author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Cody LACOMBE.
    No. 09-544.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Earl B. Taylor, District Attorney, Twenty-Seventh Judicial District Court, Jennifer Ardoin, Assistant District Attorney, Twenty-Seventh Judicial District, Opelou-sas, LA, for Plaintiff/Appellee, State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, Cody LaCombe.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

| defendant, Cody LaCombe, appeals his jury conviction for unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4, on the basis of insufficiency of the evidence. The evidence is sufficient. We affirm.

LAW AND DISCUSSION

Defendant argues that while he may have been dilatory in his job performance, he did not possess the specific intent to take or use his employer’s vehicle without consent or by means of fraudulent conduct. He argues that the State failed to submit any evidence that his absence with the vehicle was anything more than taking longer than necessary to complete the task assigned to him.

The unauthorized use of a motor vehicle is defined as, “[t]he intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently.” La. R.S. 14:68.4.

When discussing sufficiency of evidence on appeal, this court has held:

“[T]he critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559, (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). The role of the factfinder is to weigh the respective credibility of each witness. Therefore, the appellate court should not second guess the credibility determinations of the factfinder beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).”

State v. Miller, 98-1873, p. 5 (La.App. 3 Cir. 10/13/99), 746 So.2d 118, 120, writ denied, 99-3259 (La.5/5/00), 761 So.2d 541.

The employer and victim in this case was Dirk LeBlanc who, at the time of the offense, was principal owner of Freight Lines Transportation and Brokerage, Inc. He hired Defendant as a truck driver on or about November 14, 2006. Defendant’s first haul began on the same day. He was directed to drive the company’s eighteen-wheeler to San Antonio, Texas, make stops in Dallas, then Waxahachie, and make a final delivery in Carenero, Louisiana on Friday morning. Mr. LeBlanc communicated with Defendant on Monday and Tuesday. On Wednesday and Thursday, Defendant did not answer his cell phone or call the company. On Thursday, Mr. Le-Blanc filed a report with the Lafayette Parish Sheriffs Office, which was submitted into evidence as State’s exhibit number 1. The report stated:

Driver (Cody J. LaCombe) was to deliver load from Waxahatchie, TX to Car-enero, LA. Driver picked-up load but never delivered. He fueled up at 10:52 p.m. in Dallas TX 154 gallons. He fueled up again at 10:49 a.m. in Dallas, TX across the street from the first fueling, 213 gallons. The 18-wheeler can only hold approx. 180 gallons. Driver also has $1000.00 company check from the previous load he had hauled before this load. Can not find truck, trailer (loads), nor driver.

Defendant finally called Mr. LeBlanc on Sunday the 20th, stating that he needed fuel. Mr. LeBlanc explained that he had “cut off’ the fuel card so Defendant had to call for authorization to fuel up the tractor. Mr. LeBlanc instructed him to go to King’s Truck Stop and gave him an authorization code for enough fuel to get there. Mr. LeBlanc arranged for another driver to go to King’s Truck Stop to take possession of the tractor and trailer and make the late delivery to Carenero.

| .¡When Defendant filled the tractor with fuel on Wednesday night, then again the following morning in the same area in Dallas, with more fuel than the tank could hold, the victim became nervous about the situation. Moreover, after the tractor and trailer were taken into custody, the odometer reading indicated an excess of seven hundred more miles. Mr. LeBlanc explained that the mileage of the routes was calculated using a “PC Miler.” Mr. Le-Blanc testified that Defendant was not authorized to go anywhere but the established route. He was not authorized to use the vehicle on either Saturday or Sunday.

Mr. LeBlanc testified that he never recovered from Defendant the one thousand dollar check issued to the company for transportation fees. All drivers are required to maintain a log book. No log book was found following Defendant’s arrest.

Finally, Mr. LeBlanc testified that when Defendant called him Sunday morning, Defendant said he had been beaten up. Except for this last statement made by Defendant to Mr. LeBlanc, there was no explanation offered at trial as to Defendant’s whereabouts or activities from Wednesday to Sunday.

Defendant argues that the facts of State v. Bias, 400 So.2d 650 (La.1981), are most analogous to the current case where the supreme court reversed a conviction for unauthorized use of a moveable, a violation of La. R.S. 14:68. In Bias, the defendant entered into a contract with a furniture store for the rental of a television for twenty dollars weekly. He defaulted. The supreme court stated:

R.S. 14:68 may be violated by a taking or use either without the consent of the owner or by means of fraudulent conduct, practices, or representations. Here, the state’s theory must be either (1) that the “use” of the movable was without the owner’s consent, when defendant discontinued paying rent, or (2) that the “use” was by means of fraudulent practices, when defendant kept the set without making the agreed payments. We decline to accept a |4theory that the mere failure to make rental payments as agreed constitutes a “use without consent” or a “use by fraudulent practices” for purposes of the statute.
Affirmation of the conviction on the evidence in this record would require a holding that proof of breach of a rental agreement is alone sufficient to prove a “use without consent” or a “use by fraudulent practices, conduct, or representations.” As stated before, we do not believe such a result was intended when the statute was enacted.
Perhaps the Legislature could enact a special criminal statute proscribing the failure to abide by the terms of a rental agreement. Nevertheless, we construe the present statute proscribing unauthorized use of a movable as requiring a showing of mens rea or criminal intent, since the “evil” state of mind of the actor normally distinguishes criminal acts (punishable by the state alone) from mere civil wrongs (actionable by private individuals against one another). C.Cr.P. art. 381. In State v. Brown, 389 So.2d 48 (La.1980), a case in which we construed a statute prohibiting possession of certain controlled substances to require proof of criminal intent, we stated:
“(w)e observe the familiar proposition that ‘(t)he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.’ Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951). In a much cited passage from Morissette v. United States, 342 U.S. 246, 250-251, 72 S.Ct. 240, 243, 244, 96 L.Ed. 288 (1952), the United States Supreme Court observed:
‘The contention that an injury can amount to a ci'ime only when inflicted by intention is no provincial or transient notion. It is as universal and persistént in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as |r,instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone’s sweeping statement that to constitute any crime there must first be a “vicious will.” ’
“The ‘vicious will’ has been replaced with less colorful descriptions of the mental state required for a criminal act; nevertheless, intent generally remains an indispensable element of a criminal offense.” 389 So.2d at 50.
Finally, we note that the state may produce direct or circumstantial evidence of “fraudulent intent” in unauthorized use cases involving the initial acquisition of property by rental agreement. The evidence in this case, however, simply does not reasonably support the inference of fraudulent intent beyond a reasonable doubt.

Id. at 652-53.

Defendant argues that like Bias, the necessary criminal intent to distinguish a criminal act from a civil act is lacking. However, the State counters that State v. Varnado, 01-367 (La.App. 5 Cir. 9/13/01), 798 So.2d 191, is more applicable to the current case. In Vamado, the fifth circuit affirmed the defendant’s conviction for unauthorized use of a motor vehicle. The defendant was employed as a truck driver for a company that supplied workers for offshore work. On a Friday, the defendant was instructed to drive other employees to Cameron in a company car. The defendant left early in the morning, and later in the day called and said he would be back to the office in the early evening. The defendant did not show up. The next |fiday the employer made several unsuccessful attempts to contact defendant. The following day, the vehicle was reported stolen. The defendant, however, showed up later in the day. He was charged with and convicted of unauthorized use of a motor vehicle. He appealed the conviction, arguing insufficient evidence. The fifth circuit examined Bias, then stated:

In State v. Bias, 400 So.2d 650 (La.1981) the Louisiana Supreme Court, in clarifying the conduct proscribed by La. R.S. 14:68, reversed the defendant’s conviction for unauthorized use of a movable under circumstances where the defendant had retained possession of a television set following default in rental payments. The Court held that the retention of the television set after the default in rental payments did not constitute “use without consent” or “use by fraudulent practices” for the purpose of the statute prohibiting the unauthorized use of a movable. In interpreting La. R.S. 14:68, the Louisiana Supreme Court expressly held that the “statute proscribing the unauthorized use of a movable requir[es] a showing or mens rea or criminal intent, since the ‘evil’ state of mind of the actor normally distinguishes criminal acts (punishable by the state alone) from mere civil wrongs (actionable by private individuals against one another).”
In State v. Spencer, 97-811 (La.App. 5th Cir.1/27/98), 707 So.2d 119, this Court applied Bias and held that although R.S. 14:68.4 does not require a person to act with an intent to deprive the owner permanently of his property, the statute requires the existence of fraudulent intent, which may be proven by circumstantial evidence. Spencer, supra.
In Spencer, this Court found sufficient evidence to uphold the Defendant’s conviction for unauthorized use of a motor vehicle when he took a vehicle from a car dealership for a test drive and did not return in a 24-hour period. Defendant argued there was insufficient evidence to prove he had the requisite criminal intent to commit the crime of unauthorized use of a motor vehicle. Citing testimony that the salesman did not give defendant permission to keep the car for 24 hours, this Court found that a rational jury could have found the requisite criminal intent beyond a reasonable doubt.
In the present case, the jury heard the testimony of the Defendant’s supervisor who stated that the Defendant |7was to drive to and from Cameron on Friday, June 16, 2000, in one day. Thrasher explained that the Defendant was supposed to return the company vehicle on Friday. Thrasher spoke to the Defendant after he had dropped the crew off in Cameron and the Defendant stated that he would be back at the shop by 7:00 p.m. Thrasher testified that the Defendant was never authorized to take the vehicle for the weekend. In fact, Thrasher stated that employees are never permitted to take company cars home for the weekend. Furthermore, Thrasher testified that the Defendant never called the shop to report that he was running late. And, Thrasher explained that the Defendant never returned any pages or answered his cell phone when the company tried to contact him Friday night after he did not return as scheduled.
From these facts, a rational juror could have concluded that the Defendant took the company vehicle over the weekend without his employer’s consent. Furthermore, a rational juror could have reasonably found that the Defendant possessed the requisite criminal intent based on the Defendant’s failure to respond to his employer’s numerous attempts to contact him and his failure to communicate with his employer for almost 48 hours beyond the time in which the vehicle was due back to the shop. Thus, we find that the State proved all of the essential elements of the crime of unauthorized use of a motor vehicle, beyond a reasonable doubt.

Id. at 193-94.

In State v. Coleman, 02-1487 (La.App. 4 Cir. 10/9/02), 830 So.2d 341, the fourth circuit found the facts supported a conviction for unauthorized use of a motor vehicle. The defendant was a driver for the Salvation Army. He was given the use of a van to pick up and deliver workers. He had a set route and schedule. After his second day, he failed to make the rounds and he did not contact the van’s owner for several days thereafter. The fourth circuit noted that once the defendant “deviated from the route and schedule,” he knew his use of the van was unauthorized.

A comparison of the facts in Coleman and Vanado to the facts in the current case indicates that Defendant had the requisite criminal intent beyond a reasonable doubt. He did not communicate with the company from Wednesday to the | ^following Sunday, despite frequent calls made to his cell phone. He failed to make the final delivery on Friday in Carenero. Testimony established that he traveled an additional seven hundred miles outside of the route. Moreover, Matthew Willey, a patrolman with the St. Landry Parish Sheriffs Office, who confronted and arrested Defendant at King’s Truck Stop, testified that Defendant had no identification on him. Defendant did not have the thousand dollar check in his possession, nor was the log book he was required to maintain ever recovered at the time he was picked up at King’s Truck Stop. Considering the above facts, a rational juror could have concluded that Defendant possessed the requisite criminal intent and took possession of the eighteen-wheeler without his employer’s consent.

Defendant further argues that there was no evidence presented as to the exact time of the charges of the fuel, or when he picked up the load, or evidence presented indicating the distance between the location where he filled up and the location where the load was picked up. Basically, Defendant argues that the entire case was premised on the victim’s testimony. However, “it is well-settled that the factfinder’s credibility decision should not be disturbed unless clearly contrary to the evidence.” State v. Gilmore, 08-1398, p. 7 (La.App. 4 Cir. 5/6/09), 11 So.3d 575, 578. Furthermore, this court has consistently held that a single witness’s testimony, if believed by the factfinder, is sufficient to support the verdict in the absence of internal contradictions or irreconcilable conflict with the physical evidence. State v. Henry, 95-428 (La.App. 3 Cir. 10/4/95), 663 So.2d 309, writ denied, 96-681 (La.5/16/97), 693 So.2d 793. The testimony of the vic tim and the circumstantial evidence was sufficient to support the conviction beyond a reasonable doubt.

|,,ERRORS PATENT

As a condition of probation, the trial court ordered the Defendant to reimburse the Indigent Defender Board $100.00 without establishing a payment plan. Recently, in State v. Wagner, 07-128 (La.App. 3 Cir. 11/5/08), 996 So.2d 1208, this court held:

When the fines and costs are imposed as a condition of probation, but the trial court is silent as to the mode of payment or the trial court attempts to establish a payment plan, this court has required a specific payment plan be established. See State v. Theriot, 04-897 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016 (fine, court costs, cost of prosecution); State v. Fustier, 07-572 (La.App. 3 Cir. 10/31/07), 970 So.2d 83 (fine and costs); and, State v. Console, 07-1422 (La.App. 3 Cir. 4/30/08), 981 So.2d 875 (fine and court costs).
We view this procedure as no different from payment plans dealing with payment for restitution. See State v. Dean, 99-475 (La.App. 3 Cir. 11/3/99), 748 So.2d 57, writ denied, 99-3413 (La.5/26/00), 762 So.2d 1101 (restitution only); State v. Reynolds, 99-1847 (La.App. 3 Cir. 6/7/00), 772 So.2d 128 (restitution, fine, and costs); State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597 (restitution, fine, court costs, and reimbursement to Indigent Defender Board); and, State v. Fontenot, 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255 (restitution, court costs and payments to victim’s fund, Indigent Defender Board, and District Attorney).
Similarly, the payment to the crime lab fund to be paid during the probationary period was an insufficient payment plan, requiring remand to the trial court for establishment of a payment plan. The plan may either be determined by the trial court or by Probation and Parole, with approval by the trial court. See Stevens, 949 So.2d 597.

Id. at 1213.

Accordingly, we remand this case to the trial court for establishment of a payment plan for the reimbursement of the $100.00, noting that the plan may either be determined by the trial court or by the Office of Probation and Parole, with |Tnapproval by the trial court. See State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07) 949 So.2d 597.

CONCLUSION

For the above reasons, we affirm Defendant’s conviction. Furthermore, we remand this case to the trial court for establishment of a payment plan for the reimbursement of the $100.00 to the Indigent Defender Board, noting that the plan may either be determined by the trial court or by the Office of Probation and Parole, with approval by the trial court.

AFFIRMED AND REMANDED.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Eddie BOURQUE, Jr., et ux. v. ANCO INSULATIONS, INC., et al.
    No. 09-693.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Eric Shuman, McGlinchey Stafford, New Orleans, LA, for Defendant/Appellee, Honeywell International, Inc.
    John J. Hainkel, III, Frilot, LLC, New Orleans, LA, for Defendant/Appellee, National Automotive Parts Association.
    Mickey P. Landry, Frank Joseph Swarr, New Orleans, LA, Jessica M. Dean, Dallas, TX, for Plaintiffs/Appellants, Eddie Bo-urque, Jr., Cassie Bourque.
    Douglas Richard Elliott, Deutsch, Kerri-gan & Stiles, New Orleans, LA, for Defendant/Appellee, Anco Insulations, Inc.
    Ernest George Fornidas, Kuchler, Polk, Schell, et al., New Orleans, LA, for Defendant/Appellee, Union Carbide Corporation.
    Patrick D. Roquemore, Kean, Miller, et al., Baton Rouge, LA, for Defendant/Ap-pellee, Metropolitan Life Insurance Company.

      Patrick Edelen Costello, Mouledoux, Bland, Legrand, New Orleans, LA, for Defendant/Appellee, Lake Charles Stevedores.
    April Ann McQuillar, Simon, Peragine, et al., New Orleans, LA, for Defendant/Ap-pellee, Bondex International.
    M. Todd Barnett, Spears & Gary, LLC, Lake Charles, LA, for Defendant/Appellee, Citgo Petroleum Corporation.
    Jonique Hall, Kuchler, Polk, Schell, et al., New Orleans, LA, for Defendants/Ap-pellees, General Motors, Ford Motor Company.
    Court composed of JIMMIE C. PETERS, MARC T. AMY and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

| former employee and wife brought personal injury action against former employer, alleging occupational exposure to asbestos. Former employer filed a motion for summary judgment, alleging that any remedy the plaintiffs may have is exclusively through the Longshore and Harbor Workers’ Compensation Act, which preempts state remedies. The trial court granted the defendant’s motion for summary judgment. The plaintiffs appeal. We affirm.

Factual and Procedural History

The plaintiffs filed suit against various defendants, including Lake Charles Stevedores, Inc. (LCS), the appellee in the present matter, alleging that occupational exposure to asbestos caused his malignant mesothelioma. This alleged exposure occurred during the plaintiffs, Eddie Bo-urque, Jr.’s, employment period with LCS in the 1950s through the 1970s.

LCS filed a Motion for Summary Judgment asserting that because the plaintiffs only exposure to asbestos while employed with LCS occurred on a vessel situated over water, the plaintiffs exclusive remedy is under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-944. The trial court granted LCS’s summary judgment, finding that the plaintiffs’ state claims against LCS were barred by the LHWCA.

The plaintiffs appeal, questioning whether the LHWCA preempts state remedies for a Louisiana longshoreman and also questioning whether a longshoreman’s remedies differ depending on whether his injuries occur on the wharf or on a docked vessel.

12Piscussion

Summary Judgment

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Louisiana Code of Civil Procedure Article 966(C)(2) explains the burden of proof, providing:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

The granting of a motion for summary judgment is reviewed de novo. Austin v. Abney Mills, Inc., 01-1598 (La.9/4/02), 824 So.2d 1137.

LHWCA

In 1927, the United States Congress enacted the Longshore and Harbor Workers’ Compensation Act out of a “congressional desire for a statute which would provide federal compensation for all injuries to employees on navigable waters[.]” Calbeck v. Travelers Ins. Co., 370 U.S. 114, 120, 82 S.Ct. 1196, 1200, 8 L.Ed.2d 368 (1962). The LHWCA provides:

Except as otherwise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).

|,33 U.S.C. § 903(a). The LHWCA’s exclusivity provision is provided in 33 U.S.C. § 905(a) as follows:

The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death[.]

The plaintiffs assert that summaiy judgment was improper in this case because of “the long line of cases in Louisiana that reject LCS’ proposed rule of exclusivity based upon the vagaries of exactly where a land-based worker is injured on the job,” citing Logan v. Louisiana Dock Co., Inc., 541 So.2d 182 (La.1989); Beverly v. Action Marine Serv., Inc., 433 So.2d 139 (La.1983); Poche v. Avondale Shipyards Inc., 339 So.2d 1212 (La.1976); and, Richard v. Lake Charles Stevedores, Inc., 95 So.2d 830 (La.App. 1 Cir.1957), cert. denied, 355 U.S. 952, 78 S.Ct. 535, 2 L.Ed.2d 529 (1958). The plaintiffs believe that this case fits into a special context of “twilight cases,” or cases with concurrent state and federal jurisdiction. The United States Fifth Circuit Court of Appeals explained “twilight cases” as:

[t]hat kind of a case in which ‘ * * * employees * * * occupy that shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation’ or to which ‘ * * * the line separating the scope of the two (State and [Fjederal Compensation Acts) being undefined and undefinable with exact precision, marginal employment may, by reason of the particular facts, fall on either side’ which led the Court in Davis v. Department of Labor of Washington, 317 U.S. 249, 253, 63 S.Ct. 225, 228, 87 L.Ed. 246, 248, 250, 1942 AMC 1653, to add to or detract from the post-Jensen gloss by its now celebrated figure of the twilight zone:
‘There is, in the light of the cases referred to, clearly a twilight zone in which the employees must have their rights determined case by case, and in which particular facts and circumstances are vital elements. That zone includes persons such as the decedent who are, as a matter of actual administration, in fact protected under the state compensation act.’ 317 U.S. at page 256, 63 S.Ct. at page 229, 87 L.Ed. at page 250.

Flowers v. Travelers Ins. Co., 258 F.2d 220, 222 (5th Cir.1958), cert. denied, 359 U.S. 920, 79 S.Ct. 591, 3 L.Ed.2d 582 (footnote omitted). However, the defendant argues that the plaintiffs’ reference to these “twilight cases” is an attempt to “muddy” the jurisdictional waters. Specifically, the defendant argues that because Mr. Bourque’s alleged exposure occurred while he was undisputably on board a vessel situated over water, the LHWCA was automatically triggered as his exclusive remedy.

In the instant case, we are presented with the same issue brought to the Louisiana Supreme Court in Ellis v. Travelers Ins. Co., 241 La. 433, 129 So.2d 729 (1961). The supreme court stated:

Jurisdiction is the sole issue presented for our determination. Must longshoremen, injured aboard ocean-going vessels, afloat on navigable waters and engaged in interstate commerce, while working in the course of maritime employment, seek redress under the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C.A. s 901 et seq.) or under the Louisiana Workmen’s Compensation Act (LSA-R.S. 23:1021 et seq.)? Did the injuries suffered by plaintiffs occur in the so-called ‘Twilight Zone,’, thereby entitling them to select the jurisdiction of them choice?

Id. at 730. The Ellis court held that the LHWCA was the exclusive remedy for two injured longshoremen who were performing maritime work aboard an ocean-going vessel afloat on navigable waters. The Ellis court rejected analyzing its case under the jurisprudential history of “twilight cases” noting, “[w]e have no doubt as to where such injuries occur and see no reason for placing the harmful events in the ‘Twilight Zone.’ ” Id. at 739.

In his oral reasons for ruling, the trial court, in this case, stated:

While I do agree that I believe that there are some factual situations in which concurrent jurisdiction would apply, I also believe that the Plaintiff in this one, specifically based on the questions that | ¿were asked, delineated the areas of exposure, and that the Plaintiff was unable to shift the burden to show that a genuine material issue of fact remained to continue, and with regard to the state remedy, I will grant the Motion for Summary Judgment with regard to this issue, noting that the exclusive remedy in this will be under Title 33 under the Longshoreman and Harbor Workers’ Compensation Act with regard to that claim.

The record reflects that in a deposition the plaintiff was asked about his employment with the defendant as follows:

Q. Okay. Let me start off with this general question about Lake Charles Stevedores. You testified earlier about some alleged exposure concerning some pipe covering the vessel, is that right, when you were with Lake Charles Stevedores?
A. In the hole [sic] or on the deck?
Q. Okay so that’s — was that — it was both in the hold and on the deck? A. Yes.
Q. Were you ever exposed when a vessel was in dry dock or over land?
A. No.

The record does not suggest that the plaintiff offered testimony disputing that the relevant work he did for the defendant was over navigable waters. In line with the Ellis court’s reasoning and because there appears no doubt as to where the alleged injury occurred, the plaintiffs recovery is exclusively found in the LHWCA. Ellis, 241 La. 433, 129 So.2d 729. The LHWCA specifically applies to Mr. Bo-urque’s work as a longshoreman in reference to compensable injuries occurring on “the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).” J¿3 U.S.C. § 903(a). The record does not support a finding that the present case maintains concurrent jurisdiction between state and federal remedies; thus, application of state law appears to be precluded in this injury which occurred in a purely maritime setting. See Davis v. Dep’t. of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942). Similarly, and again because the present case occurred in a purely maritime setting, we reject the plaintiffs’ assertion that this court should find in them favor in light of the fourth circuit’s decision in DiBenedetto v. Noble Drilling Co., 09-73 (La.App. 4 Cir. 10/21/09), 23 So.3d 400. That case involved a plaintiffs asbestos exposure which occurred along the New Orleans Riverfront. The fourth circuit relied on the Supreme Court case of Sun Ship, Inc., v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980), which found that a state may apply its workers’ compensation scheme to land-based injuries that share concurrent jurisdiction with the LHWCA. As explained above, the present case is not one involving a factual situation where concurrent jurisdiction is applicable.

Accordingly, we find that the trial court correctly entered summary judgment in favor of the defendant.

DECREE

For the foregoing reasons, the judgment of the trial court granting the defendant’s Motion for Summary Judgment is affirmed. All costs of these proceedings are assessed to the plaintiffs and appellants, Eddie Bourque, Jr. and Cassie Bourque.

AFFIRMED.


author: PETERS, J.

text:
    STATE in the interest of A.B.
    No. 09-0870.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      Anne G. Stevens, New Iberia, LA, for Appellee, State of Louisiana.
    Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, A. B.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   PETERS, J.

I,The juvenile, A.B., appeals his adjudication as a delinquent as well as the disposition of that adjudication. For the following reasons, we affirm the adjudication and disposition, but remand the matter to the juvenile court with instructions to amend the disposition to give the juvenile credit for time served, if any, and to amend both the court minutes and custody order to that effect.

DISCUSSION OF THE RECORD

This litigation began as a petition for delinquency filed by the State of Louisiana (state) on January 13, 2009. In that petition, the state asserted that the juvenile had committed simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2, and was a principal to sexual battery, in violation of La. R.S. 14:43.1. Initially, on February 3, 2009, the juvenile denied the charges. However, on March 17, 2009, and pursuant to an agreement with the state, the defendant admitted to the sexual battery charge and was adjudicated a delinquent. In exchange for this admission, the state dismissed the simple burglary charge.

At the May 5, 2009 disposition hearing, the juvenile court remanded the juvenile to secure placement with the Office of Juvenile Justice for a period of two years. The juvenile court modified that disposition on May 18, 2009, by changing the secure placement disposition to non-secure custody. The juvenile then perfected this appeal, asserting two assignments of error:

The trial court erred in both failing to assure the juvenile was notified of his right to receive conflict-free counsel at all stages of the proceedings and in failing to obtain a waiver of conflict-free counsel before accepting A.B.’s admission in this case,
and
|2The trial court erred in imposing an excessive disposition in this case, in violation of the Eighth Amendment to the United States Constitution.

DISCUSSION OF THE RECORD

The factual background to this charge is that the juvenile and another juvenile, J.A., entered a home in New Iberia, Louisiana, and one of the two juveniles fondled an eleven-year-old girl’s breasts and vaginal area while the other held the victim at knife point.

OPINION

Both juveniles were charged with the same offense, but in separate petitions. However, both were called to answer the separate petitions in the same proceeding, and their individual adjudications occurred in the same proceeding. The only in-court proceedings where the juveniles were handled separately were the individual disposition proceedings. In all appearances, the juveniles were represented by the same court-appointed trial counsel.

The juvenile does not object to the joint proceedings with J.A. Instead, he asserts in his first assignment of error that, not only did he not receive conflict-free counsel at all stages of the proceedings, but that the juvenile court failed to advise him of the right to conflict-free counsel.

In asserting that he did not receive conflict-free counsel, the defendant does not direct us to any specific action or inaction of his trial counsel, but simply argues that the record standing alone establishes that his trial counsel had divided loyalties. As to his claim that he was entitled to be advised by the juvenile court of his right to conflict-free counsel, the juvenile relies on La.Code Crim.P. art. 517, which provides:

|<¡A. Whenever two or more defendants have been jointly charged in a single indictment or have moved to consolidate their indictments for a joint trial, and are represented by the same retained or appointed counsel or by retained or appointed counsel who are associated in the practice of law, the court shall inquire with respect to such joint representation and shall advise each defendant on the record of his right to separate representation.
B. Unless it appears that there is good cause to believe that no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant’s right to counsel.

The record reflects that the juvenile court made no inquiry into the separate representation issue at any time before or during the March 17, 2009 proceeding.

In response to this argument, the state points out that the juveniles were not charged in one indictment, nor did anyone move to have them charges consolidated for a joint trial. Therefore, the state argues, the juvenile court had no obligation under La.Code Crim.P. art. 517 to make an inquiry with respect to the joint representation.

We agree with the state that the adjudication process involves separate petitions, but disagree with the state’s argument that La.Code Crim.P. art. 517 does not apply absent a motion to consolidate. The cases were consolidated by the statutory mandate of La.Ch.Code art. 874. Thus, no consolidation motion was required. The perils of joint representation protected by La.Code Crim.P. art. 517 are no less important where the consolidation is mandated by statute than where it is accomplished by motion of a party and order of the trial court. Thus, the juvenile court was required to inquire as to the joint representation issue and failed to do so.

Our inquiry does not end at that point, however. Louisiana Code of Criminal Procedure Article 517 does not relieve the juvenile of his obligation to prove actual prejudice when he objects to lack of conflict-free counsel after trial. See State v. Cisco, 01-2732 (La.12/3/03), 861 So.2d 118, cert. denied, 541 U.S. 1005, 124 S.Ct. 2023, 158 L.Ed.2d 522 (2004). Simply pointing to the existence of the conflict is not enough to overcome this burden. This matter is basically a claim of ineffective assistance of counsel.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal.

State v. Griffin, 02-1703, pp. 8-9 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40, writ denied, 03-809 (La.11/7/03), 857 So.2d 515 (citations omitted). This court, in State v. Schexnaider, 03-144 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, adopted the approach of the fourth circuit with regard to such a claim.

In the matter before us, we cannot determine from the record whether the juvenile suffered prejudice as a result of the trial counsel conflict. Not being able to make any definitive findings concerning the trial counsel conflict, we must relegate the juvenile’s claims to post-conviction relief proceedings where a full evidentiary hearing may be conducted, if warranted, to develop a sufficient record on the issue.

In his second assignment of error, the juvenile asserts that the juvenile court’s disposition judgment is excessive. With regard to disposition, La.Ch.Code art. 901 provides, in pertinent part:

A. In considering dispositional options, the court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal.
B. The court should impose the least restrictive disposition authorized by Articles 897 through 900 of this Title which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society.

Additionally, this court, in State ex rel. M.N.H., 01-1218, pp. 8-9 (La.App. 3 Cir. 2/6/02), 807 So.2d 1149, 1154-55, writ denied, 02-1041 (La.5/24/02), 816 So.2d 857, stated:

When an excessive disposition is complained of in a juvenile proceeding, the record must be reviewed to determine whether the juvenile court imposed the least restrictive disposition consistent with the circumstances of the case, the child’s needs, and the best interest of society. State ex. rel. K.H., 98-632 (La. App. 5 Cir. 12/16/98); 725 So.2d 583; State in Interest of T.L., 28,564 (La.App. 2 Cir. 5/8/96); 674 So.2d 1122. In any review for excessiveness, the appellate court must first ascertain whether the lower tribunal took cognizance of the general guidelines provided for juvenile cases in Louisiana Children’s Code Article 901, and whether the record reflects an adequate factual basis for the commitment imposed. State in Interest of T.L., 674 So.2d 1122. “Following that determination, the reviewing court need only explore for constitutional excessiveness in light of the circumstances of the case and the background of the juvenile.” Id. at 1124. “[Ajbsent a showing of manifest abuse of the wide discretion afforded in such cases, a disposition will not be set aside as constitutionally excessive.” Id.

In imposing his disposition, the juvenile court judge stated that he had read the pre-disposition report prepared by the Office of Juvenile Justice and found that it noted “significant problems” with the juvenile’s background, and that he had read the recommendations found in the written report of Dr. Jessica L. Brown, a psychologist who had evaluated the juvenile. The juvenile court judge also noted the significance of the offense committed, the age of the juvenile at the time of disposition (twelve years of age), and the fact that the juvenile and his family had been previously involved in the Family in Need of Services (FINS) program, but was most troubled by the fact that the juvenile had contacted the victim since his adjudication. In his mind, this fact alone established that the juvenile did not understand the act itself or the consequences thereof. Based on these findings and this conclusion, the juvenile court judge disposed of the matter by remanding the juvenile to two years in the | (¡custody of the Office of Juvenile Services under secure placement. As previously stated, the juvenile court later amended the placement to non-secure status.

In his appeal, the juvenile argues that La.Ch.Code art. 901 prohibits the removal of a child from his parents absent a showing that the removal is for “his welfare or the safety and protection of the public.” In this case, he argues, there were less restrictive dispositions available as authorized by La.Ch.Code art. 897, including: 1) reprimand and release to his mother, with or without conditions; 2) probation; 3) custody in a private or public institution; 4) commitment to the custody of the Office of Juvenile Justice; or 5) suspending the execution of sentence and placing him on probation. The juvenile also asserts that the juvenile court judge did not individualize the disposition of his case; that the exchanges between him and the juvenile court judge were minimal; and that the juvenile court judge ignored the recommendations of two probation officers and Dr. Brown.

In support of the juvenile court’s disposition, the state points to the prior FINS activity, school records reflecting a lack of behavioral progress by the juvenile, the juvenile’s involvement with sexual voyeurism, and his violation of the court order prohibiting him from contacting the victim.

|7Our review of the record causes us to conclude that the juvenile court did take cognizance of the guidelines provided for juvenile cases and that the record does contain an adequate factual basis for the disposition imposed. We find no abuse of the juvenile court’s discretion in the disposition imposed and, therefore, find no merit in the juvenile’s second assignment of error.

Although the Louisiana Children’s Code is silent as to whether a juvenile criminal proceeding is entitled to an error patent review, this court has found that such a review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920. See State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081. In reviewing the record pursuant to that obligation, we find one error patent that requires comment.

In State in the Interest of J.F., 03-321, p. 8 (La.App. 3 Cir. 8/6/03), 851 So.2d 1282, 1287, this court explained, in pertinent part:

[W]e note that the trial court failed to give J.F. credit for predisposition time served in a secure detention facility. Louisiana Children’s Code Article 898(A) provides, in pertinent part, that “[t]he court shall give a child credit for time spent in secure detention prior to the imposition of disposition.” While we recognize that the 1997 amendment to La. Code Crim.P. art. 880 releases us from recognizing the trial court’s failure to give credit for time served as an error patent in adult criminal cases, we also recognize that the legislature did not amend La.Ch.Code art. 898(A). Consequently, we find it necessary to continue to recognize as an error patent the trial court’s failure to give credit for time served in juvenile cases.

The record in this matter does not reflect whether the juvenile spent any time in secure detention before imposition of disposition. Thus, we amend his disposition to reflect that he is given credit, if any is available to him, for time spent in secure detention prior to disposition as required by La.Ch.Code art. 898(A). We remand this matter to the juvenile court with instructions to that court to note the amendment in |sthe custody order and in the minute entry. See State in the Interest of M.M., 06-607 (La.App. 3 Cir. 11/2/06), 941 So.2d 716.

DISPOSITION

We affirm the juvenile’s adjudication. We amend the juvenile’s disposition to reflect credit for time served in secure detention prior to disposition, and affirm the disposition as amended. We remand this matter to the juvenile court with instructions to the juvenile court to note the amendment to the disposition in both the custody order and the minutes of the juvenile court.

AFFIRMED AS AMENDED AND REMANDED WITH INSTRUCTIONS.

      . Pursuant to Uniform Rules — Courts of Appeal, Rule 5-2, we use initials to protect the identity of the juvenile.

      . Louisiana Children's Code Article 874 requires joint trials of children charged with the same delinquent act absent the state’s decision to try them separately or a court ordered-severance in the interests of justice.

      . In his report, Pete Bonhomme, a probation and parole supervisor, recommended that the juvenile be placed on supervised probation, be monitored by Trackers, and receive counseling. Dr. Brown recommended that he be placed on highly structured supervised probation with daily Trackers, and that he should participate in treatment for his inappropriate sexual behaviors.

      . The juvenile court judge noted that at some point prior to the disposition, the juvenile had been adjudicated a FINS. In brief, the state asserts that this activity resulted in the juvenile being placed on probation. However, the record contains no indication of the juvenile being placed on probation.

      . The juvenile’s mother told Dr. Brown he had been "regularly accessing inappropriate movies on the cable movie channels" and "apparently has access to a variety of adult movies.” The mother also informed Dr. Brown that the juvenile entered into a woman's home, hid in the closet of her bedroom, and observed the woman and her boyfriend in bed.


text:
    STATE of Louisiana v. Jonah VALRIE.
    No. 09-737.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Michael Harson, District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Jonah Valrie.
    Court composed of JIMMIE C. PETERS, MARC T. AMY and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

hThe defendant pled no contest to attempted manslaughter and was sentenced to twelve years imprisonment at hard labor. The defendant now appeals, asserting that his plea is deficient for lack of a sufficient factual basis and that his sentence is excessive. For the following reasons, we affirm.

Factual and Procedural Background

The defendant, Jonah Valrie, was initially charged with attempted second degree murder and resisting an officer. According to the State’s brief and the presen-tence investigative report, the charges were a result of the defendant shooting the victim multiple .times, hitting him in the abdomen. Pursuant to a plea agreement with the State, the defendant pled no contest to the lesser charge of attempted manslaughter. The trial court, in reliance on the presentence investigation report, sentenced the defendant to twelve years imprisonment at hard labor.

The defendant now appeals, asserting that his no contest plea is deficient for lack of a sufficient factual basis and that his sentence is excessive.

Discussion

No Contest Plea

The defendant argues that although he “did not protest his innocence while pleading no contest, the Trial Court should have required the State to establish a factual basis for the plea, as is called for in order to accept an Alford plea” as required by North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

The Supreme Court held in Alford that a defendant may enter a guilty plea while still maintaining his innocence of the charge. This plea, known as an Alford plea, puts 12the trial court on notice that it needs to make a judicial finding of a significant factual basis for the plea. State v. Sutton, 04-88 (La.App. 3 Cir. 7/7/04), 879 So.2d 419, writ denied, 04-2617 (La.6/24/05), 904 So.2d 730.

A no contest plea, however, does not require the same judicial finding of a significant factual basis for the plea. State v. Johnson, 04-1266 (La.App. 3 Cir. 2/2/05), 893 So.2d 945. Thus, where a defendant does not assert his innocence in a “no contest” plea or indicate he misunderstood the nature and consequences of that plea, the trial court does not err by failing to include a factual basis of the offense in the record. Id.; State v. Francis, 02-862 (La.App. 3 Cir. 12/11/02), 832 So.2d 1225, writ denied, 03-149 (La.5/2/03), 842 So.2d 1099.

The record does not appear to indicate that the defendant in the present case entered an Alford plea. The defendant signed a plea agreement which was notated as a “no contest plea.” In addition, the defendant admitted to the trial court that it was his signature on the plea agreement and that he understood the nature and consequences of entering into that agreement. At his plea hearing, the defendant said he feared he would be convicted at trial, and that was one reason he was entering the “no contest plea.” At that point, the trial court found the defendant had made a knowing and intelligent waiver of his rights, and that the plea was freely and voluntarily given without threats or inducements. The trial court then accepted the defendant’s plea. The record does not indicate that the defendant made an objection or asserted his innocence at the plea hearing.

In light of the no contest plea and the trial court’s questioning of the defendant at the time of the plea, it was proper for the trial court to accept his plea without requiring a factual basis on which to find his plea sufficient.

IsThis assignment lacks merit.

Excessiveness of Sentence

In his second assignment of error, the defendant argues that his twelve-year sentence is excessive. This court has set out a standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied, 00-0165 (La.6/30/00), 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

The defendant’s agreement to plead “no contest” to the lesser charge of attempted manslaughter gave him a possible sentence of not more than twenty years at hard labor. See La. R.S. 14:27; La. R.S. 14:31. The agreement also resulted in the dismissal of the resisting an officer charge. His twelve-year sentence is slightly more than half the penalty he could have possibly received for attempted manslaughter. In addition, the defendant received a substantial benefit from his plea bargain, which decreased his possible sentence from fifty years to twenty years at hard labor. See La. R.S. 14:27; La. R.S. 14:30.1.

The record reveals that the trial court judge did consider aggravating and mitigating factors. At the sentencing hearing, the trial court judge stated:

Mr. Valrie, I have reviewed the aggravating arid mitigating circumstances in the applicable Articles of the Code of Criminal Procedure. I have considered the factors associated with your crime in question. I have looked at your record. I have considered in particular the victim’s impact as well as the State of Louisiana’s recommendation of sentence. After all the above has been considered, I hereby sentence you to serve twelve years at hard labor.

A review of the presentence report and consideration of the facts that the defendant received a benefit from the plea agreement and his sentence for the crime he was convicted of is a mid-level sentence, it is clear that the trial court’s imposition of sentence is not an abuse of discretion. Accordingly, the defendant’s sentence is not excessive.

This assignment lacks merit.

1,DECREE

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . This court granted the defendant’s motion allowing him an extension of time to file a pro se brief; however, the defendant’s brief was untimely and, therefore, was not considered by this court. In addition, the defendant's request to terminate his court-appointed counsel and appoint new counsel was denied.


text:
    STATE of Louisiana, in the Interest of M.R. v. S.F.H.-Natural Mother.
    No. 09-889.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.
    Cert. Denied Jan. 14, 2010.
    Nicholas Pizzolatto, Jr., State of Louisiana, Department of Social Services, Lake Charles, LA, for Appellee, State of Louisiana, Department of Social Services.
    Edward M. Nichols, Jr., Lake Charles, LA, for Appellee, M.R.
    D. Bruce Jones, Sulphur, LA, for Appellant, S.F.H.
    Court composed of JIMMIE C. PETERS, MARC T. AMY and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

liM.R. was placed into state custody on February 9, 2004. The State filed a petition to terminate the biological mother’s rights, and the petition was denied. After efforts at reunification, the State again brought a petition to terminate the biological mother’s rights, and the trial court terminated the biological mother’s rights. The mother appeals. Finding the State did not meet its burden of proof of clear and convincing evidence for the termination of parental rights, we reverse in part, affirm in part, and remand.

Factual and Procedural History

S.F.H. is the biological mother of the minor, M.R. On February 9, 2004, the Office of Community Services (OCS) received a report that S.F.H was allegedly neglecting M.R. based on alcohol or substance abuse dependency and unspecified physical abuse. The report indicates that the allegations came from concerned neighbors who witnessed erratic and abusive behavior by S.F.H. and D.B.R. OCS investigated the allegations, interviewing several neighbors and S.F.H., and subsequently sought an Instanter Order that M.R. be removed from custody of the parents pending further investigation. It was at this time, that OCS learned that S.F.H’s. parental rights to her seven-year-old daughter, B.F., had been terminated in Texas following allegations that S.F.H. was neglecting B.F., leaving her without adequate supervision and severely in need of medical care. The Instanter Order was granted on February 16, 2004. On February 20, 2004, OCS filed a petition requesting M.R. be adjudicated a child in need of care. OCS had cause to suspect M.R. was in |2need of care after S.F.H. stated that D.B.R. had been picked up for several outstanding warrants in Mississippi and Arkansas and, after talking to authorities in Texas, receiving information that S.F.H. was wanted in Texas in conjunction with the allegations of child abuse. Judgment was rendered adjudicating M.R. a child in need of care on March 5, 2004.

Termination of S.F.H.’s parental rights was denied on December 20, 2006, and OCS was ordered to work with S.F.H. for six months to reunify. However, on January 7, 2008, the State filed a Second Petition for Certification for Adoption and Termination of Parental Rights. The trial court issued a judgment terminating S.F.H.’s parental rights on November 30, 2008.

S.F.H. now appeals asserting that the trial court “erred in finding by clear and convincing evidence that attempts to rehabilitate the parent have been unsuccessful” and “erred in finding it was within the Child’s best interest to terminate Mom’s parental rights.” S.F.H. also assigns as error, that La.Ch.Code art. 1015(3)(k) is unconstitutional as interpreted by the trial court.

Discussion

The termination of parental rights is a two-pronged inquiry. First, the State must prove by clear and convincing evidence the existence of, at least, one ground for termination under La.Ch.Code art. 1015. La.Ch.Code art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Only after the ground for termination is found, the trial court must determine whether the termination is within the best interest of the child. La. Ch.Code art. 1039. On review of a termination of parental rights, an appellate court cannot set aside a trial court’s finding of fact in the absence jsof manifest error or unless the findings are clearly wrong. State in the Interest of K.G. & T.G., 02-2886, 02-2892 (La.3/18/03), 841 So.2d 759.

Burden of Proof

S.F.H. asserts that the State failed to prove a ground for termination by clear and convincing evidence, specifically, the ground provided in La.Ch.Code art. 1015(3)(k), which reads:

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.

The trial court, in its written reasons for judgment, found the State met its burden of proving one ground for termination by entering into evidence a Texas judgment terminating S.F.H.’s parental rights to B.F., the sibling of M.R. Further, the trial court dismissed S.F.H.’s argument that progression in her case plan demonstrates that she is reformed. The trial court reasoned:

At trial, evidence presented was that the mother still had not addressed the abuse of [B.F.] and the termination of her rights to that child, even though this case has been going on for 56 months. In fact, for the first time in 56 months, the mother said she did not have to address the prior termination because “I was told the charges were dropped and my rights were terminated for abandonment.”

Here, the State bears the burden of proving each element of a ground for termination. For termination under La.Ch. Code art. 1015(3)(k), the State must prove: (1) that S.F.H.’s parental rights to B.F. were terminated due to neglect or abuse and (2) that prior attempts to rehabilitate S.F.H. have been unsuccessful. See La. Ch.Code art. 1035(A); State ex rel. L.B. v. G.B.B., 02-1715 (La.12/4/02), 831 So.2d 918.

S.F.H.’s parental rights to B.F. were terminated in 2003 by a Texas order of termination. A review of the record reveals that B.F. went into custody with the State of Texas after allegations that B.F. was a victim of abuse and medical neglect. The |4order of termination was introduced into the record and revealed the grounds for termination of S.F.H.’s parental rights as to B.F. as follows:

6.2.1 knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
6.2.2 engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
6.2.4 constructively abandoned the child who has been in the permanent or temporary managing con-servatorship of the Department of Protective and Regulatory Services or an authorized agency for not less than six months; and (1) The Department or authorized agency has made reasonable efforts to return the child to the mother; (2) the mother has not regularly visited or maintained significant contact with the child; and (3) the mother has demonstrated an inability to provide the child with a safe environment;

S.F.H. testified that at the time B.F. was taken into custody, she was homeless and unable to support herself or her child.

It is clear from the record that S.F.H.’s parental rights were terminated due to “neglect or abuse” and, thus, the first requirement of La.Ch.Code art. 1015(3)(k) is satisfied.

The second inquiry is whether the State established the prior attempts to rehabilitate S.F.H. were unsuccessful. OCS issued its initial case plan involving S.F.H. on August 24, 2004. The initial case plan goal was reunification finding that S.F.H. had made “significant progress towards completing her plan” in successfully completing parenting classes, submitting to psychological evaluations, initiating her substance abuse assessment, submitting to unexpected drug tests which all tested negative for drugs, and promptly attending every visit with M.R. The case plan stated that S.F.H. was working part-time while looking for more permanent employment and |;;was living with her boyfriend, T.H., in a mobile home found to be above minimal standards. S.F.H. and T.H. both provided the agency information in order to conduct a criminal background investigation which revealed that T.H. had been previously charged with contributing to the delinquency of minors and one charge of indecent behavior with a juvenile. OCS was concerned with T.H.’s criminal background and informed him that he must undergo a sexual offender risk level assessment before it could consider returning M.R. to their home. The case plan also stated that S.F.H., in order to complete the case plan, needed to successfully complete substance abuse assessment and acquire any recommended treatment, obtain verifiable employment, and verifiable housing.

In an April 6, 2005 judgment, case plans for February and March were accepted by the trial court. Both of these plans maintained the goal of reunification and stated that S.F.H. had made significant progress. OCS stated that S.F.H., in order to complete the case plan, needed to attend family assessments with a psychologist, Dr. Post, attend group meetings about domestic violence, and continue to submit to random drug screens. The family assessments were to be attended by T.H. also, in addition to T.H. completing the previous sexual offender assessment.

In July 2006, the State filed a petition for certification of adoption and the termination of parental rights. The State alleged that although S.F.H. had almost completely worked her case, “there [was] no reasonable expectation of significant improvement” because S.F.H. had previously had her parental rights terminated in Texas, T.H. only completed one of the two sex offender assessments, and the medical experts involved opined that parental rights should be terminated.

|GIn December 2006, a trial was held. At trial Dr. Jerry Whiteman, a psychologist who evaluated S.F.H., testified as a expert witness. When asked about S.F.H.’s and T.H.’s ability to parent, Dr. Whiteman testified:

I would' — -I have reservations, and I would think that they would need some parent education, some supervision, especially of their potential for anti-social behaviors or drug use, [S.F.H.] especially, but I think that both, as I understood, they were gainfully employed at the time of my assessment. They were attempting to have a responsible lifestyle, and I believe with — you know, with caution and help, they could proceed with being parents.

Dr. Jodie Guth, a clinical psychologist, also testified as an expert at trial. Dr. Guth advised against reunification, stating:

A. At the time of the first evaluation in March of [2005], [S.F.H.] and [T.H.] had been together only for a short period and they were not married, and because of the history of previous problems in relationships for both of them, there was a concern about the stability of their relationship.
Q. And I believe you indicated that reunification was not advised at that time?
A. It was not.

Dr. Guth testified about other reasons she did not recommend reunification, stating:

A. The issue of the previous termination in the State of Texas was one that could not be minimized, in my opinion. The child was five years old. [S.F.H.] did not appear to have a strong attachment with the child. The information that was available to us suggested that she had a very passive attitude toward the incident, that it was the fault of others and not herself, that the child was harmed and so that her account of the incident as well as the records provided to us related to the previous termination was a significant factor but not the only factor.
Q. Okay. What were the other factors?
A. I was looking for a sense that through completing the case plan, she had recognized the error of her ways with [B.R.] and had acknowledged that there was abuse and that she had learned to better regulate her emotions and her behavior so that another |7child would not be harmed, and I was not clear on whether that degree of maturity had occurred.

When asked if S.F.H.’s commitment to the case plan indicated that she was maturing, Dr. Guth responded “Yes. It gives the appearance of some progress.” The trial court questioned Dr. Guth, asking:

THE COURT:
Is it possible in this situation we have at hand for a reformation sufficient enough to warrant reunification?
[Dr. Guth]:
Assuming that medical interventions would be in place and supervision would be available and in-home monitoring of parenting would be in place, okay.

After hearing testimony from the experts, the case worker, and the parties, the trial court dismissed the State’s petition for certification of adoption and the termination of parental rights for lack of sufficient evidence that S.F.H. was not making steps toward rehabilitation.

A review hearing was held six months after trial on August 15, 2007, and again, the State expressed concerns over S.F.H.’s previous termination of parental rights in Texas. Dr. Guth, who had testified at the previous trial, refused to continue with the case because she disagreed with the court’s goal of reunification. S.F.H. began seeing another psychologist, Dr. Charlotte Butler. The State requested ninety days to implement Dr. Butler’s recommended plan for gradual reunification. That request was granted and primary care was given to S.F.H.

On December 18, 2007, another review was held. The State requested to change the plan to termination after receiving Ms. Butler’s testimony. The exchange was as follows:

Q. I also asked you whether or not you could tell the court whether you would feel comfortable telling it that you would return — if |SM.R. were returned to the foster parent full time 100 percent and the State was out of it. You gave me an answer to that question. And what was your answer?
A. I would feel comfortable with that.
MR. PIZZOLATTO: And, Your Honor, based on what she said, the State cannot in good conscious not change the goal back to adoption and ask — and file another petition to terminate. Because almost after four years, we still do not have a professional that would recommend that [S.F.H.] and her husband take the child.
MS. BUTLER: I’d like to clarify that if I could, Judge.
THE COURT: Please.
MS. BUTLER: I don’t feel that I can make the recommendation, partly because I did not do a custody evaluation. That was not the role I was brought into. And I made it clear to all parties that I was not going to be giving an opinion on placement.
The question that Mr. Pizzolatto asked me had to do with my feelings about that. It’s not a professional opinion that I feel ethically I can give because I did not do the work that would be required to come to court and make a professional recommendation about that.

The trial court granted the State’s request to change the case plan to termination and set the matter for trial. Because the goal was changed to termination, primary care of M.R. was given to the foster mother, and S.F.H. was allowed only monthly visitation.

The second petition for termination and adoption was filed in January of 2008. In that petition, the State alleged that termination was proper under La.Ch.Code art. 1015(3)(k) because S.F.H.’s parental rights were terminated in Texas and S.F.H. “did | s>not work a case plan for the return of her child, and did not attend the trial to determine whether her parental rights should be terminated.”

The final tidal was held on May 21, 2008. The trial court took the matter under advisement, and on December 5, 2008, signed a written judgment immediately and irrevocably terminating S.F.H.’s parental rights to M.R. The trial court found:

Therefore, since the parental rights of S.F.H. was terminated to a sibling of M.R., the State of Louisiana Department of Social Services has met its burden of proving at least one ground for termination of parental rights as outlined in the Louisiana Children’s Code. In the present case, it was pursuant to Children’s Code Article 1015(3)(k).
The mother argues she has reformed, worked the majority of her case plan and under 1015(3)(k), this child should be returned.
This court is called upon to decide if the mother’s reformation and efforts to complete a case plan should place the rights and desires of a parent over those of a child. This court finds that jurisprudence demands a child’s best interest is controlling.
A very disturbing trend has developed in this case, and that is the emphasis has been placed too heavily on the mother, [S.F.H.]. That emphasis is misplaced. The overriding consideration is what is in the best interest of [M.R.]. No other person’s feelings, thoughts or lifestyle controls this situation other than those of [M.R.]

On review, we may not set aside any of the trial court’s factual findings unless those findings are manifestly erroneous, in other words, clearly wrong. State v. F.Y. 05-920 (La.App. 3 Cir. 3/1/06), 924 So.2d 1164, writ denied, 06-932 (La.5/26/06), 930 So.2d 35. The present case is dealing with whether the State carried its burden of proof for a second petition for adoption and termination of S.F.H.’s parental rights. The first petition for termination and adoption was denied on the ground that the State | infailed to carry its burden of proof regarding efforts at S.F.H.’s rehabilitation. In the first judgment, the trial court stated:

[M]uch of the evidence adduced today and the testimony adduced and the pleadings reflecting the same suggest that mom’s rights should be terminated as a result of a termination of a prior child in Texas. It apparently has been the Court’s impression that’s the single most important motivating factor in determining the case at bar.
The Court wants to share language in the [Louisiana Children’s Code] comments of [article 1015] that seem to share the Court’s concerns, and I’m going to quote:
“This ground” — in this case [La.Ch.Code art. 1015(3)(k) ]. “This ground is worrisome because conceivably in a particular case,” such as the case at bar, “a parent may have reformed, especially if a substantial period of time has elapsed since the prior judgment. Similarly, despite earlier failures, the family dynamics may have changed to the extent that children presently in the home are no longer in an environment producing a high risk of danger. The purpose of authorizing court intervention to consider termination of parental rights is to ensure that the pattern of prior abuse has indeed been broken,” my own emphasis added. “And if the Court also finds in [La.Ch.Code art. 1037(A) ] [sic] that would permit the Court to find the best interest of the child will not be served by termination of parental rights,” which I think is clear in this case.
It talks about other notes and the type of other evidence that’s needed and specifically attempts at rehabilitation have been unsuccessful. While the Court recognizes that the State’s experts suggest that mom fails to recognize or realize the failures historically, her failures as a parent historically in this case, I don’t think sufficient evidence was presented to suggest that she has not made considerable steps in rehabilitation.
The Court at this time feels as though that with the mother’s apparent willingness to continue to work her case plan, and has demonstrated the same, this Court finds at this time that it would be in the best interest of this child that the State’s termination request for the mother be denied and that this Court’s going to order that there be a plan of reunification, and that plan is to be no less than six months and that the State is to prepare a plan to be submitted to this Court[.]
_J_nMom and dad, more specifically mom, congratulations, but the job’s not over. I do feel in my heart that you’re going to be in the right direction, and I applaud you for that. Continue your work, and this child, in a matter of a few months, should be where it belongs. That’s with you.

A review of the record reveals that the State offered no further evidence regarding S.F.H.’s rehabilitation between the first trial and the present case. In fact, the record reveals that S.F.H. and T.H. completed those items OCS requested. There is no indication that OCS required S.F.H. to attend counseling to specifically address the previous termination of her parental rights in Texas. It appears that S.F.H. completed all other counseling requested. No case plan or testimony from case workers in Texas was admitted. The trial court, in its written reasons for terminating S.F.H.’s parental rights, discussed that S.F.H.’s rehabilitation was not the issue before the court, instead, the relevant inquiry was related to M.R.’s best interest. There is no doubt that M.R.’s best interests are relevant in this case, however, a justifiable ground for termination must be proven first. Our supreme court has explained this in G.B.B., 831 So.2d at 926 (citations omitted), stating:

[Permanent termination of the legal relationship existing between natural parents and children is one of the most drastic actions the State can take against its citizens. However, 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 statutory grounds exist and are proved by clear and convincing evidence.

The record before us does not provide support in finding that the State met its burden by clear and convincing evidence. The State offered no additional negative evidence regarding S.F.H.’s rehabilitation between the first termination, which was denied for lack of evidence, and the present termination. In fact, much of the evidence revealed that S.F.H. was making significant progress in her rehabilitation. Termination may be appropriate in this situation after looking at M.R.’s best interest, |12but the State must prove a statutory ground for termination first, and it cannot be said that this was done here.

Accordingly, we find that it is appropriate to reverse the trial court’s judgment terminating parental rights and declaring M.R. eligible for adoption. We remand this case for further proceedings insofar as the judgment maintains the State’s custody of M.R.

We do not reach S.F.H.’s alternative assignment of error regarding the constitutionality of La.Ch.Code art. 1015(3)(k). In addition to our ruling above, we note that this issue was not raised below. See Boutte v. Jefferson Parish Hosp. Serv. Dist. No. 1, 99-2402 (La.4/11/00), 759 So.2d 45; State in the Interest of J.W., 01-500 (La.App. 4 Cir. 11/14/01), 801 So.2d 1182.

DECREE

For the foregoing reasons, we reverse that portion of the trial court’s judgment terminating S.F.H.’s parental rights of M.R. and declaring him eligible for adoption. That portion of the judgment maintaining the State’s custody of the child is affirmed. We remand for further proceedings.

REVERSED IN PART; AFFIRMED IN PART; REMANDED.

      . Pursuant to the Uniform Rules-Courts of Appeal, Rules 5-1 and 5-2, the initials of the parties will be used to protect and maintain the privacy of the minor child involved in this proceeding.

      . D.B.R. is the biological father of M.R.; parental rights were terminated on December 20, 2006, and are not at issue in this appeal.


text:
    Janet Farr JARNAGIN v. Thomas Randolph JARNAGIN.
    No. 09-903.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      Anthony C. Dupre, Ville Platte, LA, for Plaintiff/Appellee, Janet Farr Jarnagin.
    D. Reardon Stanford, Hoyt & Stanford, LLC, Lafayette, LA, for Defendant/Appellant, Thomas Randolph Jarnagin.
    Court composed of JIMMIE C. PETERS, MARC T. AMY and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

hThe plaintiff and domiciliary mother of five children born of the previous marriage between herself and the defendant, filed a notice of intent to relocate with the children to Utah. The defendant objected. The trial court permitted the plaintiff to relocate, and the defendant appealed. For the following reasons, we affirm.

Factual and Procedural Background

Janet Farr Jarnagin, the plaintiff and appellee, and Dr. Thomas Randolph Jar-nagin, the defendant and appellant, obtained a judgment of divorce on April 17, 2009. Five children were born of this marriage. The parties reached a stipulation in regard to custody. The stipulation provided that the parties would share the joint custody of the children, with the plaintiff designated as domiciliary parent. The stipulation also provided for a physical custody arrangement between the parties in addition to special summer custody for the defendant.

On October 17, 2008, the plaintiff submitted written notice to the defendant of her intent to relocate the parties’ minor children from Louisiana to Utah. On November 17, 2008, the defendant filed an Objection to Proposed Relocation of Children and Request for a Psychological Evaluation. On April 23, 2009, the trial court heard the rule for relocation and took the matter under advisement. The trial court issued written reasons for judgment and issued a signed judgment permitting relocation in favor of the plaintiff.

The defendant now appeals, assigning that the trial court erred in: failing to appoint a mental health expert in determining whether relocation was in the best interest of the children; failing to clearly consider all of the factors in La. R.S. 9:355.12; finding that the plaintiff met her burden of proving that the proposed relocation was in the best interest of the children, and, granting the relocation.

12Diseussion

The parent seeking relocation must fulfill a two-part burden: (1) that the proposed relocation is in good faith; and (2) that the proposed relocation is in the best interest of the child. La. R.S. 9:355.13. A trial court’s decision in a relocation matter is entitled to great weight and will not be overturned absent a clear showing of abuse of discretion. Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094.

Best Interest of the Child

The defendant contends that the trial court erred in failing to clearly consider all the factors set forth in La. R.S. 9:355.12. The defendant asserts that while it referenced some of the enumerated factors, the court failed to “expressly consider how the relocation will negatively impact the relationship between the children and their father, and the importance of the same.”

Louisiana Revised Statutes 9:355.12 enumerates twelve factors the court shall consider in determining whether the proposed relocation is in the best interest of the child. The statute mandates that the court consider the enumerated factors, however, it does not require the court to give preferential consideration to any certain factor or factors. See La. R.S. 9:355.12; Curole v. Curole, 828 So.2d 1094.

The trial court issued an opinion in this matter after hearing testimony from an expert in educational development, the parties, and the defendant’s mother. The trial court’s written reasons for judgment explained:

After weighing the factors set out by LSA-R.S. 9:355.12 and 9:355.13, this Court is convinced that Mrs. Jarnagin has met her burden of proof and it is the judgment of this Court that the relocation to Utah is in the best interest of both Mrs. Jarnagin and the five Jarnag-in children.
Of particular influence to this Court was the fact that both Mrs. Jarnagin and Doctor Jarnagin are from the State of Utah. Their families | alive within twenty minutes of each other. There are many relatives, in the form of Grandparents, Aunts, Uncles, and Cousins, which will enrich the lives of the Jarnagin children.
A second significant factor in addition to the factors set out in 9:355.12 is the fact that all parties belong to the Mormon religion. Utah has been the home of the Mormons since the days of the Brigham Young and there are very few outlets for Mormon worship in South Louisiana.
Also, this Court is convinced that the children want to go to Utah with their mother and this will result in an increased sense of happiness for Mrs. Jar-nagin and this will therefore increase the sense of happiness and well-being of the children.

A review of the record and the written reasons for judgment reveals that the trial court did consider the statutory factors in La. R.S. 9:355.12. The defendant even admits, in brief, that the trial court considered some, however not all, of the statutory factors. The factors in La. R.S. 9:355.12 are as follows:

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelo-cating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
14(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.

First, the judgment reflects that the trial court considered “the nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.” See La. R.S. 9:355.12(1). The trial court noted that the family relationships of both the plaintiffs and the defendant’s extended family in Utah will enrich the lives of the children. The record also indicates that during the parties’ marriage, the plaintiff and children had lived in Utah for over a year while the defendant continued to live in Louisiana. In addition, as to the extent of involvement and duration of the children’s relationships with the plaintiff, it appears that the plaintiff has been the children’s primary caregiver, in addition to being their home-school teacher.

The record reflects that the trial court judge met with the children in chambers to discuss their preferences regarding relocating to Utah. Then, in its judgment, the trial court stated that it believed that the children preferred to relocate to Utah. A ^consideration of the children’s preference is another of the enumerated statutory factors. See La. R.S. 9:355.12(4). This statutory factor guides the trial court to not only consider the child’s preference, but to take “into consideration the age and maturity of the child.” Id. In the present case, the five children range in age from four to fourteen. The record reflects that the trial court found that all of the children expressed their wish to go to Utah. Also, the trial court noted that when the children were asked whether they had been influenced by the plaintiff, they all indicated in the negative.

The judgment also reveals that the trial court considered “[wjhether relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child,” and found that the move would result in an increased sense of happiness for both the plaintiff and the children. La. R.S. 9:355.12(6).

The defendant asserts that because relocation would inevitably strain the relationship he has with his children it cannot be in their best interest. Also, the defendant admits that relations with his oldest child are strained and alleges that the plaintiff has contributed to this strain in allowing this child to refuse visitation. Indeed, one of the statutory factors is “whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.” La. R.S. 9:355.12(5). In addition, the court is to consider “the feasibility of preserving a good relationship” with the nonrelocating parent. La. R.S. 9:355.12(3). While the judgment does not specifically address these factors, the record indicates that the trial court considered this factor. At the relocation hearing, the trial court stated:

|fiI was just amazed, and I’ll say this for the record, that she was allowed to on her own decide she wasn’t going to visit her father, and I did tell her that, although I have not made a decision on this thing, if I decide to allow the relocation, there would be generous visitation which will be allowed to Dr. Jarnagin and that I expected and I was going to insist that she honor the visitation because I was not going to allow her to determine on her own that she was not going to visit with her dad[.]

Lastly, the defendant argues that the trial court erred in permitting relocation based upon any consideration into the plaintiffs happiness. The defendant contends that this consideration is inappropriate as to whether relocation is in the best interest of the children. However, La. R.S. 9:355.13 specifically requires that “[i]n determining the child’s best interest, the court shall consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parents general quality of life.”

A review of the record supports a finding that the trial court considered the evidence in light of the factors of La. R.S. 9:355.12. The trial court chose to emphasize only certain factors of La. R.S. 9:355.12 in its written reasons for judgment; however, this court has found that the trial court’s decision to emphasize only certain factors does not, in and of itself, constitute an error. Miller v. Miller, 01-0356 (La.App. 3 Cir. 10/31/01), 799 So.2d 753. Therefore, this court may only review the trial court’s judgment to determine if it was legally correct and reasonable in light of a review of the entire record. Senousy v. Senousy, 05-198 (La.App. 3 Cir. 6/1/05), 905 So.2d 461, writ denied, 05-2073 (La.2/10/06), 924 So.2d 169.

The trial court’s finding of facts and weighing of the factors do not appear to be unreasonable or clearly wrong so as to constitute manifest error. Although the defendant expressed a desire to maintain a relationship with his children, the record supports the trial court’s conclusion that relocation would not prevent a relationship |7with the children, and that the relocation was in the best interest of the children. The record reveals that during the parties’ marriage, the plaintiff and the children lived in Utah for a significant period of time while the defendant lived in Louisiana. The children appear to desire relocation to Utah with their mother and primary caregiver. Further, based on this record, it was for the trial court to decide whether the educational and religious opportunities in Utah supported the request for relocation. The trial court did not abuse its discretion in its determination of the children’s best interest.

This assignment lacks merit.

Good Faith Relocation

“In addition to requiring a relocation to be in the best interest of the child, our law requires a showing by the relocating parent that the move is being made in ‘good faith.’ La. R.S. 9:355.13.” Nelson v. Land, 01-1073, p. 5 (La.App. 1 Cir. 11/9/01), 818 So.2d 91, 94.

The defendant contends that the plaintiff failed to prove that her proposed relocation was made in good faith. First, the defendant alleges that the plaintiffs desire for relocation is in bad faith because the notice came within days of the defendant taking the children to have educational testing. The record reveals that the parties disagreed in regard to how the plaintiff home-schooled the children. The defendant allegedly tested the children because he was concerned that they were not progressing under the plaintiffs homeschooling. The plaintiff testified that she was upset in response to the defendant’s decision to test the children. The defendant points to her angry response, coupled with the fact that the notice of relocation came within days after the testing, as evidence the plaintiff was in bad faith.

The plaintiff contends that her desire to relocate is based upon the support system of the extended family who reside in Utah which “would enhance her ability to see to the needs of her children while attempting to secure additional education which would allow her to become less dependent” on the defendant for support.

|sThe trial court determined that the plaintiff met her burden of proving that the proposed relocation was in good faith. The trial court was apparently not persuaded by the fact that the notice to relocate came within days of the children’s testing. The record does not appear to present any evidence that the plaintiff sought relocation in retaliation or for any other reason than her desire to provide for herself and her children. A review of the record supports a finding that the trial court did not err in determining that the plaintiff proved that the proposed relocation was in good faith.

This assignment is without merit.

Appointment of a mental health expert

The defendant contends that the trial court erred in failing to appoint a mental health expert per his request under La. R.S. 9:355.8. The defendant argues that failure to appoint an expert, specifically on the issue of whether relocation would negatively impact his relationship with his children, amounts to a breach of the trial court’s discretion. In brief, the defendant admits that while the language of La. R.S. 9:355.8 is “unquestionably permissive,” the trial court nevertheless abused its discretion by failing to “take advantage of the tools available to it” in determining the best interests of the children.

Louisiana Revised Statutes 9:355.8 provides that “the court may promptly appoint an independent mental health expert to render a determination as to whether the proposed relocation is in the best interest of the child.” The defendant is correct |9to characterize this statute as “unquestionably permissive.” While the statute does allow the trial court to appoint an independent expert, it does not prohibit a party from presenting the testimony of a mental health expert. Therefore, because the defendant could have, without a court order, obtained expert evidence relating to what negative impacts may result from his children’s relocation, it cannot be said that the trial court erred in not appointing an independent mental health expert. See Larsen v. Polk, 02-1104 (La.App. 5 Cir. 2/25/03), 841 So.2d 992, writ denied, 03-0877 (La.4/25/03), 842 So.2d 412.

This assignment is without merit.

DECREE

For the above reasons, the judgment permitting the parties’ children to relocate to Utah is affirmed. All costs of these proceedings are assessed to the defendant-appellant, Dr. Thomas Jarnagin.

AFFIRMED.