for summary judgment on their petition for possession with rule nisi. In support, they attached the three affidavits averring that the decedent had three children, identified as the movers. Service was requested on Ms. Taylor through her counsel, Mr. Newell, and on Ms. Robinson through her appointed curator. In a supporting memorandum, they stated that Ms. Taylor had answered the request for admissions, but that the petitioners had not disputed the movers’ birth certificates and affidavits, hence summary judgment was proper. Judge Clason set a hearing on the motion for June 23.

Two days later, on May 29, Mr. Newell filed a motion and order to withdraw as attorney for Ms. Fleming, reciting in support that his client had been notified. This too was walked through to Judge Clason’s chambers and signed the same day, 25 days before the scheduled hearing.

At the hearing before Judge Fallin on June 23, the movers’ attorney stated that they had received “no objections, no responsive pleadings |fiwhatsoever from any party.” Patrick Jefferson, the curator, stated that he had been unable to reach Ms. Robinson, and “it wasn’t a whole lot of time between” the motion and hearing. Without further discussion, the court granted the motion for summary judgment.

Then, someone stood up in court and identified herself as Elizabeth Taylor. She stated that her attorney had quit and she had not had time to hire another. Also, she had no idea who the movers are, as Emmitt Jr. is “in an institution in Washington” and Janice is deceased. Questioned by Mr. Thornell, she responded that she held power of attorney for Ms. Fleming; the record does not show whether Ms. Fleming was also present. The court stated that it was still going to sign the judgment, and Ms. Taylor could hire an attorney to appeal if she so desired.

Judge Fallin signed a summary judgment annulling the prior ex parte judgment of possession and adopting a new judgment of possession to place the movers in possession of the estate, 1/3 each.

Ms. Fleming has appealed in proper person, raising 10 assignments of error.

Discussion

By four of her assignments of error, Ms. Fleming urges the district court erred in granting summary judgment. Although the particular issues raised lack merit, we are mindful that every pleading must be construed so | Ras to do substantial justice. La. C.C.P. art. 865. In the interest of justice, this court has the discretion to treat pro se filings with greater indulgence than those filed by an attorney. Rehabilitation Concepts Plus, Inc. v. Wills, 42,400 (La.App. 2 Cir. 10/10/07), 968 So.2d 262. Despite her poorly framed assignments of error, we find that Ms. Fleming has sufficiently challenged the propriety of the summary judgment.

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Palmer v. Ameriquest Mortgage Co., 41,576 (La.App. 2 Cir. 12/13/06), 945 So.2d 294, writ denied, 2007-0353 (La.3/30/07), 953 So.2d 70. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21. The motion shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B; Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226. Although the parties to a summary judgment should normally attach their supporting evidence to their motions or memoran-da, in the interest of justice this court will consider such evidence if it is properly in the record, though not attached. Palmer v. Ameriquest Mortgage, supra.

17Pescendants succeed to the property of their ascendants. La. C.C. art. 888. If the deceased leaves neither descendants nor parents, his brothers or sisters or descendants from them succeed to his separate property. La. C.C. art. 892. Obviously, the existence of any direct descendants-—such as the movers—will supersede the succession rights of collater-als—such as the petitioners.

In support of their motion for summary judgment, the movers filed three affidavits averring that the decedent was survived by three children, identified as the movers. Previously, however, the petitioners had filed an affidavit signed by two affiants averring that the decedent had no children. Plainly, this creates a disputed factual issue as to whether the decedent had children, and hence whether the movers are entitled to possession of the estate. With this crucial issue unresolved, the judgment will be reversed and the case remanded for further proceedings.

This disposition makes it unnecessary for us to address the remainder of Ms. Fleming’s assignments of error, most of which challenge service, notice and the use of summary process. However, we would note some other irregularities that should be corrected on remand. On two occasions, counsel for the movers has presented ex parte judgments or orders for signature by the court, apparently without any representation that they were unopposed, as required by Dist. Ct. Rule 9.5. If counsel had provided this required information, the court could have ascertained that these judgments were in fact contested. Before obtaining any future ex parte order, counsel is advised to make an accurate factual representation to the court incompliance with Rule 9.5.

We also note that the district court allowed Ms. Fleming’s counsel to withdraw ex parte without determining that he had been terminated by the client, that he had secured the client’s written consent, or that no hearing or trial was scheduled, as required by Dist. Ct. Rule 9.13(d). It was facially prejudicial to Ms. Fleming for her lawyer to withdraw two days after the movers filed for summary judgment and a mere 25 days before the hearing. Counsel and the court are reminded that the client must either terminate his lawyer, or consent in writing to his withdrawal, before an ex parte motion to withdraw is appropriate. Ms. Fleming is strongly urged to obtain counsel, as professional assistance is essential in a case of this nature.

Conclusion

For the reasons expressed, the summary judgment is reversed and the case remanded to the district court for further proceedings. Costs are to be paid by the movers, Tina Maria Jacobs, Emmitt Taylor Jr. and Janice Men.

REVERSED AND REMANDED.

      . The record does not show that James Hatch ever withdrew as attorney for the estate or participated in the proceedings after obtaining the first judgment of possession.

      . The request for admissions exposes what is perhaps the real basis of this dispute, the allegation that the petitioners received oil and gas royalties of over $26,000 from St. Mary Land & Exploration Company. There is no response on the record, but the movers asserted in a subsequent memorandum that Ms. Fleming responded to the requests.

      . She contends that summary judgment was inappropriate because no named defendant had yet filed an answer as required by La. C.C.P. art. 966 A(l); because the motion was never served on them as required by Art. 966 B; because adequate discovery had not occurred as required by Art. 966 C(l); and because the movers failed to identify or attach the evidence they intended to present in support of the motion. These contentions obviously have no support in the record.

      . When James Hatch filed the petition for possession in May 2007, alleging that the decedent had no children and the petitioners were the sole heirs, he could have reasonably (if incorrectly) believed that the action was unopposed.


author: CARLSON, Presiding Justice, KITCHENS, Justice,

text:
    Timmy PRENTICE v. SCHINDLER ELEVATOR COMPANY and Zurich American Insurance Company.
    No. 2007-CT-00815-SCT.
    Supreme Court of Mississippi.
    June 25, 2009.
    Prentiss M. Grant, attorney for appellant.
    Benjamin U. Bowden, Allyson L. Vaughn, attorneys for appellees.
   ON WRIT OF CERTIORARI

CARLSON, Presiding Justice,

for the Court.

¶ 1. Timmy Prentice filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission). His employer, Schindler Elevator Company (Schindler), and its insurance carrier, Zurich American Insurance Company (Zurich), filed a motion to dismiss based on the statute of limitations. An administrative judge of the Commission denied the motion, and on review, the full Commission affirmed the administrative judge’s order denying the employer/carrier’s motion to dismiss. On appeal, the Circuit Court for the First Judicial District of Hinds County reversed the Commission’s decision and rendered judgment in favor of the employer/carrier. Prentice appealed, arguing that, because Schindler is estopped from asserting the statute of limitations as a defense, the circuit court erred. The Court of Appeals reversed the judgment of the circuit court and remanded this case to the Commission. While we agreed with the Court of Appeals’ disposition of this appeal, we granted certiorari to clarify that failure to comply with Mississippi Code Section 71-3-67, alone, does not es-top an employer from relying on the statute of limitations.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 23, 1998, Timmy Prentice, while employed by Schindler, was injured at the worksite when a crane lifted a portable restroom occupied by Prentice approximately fifteen feet above the ground. While the restroom was suspended in the air, Prentice stepped out and fell to the construction floor. Prentice informed his supervisor of the injury, and he was instructed to fax an Alabama “first notice of injury” form to Schindler’s Alabama office; Prentice complied. As determined by the administrative judge and the Court of Appeals, Prentice missed at least five days of work as a result of his injury.

¶ 3. Prentice left his employment with Schindler but later worked at Schindler’s Shreveport, Louisiana, location. Initially, some of Prentice’s medical bills were paid, but these payments eventually stopped. Prentice contacted an employee of Zurich, who informed Prentice that his medical bills would be paid once the paperwork came through.

¶ 4. The medical bills never were paid, so in 2002, Prentice filed a petition to controvert with the Commission. Schindler and Zurich asserted the expiration of the statute of limitations as a defense and filed a motion to dismiss; however, after a hearing on the matter, the administrative judge ruled that “although the Statute of Limitations has run, the Employer/Carrier is estopped from raising that affirmative defense because of the failure to file the statutorily required first report of injury.” The full Commission affirmed the order of the administrative judge. Schindler and Zurich appealed, and the Circuit Court for the First Judicial District of Hinds County reversed the decision of the full Commission.

¶ 5. On February 7, 2007, Prentice timely appealed, and the case was assigned to the Court of Appeals. The Court of Appeals reversed the circuit court and remanded this case to the Commission on June 24, 2008. Prentice v. Schindler Elevator Co., 14 So.3d 59, 2008 Miss.App. LEXIS 376 (Miss. Ct.App. June 24, 2008). Schindler and Zurich filed a motion for rehearing, which the Court of Appeals denied. Prentice v. Schindler Elevator Co., 2008 Miss.App. LEXIS 795 (Miss.Ct.App. Dec. 16, 2008). Schindler and Zurich subsequently filed their petition for writ of certiorari, and this Court granted the petition. Prentice v. Schindler Elevator Co., 2009 Miss. LEXIS 109 (Miss. Mar. 12, 2009).

DISCUSSION

¶ 6. Mississippi Code Section 71-3-67(1) states:

Within ten (10) days after the fatal termination of any injury, the employer, if self-insured, or its carrier, shall file a report thereof with the commission on a form approved by the commission for this purpose.
In the event of an injury which shall cause loss of time in excess of the waiting period prescribed in Section 71-3-11, a report thereof shall be filed with the commission by the employer or carrier, on a form approved by the commission for this purpose, within ten (10) days after the prescribed waiting period has been satisfied.
Within ten (10) days after the employer or carrier knows, or reasonably should know, that an injury has resulted, or likely will result, in permanent disability or serious head or facial disfigurement, but which does not cause a loss of time in excess of the prescribed waiting period, a report thereof shall be filed with the commission on a form approved by the commission for this purpose.

Miss.Code Ann. § 71-3-67(1) (Rev.2000). In today’s case, the Court of Appeals held that “Schindler is estopped from asserting the statute of limitations as a defense. Because Schindler failed to comply with the notice requirements mandated under Martin and section 71-3-67(1), we must reverse the judgment of the circuit court.” Prentice v. Schindler Elevator Co., 14 So.3d at 62, 2008 Miss.App. LEXIS 376, *8, ¶ 12 (Miss. Ct.App. June 24, 2008) (citing Martin v. L & A Contracting Company, 249 Miss. 441, 162 So.2d 870, 873 (1964)). However, the Court of Appeals did not explicitly discuss any other grounds for estopping Schindler from asserting the defense.

¶ 7. In Martin, this Court explicitly stated that “[w]e do not hold that failure to comply with section 28 (requiring employer to give notice to commission) alone would estop the employer from relying on the statute of limitation.” Martin, 162 So.2d at 873. This Court held that not only failure to file notice with the Commission, but also the fact that compensation was paid to the claimant, constituted waiver of the statute of limitations defense. Id. Also, in Holbrook ex rel. Holbrook v. Albright Mobile Homes, Inc., 703 So.2d 842, 845 (Miss.1997), this Court held that the trial court had erred in granting summary judgment in favor of the employer/carrier, since material facts existed on the issue of whether the statute of limitations was tolled based on the possibility the claimants may have been misled concerning the existence of workers’ compensation coverage, in addition to failure to file notice. Id. Likewise, this Court has stated that “[wjhile it is true that the failure to file the required notice by itself does not prevent the employer from raising the statute of limitations defense, this is a factor to be considered in the overall scheme.” McCrary v. City of Biloxi, 757 So.2d 978, 982 (Miss.2000) (employer told claimant it would file his claim and engaged in settlement negotiations for a substantial period of time). Furthermore, “[w]e are reminded that workers’ compensation law is to be liberally and broadly construed, resolving doubtful cases in favor of compensation so that the beneficent purposes of the act may be accomplished.” Id. at 981 (citations omitted).

¶ 8. In today’s case, Prentice asserts that he “did not make a claim for medical benefits during the statutory period because the employer led him to believe same would being [sic] handled until the statutory period had past [sic].” Prentice testified during his deposition that he did not file a claim for workers’ compensation because he was under the impression that Schindler had filed it for him. Also, at the hearing before the administrative judge, Prentice further testified that he did not file a claim for workers’ compensation immediately after his medical bills began going unpaid because an employee of Zurich had led him to believe that the insurance was “taking care of it.” Based upon these additional considerations, we affirm the Court of Appeals’ judgment in today’s case.

CONCLUSION

¶ 9. Although we affirm the Court of Appeals, we granted certiorari to clarify any uncertainty as to the issue of whether failure to file the statutory notice alone is sufficient to prohibit the employer from raising the expiration of the statute of limitation as a defense. We reiterate that lack of notice is but one factor to be considered in making the ultimate determination of whether an employer and its insurance carrier should be estopped from asserting the purported expiration of the statute of limitations.

If 10. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT FOR THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED. THIS CASE IS REMANDED TO THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

DICKINSON, RANDOLPH, LAMAR AND PIERCE, JJ„ CONCUR. KITCHENS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J. GRAVES, P.J., JOINS IN PART. CHANDLER, J., NOT PARTICIPATING.

KITCHENS, Justice,

Concurring In Result Only:

¶ 11. I agree with the result of today’s decision, which affirms the judgment of the Court of Appeals in this case. However, because I agree with the unanimous holding of that court that an employer’s failure to comply with Section 71-3-67’s notice requirement estops that employer from asserting a time-bar defense, I cannot concur with the substance of the majority opinion.

¶ 12. Section 71-3-67 of the Mississippi Code requires a self-insured employer to report to the Mississippi Workers’ Compensation Commission within ten days the occurrence of any injury that disables an employee for five days or more. Miss. Code Ann. § 71-3-67(1) (Rev.2000). Our precedent makes clear that failure to comply with this requirement will preclude the employer from claiming a defense based on the statute of limitations. In Holbrook ex rel. Holbrook v. Albright Mobile Homes, Inc., 703 So.2d 842, 845 (Miss. 1997), the justices unanimously observed that “[t]his Court has previously found that an employer and its insurance carrier would be estopped from denying that the two-year statute of limitations was tolled where they failed to comply with the notice requirement of [Section 71-3-67].” Id. at 844. The unanimous Court further observed, and rightly so, that “it would be inconsistent with the purpose of the [Workers’ Compensation Act] to allow the employer and its insurance carrier to take advantage of their failure to perform their duty to give notice to the Commission.” Id. The majority is correct in its assertion that the Holbrook Court also considered the employers’ misrepresentations regarding insurance coverage before ruling in favor of the injured employee, Maj. Op. at 7; but the justices in Holbrook held as they did, not because of the combination of those two facts, but rather because each fact independently required estoppel. See id. (“This Court has also held that the statute of limitations is tolled where the employer misrepresents the nature and existence of its coverage.... ”).

¶ 13. Today’s judgment similarly misplaces reliance on Martin v. L. & A. Contracting Co., 249 Miss. 441, 162 So.2d 870 (1964). See Maj. Op. at 7. The Martin Court, as the majority correctly contends, “d[id] not hold that failure to comply with [the notice requirement] alone would estop the employer from relying on the statute of limitation.” Martin, 162 So.2d at 873. But this statement does not demonstrate a requirement of a further showing, as today’s majority purports; rather, the Martin Court merely left for another day the determination of whether an employer’s failure to notify, standing alone, estopped the employer from asserting the statute of limitations. If any doubt remained by 1997, then the Holbrook Court definitively and unanimously settled the question once and for all. Indeed, the rule of Holbrook is so clear that its annotation under Section 71-3-67 summarizes the case thusly: “Employer was estopped from claiming that two-year statute of limitations on workers’ compensation claim was not tolled, where employer failed to timely file statutorily-required notice of fatal termination of injury.” Miss.Code Ann. § 71-3-67 (Rev.2000).

¶ 14. This rule comports with our well established view that workers’ compensation law should be given a liberal interpretation, which serves better to effectuate “the beneficent purposes of the act....” Robinson v. Packard Elec. Div., 523 So.2d 329, 332 (Miss.1988). But Holbrook was not the product of some blind allegiance to labor over industry; rather, the unanimous result was a sound, practical policy determination that avoided the possibility of unfairly punishing injured workers. Although it is true that an employer’s remittance of compensation payments tolls the statute of limitations, see Parchman v. Amwood Products, 988 So.2d 346, 351 (Miss.2008), history has brought to our courthouses cases in which confusion has arisen over whether given sets of payments qualified as true compensation, id., or even whether a particular payment was actually a payment at all. See Trehern v. Grafe Auto Co., 232 Miss. 854, 100 So.2d 786 (1958).

¶ 15. One need not strain the imagination to envision an injured worker receiving monthly remittances from an employer who fails to file notice but otherwise acts in good faith and who, after two years, loses all rights to an otherwise valid claim and is left at the mercy of a company legally unobligated to provide any further assistance. Today’s majority foregoes the opportunity to avoid that danger and, contrary to the underlying principle of the Holbrook Court’s ruling, “allow[s] the employer and its insurance carrier to take advantage of their failure to perform their duty to give notice to the Commission.” Holbrook, 703 So.2d at 844.

¶ 16. In my judgment, therefore, today’s decision goes beyond its stated purpose “to clarify” Holbrook, Maj. Op. at 9, by overturning it. But even if one were convinced by a review of our precedent that the question was a close one that warranted clarification, which, with respect, I am not, then our devotion to stare decisis should compel us to accept the result settled upon years earlier by the bar and the judiciary. Instead, waters that were distilled and filtered long ago now are muddied with unanswered questions. For example, if failure to comply with the notice requirement is, in and of itself, not enough to estop an employer from asserting a time-bar, then what is? How many other misdeeds must the Commission or a trial court identify before concluding that the statute of limitations has tolled? Should other factors, such as misrepresentation of insurance coverage, be weighed equally? If not, then what is the relative weight of an employer’s failure to file notice?

¶ 17. Therefore, because the analysis underlying today’s judgment conflicts with longstanding precedent, sound policy judgments, and our fealty to stare decisis, I join today’s decision in result only. I vote to affirm the judgment of the Court of Appeals, but I respectfully suggest that our affirmance should be founded upon a holding that an employer’s failure to provide the statutorily required notice of injury to the Mississippi Workers’ Compensation Commission estops that employer from asserting a defense under the statute of limitations.

WALLER, C.J., JOINS THIS OPINION. GRAVES, P.J., JOINS THIS OPINION IN PART.

      . See Prentice v. Schindler Elevator Co., 14 So.3d at 61-62, 2008 Miss.App. LEXIS 376, *5-*6, ¶ 8-11 (Miss. Ct.App. June 24, 2008).

      . Although some medical bills were paid, the employer/carrier paid no indemnity benefits.

      . Mississippi Code Section 71-3-35(1) states:
      No claim for compensation shall be maintained unless, within thirty (30) days after the occurrence of the injury, actual notice was received by the employer or by an officer, manager, or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places, then notice received by any superior shall be sufficient. Absence of notice shall not bar recovery if it is found that the employer had knowledge of the injury and was not prejudiced by the employee's failure to give notice. Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the commission within two years from the date of the injury or death, the right to compensation therefor shall be barred.
      Miss.Code Ann. § 71-3-35(1) (Rev.2000).

      . Prentice also sent medical bills to this insurance company employee at the employee's direction. The employee stated that she had not received Schindler’s Form B-3, or notice-of-injury report, and that Prentice's medical bills would be paid upon receipt of the form.

      . The rule was reiterated in McCrary v. City of Biloxi, 757 So.2d 978, 981 (Miss.2000). While the majority correctly recounts that the McCrary Court observed passingly that failure to file notice would not, without more, estop an employer from asserting a time-bar, Maj. Op. at 7, the majority appears not to have considered the fact that the McCraiy Court offered that announcement without presentation of any legal support. See id. at 982.


author: KITCHENS, Justice,

text:
    A.B. and B.B. v. LAUDERDALE COUNTY DEPARTMENT OF HUMAN SERVICES.
    No. 2006-CT-01362-SCT.
    Supreme Court of Mississippi.
    June 25, 2009.

      James A. Williams, attorney for appellant.
    Katherine Jane Caldwell, attorney for appellee.
   ON WRIT OF CERTIORARI

KITCHENS, Justice,

for the Court.

¶ 1. A.B. and B.B. appeal the Lauder-dale County Youth Court’s termination of their parental rights. The Mississippi Court of Appeals affirmed the decision, and this Court granted the parents’ petition for writ of certiorari. Finding error, we reverse the Court of Appeals and remand the case for further proceedings.

Facts

¶ 2. On August 22, 2003, the Lauderdale County Department of Human Services (DHS) took custody of two of the appellant parents’ children, Tonya and Sonya, after the mother, A.B., was arrested for possession of methamphetamine. Tonya and Sonya are twins, born on November 1, 2001. At the time, A.B. was eight months pregnant with Ned and admitted that she had abused drugs during her pregnancy. DHS took custody of Ned on September 22, 2003, two days after he was born.

¶ 3. DHS filed formal petitions for adjudication of neglect and/or abuse regarding all three children. On October 21, 2003, a consent judgment was entered, giving physical custody of the children to a maternal aunt and uncle. The mother entered into a service contract with DHS, and the father, B.B., was ordered to complete parenting classes. The parents subsequently regained custody of their children, and the court discharged DHS from further responsibility on June 10, 2004.

¶4. Five months later, DHS initiated another investigation after it was informed that the mother allegedly was using drugs again. On November 9, 2004, two DHS social workers went to the family’s house and found the mother asleep in the bedroom along with a man she identified as her stepbrother. Both social workers testified that: A.B. came out of the bedroom wearing only a t-shirt; one of the twins was unclothed; the other twin was wearing a saturated diaper that hung to her knees; Ned was adequately clothed; and A.B. told the social workers they had just eaten breakfast, although it was two in the afternoon. A.B. responded that she actually said they had just eaten lunch, not breakfast, and that she was wearing only a t-shirt due to having just soiled her underwear in consequence of her menstrual cycle.

¶ 5. A.B. gave a urine sample that day, but the test results are disputed. Three affidavits signed by one of the social workers averred that A.B. “failed” the drug screen and that the sample was “diluted or not human urine.” The same social worker testified that the lab told her that the sample was diluted because “it was probably not human or something had been added to the urine.” However, an employee of the lab testified during the termination proceedings that the results were “negative” and that the test was not diluted.

¶ 6. On November 29, 2004, DHS requested another drug screen. A.B. was asked to give both a hair and urine sample. She refused to give a hair sample, but she did give a urine sample. According to the lab report, the urine sample was diluted.

¶ 7. The same affidavits that alleged A.B. “failed” the November 9, 2004, drug screen also stated that A.B. “was asleep in the bed with an adult male and was not supervising” the children. Based on these affidavits, on November 30, 2004, the youth court ordered that DHS take the children into custody. A DHS social worker, accompanied by a deputy sheriff, then went to the home where A.B. and the children had been found three weeks earlier. Although the social worker and the deputy sheriff testified that all of the family’s belongings were still at the house, A.B. claimed that they were in the process of moving in with her mother. No one was at the house, and the social worker and the deputy sheriff testified that the house was filthy and that there was no power or running water. The deputy sheriff searched the house and found a plastic bag containing a white substance that appeared to them to be methamphetamine. A member of the sheriffs drug task force testified that he performed a field test which was positive for methamphetamine. However, later analysis revealed that the seized material was not an illegal substance.

¶ 8. Later that day, the children were found at A.B.’s mother’s house. At least two deputy sheriffs and a DHS social worker were present. All three testified that B.B., the father, was at the house but the mother could not be found. They also testified that two other children present at the house that day told a deputy sheriff that A.B. had jumped out a window. However, according to one deputy sheriff, B.B. said that A.B. had gone to move more things from the old house.

¶ 9. A short time later, A.B. and B.B. were arrested for possession of the white substance found at the other house. A.B. remained in jail for more than five months until the charge was dropped because the substance had tested negative for illegal drugs. The record indicates that B.B. was released a short time after his arrest, but the record is silent as to what disposition was made of the charge against him.

¶ 10. In the meantime, the youth court held a neglect hearing on December 30, 2004. The father, B.B., was not present, and the sheriffs department was unable to locate him. A.B., the mother, was brought to the hearing from jail. She had no lawyer at that hearing. The court heard testimony from the social workers and the deputy sheriffs about the events of November 9 and 30, 2004. The mother denied that the family was living at the house where the alleged drugs were found, and also testified that she had passed a drug test for her probation officer on November 9 and again on November 30 or December 1, 2004, the day of her incarceration. No other evidence was heard on her behalf, and upon recommendation by DHS, the youth court ordered that DHS pursue termination of B.B.’s and A.B.’s parental rights.

¶ 11. On July 13, 2006, more than a year and a half after the neglect hearing, the youth court held a hearing on the termination of parental rights. A.B., the mother, was present and represented by counsel. The father, B.B., was summoned by publication and did not appear. At the hearing, the court heard testimony about the November 2004 events and the circumstances surrounding the parents’ first loss of custody in 2003. No evidence was presented about the alleged illegal substance found at the home on November 30, 2004, other than testimony from A.B.’s probation officer that the charge had been dropped. Additionally, the court refused to hear any evidence of A.B.’s progress toward rehabilitation since December 30, 2004, specifically, that she had passed two drug tests in 2005. The guardian ad litem testified very briefly, stating that he had been present at all of the youth court proceedings involving the children and that he recommended terminating parental rights. Specifically, the guardian ad litem concluded that “[r]e-fusing the drug test was just — eliminates sort of her chance at a third bite at the apple.”

¶ 12. At the close of the hearing, the youth court terminated A.B. and B.B.’s parental rights based on their “drug addiction” and stated in its judgment that the youth court had made a previous determination at the 2004 neglect hearing that reunification was not in the best interest of the children.

Issues

¶ 13. A.B. and B.B. raised three issues on appeal: (1) whether A.B. was entitled to counsel at the neglect hearing; (2) whether the youth court erred in terminating A.B.’s and B.B.’s parental rights; and (3) whether B.B. was properly served notice of the neglect hearing. This Court will address only whether the youth court’s decision to terminate parental rights was proper.

Discussion

¶ 14. The party seeking termination of parental rights must prove grounds for termination by “clear and convincing evidence.” Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599, 617 (1982). The appellate standard of review for youth court proceedings is the same as that which we apply to appeals from chancery court, In the Interest of S.C., 795 So.2d 526, 529 (Miss.2001) (citing M.C.M.J. v. C.E.J. 715 So.2d 774, 776 (Miss.1998)); we will not disturb the trial court’s findings of fact where there is “credible proof from which a rational trier of fact may have found [grounds for termination] by clear and convincing evidence.” S.N.C. v. J.R.D., 755 So.2d 1077, 1080 (Miss.2000) (quoting Ethredge v. Yawn, 605 So.2d 761, 764 (Miss. 1992)).

¶ 15. Mississippi Code Section 93-15-103(3) sets forth the grounds for involuntary termination of parental rights. The youth court determined that the following grounds warranted termination of A.B.’s and B.B.’s parental rights:

(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent’s care and custody:
(i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction ... which condition makes the parent unable to assume minimally, acceptable care of the child; or
(ii) Because the parent fails to eliminate behavior, identified by the child caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child caring agency to assist the parent;

Miss.Code Ann. § 93-15-103(3) (Rev.2004).

¶ 16. Regarding the “ongoing behavior,” the court specifically found that A.B. and B.B. had “a drug addiction, unlikely to change within a reasonable time.” The written judgment does not elaborate; but the trial judge stated from the bench, at the close of the termination proceedings, that the mother’s conduct on November 9, 2004, the “diluted” drug screens, and the refusal to provide a hair sample indicated the mother had an ongoing drug addiction:

At the time the children were picked up, mom originally was involved in conduct concerning abuse of controlled substances and subsequently had a criminal conviction, put on probation, entered into a Service Agreement, completed the Service Agreement and managed to get her children back and the Court is convinced that she let herself slide back into the same category, doing the same things, because the same complaints of the same conduct were presented to DHS. When they intervened, they found her all but comatose in a trailer with a man not related to any of the children, half naked and unable to respond to people knocking on the door, children running loose in the home and soiled britches and one naked and her explanation, after being aroused by a Social Worker standing by the bed after hollering entering the household, was that she had just fed them breakfast at 2:00 P.M. and had laid down. Drug screens showing diluted, refusal to take a hair screen and I — I don’t belittle her the legal decision to refuse the hair screen, because the hair screen may have put her in problems with violating her probation and they would’ve sent her back to prison. But, that decision also affected these proceedings in that it showed her willingness or that is her unwillingness to cooperate. The hair sample would have given the Court indicators of present or past drug usage and the Court could’ve made some delineation as to whether it was before or after intervention by DHS. Without it, the Court can only assume that it is continued conduct as a result of the diluted drug screens. Even the policies now of MDOC have changed that high creati-nine levels are an automatic indicator of tampered drug screens either due to over hydration or substance of tampering or taking internet ordered milk shakes and other substances that screw around with drug testing. They’re offered on the internet on a daily basis at, at least a hundred different sites and those who choose to exercise that privilege and use those sites and use those substances and the Court is not indicating that this particular mother did any of those things, she simply refused to cooperate, that it put this Court in a posture that it was ongoing, continued drug involved activity and the Court ordered the pursuit of Termination of Parental Rights and I entered that Order on December 30th, 2004....
[A]s of December 30th, 2004, the mother, by her refusal to cooperate and provide drug screens as ordered by the Court, did indicate to the Court that it was on-going behavior that she chose not to change.

(Emphasis added.)

¶ 17. After reviewing the record and transcripts, we cannot say that there was credible proof to support the youth court’s finding that the parents had an ongoing drug addiction. Two diluted urine samples and the refusal to submit to a hair screen may create suspicion, or perhaps even an inference of drug use; but this circumstantial evidence falls short of establishing such activity by “clear and convincing evidence.” Santosky, 455 U.S. at 769, 102 S.Ct. 1388.

¶ 18. The youth court and the guardian ad litem relied heavily on A.B.’s refusal to submit to a hair test, but there is no documentary evidence in the record that A.B. was under any obligation to give a hair sample. A social worker testified that she had “been authorized by the Youth Court Judge to request a hair drug screen,” but there is no court order or other documentation in the record to confirm or even suggest that A.B. was legally required to provide a hair sample.

¶ 19. Notably, the youth court never acknowledged that the drug charges, which formed the basis for the December 30, 2004, finding of neglect, were later dropped because the substance turned out to be innocuous. The court also declined to consider that the mother had tested negative for drugs on more than one occasion subsequent to the neglect hearing. At the close of the termination proceeding, the trial judge stated:

Regretfully, I cannot and have not considered any kind of evidence of the mother’s conduct, rehabilitation, if any, or anything else since that date, because any efforts to reunite, which were placed on the Department of Human Services, were removed the minute the Court ordered the termination — pursuit of termination' — TPR. I am put in the posture that my decision, based on the evidence before it, as of December 30th, 2001p, was an accurate reflection of the circumstances at that time, they warranted pursuit of Termination of Parental Rights.

(Emphasis added.)

¶ 20. Mississippi Code Section 93-15-109 requires that a court consider “all the evidence” when determining whether termination of parental rights is warranted. Here, the youth court erred in failing to consider all the evidence of A.B.’s alleged drug usage, specifically that the charges against her had been dropped and that she had tested negative on subsequent drug screens. This is particularly troublesome considering that the trial judge indicated to the mother that she might regain custody of her children. At the close of the neglect hearing, A.B. asked whether there was anything she could do to get her children back. The trial judge responded,

I’m not telling you that it’s not possible but it’s just not that — I’m not the one that’s gonna tell you what you need to do, but when the TPR is filed, that’s a separate hearing. That comes here and I hear it, but it has a separate hearing and separate allegations that have to be met in order for the TPR to be granted and I don’t know what your status is gonna be when that happens.

Yet, at the termination hearing, the trial judge refused to hear evidence contrary to that which had been presented one and a half years earlier at the neglect hearing.

¶ 21. While the Court of Appeals found sufficient evidence to support termination of parental rights, several of the facts relied upon by that court are incorrect or simply are not to be found in the record. For example, the Court of Appeals stated that “[t]he father, B.B., had been arrested on drug charges and was not present during the current termination of parental rights proceedings. Both parents have served time in prison on drug-related charges.” A.B. and B.B. v. Lauderdale County Dep’t of Human Servs., 14 So.3d 51, 55, 2008 Miss.App. LEXIS 365 at 16 (June 17, 2008). The opinion fails to mention that these charges were the same charges that were dropped because the substance did not test positive for methamphetamine. This is the only time the record reflects that the father was in jail, and there is nothing in the record to show that he was ever “in prison on drug-related charges.” Also, nothing in the record indicates that the mother actually served time for her previous possession conviction.

¶ 22. The Court of Appeals also stated, “[previously, A.B., the mother, was pulled over by the police with her children in the car. The police found a burner, police scanner, and a recipe for crystal methamphetamine.” Id. This suggests that the “burner,” the police scanner, and the recipe were found in the car with the children, but nothing in the record supports this conclusion. The only reference to these items was made by the social worker at the neglect hearing. According to the social worker, after the parents were incarcerated, someone found “a burner and a police scanner on the seat of [the father’s] truck and later when their belongings were moved to another location, there was a recipe for crystal meth found in their belongings.”

¶ 23. Additionally, the opinion states, “[an] officer testified that both A.B. and B.B. were still doing drugs,” Id. at 55, 2008 Miss-App. LEXIS 365 at 18. Such testimony is not in the record.

¶ 24. Finally, the only evidence before the youth court during the termination proceedings concerned the mother’s conduct. There was simply no credible evidence that the father, B.B., was currently using drugs. The only evidence of B.B.’s drug usage was elicited during the neglect hearing and was minimal at best. When asked about B.B.’s criminal record, the deputy sheriff responded, “his permanent history is clean ... but it won’t be for long.” From the context, it appears that the officer was referring to a pending charge, the same charge against A.B. that later was dropped. Current or recent drug use by either parent was not established by clear and convincing evidence.

¶ 25. Although the issue was not addressed by the Court of Appeals, the youth court also determined that termination of parental rights was warranted because of its previous adjudication of neglect. Under Section § 93 — 15—103(3)(h), parental rights may be terminated if:

The child has been adjudicated to have been abused or neglected and custody has been transferred from the childs parent(s) for placement pursuant to Section 43-15-13, and a court of competent jurisdiction has determined that reunification shall not be in the child’s best interest.

Miss.Code Ann. § 93-15-103(3)(h) (Rev. 2004). However, neither the judgment nor the judge’s comments at the neglect hearing reflects a determination “that reunification shall not be in the ehild[ren]’s best interest.” To the contrary, the youth court ordered that the mother would have supervised visitation upon her release from jail. Also, as discussed above, the trial court indicated at the neglect hearing that A.B. might regain custody of her children. Therefore, the prior adjudication of neglect did not amount to a determination “that reunification shall not be in the child[ren]’s best interest,” as required by subsection (h).

Conclusion

¶26. Because the grounds for termination were not established by clear and convincing evidence and because the youth court did not consider all of the relevant evidence, we reverse the Court of Appeals and the judgment terminating parental rights, and remand the case to the Lauder-dale County Youth Court for further proceedings consistent with this opinion.

¶ 27. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.

      . Fictitious initials and pseudonyms are used for the parents and minor children, respec-lively.

      . According to the deputy sheriffs present at the neglect hearing, A.B. was on probation for possession of methamphetamine. No documentation concerning her probation appears in the record.