author: WINDHORST, J.

text:
    STATE of Louisiana IN the INTEREST OF T. D.
    NO. 16-CA-708
    16-CA-709
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, DEPARTMENT OF CHILDREN & FAMILY SERVICES, Jessica Coalter
    COUNSEL FOR: PARENT/APPELLANT, T. D., MOTHER, Jennifer G. Womble
    COUNSEL FOR PARENT/APPELLANT, W. D„ III, FATHER, M. Elizabeth Toca
    Panel composed of Susan M. Chehardy, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

_JjThe Juvenile Court for the Parish of Jefferson rendered judgment in this case on the petition filed by the State of Louisiana, Department of Children and Family Services (“DCFS”), terminating the parental rights of the mother, T. and the father, W.D., to the minor child, T.D. Both T. and W.D. appeal from that judgment. For the following reasons, we affirm the decision of the juvenile court.

Procedukal History and Facts

T.D. was born on February 4, 2002, and was 14 at the time of the termination hearing. T.D.’s aunt, D.M., was his legal guardian and primary caregiver for most of his life.

On January 30, 2015, the Jefferson Parish District Attorney’s Office (D.A.’s Office) filed a petition against T.D. alleging that he committed simple battery, simple robbery and criminal damage to property. On February 19, 2015, a petition was filed charging T.D. with theft of goods valued under $500.00. On March 4, 2015, the matter came for adjudication. The State dismissed the charges of simple battery and simple criminal damage to property and T.D. entered an admission to the charge of simple robbery. On March 5, 2015, T.D. entered into an Informal Adjustment Agreement with the D.A.’s Office and was enrolled in the diversion program.

On March 17, 2015, the D.A.’s Office filed a petition against T.D. alleging that he committed theft of goods and criminal trespass. On March 31, 2015, T.D.’s bond was revoked on the simple robbery charge, and he was remanded to the Rivarde Detention Center.

Thereafter, the March 17, 2015 petition was amended to charge a Family in Need of Services (“FINS”): ungovernable. T.D, entered an admission to the FINS 12charge. At this time, he was placed in the custody of DCFS. On the allegation of simple robbery, T.D. was sentenced to the Office of Juvenile Justice for one year, suspended, and placed on two years active probation. The DCFS held several review hearings in 2015 and 2016, during which time it was noted that, although there was a visitation schedule set, T.D.’s parents failed to visit him. In May of 2016, T.D. was hospitalized three times for voicing suicidal ideations. Three hearings were held regarding this issue. There was no indication that the parents visited T.D. during this time.

On May 16, 2016, DCFS filed a petition for termination of parental rights, alleging that T.D. had been abandoned by his parents. Also on'that date, the juvenile court ordered appointment of attorneys for W.D. and T. At the July 16, 2016 case review hearing, it was noted that his parents still had not visited T.D., and further had not visited him since he had been taken into DCFS custody.

In the petition for termination of parental rights, it alleged that T.D. had been placed in the State’s custody on April 14, 2015, and had remained in the State’s custody since that time, for a period of over one year. DCFS further alleged that both T. and W.D. abandoned T.D. by leaving him under circumstances demonstrating an intention to permanently avoid responsibility by failing to provide significant contributions to T.D.’s care and support and/or by failing to maintain significant contact with T.D. for a period of six consecutive months from the time T.D. entered into the State’s custody through the date of filing of the petition, citing La. Ch.C. art. 1015, Sections 5 and/or 6.

The hearing on the petition filed by DCFS was held on August 15, 2016. At the hearing, the Juvenile Court judge took judicial notice of the underlying FINS record. Jovia Alexis, employee of the DCFS and the foster care worker for T.D., 1,.¡testified that the FINS proceeding “turned into” a CINC proceedings, and T.D. entered foster care in April of 2015, after T. tested positive on a. drug screening. Ms. Alexis stated that a case plan was formulated for T. which included parental contributions or child support payments and visitation. T. did not make any contributions or child support payments, and did not provide food, clothing or other necessities for T.D. In addition, T. did not make any visits. While T. did not initiate contact with DCFS, she did answer when Ms. Alexis contacted her. Ms. Alexis stated that T. indicated that she understood her case plan, but she indicated an unwillingness to participate in that plan. According to Ms. Alexis, T. stated that “she did not complete or will not participate in her case plan and she would not be completing as she felt that [T.D.] being in state custody was best for [him].” Ms. Alexis also testified that initially, DCFS provided bus tokens to enable T. to visit the child, but stopped when it was learned that T. had an automobile and/or was not visiting T.D. Ms. Alexis conducted a home visit and determined that T. did not maintain housing that would be safe and appropriate for T.D. Ms. Alexis stated that, to the best of her knowledge, T. did not maintain a legal means to support herself and T.D. and that she did not have a job or provide proof of income. T. did participate in a psychiatric evaluation, and the recommendations were that she complete a substance abuse program, and then, after she was clean and sober, participate in parenting classes. T. did not complete a substance abuse program, and therefore was not referred for parenting classes. Finally, Ms. Alexis stated that T. had not made any substantial improvement in addressing the problems that prevented her unification with T.D., the minor child.

T. testified that she wanted an opportunity to be reunited with T.D., but that she could not comply with all requirements of her reunification plan because she was “dealing” with her other children, including a bipolar son.

LGoncerning W.D., Ms. Aexis testified that there was also a case plan formulated for him, which included support and visitation. W.D. did not make any parental contributions or pay any child support. Furthermore, W.D. failed to visit T.D. and failed to maintain contact with DCFS. Ms. Alexis stated that she could not determine whether W.D. had maintained safe and appropriate housing for himself and T.D. because she was unsuccessful in her attempts to schedule an appointment with W.D. to visit his home. Furthermore, W.D. had not informed her that he was employed, and had not provided proof of income to DCFS. Ms. Alexis stated that the conditions that led to T.D.’s removal from W.D. persisted and that W.D. had not kept in contact with T.D., nor had he complied with a program of treatment and rehabilitation services set forth in his case plan. Ms. Alexis testified that a case plan had been formulated and she made an appointment with W.D. to review the plan. W.D. did not show up for the appointment and he did not reschedule.

At the time of the hearing, W.D. was incarcerated, awaiting trial on a possession of heroin charge. W.D. stated, that he was incarcerated in April of 2016. W.D. testified that he was unaware of any case plan made by the DCFS. W.D. further testified that he had .two houses, and family members that were willing to take care of T.D. while he .was incarcerated, but he also admitted that he did not provide the names of those persons to DCFS. He also stated that he was willing to take custody of T.D., but did not attempt to do so because “That was between.him and his mother to come in here.” W.D. also stated that he could have paid bond money and been released pending trial, but refused to do so because he was facing contempt charges for non-payment of child support.

Finally, Ms. Alexis testified that T.D. was currently in the custody of DCFS, residing at BoysTown in New Orleans, and that he was adjusting well with a few minor setbacks. According'to Ms. Alexis, T.D. had related to her that he wished to Ifibe adopted. Furthermore, DCFS was of the opinion that it is in the best interest of T.D. that he be freed for adoption and that, if freed for adoption, adoptive resources would be recruited.

Malik Regard testified that it was the recommendation'of T.D.’s Court Appointed Special Advocate (“CASA”), that he remain in his current placement and continue the services that were being provided.

Analysis

The Louisiana Supreme Court has stated that:

In any case to involuntarily terminate parental rights, there’ are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and. management of their children warranting great deference and vigilant protection under the law and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing these interests, the courts of this state have eonsis-tently found the interest of the child to be paramount over that of the parent.
The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the. State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious.judicial process for the termination - of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. 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. (Citations omitted).

In re J.A., 99-2905 (La. 01/12/00), 752 So.2d 806, 810-811.

RLa. Ch.C. art. 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. Petitioner in an involuntary termination' of parental rights proceeding need establish only one ground for termination of parental rights. State ex rel. ML, 95-0045 (La. 09/05/95), 660 So.2d 830; State ex rel. A.T.C., 06-562 (La.App. 5 Cir. 11/28/06), 947 So.2d 71. The Juvenile Court judge must also find that the termination is in the best interest of the child. La. Ch.C. art. 1039; State in Interest of ML & PL, 95-0045 (La. 09/05/95), 660 So.2d 830, 832. Additionally, the State must prove the elements of one of the enumerated grounds in Ch.C. art. 1015 by clear and convincing evidence. State ex rel. ML, supra. The appellate court reviews a trial court’s findings as to whether parental rights should be terminated according to the manifest error standard. In re D.L.R., 2008-1541 (La. 12/12/08), 998 So.2d 681, 687: State ex rel. K.G., 02-2886 (La. 03/18/03), 841 So.2d 759, 762.

In this case, DCFS sought termination of T.’s parental rights and W.D.’s parental rights under La. Ch.C. art. 1015(5) and/or (6), which provides:

The grounds for termination of parental rights are:

* * *
(5) Abandonment of the child by placing him in the physical custody of a nonpar-ent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child’s parent continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
(6) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for-the safe return of the child; and despite earlier intervention, there is no reasonable | expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

The Juvenile Court judge in this matter gave extensive reasons in rendering judgment. Concerning termination of the parental rights of T.D.’s mother, T., the court found that:

At the adjudication hearing on April 14, 2016, T.D.’s mother consented to T.D. being placed in the custody of DCFS. Thereafter, T.D. was placed in Boys-Town. Since that date, seventeen months ago,.T- has never been to BoysTown to .visit her s.on.... On multiple occasions, T. has expressed that she would. not and/or could not care for her son.... For the seventeen months that T.D. has been in the custody of DCFS, T. admittedly failed to contribute any monetary child support, clothes, food or other necessities for her son. At every hearing and in every DCFS report to the court, it was noted that T. never once contributed to the cost of caring for her son. T. has failed to provide any financial support for her son and has failed to maintain significant contact with her son over a seventeen month period. Therefore this court finds that the state has met its burden by clear and convincing evidence in accordance with Article 1035, that T.’s parental rights may be terminated pursuant to article 1015 (4) [now (5) ].

With regard to termination of the parental rights of T.D.’s father, W.D., the court found that:

According to DCFS reports and testimony in court, W.D. made his first contact with DCFS on October 1, 2015, after T.D. called W.D.’s flaneé to make them aware that he was in state’s custody. W.D. told the caseworker he was moving to Waggaman and that he would be preparing a room for T.D. W.D. did not reach out to DCFS again until February 11, 2016 when he spoke with Ms. Alexis. Ms. Alexis testified that W.D. requested a meeting so that they could go over his case plan. He also asked Ms. Alexis if she would bring T.D. to the meeting so that they could have a visit. Ms. Alexis and W.D. agreed that W.D. would come to the DCFS office on February 15, 2016 and that she would bring T.D. for a visit. W.D. failed to show up for the hearing. He also failed to contact DCFS to set up another appointment. According to all reports and testimony throughout the history of this case, W.D. has failed to visit his son and has failed to contribute to the cost of his care. Pitifully, he did not know his son was in DCFS care until the child himself called to tell him. Ms. Alexis did testify that T.D. and his father talk on the phone occasionally, but only because T.D. initiates the phone calls. It should be noted that W.D. is currently incarcerated and is therefore unable to adequately care for T.D.
8It should also be noted that on August 2, 2002, a Motion for Child Support was filed by the District Attorney in Jefferson Parish Juvenile Court, against W.D., for the support of T.D. under docket number 2002 NS 899. On August 5, 2002, W.D. entered into a Consent Judgment in which he agreed to pay T. $188 per month for the care of T.D. On December 14, 2014, T. waived all arrears due to her. At that time, W.D. owed $26,578.37 in child support arrears. After that, W.D. still failed to pay his monthly obligation.
Since the inception of the case in 2002, W.D. has paid a total of $1031.37 for the support of T.D. ... From April 2014 through March 2016, W.D. paid not one cent of child support. From May of 2006 through March of 2014, he paid a total of $69.63. W.D. has clearly failed to [financially] support T.D. for the entirety of his life. Therefore because W.D. has both failed to maintain significant contact and failed to provide significant contributions to T.D.’s care and support for periods well beyond six months, this court finds that the state has met its burden by clear and convincing evidence in accordance with Article 1035, that W.D.’s parental rights may be terminated pursuant to article 1015 (4) [now (5) ]. (Emphasis in original.)

Our review of the record reflects that the Juvenile Court was not manifestly erroneous in its conclusions that the State met its burden of proving, by clear and convincing evidence, that both T. and W.D. failed to maintain significant contact with and failed to provide significant contributions for the care and support of their son, T.D. In fact, T. admitted that she had not seen her son and had not paid any sums of money for his care. Likewise, W.D. also admitted that he had not seen his son or made significant contributions toward his care. W.D. testified that he was incarcerated, awaiting trial, and that he could “bond out,” but that if he did, there was a detain-er in Juvenile Court for failure to pay child support. We find no error in the Juvenile Court’s judgment terminating the parental rights of both T. and W.D.

In brief to this Court, T.D.’s father, W.D., argues that the Juvenile Court erred in terminating his parental rights based on abandonment because this matter started as a Family in Need of Services, and that it was never properly transitioned to a Child in Need of Care case. Therefore, argues W.D., proper notice procedures were not followed.

RT.D.’s mother, T., argues that the Juvenile Court erred in allowing DCFS to pursue termination proceedings based on allegations stemming from the FINS proceeding, as the laws are not set forth to ensure that the parent’s rights are afforded protection in such cases. T. further alleges that she was not advised of her statutorily required warning and rights at the numerous hearings held after the child entered into the custody of DCFS, and further she was not warned that her parental rights could be terminated.

La. Ch.C. art. 1001, et seq. provides for the termination of parental rights. La. Ch.C. art. 1001 provides:

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

According to La. Ch.C. art. 1004, in a CINC proceeding, the DCFS, the District Attorney, counsel appointed for the child in a Child in Need of Care (CINC) proceeding, or the court itself may file a petition for termination of parental rights. La. Ch.C. art. 1004 does not restrict all petitioners to a CINC Improceeding. In this case, after the filing of the petition for termination of parental rights, counsel was appointed for both parents, and both parents were present and represented at the termination hearing. Furthermore, La. Ch.C. art. 1004 provides that DCFS may petition for termination of parental rights when the child “has . been abandoned and termination is authorized by Article 1015(4).” The statute does not require that the DCFS first file to have the child adjudicated in need of care prior to the filing of the petition for termination. We note that the provisions for filing for termination of parental rights are not located in that part of the Children’s Code that provides for either FINS adjudications (Title VII), or for CINC cases, (Title VI), but are located in totally separate section-of the Children’s Code (Title X). “The Legislature has expressed its intent that courts shall construe the procedural provisions of Title X of the Children’s Code relative to the involuntary termination of parental rights liberally.” State ex rel. C.J.K., 00-2375 (La. 11/28/00), 774 So.2d 107, 114. There is nothing to support either parent’s claim that this termination of parental rights petition is somehow ineffective or flawed, because the child was taken into the custody of DCFS during a FINS case, and not a CINC case.

In this case, given that the evidence showed clearly and convincingly that both parents abandoned the child by failing to maintain significant contact after the child was placed in custody, and by failing, to provide significant support at any time, the DCFS could have independently filed its petition for termination of parental rights. Attorneys were appointed for each parent at that time, and each parent was present and testified at th'e termination hearing. Accordingly, the procedural safeguards for termination of parental rights were met,

T.D.’s mother, in brief contends that DCFS used the child’s “delinquent and ungovernable status as a basis to terihi-nate parental rights.” However, her parental: rights were terminated for abandonment, and not the child’s delinquent status.

|uIn addition, both T. and W.D. also argue that the Juvenile Court erred in finding that termination of parental rights was in- the best interest of the child because T.D. was not positioned for adoption at the time of the hearing. However, a review of La. Ch.C. art 1001, supra, reflects that there is no requirement that mandates that the plan for adoption be set prior to the termination of parental rights.

In its original enactment, La. Ch.C. art. 1001 had provided that “(pie purpose of this Title is to provide a-judicial process for the termination of all parental rights and responsibilities under' circumstances described herein. Such termination of parental rights is to be considered the first step toward permanent placement of the child in a suitable home through the process of adoption.” La. Ch.C. art, 1001 was amended in 1997. According to the Official Revision Comments in the 1997 amendment, La. Ch.C. art. 1001 was amended, first “to emphasize that the best interest of the child must be the foremost concern of the court when demonstrated justification exists to sever the parents’ rights,” and that:

Three additions have been made to this Article by the 1997 amendments. The first is to emphasize that the best interest of the child must be the foremost concern of the court when demonstrated justification exists to sever the parents’ rights. If termination of parental rights is not warranted, under Article 1039, the court has other options that may better serve the child’s best interest. The second addition is to recognize that although adoption is the goal when termination of parental rights is ordered, adoptive placement may prove to be impossible to secure for some children. In those cases, a permanent placement of the child, as defined by Art; 1003(8) can become an acceptable alternative. The third addition is to emphasize that time is of the essence in processing a termination. of parental rights case, limited only by assuring that the fundamental due process fights of the parents are safeguarded. An expeditious 112resolution of the child’s status is imperative if stability for the child is to be achieved. (Citations omitted).

See 1997 La. ACT 256.

These Comments recognize that there are some situations in which the best interest of the child still is served by termination of parental rights, even if adoption might not be possible.

In this case, having found that the Juvenile Court did not commit manifest error in finding that the best- interests of the child were served by terminating parental rights, we find no merit to the arguments of T, and W.D. that the Juvenile Court erred in terminating their parental rights in this proceeding that began as a FINS case, or because the child was not. positioned for adoption. at the time of the termination hearing.

CONCLUSION

For the above discussed reasons, the ruling of the Juvenile Court terminating the parental rights of the mother, T., and the Father, W.D., is affirmed.

AFFIRMED

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, the initials of the minor and family members involved will be used to protect the child’s identity. State Dept. of Soc. Services, ex rel. S.S., 07-165 (La.App. 5 Cir. 9/25/07), 968 So.2d 199, 200. The .minor child has the same initials as the mother and therefore the child will be referred to as T.D. and the mother will be referred to as T.

      . The petition filed by DCFS refers to La. Ch.C. art. 1015, sections 4 and 5. However, La. Ch.C. art. 1015 was amended and sections 4 and 5 were redesignated as sections 5 and 6 respectively. 2016 La. ACT 608. Facts pleaded in petition clearly indicate that DCFS was proceeding under La. Ch.C. art. 1015, sections 5 and 6. For clarity, the current section number will be used throughout this appeal.

      . La. Ch.C. Art. 1004 provides:
      A. At any time, including in any hearing in a child in need of care proceeding, the court on its own motion may order the filing of a petition on any ground authorized by Article 1015.
      B. Counsel appointed for the child pursuant to Article 607 may petition for the termination of parental rights of the parent of the child if the petition alleges a ground authorized by Article 1015(4), (5), or (6) and, although eighteen months have elapsed since the date of the child’s adjudication as a child in need of care, no petition has been filed by the district attorney or the department.
      C. The district attorney may petition for the termination of parental rights of the parent of the child on any ground authorized by Article 1015.
      D.The department may petition for the termination of parental rights of the parent of the child when any of the following apply: (1) The child has been subjected to abuse or neglect after the child is returned to the parent’s care and custody while under department supervision, and termination is authorized by Article 1015(3)(j).
      (2) The parent's parental rights to one or more of the child’s siblings have been terminated due to neglect or abuse and prior attempts to rehabilitate the parent have been unsuccessful, and termination is authorized by Article 1015(3)(k).
      (3) The child has been abandoned and termination is authorized by Article 1015(4).

        (4) The child has been placed in the custody of the state and termination is authorized by Article 1015(5).
      ' (5) The child is in foster care because the parent is incarcerated and termination is authorized by Article 1015(6).

      . After the 1997 amendment; La. Ch.C. art, 1001 provided that:
      The purpose of this Title is fa protect children whose parents are unwilling or unable to provide care adequate to meet their physical, emotional, and mental health needs, by providing a judicial process for the termination of all parental rights and responsibilities and for the certification of the child for adoption. In all proceedings, the primary concern is to secure the best interest of the child if - a ground justifying termination of parental rights is proved. Termination of parental rights is to be considered the first step toward permanent placement of the child in a suitable home, and if at all possible, to achieve the child’s adoption. The procedural provisions of this Title shall be construed liberally. The proceedings shall be conducted expeditiously to avoid delays in resolving the status of the parent and in achieving permanency for children.

      . La. Ch.C, art 1001 was again amended by in 1999 to add the terms “safety and” in the first sentence and "safe and” hi the third sentence. 1.999 La, ACT 449.


source: Caselaw Access Project

author: MURPHY, J.

license: Public Domain

text:
    Deianca Jones HENRY, wife of/and Glen Edward Henry, individually, and on behalf of their minor children Dajaene Jones and Adeja Henry v. Kyle Derek WEISHAUPT, Miranda Leah Romero McGoffin, Ochsner Foundation Hospital and Clinic a.k.a. Ochsner Health System, Inc., d/b/a Ochsner Hospital-Elmwood and XYZ Insurance Company
    NO. 17-CA-26
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, DEIANCA JONES HENRY, WIFE OF/AND GLEN EDWARD HENRY, INDIVIDUALLY, AND ON BEHALF OF THEIR MINOR CHILDREN DAJAENE JONES AND ADEJA HENRY, Nelson W. Wagar, III, Sarah W. Hickman
    COUNSEL FOR DEFENDANT/AP-PELLEE, KYLE D. WEISHAUPT AND WAYNE STATE UNIVERSITY, Lisa A. McLachlan
    Panel composed of Jude G. Gravois, Robert A. Chaisson, and Robert M. Murphy
   MURPHY, J.

11 Plaintiffs,' Deianca Henry, wife of/and Glen Henry, individually and on behalf of their minor children, Dajaene Jones and Adeja Henry, have appealed the trial court’s grant of summary judgment in favor of defendants,- Kyle Weishaupt and Wayne State University. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This medical malpractice lawsuit stems from a tragic series of events that left Deianca Henry paralyzed. In September of 2011, Ms. Henry entered Ochsner Medical Center (“Ochsner”) to undergo elective spinal surgery to address her congenital scoliosis and kyphosis. The surgery involved fusion of her spine frorn the second thoracic vertebra to the fourth lumbar vertebra and the placement of various types of hardware into her spine. Following a difficult post-operative course, she was transferred to an in-patient rehabilitation facility at Ochsner. While at this facility, she attended daily physical therapy and occupational therapy. On October 13, 2011, she developed pain and weakness in her legs. On October 14, 2011, Ms. Henry was transferred to the emergency department of Ochsner for evaluation of the increasing weakness and numbness in her legs. Diagnostic testing-revealed that Ms. Henry had compression of. her spinal cord. By the time Ms. Henry was taken to surgery to address the spinal cord compression, she was unable to move.her legs and had lost bowel and bladder control. Following surgery, Ms. Henry did not regain use of her legs or control of her bowel .or bladder.

In October 2012, plaintiffs filed suit against Ochsner, its employee, supervising physical therapist, Miranda Romero McGoffin, and Kyle Weishaupt, (“Weish-aupt”), a physical therapy student performing a clinical rotation at |2Ochsner. The petition alleged that “[o]n or about October 14, 2011, Defendant Kyle Weish-aupt, while acting within the course and scope of his employment by Defendant Ochsner, and then in the presence of his superior, Defendant Miranda Leah Romero McGoffin, also then, acting within the course and scope of her employment by Defendant Ochsner, improperly and unskillfully executed a manual wheelchair transfer technique to move Deianca Jones Henry from her wheelchair to an exercise mat.” The petition alleges that due to Kyle Weishaupt’s negligence, Ms. Henry sustained “severe spinal injuries which were the sole, proximate and direct cause of her damages.” On October 15, 2012, plaintiffs filed a First Supplemental and Amending Petition naming Wayne State University (“Wayne State”) as an additional defendant. This petition alleged that at the time of this incident, Weishaupt was a student at Wayne State, which had “failed to competently, adequately or reasonably train and/or educate” Weishaupt, and as such was “independently and/or vicariously' liable” for plaintiffs’ damages.

On January 13, 2016, the trial court approved a settlement between Ochsner and plaintiffs pursuant to La. R.S. 40:1299.44(0), with a reservation of rights against the Louisiana Compensation Fund. This judgment also reserved plaintiffs’ rights against Weishaupt and any entity “other than any Ochsner .entity for any vicarious liability for the acts, omissions or liability of any other party.”

On August 5, 2016, Weishaupt and Wayne State filed a Motion for Summary Judgment stating that plaintiffs “failed to produce any expert testimony stating that Kyle Weishaupt deviated from the standard of care” and as such plaintiff would not be able to meet their evidentiary burden at trial. These defendants further argued that the facts do not support plaintiffs’ allegations, that there was no genuine issue of material fact, and that they were entitled to judgment as a matter of law.

LOn October 9, 2016, plaintiffs filed an opposition to the motion for summary judgment, attaching several exhibits including the deposition of Weishaupt, the Petition for Damages, two sets of plaintiffs’ answers to interrogatories, and supplemental discovery responses “submitted on September 7, 2016 which corrected the date of the alleged incident to October 12, 2011.”

At the conclusion of the hearing on the motion, the trial judge orally granted the motion for summary judgment. On October 24, 2016, the trial judge rendered a written judgment, granting summary judgment in favor of Weishaupt and Wayne State, and dismissing plaintiffs’ claims. This timely appeal followed.

LAW AND DISCUSSION

On appeal, plaintiffs argue that the trial court erred in refusing to deny the motion for summary judgment as premature, that plaintiffs did offer evidence as to the standard of care, and that' plaintiffs offered evidence that Weishaupt breached the standard of care on October 12, 2011.

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for trial. Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So.3d 1002, 1005. The procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). The motion shall be granted when the memorandum and supporting documents 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(A)(3). The burden of proof is on the party moving for summary judgment. La. C.C.P. art. 966(D)(1). However, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover is not required to negate all essential, elements of the adverse party’s claim, action or defense, but Prather to point out to the court that there is an absence of factual support for one or more such essential elements. Id. The burden then shifts to the adverse party to produce factual support sufficient to establish a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. A de novo standard of review is required when an appellate court considers rulings on summary judgment motions, using the .same criteria that governs the district court’s determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Bank of New York Mellon v. Smith, 15-0530 (La. 10/14/15), 180 So.3d 1238, 1243.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light' of the substantive law applicable to the case. Cason v. Saniford, 13-1825 (La.App. 1 Cir. 6/6/14), 148 So.3d 8, 11, writ denied, 14-1431 (La. 10/24/14), 151 So.3d 602.

In a medical malpractice action, a plaintiff must establish by a preponderance of the evidence the applicable standard of care, a violation of that standard of care, and a causal connection between, .the alleged negligence and the injuries sustained by the plaintiff. Pfiffner v. Correa, 94-0924 (La. 10/17/94), 643 So.2d 1228, 1233. Generally, expert testimony is required to establish the applicable standard of care and whether that standard was breached, except where the negligence is so obvious that a layperson can infer negligence without the guidance of expert testi-raony. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 884. Additionally, except for cases where the causal connection between a defendant’s fault and the injury alleged is obvious, expert medical testimony is also necessary to establish causation. Jackson v. Suazo-Vasquez, 12-1377 (La.App. 1 Cir. 4/26/13), 116 So.3d 773, 776. Generally, in cases involving a patient with a complicated medical history and complex medical conditions, causation is simply | abeyond the domain of lay persons to determine without the assistance of expert medical testimony. Id.

In the motion for summary'judgment, defendants simply stated that plaintiffs “failed to produce any expert testimony stating that Kyle Weishaupt deviated from the standard of care” and would not be able to meet their evidentiary burden at trial. They also stated that the facts do not support plaintiffs’ allegations. Defendants point out that the petition alleges that an incident occurred on October 14, 2011 during the transfer of Ms. Henry by Weish-aupt. However, in his deposition, Weish-aupt testified that he was present when Ms. Henry attended physical therapy on October 12, 2011 and that the next time he was present when Ms. Henry attended physical therapy was on November 2, 2011. Defendants further argued that Weishaupt was not responsible for Ms. Henry’s care; rather, Ms. McGoffin, the physical therapist supervising Weishaupt, was responsible for Ms. Henry’s care. Finally, defendants argued that plaintiffs had not produced any evidence to support their contention that Wayne State failed to competently, adequately, or reasonably train and/or educate Weishaupt.

In the opposition to the motion for summary judgment, plaintiffs point out that the petition and answers to interrogatories state that the date of the incident was “on or about October 14, 2011.” Plaintiffs argue that they never unequivocally stated that the incident occurred on October 14, 2011. Plaintiffs contend that defendants were well aware that the date of the transfer incident was October 12, 2011 as evidenced by medical records, which defendants were in possession of, as well as the expert report of Dr. Hiren Shah, which had previously been provided to defendants.

Plaintiffs argued that the stipulation of liability by Ochsner does not relieve Weishaupt of liability. Plaintiffs contend that Weishaupt was the individual who actually transferred Ms. Henry on the date she was injured, and thus is a joint | (¡tortfeasor. Plaintiffs further argued that Wayne State is at fault for the “negligent handling” of Ms. Henry by its student, Weishaupt, and by failing to properly train and instruct him.

In support of the opposition to the motion for summary judgment, plaintiffs attached the petition and two sets of answers to interrogatories. In the answers to interrogatories propounded by Weishaupt, plaintiffs stated:

Mr. Weishaupt transferred Plaintiff from her wheelchair to the exercise table. While performing this transfer, Mr. Weishaupt grabbed Plaintiff, held Plaintiff, and applied excessive force to Plaintiffs spine and spinal area. Mr. Weish-aupt used sheer force to hold and move Plaintiff instead of using proper technique and equipment. Due to Plaintiff’s known and very recent history of spine surgery, Mr. Weishaupt should have utilized a sliding board or other equipment commonly employed to transfer high risk physical therapy patients to transfer Plaintiff from her wheelchair to the exercise table. During the transfer performed by Mr. Weishaupt, Plaintiff sustained the injuries which caused her paraplegia. The transfer occurred at Ochsner Health Center-Elmwood in Harahan, LA on or about October 14, 2011.

In addition, plaintiffs attached the supplemental answers to interrogatories in which they stated that the date of the transfer incident alleged in the petition was October 12, 2011.

In response to an interrogatory from Wayne State asking plaintiffs to describe the allegations and evidence to support the allegations that Wayne State breached the applicable standard of care, plaintiff responded: “Please see Petition for Damages and as well as attached expert reports of Hiren M. Shah and Dr. Lukas Zebala.” Although the report of Dr. Shah was attached to plaintiffs’ opposition to the motion, it was not accompanied by a verification or affidavit. We note that the report of Dr. Shah does not mention Weish-aupt or Wayne State. The report of Dr. Zebala was not attached to the opposition contained in the designated appellate record.

|7In their first assignment of error, plaintiffs argue that the trial court erred in refusing to deny defendants’ motion for summary judgment as premature. Plaintiffs point out that defendants’ motion for summary judgment was filed on August 5, 2016, the opposition was filed on October 3, 2016, and the matter was heard on October 19, 2016. The deadline set by the trial court for the exchange of expert reports was October 31, 2016. As such, plaintiffs argue that this matter was not ripe for summary judgment.

A defendant’s motion for summary judgment may be filed at any time. La. C.C.P. art. 966(A)(1). This article further provides that “[ajfter an opportunity for adequate discovery, a summaiy judgment shall be granted” if the motion shows there is no genuine issue of material fact and mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). There is no indication in the designated appellate record that plaintiffs requested an extension of the hearing date for the summary judgment motion or that plaintiffs did not have an opportunity for adequate discovery.

The Louisiana Supreme Court has held that “[tjhere is no requirement that defendant wait until all discovery deadlines have passed before filing a motion for summary judgment.” MB Indus., LLC v. CNA Ins. Co., 11-0303 (La. 10/25/11), 74 So.3d 1173, 1184. Rather, after defendant files a motion for summary judgment, the plaintiff must present satisfactory factual support to prove every crucial element of his claim. Id.

Plaintiffs urge this Court to rely on Dupree v. La. Med. Mut. Ins. Co., 11-366 (La.App. 3 Cir. 10/5/11), 74 So.3d 880, in which the Third Circuit found the trial court abused its discretion in granting summary judgment against the plaintiffs, who relied on the court’s scheduling order for exchange of expert reports and did not produce an expert report in opposition to the motion for summary judgment. At the hearing in Dupree, the plaintiffs’ counsel’s request for a ten-day |sextension to produce an expert affidavit to oppose the motion was denied. Id. at 882. The plaintiffs then filed a timely motion for new trial and attached as an exhibit an affidavit from a board certified physician whose credentials as an expert were undisputed. Id. The trial court denied the motion for new trial. In reversing the trial court, the appellate court found that the trial court abused its discretion both in failing to allow the requested extension to submit the expert report, and again in failing to grant the motion for-new trial based on the expert report. Id. at 883. The Court went on to state: “Our findings are based on the specific, facts of this case. We by no means intend to condone or legitimize the actions of plaintiffs’ counsel in failing to timely file an expert affidavit.” Id.

In the instant case, plaintiffs did not ask for an extension to submit an expert report, nor did plaintiffs file a motion for new trial accompanied by an expert report. Further, in Dupree, the appellate court noted that “the time line in the case shows a very fast-moving litigation.” Id. In the present matter, the motion for summary judgment was heard over four years after the petition for damages was filed. The facts of the instant case do not show any error by the trial court in granting defendants’ motion for summary judgment prior to the date that was set by the court for exchange of expert reports.

s Plaintiffs next contend that defendants did not argue that plaintiffs had no evidence to show that Weishaupt breached the standard of care in its motion for summary judgment; rather the issue regarding lack of evidence was not raised until defendants filed a reply to plaintiffs’ opposition to the motion for summary judgment. While we acknowledge that the memoranda in support of defendants’ motion for summary judgment does not argue lack of evidence, a plain- reading of the motion itself, which states plaintiffs “have failed to provide any expert testimony in support of their medical malpractice claim,” indicates that defendants did contend that plaintiffs lacked evidentiary support.

| {Plaintiffs further argue that defendants had no evidence to submit to the court asserting that the standard of care had been met. Plaintiffs are misdirected. Defendants were not required to present evidence that they did not cause any of Ms. Henry’s injuries or damages. The long-standing rule of law is that as the party not bearing the burden of proof at trial, defendants- in this case were only required to point out an absence of factual support for an element of plaintiffs’ claim. Rogers v. Hilltop Ret. & Rehab. Ctr., 13-867 (La.App. 3 Cir. 2/12/14), 153 So.3d 1053, 1060.

In their second and third assignments of error, plaintiffs argue that the trial court erred in dismissing the case because plaintiffs did offer evidence that Weishaupt breached the standard of care.

Plaintiffs contend that Weish-aupt “should have utilized a.sliding board or other equipment commonly employed to transfer high risk physical therapy patients to transfer Plaintiff from her wheelchair to the exercise table.” They claim that the improper transfer by Weishaupt caused Ms. Henry to become paralyzed. The record before us indicates that plaintiffs failed to provide evidentiary support for these allegations to show that plaintiffs will be able to carry their evidentiary burden of proof at trial. At the hearing on the motion, counsel for plaintiffs Stated: “Plaintiffs have an expert report that states Kyle Weishaupt breached the standard of care, but no, it is not attached to this, and it was never meant to be because discovery is not complete, and the expert deadline has not passed.” In addition, the record is completely void of any evidence to support the allegation that Wayne State “failed to competently, adequately -or reasonably train and/or educate” Weishaupt. The' failure' of- the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Jones v. Estate of Santiago, 03-1424 (La. 4/14/04), 870 So.2d 1002, 1006. Given the lack of evidentiary | ^support for the allegations made in plaintiffs’ petition, there is no genuine issue of material fact and defendants are entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons, the October 24, 2016 judgment granting summary judgment in favor of defendants Kyle Weishaupt and Wayne State University, dismissing plaintiffs’ claims with prejudice, is affirmed.

AFFIRMED

      . Plaintiffs’ opposition also included an expert report by Dr. Hiren Shah, At the hearing on the motion, plaintiffs stated that the report was not accompanied by a supporting affidavit and that this report does not mention Weishaupt,

      . According to La. C.C.P. art. 966(A)(4) "the only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations and admissions,"


author: WICKER, J.

text:
    Lorrie SANDIFER, Pamela Johnson, Sharon Ogden, Vanessa Davis v. The CITY OF KENNER, R & R Train Company, Inc., Richard T. Jacobs, Fernand Webber Marvine Shedrick and LC Shedrick v. City of Kenner, Fernand Webber and R & R Train Company
    NO. 17-CA-58
    17-CA-59
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, LORRIE SANDIFER, PAMELA JOHNSON, SHARON OGDEN & VANESSA DAVIS, Edward J. Womac, Jr., Joseph Damrich, Stephen M. Huber, Brian P. Marcelle, Gina M. Palermo
    COUNSEL FOR PLAINTIFF/APPELLANT, MARVINE SHEDRICK, W. Jared Vincent
    COUNSEL FOR DEFENDANT/AP-PELLEE, CITY OF KENNER, Alvin J. Bordelon, Jr., Regina S. Wedig
    Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst
   WICKER, J.

|, This appeal arises out of a judgment of the district court dismissing plaintiffs’ personal injury claims against the City of Kenner (“Kenner”) with prejudice. Plaintiffs—Lorrie Sandifer, Pamela Johnson, Sharon Ogden, Vanessa Davis,- and Mar-vine Shedrick—were passengers on a miniature amusement park train when it derailed and flipped, allegedly causing plaintiffs’ injuries. In two separate actions which were later consolidated, plaintiffs petitioned for damages against (1) park and track owner Kenner, (2) miniature train owner and operator R & R Train Company, Inc., (3) Richard T. Jacobs, who owned R & R Train Company, Inc., and (4) Fernand Webber, the individual who operated the train ride at the time of the accident. After the district court dismissed Richard T. Jacobs from the action and a Chapter 7 bankruptcy automatically stayed the action with respect to R & R Train Company, the district court conducted a bench trial. Thereafter, the court entered a judgment in favor of Kenner. The district court later granted plaintiffs’ motion for new trial to consider additional evidence related to the theory of res ipsa loquitur. After considering the testimony of plaintiffs’ expert in miniature train operation, maintenance, and derailment, the district court dismissed plaintiffs’ claims against Kenner with prejudice. Because we find no error in the district court’s conclusion that plaintiffs failed to meet their burden to prove Kenner’s negligence caused their alleged injuries, we affirm the district court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Oh May 12, 2006, Jefferson Parish’s Head Start Program held a field trip for students and teachers at Veterans Park on Williams Boulevard in Kenner, Louisiana. To add to the festivities, R & R Train Company, Inc., which owned and ^operated a miniature train ride at the park, donated free rides for the children and their chaperones. At around 1 p.m., plaintiffs—all of whom were chaperones working for Jefferson Parish Head Start— along with two other adults and one child boarded the train for the last ride of the day. As the train approached the first curve of the tracks, the train operator, Fernand Webber, “felt some jiggling.” When he glanced over his shoulder, he saw one of the cars starting to tip over. He immediately applied the brakes and “killed” the throttle to the engine in order to stop the train. By the time the train had stopped, both cars had tipped over, thrusting passengers into a fence which bordered the tracks. The train’s locomotive, however, remained on the tracks.

On April 27, 2007, plaintiffs Lorrie San-difer, Pamela Johnson, Sharon Ogden, and Vanessa Davis (the “Sandifer plaintiffs”) filed a petition for damages in Case No. 644-220, Twenty-Fourth Judicial District Court, Division K, against Kenner, R & R Train Company, Inc., Richard T. Jacobs, and Fernand Webber. On November 7, 2007, Jefferson Parish filed a petition for intervention, seeking reimbursement of workers’ compensation indemnity benefits and medical expenses paid to plaintiffs.

On January 24, 2011, R & R Train Company, Inc., Richard T. Jacobs, and Fer-nand Webber filed a cross claim against Kenner, alleging negligent representation and failure to properly defend and arguing that they are entitled to indemnification should they be found liable for any negligence.

On March 14, 2013, Richard T. Jacobs filed a peremptory exception of no cause of action. Thereafter, on April 23, 2013, the district court granted the' exception and issued a judgment dismissing all claims against Richard T. Jacobs with prejudice.

laOn Kenner’s motion and with the consent of all parties, the district court issued an order on June 14, 2013, consolidating the Sandifer case with Shedrick, et al. v. City of Kenner, et al., No. 644-777, Twenty-Fourth Judicial District Court, Division. Marvine Shedrick was also a train passenger at the time of the accident. Her husband, LC Shedrick, alleged loss of consortium,

Plaintiffs’ .claims against R & R Train Company, Inc., were automatically stayed on February 21, 2014, when the company filed for Chapter 7 bankruptcy.

The First Bench Trial

On May 30, 2015, the district court conducted a bench trial. Each of the' five plaintiff-passengers testified that she faced forward during the train ride, that she did not move in a manner that would- cause the train to flip over, and that she did not see any other passenger move in a manner that would cause the train to flip. Indeed, plaintiff Marvine Shedrick testified that, although she sat in the last seat on the train and could see everyone in front of her, she did not stand or jostle the train and did not remember seeing any other passenger stand or jostle the train in any way. Moreover, she denied seeing anyone leaning on the side of the train at any time. ,

Although all of the plaintiffs denied seeing any rotten or loose “rail ties” (alternatively, referred to as “cross ties”)—that is, pieces of wood to which the track is affixed for the purpose of maintaining the proper distance between the two rails—plaintiffs’ counsel heavily emphasized two “Amusement Ride Safety Inspection Report[s]” issued by the Louisiana Office of the State Fire Marshal, one issued six months before the accident and the other issued several weeks after the accident. The first report, dated December 6, 2005, and signed by inspector Ruven St. Pierre, indicated that “some rail ties are loose and rotten” and ordered for those rail ties to be replaced within 30 days. The second report, issued on May 30, 2006, ordered, among other things, that “all wood cross ties” be replaced “prior to [ ¿operation.” This report was signed by inspector Claude Ray. The parties stipulated to the admission of both reports into evidence.

Plaintiffs also offered and the district court admitted into evidence the deposition testimony of Richard T. Jacobs, the owner of R & R Train Company, who was deemed unavailable after plaintiffs made diligent, efforts to subpoena him. At his deposition, Mr. Jacobs testified that it was Kenner’s responsibility to make repairs to the track, that he notified Kenner of the State Fire Marshall’s December 6, 2005 report ordering the replacement of “some” loose and rotten cross ties, and that Ken-ner did not make the requested repairs. Although Mr. Jacobs did not witness the accident, Mr. Jacobs acknowledged three possible causes of the train derailment: (1) excessive speed, (2) a shift in passenger weight at the curve in the tracks, or (3) a track failure. During his deposition, Mr. Jacobs seemed to indicate that a track failure could occur without leaving any visual traces:

Q. Okay. Let’s talk very quickly about the rail ties. What is the function of a rail tie?
A. The cross tie is to hold the track in gauge and to support the weight of the train while it’s moving down the track.
Q. Okay. If a rail tie fails, the track can shift right?
A, Yes, to some degree. But you’re going to have to have more than one rail tie failure.
Q. Fair enough. If you have multiple rail tie failures—
A. Yeah.
Q,—if I understand correctly, the track can pop up and right back down?
IfiA. Yeah.
Q. And visually—
A. You’ll never—
Q, —it will look like nothing ever happened, right?
A. Visual inspection, you’ll never be able to tell that the trail [sic]—that the track rolled or popped.

Mr. Jacobs testified that he did a visual inspection of the track following-the accident and did not see .any loose or rotten cross ties in the area of the accident.

In its case-in-chief, Kenner called Fer-nand Webber, who operated the train at the time of the accident and who was .named as a defendant in plaintiffs’ petition. Mr. Webber testified that. Mr, Jacobs trained, him to “look at the cross ties, look for bolts or fasteners that might be missing, or something that would have been out of place to create obstructing [sic] the track.” Mr. Webber recalled that, on the day of the accident, he arrived approximately two to three hours before he began running the train. As part of standard procedure, after “walking] the tracks down both sides, looking at each rail individually,” he proceeded to the train barn “to check the locomotive and cars, fuel it, and run .it around the track a couple of times [by himself as a] secondary inspection.” He did not- identify any problems with the train or with the tracks, Mr. Webber explained that the purpose of this procedure was to “make sure there wouldn’t be a problem”: “If the tracks had been misaligned or whatever, the train more than likely would have come off at the time of the maintenance run.” When questioned whether he saw any rotten cross ties on the track that day, Mr. Web-ber testified that he did not recall seeing any rotten cross ties and that he explicitly remembered inspecting around the curve where the accident later occurred without noticing any defects with the track. The “Daily Inspection” log for May 12, 2006, bearing Mr."-Webber’s initials, indicated that-Mr. |flWebber inspected the track, the "station, the cross ties, the brakes, the oil, and the fuel, and that- he removed any trash from the cars.

Mr. Webber testified that, after conducting his inspection, he began giving rides. Before the last ride of the day, he allowed the passengers to board at the. train station, told them to keep their arms and legs inside the cars, and to stay seated at all times.. At the time of the accident, he was driving the train no faster than five miles per hour, a speed which was neither faster nor slower than he had driven the train during every other ride that day. According to Mr. Webber, immediately prior to the accident, he felt “a jiggle characteristic .to somebody moving on the train”: “It felt. similar in nature to somebody shifting around in the back of the cars.” When he glanced over his shoulder to ascertain what had happened,- he “saw that'one car was starting to tip.” By the time he was able to stop the train, “both cars had gone over.” Although Mr. Webber admitted that he never actually saw a passenger moving prior to the accident, he testified that the movement he felt “was characteristic of every other time somebody would move in the seat” and that he had experienced similar movement earlier in the day when a passenger was misbehaving on a previous ride.

Kenner also elicited testimony from, among others, Ruven St. Pierre, who conducted the December 6, 2005 inspection on behalf of the State Fire Marshal and who inspected the tracks immediately after the accident. Mr. St. Pierre testified that his December 6, 2005 inspection was “an annual inspection for safety.” That inspection involved meeting with train owner, Richard Jacobs, checking the train’s maintenance records, inspecting the train itself, walking around the track, and riding on the train around the track. Mr. St. Pierre testified that the train and the track passed his inspection. Although he noted on his report 17that there were “some loose or rotten cross ties... scattered along the track...in certain areas,” Mr. St. Pierre explained that “it wasn’t bad enough that I had to shut it down.” Mr. St. Pierre attested that he would have issued a cease and desist order if he thought that the condition of the tracks was unsafe. Mr. St. Pierre also testified that he measured the gauge of the track as part of his inspection and that he did not note any problems with it.

Mr. St. Pierre testified that, on May 12, 2006, he received a call notifying him of the train accident. When he arrived at the scene, he “started taking pictures and then doing measurements and talking to some of the people, some of the witnesses they had there and to find out what happened.” When Mr. St. Pierre inspected the tracks in the area of the accident, he concluded, “They were normal. I didn’t see nothing wrong.” Mr. St. Pierre specifically testified that, although he observed some loose or rotten cross ties “on the other side of the park,” he did not observe any rotten or loose cross ties in the area of the accident. Mr. St. Pierre also measured the gauge of the train tracks and determined that “it was within limits.” Although Mr. St. Pierre did not accompany Claude Ray when Mr. Ray inspected the train and the tracks about two weeks later, on May 30, 2006, and ordered that “all wood cross ties” be replaced prior to operation, Mr. St. Pierre testified unequivocally that there were no rotten or loose cross ties in the area of the accident and that Mr. Ray’s report only ordered the replacement of all cross ties. Mr. Ray did not comment directly on the condition of the track or the cause of the accident.

Richard Chauvin, a safety inspector for the City of Kenner, also testified that, about two weeks after the accident, he accompanied Mr. Jacobs and the State Fire Marshal on the State Fire Marshal’s inspection of the train and the tracks. |8Mr. Chauvin prepared his own report following this inspection, and the district court admitted this report into evidence. The report concluded, as follows:

The State Fire Marshalls [sic] inspected the site where the train incident occurred and concluded that the tracks were in good condition and could not find any defects in the track that would have contributed to the train incident.
As stated above, the State Fire Mar-shalls [sic] did not find any defects with the train cars or the railroad tracks that would have contributed to the incident, and the only factor to the incident was the weight of the passengers.

Mr. Chauvin testified that the report reflects the information he received from the Fire Marshal at the time of the inspection and that the Fire Marshal did not indicate to him that all of the cross ties would have to be replaced. According to Mr. Chauvin, Kenner never performed maintenance on the track because that responsibility belonged to Mr. Jacobs.

After taking the matter under advisement, the district court- issued a judgment in favor of Kenner on May 6, 2015. The district court contemporaneously issued lengthy reasons for judgment. The court found that plaintiffs proved- that “Kenner owned and was responsible for maintenance of the tracks and that Kenner knew or should have known of defects in the tracks prior to operation but failed to repair the defects.” In support, the court determined it was undisputed that Kenner owned the tracks and pointed to Mr. Jacobs’ deposition testimony that it was Kenner’s responsibility to maintain the tracks, which was consistent with testimony elicited from State Fire Marshal inspector Ruven St. Pierre. The district court also highlighted Mr. Jacobs’ testimony that he informed Kenner of the State Fire Marshal’s December 6, 2005 order requiring the replacement of “some” loose and rotten cross ties in an unspecified location on the track and that Kenner did not repair the cross ties, as also evidenced by Mr. Chauvin’s testimony that Kenner never performed maintenance on the track.

|9Nevertheless, the district court found that plaintiffs’ failed to prove that the defect alleged—the presence of loose and/or rotten cross ties—caused plaintiffs’ injuries. Although plaintiffs argued that the doctrine of res ipsa loquitur applies because train derailment does not ordinarily occur in the absence of negligence, the court found that plaintiffs failed to sufficiently eliminate other more probable causes of injury, pointing to testimony Mr. Jacobs offered that temperature change can cause derailment. The court also emphasized that “[tjhere was no evidence offered that any rotten cross ties observed by the Fire Marshal in December 2006 [sic] and not repaired by Kenner, were in the area where the train derailed or were involved in any gauge change causing derailment.” In reaching this conclusion, the court indicated that the testimony elicited at trial eliminated the theories that someone stood up or sat on the back of a seat or that speed was the cause of the accident.

Motion for New Trial

On May 13, 2015, the Sandifer plaintiffs timely filed a motion for new trial, arguing there was no factual basis for the district court’s conclusion that a temperature change caused the derailment because there was no evidence a temperature change occurred at the time of the accident. Plaintiffs contended that Mr. Jacobs offered three possible reasons in his deposition as to why the train derailed: “(1) the riders shifted in their seats, (2) the speed of the train, and (3) a defect in the tracks.” Because the court, in its reasons for judgment, found that the testimony eliminated the theories of passenger weight shift and speed, |^plaintiffs maintained .that they have sufficiently eliminated the other more probable causes of the accident and that, applying the doctrine of res ipsa loquitur, they had met their burden to prove that a track failure caused their injuries. Plaintiffs also indicated that they intended to attempt to procure Mr. Jacobs’ live testimony so the court could obtain “any clarifications with respect to the possible ways in which a train may have derailed.”

Following a hearing on June 25, 2015, the district court granted a new trial “with respect to the issue of res ipsa,’’.indicating its willingness “to take new evidence on that issue assuming [Mr. Jacobs] is available.”

The Second Trial

On June 21, 2016, the district court held a new trial at which it admitted all prior testimony and exhibits. Thereafter, plaintiffs' qualified and the district court accepted Richard Jacobs as an expert in miniature train operation, maintenance, and derailment. Acknowledging that “[t]here has to be a problem for the train to. derail,” Mr. Jacobs considered the various potential causes of the instant accident. Although excessive speed when traveling around a curve could cause derailment, Mr. Jacobs opined that he could, not discern any basis for an opinion that speed was a factor in this accident:

First thing, was the locomotive never left the track, it was on, still on the rails, had he been speeding when he entered into the curve is [sic] the locomotive would derail as well as the passenger cars, The second thing would have been, that the train would have been notably further away from the track then [sic] what it was, it basically looked like the car slipped on its side right next to the rails, which is not an indication of speeding. Usually a train is pretty heavy and when it has people in the .momentum it moves quite a distance before it finally stops. After looking at the passenger cars where they hit the ground, you. can see the scratch on the passenger car is basically running the length of the car and-if the car had slid in on its side away from the track it would have, it would have scratches in a. upward and a downward motion and not just the length of the car.

When questioned directly about plaintiffs’ theory that rotten or loose cross- ties caused the rails to pop out of gauge which then caused the train to derail, Mr, | ¶]Jacobs testified that multiple cross ties would need to fail for the rails to-dome out of gauge. Significantly, Mr, Jacobs testified that the train would have derailed at the spot where the track had come out of gauge: " "

[Y]ou’re going to feel that shift in the train, you’re going to stop to find out what happened. As far as getting pass [sic] the spot where the train had lost gauge and came back in again, I mean, you can keep driving pass [sic] it but if it’s going to derail it’s going to derail right there. It’s not going to move 10 feet down the track and then come off the track way from that spot.. .it’s pretty much going to derail right at it.

When cross-examined by Kenner’s counsel, he agreed that there would be evidence of rotten cross ties if that was the cause of the accident. Although he conducted a visual inspection of the tracks following the accident, Mr. Jacobs never found evidence of loose or rotten cross ties in the area where the derailment occurred. He specifically recalled walking the tracks with Mr. Chauvin and the State Fire Marshal at the end of May 2006, and he did not see any evidence of rotten or loose cross ties or any other evidence that would cause him concern about the condition of the track in the area where the accident occurred. Moreover, he observed no evidence that the train derailed before it flipped over. Although a train when it derails would “tare [sic] the ground up until it stops,” Mr. Jacobs did not see any evidence of this: “I didn’t see any evidence that the train had come off the track and rolled along the cross ties into the dirt..-. .The train had obviously moved, I would say at least five or six feet before it came to a complete stop, so you would have that much damage on the ground where the wheels came off.”

Throughout his testimony, Mr. Jacobs maintained that a weight shift most likely caused the accident. On cross-examination, Kenner’s counsel asked Mr. Jacobs to consider the train passengers’ heights and weights as reflected in the police report which was admitted into evidence:

Q. And I’m not going to put their names. Their names are in the record. One woman was 5’4‘ tall and weighed 260 pounds. One was 5’6‘, 270 pounds; one 5’4‘, 190 pounds; 5’2‘, 286 pounds; 5’6‘, 225 Impounds; 5’10‘, 150 pounds; 5’3‘, 125 pounds, and then there’s a child on here and they did not give the weight of the child.... If the height and the weight of the passengers is accurately reflected in this police report, would that give you any indication as to how weight would have shifted and caused this accident?
A. ... .So I don’t know if two of them were in the front car, three of them were in the back car, vice versa, but if you put someone that large on one side of one car and their weight is all the way up against it [sic] it could cause the car, the train to flip... .You would have to be leaning over to one side of the car.

During extensive questioning by the district court, Mr. Jacobs further explained the basis of his opinion that weight shift caused the accident:

THE COURT: If you don’t mind I have a few questions. You have indicated or [plaintiffs’ counsel] asked you is [sic] there were three potential causes [sic] a weight .shift, a problem with the track, and -then speed. And you said in your opinion it was not speed. And I know there was some testimony or some questions by [Kenner’s counsel] about being too much weight on one side of the train.
Are there any other potential causes of the accident in your expert opinion?
THE WITNESS: Can I say?
THE COURT: Absolutely.
THE WITNESS: Just because a train would derail does not mean that it would flip onto its side. Something caused the train to flip onto its side. It didn’t just do it because it came off of the track. And there’s two potential ways that that can happen, and one is a weight shift on the train, and the other is speeding in the centrifugal force of going around the curve would [sic] force the train to flip over.
THE COURT: So in your expert opinion a problem with the track wouldn’t cause this type of accident.
THE WITNESS: Not necessarily.
THE COURT: It could but not necessarily?
THE WITNESS:. Nof-necessarily.
THE COURT: Because you just now said there were two potential ways. So in addition to those two potential ways the problem with the track is another potential way?
THE WITNESS: Wait. I’m sorry?
[1STHE COURT: Is a problem with the track another potential way that this accident could have occurred in your expert opinion?
THE WITNESS: If the track was elevated above the ground then there’s the potential that the train could flip because there would be a place for the train to get on to it’s—off of the track and down. The track laid in this area was fairly—it was level with the ground. There wasn’t sticking up above the ground. So just again, again, just because the train derailed does not mean that it was going to flip over. There had to be something caused [sic] the train to flip and a derailment would not cause the train to flip.
THE COURT: Okay. So even if there was a problem with the track there would have had to be something else to cause it to flip?
THE WITNESS: Something caused the train to flip onto its side, yes.
THE COURT: Okay. In your expert opinion what more probably that not caused the accident?
THE WITNESS: I believe a weight shift on the train caused the accident.

During follow-up questioning by plaintiffs’ counsel, Mr. Jacobs assented to the possibility that the train could have derailed and then plaintiffs’ could have shifted their weight after the fact causing the train cars to flip.

The district court took the matter under advisement. On July 28, 2016, the district court entered judgment in favor of Ken-ner. In its contemporaneously issued reasons for judgment, the district court thoroughly summarized the testimony of Mr. Jacobs, crediting his expert opinion that weight shift on the train more probably than not was the cause of the accident. Accordingly, the court concluded that plaintiffs failed to carry their burden of proving that Kenner’s negligence in failing to repair the loose and rotten cross ties referenced in the December 6, 2005 State Fire Marshal Report was the cause of the accident.

Because the judgment issued on July 28, 2016, did not include decretal language necessary to make it a final appealable judgment, on February 6, 2017, we exercised our supervisory jurisdiction and remanded for the district court to amend its judgment. On February 8, 2017, the district court issued an amended | ^judgment dismissing the claims of plaintiffs Lori Sandifer, Pamela Johnson, Sharon Ogden, and Vanessa Davis with prejudice. On March 9, 2017, the district court amended its judgment once again to include the claims of Marvine and LC Shedrick among those dismissed with prejudice.

Both the Sandifer plaintiffs and the She-drick plaintiffs devolutively appeal from this judgment.

DISCUSSION

The Sandifer plaintiffs allege two assignments of error. First, the Sandifer plaintiffs argue the district court committed manifest error when it did not apply the doctrine of res ipsa loquitur “when there was no direct evidence of the cause of the miniature train derailment.” Second, they contend that the district court committed manifest error “when it did not find that the City of Kenner’s negligence more probably than not caused the miniature train derailment when the evidence demonstrated that (1) the train tracks were defective, (2) Kenner was responsible for maintaining the tracks and failed to do so, despite being on notice, (3) defective train tracks can cause gauge changes that lead to derailments, and (4) no other potential causes of the accident were supported by evidence at trial.”

The Shedrick plaintiffs raise four assignments of error. First, they argue the district court improperly applied an elevated burden of proof when it required plaintiffs to disprove another “possible” cause of the accident. Second, the Shedrick plaintiffs allege the district court committed manifest error in finding that the accident may have been caused by a temperature change affecting the gauge of the tracks as there was no evidence in the record to support this finding. Third, the Shedrick plaintiffs contend that the district court committed manifest error when it did not apply the doctrine of res ipsa loquitur to find Ken-ner liable for plaintiffs’ injuries as the “overwhelming and uncontroverted circumstantial evidence” demands the finding that Kenner’s failure to maintain the tracks more probably |1fithan not caused the accident. Fourth, they allege the district court erred in failing to award damages for injuries they sustained as a result of the accident.

Kenner answered plaintiffs’ consolidated appeal, providing several alternative additional reasons to support the district court’s judgment in favor of Kenner. First, Kenner argues the district court erred in applying the doctrine of res ipsa loquitur where direct evidence proved the tracks were not loose or rotten at the site of the incident. Second, it maintains the district court erred in failing to grant Kenner statutory immunity under La. R.S. 9:2795. Third, Kenner contends the district court erred in failing to recognize that Kenner is entitled to the limitations of liability afforded to political subdivisions under La. R.S. 13:5106. Finally, Kenner argues that the district court erred in finding that the train tracks and train constituted an amusement ride and not playground equipment. Our decision to affirm the district court’s judgment pretermits further consideration of these arguments.

Res Ipsa Loquitur

The Sandifer plaintiffs’ Assignments of Error 1 and 2 and the Shedrick plaintiffs’ Assignments of Error 1 and 3 implicate the doctrine of res ipsa loquitur, as plaintiffs allege the district court misapplied this doctrine and committed manifest error when it refused to apply it to find Kenner liable for their injuries. We disagree.

It is well-settled that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Arabie v. CITGO Petroleum Corp., 10-2605 (La. 3/13/12), 89 So.3d 307, 312; Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1978). In Arceneaux, the Louisiana Supreme Court set forth a two-part test for the appellate review of facts: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court, and (2) the appellate court must further determine that the record establishes the finding is not clearly wrong or manifestly erroneous. Arceneaux, 365 So.2d at 1333; Arabie, 89 So.3d at 312. If the trial court’s findings are reasonable and not clearly wrong in light of the record reviewed in its entirety, the appellate court may not reverse. Arabie, 89 So.3d at 312; Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Arabie, 89 So.3d at 312; Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La. 1993).

Plaintiffs bore the burden of proving .that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Cormier v. T.H.E. Ins. Co., 98-2208 (La. 9/8/99), 745 So.2d 1, 7. As an initial matter, we find no manifest error in the district court’s well supported conclusion that plaintiffs did not carry their burden of proving that Kenner’s failure to maintain the tracks was the cause of their injuries. There is ample support in the record—including the trial testimony of Fernand Webber, Ruven St. Pierre, and Richard Jacobs, all of whom inspected the area of the accident and denied seeing any rotten or loose cross ties—for the district court’s conclusion that there were no defective cross ties in the area of the accident. Moreover, Mr. Jacobs’ expert testimony that there would be evidence of loose or rotten cross ties in this area if track failure was the cause of the accident provided a reasonable factual basis for the court’s conclusion that track failure was riot the cause of plaintiffs’ injuries.

After granting plaintiffs’ motion for new trial and considering the testimony of Mr. Jacobs at that new trial, the district court determined that the doctrine of res ipsa loquitur did not require the conclusion that Kenner’s negligence was the cause |17of plaintiffs’ injuries. Res ipsa lo-quitur is a rule of circumstantial evidence which allows an inference of negligence on the part of the defendant if the facts indicate the defendant’s negligence, more probably than not, caused the injury. Linnear v. CenterPoint Energy Entex/Reliant Energy, 06-3030 (La. 9/5/07), 966 So.2d 36, 45. It applies in cases involving circumstantial evidence, rather than direct evidence, provided the plaintiff establishes the following foundation of facts: (1) the injury is of the kind which does not ordinarily occur in the absence of negligence; (2) the evidence sufficiently eliminates other possible causes of the injury, such as the plaintiffs own responsibility or the responsibility of others; and (3) the alleged negligence of the defendant must fall within the scope of his duty to the plaintiff, which will often be the case if the defendant had exclusive control of the thing or situation that caused the injury to the plaintiff. Id, Application of the res ipsa doctrine is not appropriate where specific acts of negligence are alleged and direct evidence is available to explain a reason for plaintiffs damages or the defendants’ actions. Valence v. Jefferson Parish Hosp. Dist. No. 2, 13-48 (La.App. 5 Cir. 10/30/13), 128 So.3d 455, 461. Further, application of the res ipsa doctrine does not relieve the plaintiff of the ultimate burden of proving by a preponderance of the evidence all of the elements necessary for recovery. Id.

In the present case, plaintiffs alleged Kenner committed specific acts of negligence, i.e., failure to maintain the train tracks. Leaving aside the repeated testimony that inspectors did not find defective cross ties in the area of the accident and the expert testimony that such evidence would have been present if a track failure had occurred, the testimony of plaintiffs’ own expert effectively foreclosed track failure as a possible cause of the accident when he testified that only excessive speed or a weight shift,would have caused the train to flip over. Although Mr. Jacobs seemed to lend some credence to plaintiffs’ counsel’s theory that it is possible a weight, shift could have occurred causing the train car. to flip | wdfter a track failure caused the train to derail, Mr. Jacobs clearly testified there was no evidence the train derailed before it flipped over. Thus, we find that plaintiffs’ expert’s testimony foreclosed plaintiffs’ theory of causation. Because the doctrine of res ipsa does not relieve plaintiffs of their ultimate burden, we find no error in the district court’s conclusion that plaintiffs failed to prove a track failure was more probably than not the cause of the accident.

Accordingly, we find these assignments of error to be meritless.

Temperature Change

The Shedrick plaintiffs allege the district court committed manifest error in finding that the accident may have been caused by a temperature change affecting the.gauge of the track as there was no evidence in the record to support this finding. We disagree as the district court did not ground its July 28, 2016 judgment on this factual finding—a statement taken from the deposition testimony of plaintiffs’ expert—but on plaintiffs’ failure to prove track failure was the cause of plaintiffs’ injuries.

Damages

Finally, the Shedrick plaintiffs urge that the district court erred when it failed to award damages. Because we find no error in the district court’s conclusion that plaintiffs did not carry their burden to prove all of the elements of negligence, we find this assignment of error is meritless.

DECREE

Accordingly, for the foregoing reasons, we affirm the district court’s judgment dismissing all of plaintiffs’ claims against Kenner.

AFFIRMED

      . Marvine Shedrick's husband, LC Shedrick, also alleged loss of consortium.

      . The record does not disclose whether plaintiffs have continued to pursue their claims against Mr. Webber, who testified at the bench trial.

      . At trial, the parties stipulated to Jefferson Parish’s workers’ compensation lien and to the total amount paid by Jefferson Parish for plaintiffs’ workers’ compensation claims.

      . Although it is not clear when plaintiffs offered and the district court accepted Mr. Jacobs as an expert during the first bench trial, the district court notes in its May 6, 2015 reasons for judgment that "Epllaintiffs offered Jacobs as an expert in train'derailment based on twenty-five (25) years experience with trains.”

      . The record also contains the results of a breathalyzer test to which Mr. Webber submitted on the day of the accident. The test indicates Mr. Webber's blood alcohol level was ,000%.

      . Although Mr. St. Pierre testified that he was not present during this inspection, Mr. Chau-vin testified that Mr. St. Pierre was present along with another State Fire Marshal inspector.

      . The district court also determined that Ken-ner is not immune from liability pursuant to the Recreational Immunity Statute, La. R.S. 9:2795. In answering plaintiffs’ appeal, Ken-ner avers, among other things, that the district court erred when it found La. R.S. 9:2795 does not apply to grant it recreational use immunity. Our decision to affirm the district court’s judgment on other grounds pre-termits consideration of this argument.

      . It was not necessary for the Shedrick plaintiffs to file a separate motion for new trial. Pursuant to La. C.C.P. art. 1971, “A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only.''