author: WELCH, J.

text:
    Gloria BROWN v. PATIENT COMPENSATION FUND OVERSIGHT BOARD
    NUMBER 2017 CA 0318
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: January 5, 2018
    Tonya S. Johnson, New Orleans, LA, Attorney for Appellant Plaintiff - Gloria Brown
    David A. Woolridge, Jr., Brent J. Bourgeois, Baton Rouge, LA, Attorney for Appellee Defendant-Louisiana Patient's Compensation Fund Oversight Board
    BEFORE: WHIPPLE, PETTIGREW, McCLENDON, WELCH, AND THERIOT, JJ.
   WELCH, J.

The plaintiff/claimant, Gloria Brown, appeals a judgment denying her request for a writ of mandamus against the defendant, the Patient's Compensation Fund Oversight Board (the "PCF") in connection with a medical review panel proceeding. For the reasons that follow, we reverse the judgment of the trial court and render judgment issuing a writ of mandamus directed to the PCF.

BACKGROUND

At issue in this appeal is whether the PCF exceeded its statutory authority and/or failed to comply with a ministerial duty while processing a request for review of a medical malpractice claim by a medical review panel in accordance with the provisions of the Louisiana Medical Malpractice Act ("LMMA"), La. R.S. 40:1299.41, et seq. The relevant facts are not in dispute. On December 1, 2014, counsel for Ms. Brown mailed a request for review to the Division of Administration by certified mail. See La. R.S. 40:1299.47(A)(2)(b). Pursuant to La. R.S. 40:1299.47(A)(3), it "shall be the duty of the board" within fifteen days of the receipt of the claim by the PCF, to send notification to the claimant in order to:

(a) Confirm to the claimant by certified mail, return receipt requested, that the filing has been officially received and whether or not the named defendant or defendants have qualified under this Part.
(b) In the confirmation to the claimant pursuant to Subparagraph (a) of this Paragraph, notify the claimant of the amount of the filing fee due and the time frame within which such fee is due to the board, and that upon failure to comply with the provisions of Subparagraph (1)(c) or
(d) of this Subsection, the request for review of a malpractice claim is invalid and without effect and that the request shall not suspend the time within which suit must be instituted in Subparagraph (2)(a) of this Subsection.
(Emphasis added).

The deadline by which the filing fee must be paid to the PCF is set forth in La. R.S. 40:1299.47(A)(1)(c), which provides:

A claimant shall have forty-five days from the mailing date of the confirmation of receipt of the request for review in accordance with Subparagraph (3)(a) of this Subsection to pay to the board a filing fee in the amount of one hundred dollars per named defendant qualified under this Part.

By letter dated December 11, 2014, the notification statutorily mandated by La. R.S. 40:1299.47(A)(3) was mailed by the PCF to counsel for Ms. Brown by certified mail, return receipt requested. On January 12, 2015, in response to a telephone inquiry from counsel for Ms. Brown about the status of the notification, the PCF mailed counsel for the claimant by certified mail, return receipt requested, a second notification along with a copy of the December 11, 2014 notification.

On January 27, 2015, the December 11, 2014 notification was returned to the PCF as unclaimed. In such cases, La. R.S. 40:1299.47(A)(5) requires the PCF to provide the required notification by regular first class mail, and it provides:

(5) In the event that any notification by certified mail, return receipt requested, provided for in Paragraphs (3) and (4) of this Subsection is not claimed or is returned undeliverable, the board shall provide such notification by regular first class mail, which date of mailing shall have the effect of receipt of notice by certified mail.
(Emphasis added).

There is no dispute that the PCF did not comply with its statutory duty to resend the December 11, 2014 notification by regular first class mail. Instead, by letter dated January 29, 2015, the PCF sent a letter to counsel for Ms. Brown notifying her that the December 1, 2014 request for review had been declared "invalid and without effect" due to the failure to pay the filing fee.

On February 25, 2015, the PCF received a letter dated February 24, 2015 from counsel for Ms. Brown along with a check in the full amount of the filing fee set forth in the January 12, 2015 notification, which had been mailed to counsel for Ms. Brown by certified mail, return receipt requested. Notably, the January 12, 2015 notification was not returned unclaimed or undeliverable and the parties do not dispute that the full amount of the filing fee due to the PCF was paid within forty-five days of the January 12, 2015 notification. However, by letter dated February 26, 2015, the PCF returned the filing fee check and notified counsel for Ms. Brown that it had declared the December 1, 2014 request for review "invalid and without effect."

On February 10, 2016, Ms. Brown filed a petition for writ of mandamus requesting that the PCF be ordered to accept her December 1, 2014 request for review. The plaintiff maintained that the forty-five day time period in which to pay the filing fee commenced with the mailing of the January 12, 2015 notification by certified mail, return receipt requested; hence, the filing fee that the PCF received on February 25, 2015 was timely. As such, Ms. Brown sought mandamus relief ordering the PCF to accept the plaintiff's December 1, 2014 request for review.

The PCF opposed the writ of mandamus on the basis that the forty-five day time period in which to pay the filing fee commenced with the mailing of the December 11, 2014 notification, even though it was returned to the PCF as undeliverable. It further contended that the PCF was not required to comply with its statutory obligation as set forth in La. R.S. 40:1299.47(A)(5) because by the time the PCF received notice from the post office that the notification to counsel for Ms. Brown was undeliverable, the request for review had already been rendered invalid and without effect because more than forty-five days had elapsed.

After a hearing on the matter, the trial court denied the relief sought. A judgment in accordance with the trial court's ruling was signed on October 5, 2016, and it is from this judgment that Ms. Brown appeals, assigning as error the trial court's denial of her petition for mandamus relief.

LAW AND DISCUSSION

A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. Franks v. Louisiana Compensation Fund Oversight Board , 2016-0765 (La. App. 1st Cir. 5/3/17), 220 So.3d 862, 866 ; see also La. C.C.P. arts. 3861 - 3863 and Berthelot v. Patients' Compensation Fund Oversight Board , 2007-0112 (La. App. 1st Cir. 11/2/07), 977 So.2d 967, 973 n.6, writ denied, 2007-2328 (La. 2/1/08), 976 So.2d 720. In mandamus proceedings against a public officer involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute and the ministerial character of the duty he is charged to perform. Franks , 220 So.3d at 866 ; Keating v. Van Deventer , 2014-0157 (La. App. 1st Cir. 9/19/14), 153 So.3d 1200, 1205 n.6, writs denied, 14-2188 (La. 1/9/15), 157 So.3d 598, 599, and 1106.

Since the LMMA's limitations on the liability of qualified health care providers constitute special legislation in derogation of the general rights available to tort victims, its provisions must be strictly construed. Berthelot , 977 So.2d at 973-74 ; Estate of Nicks v. Patient's Compensation Fund Oversight Bd. , 2005-1624 (La. App. 1st Cir. 6/21/06), 939 So.2d 391, 396 ; and In re Medical Review Panel of Pierson , 2002-1598 (La. App. 1st Cir. 5/9/03), 845 So.2d 1275, 1276, writ denied, 2003-1559 (La. 10/10/03), 855 So.2d 324. The PCF is a creature of the Louisiana Legislature and has no greater status than given it by its creator (the Louisiana Legislature).See Berthelot , 977 So.2d at 974 ; Boyd v. St. Paul Fire & Marine Ins. Co. , 99-1820 (La. App. 3 Cir. 12/20/00), 775 So.2d 649, 656, writ denied, 2001-0220 (La. 3/23/01), 788 So.2d 430. Jurisprudence routinely recognizes that the rights and obligations of the PCF are limited to those expressly prescribed in the LMMA. Berthelot , 977 So.2d at 974.

The PCF's duties under La. R.S. 40:1299.47(A) are not adjudicative in nature. Berthelot , 977 So.2d at 973 ; Bosarge v. Louisiana Patient's Compensation Fund , 2006-1354 (La. App. 1st Cir. 5/4/07), 960 So.2d 1063, 1067. Rather, the PCF's mandatory duty to act when it receives a request to invoke a medical review panel is clerical or ministerial in nature and is designed to facilitate the medical review process. Therefore, we find that mandamus was appropriate in this case. See Berthelot , 977 So.2d at 973 ; Bosarge , 960 So.2d at 1067 ; Estate of Nicks , 939 So.2d at 396 ; Golden v. Patient's Compensation Fund Oversight Bd. , 40,801 (La. App. 2nd Cir. 3/8/06), 924 So.2d 459, 463, writ denied, 2006-0837 (La. 6/2/06), 929 So.2d 1261 ; and In re Medical Review Panel of Pierson , 845 So.2d at 1276.

In this mandamus proceeding, the issue is the extent of the PCF's authority to interpret the LMMA's notification provisions and the effect thereof. The resolution of those issues turn on the proper interpretation of the language of the statute itself, as the text of the law is the best evidence of legislative intent. Franks , 220 So.3d at 866 ; see also La. R.S. 24:177(B)(1) and Rando v. Anco Insulations, Inc. , 2008-1163 (La. 5/22/09), 16 So.3d 1065, 1075. As previously set forth, the LMMA constitutes special legislation in derogation of the general rights available to tort victims and, therefore, must be strictly construed. Franks , 220 So.3d at 866 ; Dupuy v. NMC Operating Company, L.L.C. , 2015-1754 (La. 3/15/16), 187 So.3d 436, 439 ; Galloway v. Baton Rouge General Hospital , 602 So.2d 1003, 1005 (La. 1992). The interpretation of a statute is a question of law that is reviewed on appeal under the de novo standard of review.

Franks , 220 So.3d at 866, Red Stick Studio Development, L.L.C. v. State ex rel. Department of Economic Development , 2010-0193 (La. 1/19/11), 56 So.3d 181, 187.

Louisiana Revised Statute 40:1299.47(A) outlines the PCF's affirmative and mandatory ministerial duties regarding notification after it receives a request for review. The clear and unambiguous statutory language imposes on the PCF the following ministerial duties owed to the claimant regarding requests for review: (1) within fifteen days of receipt, the PCF shall send notification to the claimant by certified mail, return receipt requested, confirming receipt of the claim and the qualifications of the health care providers; (2) in the confirmation, the PCF shall also give notice of the amount of the filing fee due to the PCF and the time frame within which the fee is due to the PCF and notifying the claimant that failure to timely pay the filing fee due will render the request for review "invalid and without effect"; (3) in the event that the notification by certified mail, return receipt requested is not claimed or is returned undeliverable, the PCF shall provide the statutorily required notification by regular first class mail, which date of mailing shall have the effect of receipt of notice by certified mail; and (4) notify all parties when the required filing fee is received by the PCF and whether the claimant has timely or not timely paid the required filing fee.

We find that by the clear and unambiguous terms of La. R.S. 40:1299.47(A), the required filing fee is due within forty-five days of mailing the notification by certified mail, receipt requested if the notification is not returned unclaimed or undeliverable; in the event the notification is returned unclaimed or undeliverable, the forty-five day deadline begins to run when the notification is mailed by regular first class mail. The PCF is then charged with the ministerial duty by La. R.S. 40:1299.47(A)(4) to notify the claimant and all named defendants by certified mail, return receipt requested, (a) the date of receipt of the filing fee; (b) that no filing was due because the claimant timely provided the affidavit set forth in La. R.S. 40:1299.47(A)(1)(d)(i) ; (c) that no filing fee is due because the claimant timely complied with the in forma pauperis provision of La. R.S. 40:1299.47(A)(1)(d)(ii) ; or (d) that the required filing fee was not timely paid pursuant to (1)(c).

That is all the PCF is authorized (or required) to do; no other statutory directive or authority to act is imposed on the PCF in this particular factual scenario. See Berthelot , 977 So.2d at 973 ; Golden , 924 So.2d at 463. The PCF stands in the same position as clerks of court, who are charged by the legislature with the duty to receive and process pleadings filed in judicial proceedings. See Franks , 220 So.3d at 868 ; In re Elliott , 2006-1440 (La. App. 3rd Cir. 4/9/08), 980 So.2d 881, 890, writ denied, 2008-1008 (La. 8/29/08), 989 So.2d 102. In processing a request, the PCF is performing a limited clerical role and cannot improvise measures not authorized by the LMMA. See Franks , 220 So.3d at 868.

In opposing the request for mandamus, the PCF claimed that the forty-five day time period in which to pay the filing fee commenced with the mailing of the December 11, 2014 notification, even though it was returned to the PCF as undeliverable. The PCF further claimed it was not required to comply with its statutory obligation as set forth in La. R.S. 40:1299.47(A)(5) because by the time the PCF received notice from the post office that the notification to counsel for Ms. Brown was undeliverable, the request for review had already been rendered invalid and without effect because more than forty-five days had elapsed. We disagree.

The LMMA imposes a duty of notification on the PCF; nothing in the LMMA authorizes the PCF to ignore its duty under La. R.S. 40:1299.47(A)(5) (to provide the required notification by regular first class mail) because it (the PCF) has deemed the request "invalid and without effect" after it was not returned unclaimed or undeliverable during the forty-five day period following mailing of the first notification by certified mail, return receipt requested. Furthermore, nothing in the LMMA authorizes the PCF -under any circumstances-to adjudicate or otherwise declare a request for review as "invalid and without effect." See Golden , 924 So.2d at 464.

While the PCF has statutory authority under La. R.S. 40:1299.44(A)(5)(b) to defend, protect, and manage the fund, that duty does not involve making such legal determinations. See Berthelot , 977 So.2d at 974. The interpretation of the LMMA is purely a function of the judiciary, and the judiciary alone will perform that function unless the Legislature deems it appropriate to authorize some other entity to make that determination. See Id. Essentially, the PCF would have this court interpret La. R.S. 40:1299.44(A) in such a way that would render the notification requirement in La. R.S. 40:1299.44(A)(5) meaningless under the particular facts of this case. The PCF relies on the fortuity of whether the post office returns the unclaimed or undeliverable notification to the PCF prior to or after the forty-five day deadline to pay the filing fee due the PCF in order to determine whether its duty under La. R.S. 40:1299.44(A)(5) has been triggered. If the Legislature intended such an arbitrary, illogical interpretation, it would have stated as such in the statute. They did not and adopting the PCF's interpretation would defy logic, common sense, and all applicable rules of statutory interpretation.

A similar issue was presented in Golden , wherein the Second Circuit Court of Appeal granted a writ of mandamus ordering the PCF to allow the plaintiff to continue with the medical review panel process despite her failure to pay the filing fee timely. In Golden , 924 So.2d at 463, the plaintiff submitted the filing fee after the 45-day time period had expired. After paying the filing fee, the plaintiff notified the PCF that the parties had selected an attorney-chairperson of the Medical Review Panel and wished to have the PCF notify him of their decision. The PCF returned the untimely filing fee and refused to notify the attorney-chairman because it no longer considered the claim filed, due to the plaintiff's failure to pay the filing fee timely. The court held that the PCF's duties under La. R.S. 40:1299.47(A)(3) are "mandatory duties of a clerical nature to facilitate the panel process," and that the PCF had no authority to unilaterally stop the medical review panel process. The court further interpreted the "invalid and without effect" language of the statute as:

pertaining to the suspension of prescription which occurs during the pendency of the review panel process. With that interpretation, it is not the [PCF's] place to assert prescription and effectively dismiss plaintiff's claim with prejudice. The defendant alone may choose to assert prescription.

Golden , 924 So.2d at 464. The only thing the PCF is authorized to do when the required filing fee is not timely paid is to notify all the parties; no other statutory directive or authority to act is imposed on the PCF. Golden , 924 So.2d at 463.

In support of its position, the PCF has relied on Latiolais v. Jackson , 2006-2403 (La. App. 1st Cir. 11/2/07), 979 So.2d 489, 493, wherein an original request for a medical review panel was timely, but the filing fee was not timely submitted and therefore, the PCF declared that the claim as "no longer considered filed." Subsequently, the claimant refiled his request for a medical review panel, which was received by PCF and assigned a new file number. Within the time limits applicable to the second filing, an in forma pauperis certificate was submitted. The claimant contended this certificate applied to both filings, thus curing any problems with the original request for a medical review panel. The timeliness of the complaint was put at issue in the medical review panel proceedings because the claimant eventually filed a petition for damages against the PCF and its medical malpractice director, alleging that his medical malpractice complaint was in the process of being dismissed as prescribed. He also sought a writ of mandamus ordering the defendants to reinstate his claim and rescind their dismissal of his first claim. The mandamus issue was tried, and the district court rendered judgment in his favor, ordering the defendants to reconstitute his petition under the original filing number, nullifying the PCF's declaration that the original filing was to be considered as not filed or without effect, ordering the PCF to receive the pauper order, and assessing all costs against the defendants. This court converted the PCF's appeal to an application for supervisory review, granted writs, and reversed the trial court, stating:

The trial court erred in granting mandamus in this case ordering the defendants to reconstitute Latiolais's January 21, 2004 petition and nullifying the PCF's declaration that the January 21, 2004 petition is considered as not filed or without effect. The PCF did not overstep its authority in this case as it did in Golden. Latiolais was not prevented from continuing the process, and in fact did proceed to assert his claim. The PCF accepted the filing of his April 27, 2004 petition and sent out the notice letter to all parties just as it had with the January 21, 2004 petition. Therefore, there is no basis for the trial court's judgment.

Latiolais , 979 So.2d at 493.

However, we find that Latiolais is distinguishable, and thus not applicable, because it does not address or decide the substantive issue before us herein. In Latiolais , the issue before the court was the timeliness of the plaintiff's second request for a medical review panel and the effect of an undisputedly late filing fee for the plaintiff's original request for review. Herein, although the PCF argues that Ms. Brown's filing fee was untimely, whether the filing fee was timely depends on when the PCF provided the statutorily mandated notification to the claimant pursuant to La. R.S. 40:1299.47(A). Thus, ultimately, this case does not involve a late filing fee, but rather concerns the PCF's duties under La. R.S. 40:1299.47(A) regarding the notification that must be provided to a claimant.

In this case, there is no dispute that the December 11, 2014 notification was returned to the PCF as unclaimed and that the PCF failed to comply with its statutory mandate under La. R.S. 40:1299.47(A)(5) to provide Ms. Brown with the notification by regular first class mail, yet it declared Ms. Brown's December 1, 2014 request for review as "invalid and without effect." As such, we must conclude that the PCF has overstepped its legislative authority and has not carried out its mandatory clerical and ministerial duties that are clearly set forth in the LMMA. Therefore, the trial court's judgment denying the plaintiff's request for mandamus relief must be reversed. In addition, we issue a writ of mandamus ordering the PCF to remove its declaration that Ms. Brown's December 1, 2014 request for review is "invalid and without effect," to reinstate Ms. Brown's December 1, 2014 request for review, and to provide Ms. Brown with the statutorily mandated notification by regular first class mail, as required by La. R.S. 40:1299.47(A)(5), from which date of mailing the forty-five day deadline to pay the filing fee due the PCF will begin to run.

CONCLUSION

For all of the above and foregoing reasons, we reverse the October 5, 2016 judgment of the trial court and we issue a writ of mandamus ordering the PCF to remove its determination that Ms. Brown's December 1, 2014 request for review is "invalid and without effect," to reinstate Ms. Brown's December 1, 2014 request for review, and to provide Ms. Brown with the statutorily mandated notification by regular first class mail, as set forth in La. R.S. 40:1299.47(A)(5), from which date of mailing the forty-five day deadline to pay the filing fee due the PCF will begin to run.

All costs of this appeal in the amount of $1,791.50 are assessed to the Patient's Compensation Fund Oversight Board.

REVERSED AND RENDERED.

McClendon, J., dissents in part and agrees in part for reasons assigned

McClendon, J., dissenting in part.

I agree that the PCF was mandated to send a first class mail letter. However, I believe that the mailing date in LSA-R.S. 40:1231.8A(1)(c) triggered the requisite 45-day period, and the requirement to send a first class mail notification as provided in LSA-R.S. 40:1231.8A(5) does not cause the period to run anew.

Specifically, Louisiana Revised Statutes 40:1231.8A(1)(c) provided, at all times pertinent hereto, that the "claimant shall have forty-five days from the mailing date of the confirmation of receipt of the request for review... to pay to the board a filing fee." Moreover, the failure to comply with subparagraph 1(c) "within the forty-five day time frame ... shall render the request for review of a malpractice claim invalid and without effect." LSA-R.S. 40:1231.8(A)(1)(e) (emphasis added). This provision is mandatory and A(5) does not clearly contradict it. Further, immediately following A(5), A(6) provides, that in the event the filing fee is not timely paid pursuant to subparagraph 1(c), then the Board is mandated to refund the amount of the untimely filing fee. See LSA-R.S. 40:1231.8A(6). As such, reading the subparagraphs of the statute in pari materia , it is clear that the legislature intended the mailing date to regulate when the period begins to run.

While I believe it would be more equitable if the time period began to run from the date of receipt by the claimant, in the statute in effect at all times pertinent hereto, the period begins to run from the "mailing date," as opposed to the date of receipt. Significantly, the 2016 amendments now provide that the 45 days begins to run from the date of "receipt by the claimant." However, we are bound by the plain language in effect at the time. Accordingly, I would affirm the trial court's ruling denying Ms. Brown's request for mandamus relief.

      The Patient's Compensation Fund Oversight Board is a legislatively created entity that administers the Patient's Compensation Fund, which holds private monies in trust to compensate victims of medical malpractice and to protect qualified health care provider members who may be liable for damages caused by their malpractice. See La. R.S. 40:1299.44, which was re-designated as La. R.S. 40:1231.4 by 2015 H.C.R. No. 84 (eff. June 2, 2015) and footnote 2.

      The LMMA was re-designated as La. R.S. 40:1231.1 through 40:1231.10 by 2015 H.C.R. No. 84 (eff. June 2, 2015). All citations to the LMMA are to the version in effect at the time this claim was filed.

      This statute was re-designated as La. R.S. 40:1231.8 by 2015 H.C.R. No. 84 (eff. June 2, 2015). We also note that La. R.S. 40:1231.8(A)(1)(c) and 40:1231.8(A)(5) were amended by 2016 La. Acts, No. 275, § 1 (eff. August 1, 2016). See footnote 2 and 5.

      There is no provision in the LMMA that prohibits the claimant from paying the PCF the required filing fee prior to the commencement of the forty-five day deadline.

      We note that after this proceeding was filed, but before the hearing on the writ of mandamus and the signing of the judgment, La. R.S. 40:1231.8(A)(1)(c) and 40:1231.8(A)(5) were amended by 2016 La. Acts, No. 275, § 1 (eff. August 1, 2016), to clarify that the forty-five day time frame within which to pay the filing fee runs from the date of receipt of the notice by the claimant rather than the date of mailing and to clarify that La. R.S. 40:1231.8(A)(5) also applies when the PCF is unable to determine whether the notice was received by the claimant.

      See footnote 5.

      On March 5, 2015, counsel for Ms. Brown filed a second request for review of the same medical malpractice claim by a medical review panel along with a check for the full amount of the filing fee, and this request for review was accepted by the PCF.

      The qualified healthcare providers against whom the request for review was filed (Dr. Clifton L. McGinness, Dr. Rebecca W. Schroll, Dr. Henry Minhui Liu and Tulane University Hospital and Clinic) intervened in the writ of mandamus proceeding and the positions taken by the PCF and intervenors are substantially the same. Since the mandamus is directed at the actions or inactions of the PCF, we refer primarily to the PCF in this opinion.

      In Franks , this court reversed a judgment denying mandamus relief and declared that the PCF exceeded its authority by dividing a request for review of a medical malpractice claim by a medical review panel into two separate claims and allocating the filing fee to the claim of its choosing.

      In Berthelot , this court affirmed a judgment granting mandamus relief and held that the PCF lacked the statutory authority under the LMMA to make a legal determination that the claimant's claim was not a claim for medical malpractice.

      In Golden , the court of appeal affirmed the trial court's ruling that "the PCF Board exceeded its authority in interpreting legislation that the check was untimely remitted." The court reasoned that the LMMA does not authorize the PCF to assert prescription and effectively dismiss a claim based on the claimant's purported late payment of the filing fee.

      In Pierson , this court granted mandamus against the PCF for its refusal to allow the refiling of a claim after the first request for review was dismissed for failure to timely appoint an attorney chairperson.

      We note that the PCF did provide a subsequent notification by registered, certified mail on January 12, 2015; however, that notification is of no moment because it did not meet the statutory mandate required by La. R.S. 40:1299.47(A)(5) that the PCF provide the notice by regular first class mail, which mailing date then triggers the forty-five day deadline within which to pay the filing fee due the PCF.

      As noted hereinabove, nothing in the LMMA prohibits a claimant from paying to the PCF the required filing fee prior to the commencement of the forty-five deadline, as was done in this case by counsel for Ms. Brown on February 24, 2015. However, by letter dated February 26, 2015, the PCF refused to accept the filing fee and returned it to counsel for Ms. Brown. Although Ms. Brown should not be prejudiced by the PCF's improper refusal to accept the filing fee, the effect of this court's judgment is that Ms. Brown must pay the filing fee to the PCF for the December 1, 2014 request for review prior to the expiration of forty-five days from the date the notification is mailed by regular first class mail.


source: Caselaw Access Project

author: CRAIN, J.

license: Public Domain

text:
    Kym HURST v. CIRRUS ALLIED & Kentucky Insurance Guaranty Association
    NO. 2017 CA 0731
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: January 08, 2018
    Michael E. Parker, Lafayette, Louisiana, Attorney for Defendants/Appellees, Cirrus Allied, LLC and Insurance Kentucky Guaranty Association
    Mark L. Riley, Jeremy A. Bazile, Lafayette, Louisiana, Attorneys for Plaintiff/Appellant, Kym Hurst
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

In this workers' compensation proceeding, Kym Hurst appeals a judgment terminating her indemnity and medical benefits. We affirm.

FACTS AND PROCEDURAL HISTORY

On January 6, 2010, Hurst, a physical therapy assistant, injured her back while assisting a patient. Before the accident, Hurst was diagnosed with degenerative disc disease and treated for low back pain on numerous occasions, including in 1999 after an automobile accident, in 2005 when injured while assisting another patient, and ongoing treatment in 2007, 2008, and 2009.

Following the 2010 work accident, Hurst filed this proceeding seeking workers' compensation benefits from her employer, Cirrus Allied, and its insurer, Ullico Insurance Company. The parties consented to a judgment awarding Hurst a lump sum of $46,192.39 for all claims for indemnity and medical benefits through December 26, 2012, inclusive of penalties and attorney fees. The judgment also ordered the defendants to pay weekly indemnity benefits effective December 27, 2012, and future medical benefits according to the Louisiana Workers' Compensation Act.

In February 2013, Ullico stopped paying indemnity benefits and, three months later, was declared insolvent. The Kentucky Insurance Guaranty Association (KIGA) assumed the claim and began paying indemnity benefits on May 5, 2014, making a lump sum payment for accrued, unpaid indemnity benefits through that date and resuming bi-weekly indemnity payments. Several events subsequently occurred that prompted Cirrus and KIGA to file a motion seeking a modification of their compensation obligations in the consent judgment.

First, on May 7, 2014, two days after KIGA resumed paying indemnity benefits, Hurst had an automobile accident. Within a week, she presented to her primary care physician and, referencing the automobile accident, complained of "significant pain in her low back." She had additional treatment through June 23, 2014. Hurst did not inform KIGA or Cirrus of the automobile accident and settled a claim arising from the accident without their knowledge or consent.

Also in early 2014, Hurst began treating with Advanced Neurosciences Institute, complaining of headaches, cognitive impairment, sensory disturbance, muscle cramps, imbalance, and gait impairment. On July 1, 2014, after numerous tests, she was diagnosed with multiple sclerosis (MS) and began treatment.

Finally, on October 13, 2014, Hurst experienced an episode of "severe lower back" pain after bending over and feeling a "pop" in her back. The severity of the pain was immobilizing, and she was transported by ambulance to a local hospital and admitted overnight for treatment. According to the EMS records, Hurst reported she "never had an injury like this in the past." An MRI showed arthritic changes and bulging discs, but no herniations.

Based on the foregoing, Cirrus and KIGA filed a motion, later amended, seeking to terminate their obligation to pay indemnity and medical benefits because Hurst (1) is no longer disabled as a result of the January 6, 2010 accident; (2) forfeited her benefits under Louisiana Revised Statute 23:1208 by receiving indemnity benefits without seeking medical treatment and failing to comply with treatment recommendations; and (3) forfeited future benefits under Louisiana Revised Statute 23:1102 by settling her 2014 automobile accident claim without the consent of Cirrus or KIGA. In response, Hurst denied the allegations in the motion and filed a reconventional demand alleging she is totally and permanently disabled due to her MS, which is causally related to the work accident.

A trial was held on October 26, 2016. Cirrus and KIGA presented testimony from Hurst and introduced numerous exhibits, including volumes of medical records and the deposition of Dr. Samuel Hunter, a neurologist who treated Hurst for MS. Hurst submitted many of the same exhibits in support of her reconventional demand.

The medical records confirm that immediately after the 2010 work accident, Hurst complained of pain across her low back and hip. An MRI showed mild degenerative changes, and Hurst continued to treat for back pain, related by history to the work accident, through 2013. Beginning in 2014, the relationship between Hurst's back pain and symptoms and the 2010 work accident becomes less clear. At her first visit at Dr. Hunter's clinic on February 28, 2014, she mentioned the 2010 work accident but said the injury "resolved with physical therapy." Then, on April 24, 2014, shortly before the automobile accident, a note by Hurst's primary care physician, Dr. Aribbe Martin, reflects complaints of "chronic pain issues with her lower back and neck."

After the automobile accident, Hurst presented to Dr. Martin and complained of "significant pain" in her lower back. By June 23, 2014, she reported that "[a]ll of her pain issues she was having related to the car accident ... are better." At that time, Dr. Martin's diagnosis was hyperlipidemia (high cholesterol), probable MS, and chronic constipation. Hurst was neither diagnosed nor treated relative to her back at the June 23, 2014 visit. She continued to treat with Dr. Martin for a variety of complaints, including headaches, constipation, hypertension, and neck pain; however, other than two occasions when Hurst's "pain issues" were noted to be "stable," Dr. Martin's records reflect no treatment for back pain after the visits related to the 2014 automobile accident.

At trial, Hurst confirmed she has not requested payment under her workers' compensation coverage for any medical expenses incurred after May 2014. She claimed, however, her back still bothers her and, after being aggravated by the automobile accident, the pain returned to its baseline level. She also testified about stress she experienced when her workers' compensation disability benefits were suspended, first during the period before the consent judgment, and again in 2013 before KIGA assumed the claim and resumed payments.

The only medical testimony introduced at the trial was the deposition of Dr. Hunter, who had no opinion as to whether Hurst was still disabled from the 2010 work accident. Dr. Hunter's testimony was limited to the diagnosis and treatment of MS, which he described as an inflammatory disease of the central nervous system that "occurs for no clear reason." He explained the condition appears "random," and lumbar strain is not a known cause of MS. Studies on the relationship between stress and MS are mixed, but medical trials have shown that reducing stress can improve MS. However, according to Dr. Hunter, "the underlying etiology and [what] causes [MS] to get out of hand where it becomes a clinical event [is] a point of research that's ongoing and there is no solid idea."

Dr. Hunter noted in his records that Hurst said the "MS came on the setting of intense pyschosocial stressors related to a workman's compensation claim." Clarifying the note, Dr. Hunter explained in his deposition he merely documented "what the patient told me," and was "not making nor have I evaluated exactly what happened with that claim." Observing that "[l]egal matters are, in general, quite stressful," Dr. Hunter said it is "plausible" the claim process made Hurst's MS symptoms worse.

In a judgment signed February 9, 2017, the workers' compensation judge (WCJ) found Hurst's current medical condition is not causally related to the 2010 work accident. In relevant part, the judgment (1) ordered the consent judgment modified to terminate the workers' compensation benefits, and (2) dismissed with prejudice Hurst's reconventional demand seeking an award of permanent and total disability based on her MS. Hurst appeals, assigning as error the WCJ's finding that the diagnosis of MS in 2014 is not causally related to the 2010 work accident and the conclusion that Hurst is not entitled to receive permanent and total disability benefits.

DISCUSSION

The two claims presented to the WCJ must be distinguished to determine the applicable law and burden of proof for each. Seeking to modify the consent judgment, Cirrus and KIGA filed a motion asserting, in relevant part, Hurst is no longer disabled as a result of the January 6, 2010 accident. It is undisputed the work-related injury giving rise to the consent judgment was Hurst's back injury. Responding to the motion, Hurst reconvened alleging she is totally and permanently disabled due to MS, which she alleged is causally related to the 2010 work accident.

The motion filed by Cirrus and KIGA is governed by Louisiana Revised Statute 23:1310.8B, which permits a WCJ, upon motion of a party, to modify or terminate a previous compensation award "on the ground of a change in conditions." The party moving for a modification of a previous compensation award must prove the change in condition by a preponderance of the evidence. See Guy Hopkins Construction Co. v. Poole , 13-2072 (La. App. 1 Cir. 6/6/14), 148 So.3d 14, 16, writ denied , 14-1371 (La. 10/3/14), 149 So.3d 798. A WCJ's conclusion that a claimant's condition has changed is a factual finding entitled to great weight and will not be disturbed unless clearly wrong. See Guy Hopkins Construction Co. , 148 So.3d at 16. Hurst does not assign error to the WCJ's conclusion that Cirrus and KIGA proved a change in her condition, namely the work-related back injury. Thus, that ruling is not subject to review in this appeal. See Rule 1-3, Uniform Rules-Courts of Appeal ; Jones v. Black , 13-1889 (La. App. 1 Cir. 5/2/14), 145 So.3d 402, 417 n.3, writ denied , 14-1116 (La. 9/19/14), 148 So.3d 954.

The reconventional demand presented a separate claim. To succeed on that claim, Hurst had to prove her MS was either caused by the 2010 accident, or the accident aggravated, accelerated, or combined with the condition to produce a compensable disability. See La. R.S. 23:1031A; Namias v. Sunbelt Innovative Plastics, LLC , 15-1380 (La. App. 1 Cir. 2/24/16), 190 So.3d 745, 752-53, writ denied , 16-0482 (La. 5/2/16), 212 So.3d 1168 ; Cutno v. Gainey's Concrete Products , 06-1582 (La. App. 1 Cir. 5/4/07), 961 So.2d 486, 490. If the testimony leaves the probabilities evenly balanced, the claimant has failed to carry her burden of proof. Grant v. Assumption Parish School Board , 01-0272 (La. App. 1 Cir. 3/28/02), 813 So.2d 622, 624. The claimant's case fails if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. Grant , 813 So.2d at 624.

Hurst contends the WCJ erred in finding she did not prove a causal connection between the work accident and her MS. Whether a worker has carried her burden of proof is a question of fact to be determined by the WCJ. Namias , 190 So.3d at 753. Causation is a factual finding subject to the manifest error standard of review. Bridges v. Gaten's Adventures Unlimited, L.L.C. , 14-1132 (La. App. 1 Cir. 4/2/15), 167 So.3d 992, 1002. Under the manifest error standard, the appellate court does not decide whether the factfinder was right or wrong; rather it is required to consider the entire record to determine whether a reasonable factual basis exists for the finding, and whether the finding is manifestly erroneous or clearly wrong. Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC , 14-2592 (La. 12/8/15), 193 So.3d 1110, 1116.

The record establishes that the etiology of MS is unknown. Dr. Hunter explained the disease "occurs for no clear reason," and, more to the point, is not caused by a lumbar strain. When specifically asked what caused Hurst's MS, Dr. Hunter replied, "She developed multiple sclerosis for a reason that we cannot ascertain directly."

Hurst argues the evidence establishes that her MS could have been aggravated by the work accident and, more particularly, the stress associated with her workers' compensation claim, pointing to Dr. Hunter's testimony that stress is a "plausible explanation for making her problems worse." She relies on several cases finding a party's MS symptoms were aggravated by an accident. See Sprague v. Fladmo , 13-0520, 2013 WL 6506258 (La. App. 1 Cir. 12/10/13) ; Durrett v. State , 416 So.2d 562 (La. App. 1 Cir.), writs denied , 421 So.2d 247, 248, 251 (La. 1982) ; Sharbono v. Fire Safety Sales and Service , 04-265 (La. App. 3 Cir. 9/29/04), 883 So.2d 1066, writ denied , 04-2661 (La. 1/28/05), 893 So.2d 73.

The cited cases are factually distinguishable. The injured party in those cases was actively treating for MS when the accident occurred and, according to the evidence, suffered a precipitous increase or "flare-up" of MS symptoms after the accident. See Sprague , 2013 WL 6506258 at pp. 3-5 ; Durrett , 416 So.2d at 568-69 ; Sharbono , 883 So.2d at 1067-69. Here, the work accident occurred nearly four years before Hurst was diagnosed with MS. At the time of the work accident, Hurst complained of an immediate onset of low back pain, for which she had a long history of prior treatment, and received workers' compensation benefits for that injury for several years.

While Dr. Hunter testified Hurst likely had MS for several years before it was diagnosed, his testimony regarding the impact of the work accident, as distinguished from the claim process, on Hurst's condition is vague at best. Hurst told Dr. Hunter she experienced stress when her indemnity benefits were twice suspended. Consistent with that, Dr. Hunter noted a history of "pyschosocial stressors related to a workman's compensation claim. " (Emphasis added.) Even in that limited context, Dr. Hunter, who did not know what happened with the claim and was not familiar with other stressors in Hurst's life, could only opine that claim-related stress was a "plausible explanation for making her problems worse."

Hurst confirmed that as of the trial date she had experienced no issues with payment of her disability indemnity for nearly two and one-half years. The last time Dr. Hunter examined Hurst was May 8, 2015, over one year before the trial. Regardless of any stress associated with the claim process, Hurst had the burden of proving her MS was caused or aggravated by the work accident , not the work accident claim. See La. R.S. 23:1031A; Namias , 190 So.3d at 752 ; Cutno , 961 So.2d at 490. Given the paucity of evidence relating her current symptoms to the work accident, there is no manifest error in the WCJ's conclusion that Hurst failed to meet her burden of proof. Hurst's sole assignment of error is without merit.

CONCLUSION

The February 9, 2017 judgment is affirmed. All costs of this appeal are assessed to Kym Hurst.

AFFIRMED.

      The record on appeal does not contain the reconventional demand filed on behalf of Hurst; however, at trial, counsel for both parties acknowledged the filing of the reconventional demand, and Hurst's counsel articulated the claim on the record at that time.

      The judgment also dismissed Cirrus and KIGA's claims seeking relief under Sections 23:1208 and 23:1102. That portion of the judgment was not appealed.

      Given the evidence in the record, particularly the intervening accidents and the lack of documented complaints of back pain or related medical treatment in recent years, we further find the interests of justice do not clearly require review of the ruling. See Rule 1-3, Uniform Rules-Courts of Appeal ; Jones , 145 So.3d at 417 n.3.


author: HIGGINBOTHAM, J.

text:
    IN RE: Termination of Parental Rights to the Minor Child BABY A
    NO. 2017 CJ 1282
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: January 09, 2018
    Scott S. McCormick, Baton Rouge, LA, Attorney for Appellant, DM, II
    Rebecca L. Norton, Baton Rouge, LA, Attorney for Baby A
    Harry W. Ezim, Dean M. Esposito, Baton Rouge, LA, Mark D. Plaisance, Thibodaux, LA, Attorneys for Appellee, St. Elizabeth Foundation
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

In this appeal, DM, the biological father of Baby A, challenges the trial court's denial of his opposition to Baby A's adoption, finding that he failed to carry his burden of proof to establish his parental rights under La. Ch. Code art. 1138.

FACTS AND PROCEDURAL HISTORY

DM candidly acknowledged that he has struggled with drug addiction since he was 18 years old. In 2014, DM attended Right Steps Treatment Center for his addiction to synthetic marijuana. After the death of his grandfather in 2015, DM relapsed and began using methamphetamines. On June 21, 2015, DM was arrested for possession of methamphetamines in Calcasieu Parish, and as a consequence, DM reentered drug treatment at Woodlake Addiction Recovery in Ethel, Louisiana. After completion of this drug treatment program, DM lived in a sober living community, where he used heroin for the first time. He then returned to treatment at Woodlake, completed the program, and upon release suffered a heroin relapse. In early 2016, he began treatment at Woodlake in Ethel again and afterward entered into intensive outpatient rehabilitation at Woodlake in Baton Rouge, Louisiana. While at Woodlake, in April 2016, DM met LA, the biological mother of Baby A, and they began a romantic relationship.

Within a few weeks of their relationship, LA informed DM that she was pregnant and that he might be the father. DM expressed to LA that if he was the father, he wanted to raise the baby and did not want to put the baby up for adoption. Early in LA's pregnancy, DM provided transportation to LA for her pre-natal appointments, and purchased anti-nausea medicine and pre-natal vitamins for her. On several occasions DM encouraged LA, who continued to struggle with addiction, to enter a drug rehabilitation program. During that time, DM and LA lived together for a few weeks, and DM took care of LA's three-year-old daughter. For a short time, DM was employed with an asphalt plant, but was eventually fired. LA acknowledged that DM took care of her pregnancy more then she took care of her pregnancy.

Unfortunately, DM again relapsed and entered Woodlake in Ethel at the end of July. He was there only a short time, but re-entered Woodlake at the end of August and was there through most of September. During his time at Woodlake, DM was unable to communicate with LA and was unable to continue to provide support for LA. After leaving Woodlake, DM purchased drugs from a dealer, and used them with LA. DM admitted that he and LA used drugs together while she was pregnant, but he said it was less than 15 times.

On November 25, 2016, DM was arrested for highway obstruction, and while in jail was served with a warrant for felony theft because he had stolen a ring from his mother in order to pawn it. As a result of the theft charges, he was ordered to a pretrial diversion program at Teen Challenge Rehabilitation. He was there for less than a month, and left because he did not feel it was working. After leaving Teen Challenge, DM admitted to using marijuana. In December 2016, DM began another rehabilitation program at Freedom Ministries, which is a year-long program.

On January 17, 2017, LA filed a notice of intent to surrender the child for adoption to the St. Elizabeth Foundation. In her notice, LA listed two alleged fathers, DM and JL. On January 30, 2017, the minor child Baby A was born. On February 1, 2017, DM filed an objection to the adoption and on March 27, 2017, filed a petition for visitation pending the opposition hearing, and to appoint an attorney to represent the child.

The matter came before the trial court on May 4, 2017. At the conclusion of the evidence submitted by DM, counsel for St. Elizabeth moved for an involuntary dismissal pursuant to La. Code Civ. P. art. 1672(B). The trial court concluded that DM failed to carry his burden of proof under La. Ch. Code art. 1138, and granted St. Elizabeth's motion for involuntary dismissal.

At the time of trial, DM had continued living at Freedom Ministries for approximately five months and was scheduled to leave in December 2017. While at Freedom Ministries, DM took classes in behavior modification, anger management, and enrolled to begin parenting classes. He has also been involved in Bible study and regularly attends church. DM testified that this is the best he has ever done in his addiction recovery.

LAW AND ANALYSIS

In Lehr v. Robertson , 463 U.S. 248, 261-262, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614 (1983), the United States Supreme Court held that an unwed father who "demonstrates a full commitment to the responsibilities of parenthood" and "grasps that opportunity and accepts some measure of responsibility for the child's future," acquires substantial protection under the Due Process Clause of the United States Constitution. A mere biological link is insufficient; that link must be combined with a substantial parent-child relationship. In Adoption of B.G.S., 556 So.2d 545, 550 (La. 1990), the Louisiana Supreme Court explained, "[T]he mere existence of a biological link and fitness will not sustain the father's interest; it is defeasible if not preserved by dedicated, opportune fatherly action."

Our supreme court stated in B.G.S. : "Adoption in Louisiana is a creature of statute, and the ultimate responsibility for establishing the necessary procedures to effect adoptions belongs to the Legislature." B.G.S., 556 So.2d at 556. The Louisiana Legislature has codified in Children's Code article 1138(A) the requirements for an unwed father to establish his parental rights. He must acknowledge that he is the father, prove that he has manifested a substantial commitment to his parental responsibilities, and prove that he is a fit parent of his child. The Legislature has further delineated the requirements to prove substantial commitment and fitness. Article 1138(B) sets forth three elements that must be proven: 1) support; 2) visitation; and 3) ability to care for the child.

According to Article 1138(B), proof of the father's substantial commitment to his parental responsibilities requires a showing, in accordance with his means and knowledge of the mother's pregnancy or the child's birth, that he either:

(1) Provided financial support, including but not limited to the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, or contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child.
(2) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.

"Parental fitness" is defined in Children's Code article 1103(5), providing that:

"Parental fitness" means:

(a) That a parent has not abused the child....
(b) That a parent has consistently offered to provide reasonably necessary food, clothing, appropriate shelter, or treatment for the child....
(c) That a parent suffers from no medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, substance abuse, or chemical dependency which makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior.
(d) Viewed in its entirety, the parent's past or present conduct, including his criminal convictions, would not pose a risk of substantial harm to the physical, mental, or emotional health of the child.

A court of appeal may not set aside a trial court's findings of fact in the absence of manifest error, which in its simplest terms means "clearly wrong." Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court. Where there are two permissible views of the evidence, the fact-finder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989).

We first address DM's second assignment of error in which DM contends that the trial court committed legal error in determining that La. Ch. Code art. 1138(B)(1) requires a father to prove he is capable of taking immediate legal and physical care of his child. As part of proving substantial commitment to his parental responsibilities, Article 1138(B)(1) requires the father to show "he is now willing and able to assume legal and physical care of the child." The father has the burden of showing his own commitment to his parental responsibilities, not the commitment of his family. See In re Adoption of EHM , 2000-2705 (La. App. 1st Cir. 12/15/00), 808 So.2d 397, 402. Additionally, the statute defining parental fitness provides that the parent should suffer from no substance abuse or chemical dependency that makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future, based upon an established pattern of behavior. See La. Ch. Code art. 1103(5)(c).

In the trial court's written reasons for judgment, the trial court opined that DM is not "... able to assume legal and physical care of the child" under Article 1138, because DM resides in a court-ordered drug rehabilitation program and is not scheduled to complete this program until December of 2017. The trial court also pointed out that it was unclear what the consequences would be for DM in regards to his criminal charges if he failed to complete the current program. The trial court noted that it must only consider DM's commitment to Baby A and his ability to assume custody-not the ability and willingness of DM's mother to care for the child. We cannot find legal error by the trial court in considering as part of its reasoning that DM would not now or in the reasonably near future be able to assume custody of Baby A.

In his remaining assignments of error, DM contends that the trial court erred in concluding that DM did not carry his burden of proving that he demonstrated a substantial commitment to his parental responsibility, and in finding that DM was not a fit parent, when it failed to apply the test for parental fitness as required by Children's Code article 1103(5).

Under Children's Code article 1138 it is clear that the unwed father has the burden of proof. Article 1138(A) states: "At the hearing of the opposition, the alleged or adjudicated father must establish his parental rights by acknowledging that he is the father of the child and by proving that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent of his child." (Emphasis added.)

It was obvious throughout the testimony of DM and LA that DM wanted to support LA during her pregnancy. The trial court acknowledged that "[DM] had in fact provided some support to the mother during periods of her pregnancy." DM took an active role early in LA's prenatal care, by providing her with medication, taking her to doctor's appointments, and supporting her emotionally. However, his struggle with addiction continued to prevent him from being fully supportive. After he continuously relapsed on drugs, DM spent much of LA's pregnancy in rehabilitation facilities where he was unable to provide financial or emotional support, and he was in a pretrial diversion rehabilitation facility at the time of Baby A's birth. Additionally, although DM encouraged LA to seek help for her addiction, he also provided drugs to her while she was pregnant, and used drugs with her on several occasions during this period.

Although not directly referencing Children's Code article 1103(5), the trial court clearly considered DM's parental fitness. Specifically, the trial court considered the definition of parental fitness provided in article 1103(5) which states parental fitness means "that a parent suffers from no ... substance abuse, or chemical dependency which makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior." The trial court pointed out that DM's behavior, especially purchasing drugs for LM during her pregnancy and using with her, "calls his fitness as a parent into serious question." The trial court also considered the statement of the attorney appointed to represent Baby A, who noted that she wishes DM would have seized the opportunity to be a father immediately when he found out LM was pregnant rather than continuing to use drugs. She stated "I certainly don't want to fault him for being an addict. I-believe he cares. I just-I [find] trouble agreeing that he meets the present fitness element."

While we strongly commend DM on his continuous efforts toward sustaining sobriety, we cannot conclude that the trial court was clearly wrong in finding DM failed to meet his burden of proving that he has manifested a substantial commitment to his parental responsibilities, and he is a fit parent of Baby A. DM has a long history of addiction, has unresolved criminal charges, and has been unable to consistently work. Very problematic is that DM provided drugs to LA while she was pregnant, which could have caused injury to the unborn child, and he has repeatedly been unsuccessful in his attempts to stay sober, even with full knowledge of LA's pregnancy.

This is an extraordinarily difficult case because DM is clearly a good young man who wants to improve, and wants to be involved in his child's life, but he has a serious drug problem which continues to prevent him from being able to take custody and provide support and care for this child. In light of the record reviewed in its entirety, and the law which applies in this case, we can find no manifest error in the trial court's decision to terminate DM's parental rights.

CONCLUSION

For the foregoing reasons, the judgment of the trial court terminating the parental rights of DM is affirmed. All costs of the proceedings are assessed to appellant, DM.

AFFIRMED.