author: GUIDRY, J.

text:
    STATE of Louisiana IN the INTEREST OF E.O.
    NUMBER 2018 CJ 1093
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 6, 2019
    Robert H. Harrison, Jr., Watson, LA, Counsel for Mother/Appellant A.S.
    Mike Forbes Counsel, Hammond, LA, for Appellee State of Louisiana
    Sherry Powell, Livingston, LA, Counsel for Appellee Department of Children and Family Services
    Kellie Johnson, Baton Rouge, LA, Counsel for Minor Child, E.O.
    Rebecca Lee, Livingston, LA, Counsel for Father, C.O.
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   GUIDRY, J.

A.S. appeals from a trial court judgment terminating her parental rights to E.O. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

A.S. is the mother of E.O., who was born on June 8, 2016. On July 15, 2016, the Department of Children and Family Services (DCFS) received a report of alleged neglect concerning E.O. The report stated that the five week old E.O. was being admitted to the hospital for a skull fracture and that the parents' explanation of the infant falling off of an air mattress and hitting his head on the hard wood floor was not consistent with the injury. A.S. also presented at the hospital with an abrasion and swelling over her left eye as a result of E.O.'s father, C.O., striking her before the incident with E.O.

Upon investigation, DCFS spoke with A.S. and determined that A.S. woke up at 3:00 a.m. to feed E.O., who started crying, and C.O. became angry. An argument ensued between A.S. and C.O., whereupon C.O. struck A.S. in the head. C.O. left the home, returning a while later. A.S. then left E.O. in C.O.'s care while she took a nap. Thereafter, A.S. heard a thump and then heard E.O. crying. C.O. explained that E.O. fell off of the air mattress. A.S. admitted to a lengthy history of domestic violence between herself and C.O., and that this had occurred in the presence of E.O.

DCFS sought an instanter order, which was orally granted by the trial court, removing E.O. from the custody of A.S. and placing him in the temporary custody of DCFS. Following a continued custody hearing, the trial court continued custody of E.O. with the State, placing E.O. in the custody of foster parents.

On August 10, 2016, DCFS filed a child in need of care petition, alleging lack of supervision by A.S. and C.O. A hearing was held on September 20, 2016, where A.S. stipulated that E.O. was in need of care without admitting the allegations of the petition. C.O. was not present at the hearing. The trial court ordered that E.O. be returned to A.S.'s care and that a protective order be maintained and a safety plan put into place. The trial court further ordered that a family services case be opened and that DCFS assist with counseling for A.S. Thereafter, a case plan with the goal of reunification was approved by the trial court on October 18, 2016.

Thereafter, on December 12, 2016, DCFS received another report of neglect/lack of adequate supervision and neglect/medical neglect concerning E.O. DCFS received a report that A.S. and C.O. were in a domestic altercation in the middle of the road on December 7 or December 8, 2016, while E.O. was in the car, and C.O. damaged the car so that it had to be towed. On December 9, 2016, A.S. was in a car accident with E.O. and removed him from the scene and refused to obtain medical care for him. It was also reported that E.O. had a cold that progressed to Respiratory Syncytial Virus (RSV), and A.S. had refused to take him to the doctor.

DCFS made contact with A.S. and E.O. on December 12, 2016, at Pediatric Associates of Denham Springs, where A.S. disclosed that she had been in an accident but that she did not take E.O. to the doctor because she did not believe he needed medical attention. She further denied having had any contact with C.O. Upon speaking with medical professionals, DCFS learned that E.O.'s birth weight had decreased tremendously, dropping from the thirty-eighth percentile to the eighth percentile, which is considered failure to thrive. Accordingly, DCFS applied for and received an oral instanter order on that date, placing E.O. in the temporary custody of DCFS.

On January 17, 2017, DCFS filed a motion to modify disposition, stating that after issuance of the verbal instanter order, DCFS notified A.S. of the order and A.S. became very hostile and refused to turn over E.O. Nurses at the doctor's office tried to get E.O. from A.S., but A.S. refused and spit on the DCFS worker and called her names. While waiting for law enforcement to arrive, A.S. twice tried to run out of the door with E.O. On her second attempt, the DCFS worker ran after her and A.S. swung and hit the worker in the head. Law enforcement ultimately intervened and removed E.O. from A.S., and A.S. was arrested for simple battery of a child welfare worker, disturbing the peace, simple assault, and obstruction of a court order. E.O. remained in the custody of DCFS and was placed with foster parents.

A case plan was filed into the record on January 17, 2017, noting that A.S. continues to place the child in danger by violating the protective order and failing to seek medical attention for the child when needed. The case plan directed that A.S. is to maintain housing that is physically safe and meets the child's basic needs; contribute payments toward the cost of her child's care while in foster care in the amount of $ 100/month; undergo a substance abuse and mental health assessment; obtain and maintain income; undergo random drug screens; complete anger management and demonstrate an ability to control her emotions and handle conflict in an alternative manner; and complete parenting education.

Thereafter, DCFS filed a motion for consent of medical treatment, because E.O. was in need of a bilateral tube placement and frenulectomy to correct tongue tie and improve feeding problems and speech development, and A.S. had denied her consent to the procedures. The trial court issued an order approving the request on February 21, 2017.

In a May 16, 2017 case plan, it was noted that A.S. had failed to comply with the requirements of her plan. Furthermore, while A.S. stated that she had completed a mental health assessment, attended counseling, and obtained employment at Waffle House, she did not provide any documents verifying her assertions. The goal listed in the case plan was still reunification. Thereafter, DCFS filed a motion to appoint CASA, which was granted.

On November 11, 2017, DCFS completed another case plan, again noting that A.S. had failed to make her parental contributions; refused her consent for medical treatment for E.O and was fifty-two minutes late on the date of E.O.'s surgery; had attended four therapy appointments but missed four appointments and had not been to any appointments within the last five months; had an anger management assessment, missed her next four appointments, but had attended appointments in the last few weeks; was homeless and living in her car; and was currently unemployed. The case plan also noted that A.S. was in a relationship with B.M., who has a criminal history, is on probation, and has been reported to DCFS as being violent toward and controlling of A.S. DCFS indicated that it would be asking for a change in the goal from reunification to adoption. Following a permanency review hearing on November 30, 2017, the trial court approved the goal change from reunification to adoption.

Thereafter, on February 1, 2018, DCFS filed a certification for adoption and petition for termination of parental rights, citing as its basis: (1) E.O. was returned to state's custody during a period of supervision by DCFS; (2) abandonment for failing to provide significant contributions to the child's care and support from 12/12/16 to date and failing to pay child support; and (3) no substantial parental compliance with the case plan and no reasonable expectation of significant improvement in parents' condition or conduct in the near future.

Following a hearing, the trial court signed a judgment ordering that A.S.'s parental rights be terminated under La. Ch. C. arts. 1015(4)(j), 1015(5) and 1015(6) and that C.O.'s parental rights be terminated under La. Ch. C. art. 1015(5) and 1015(6). The judgment further ordered that it is in the best interest of E.O. that the parents' rights be terminated and declared that E.O. is free and eligible for adoption.

A.S. now appeals from the trial court's judgment.

DISCUSSION

Title X of the Louisiana Children's Code governs the involuntary termination of parental rights. Louisiana Children's Code article 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. In order to terminate a person's parental rights, the court must find the State has established at least one of the statutory grounds contained in Article 1015 by clear and convincing evidence. See La. Ch. C. art. 1035(A). Notwithstanding, even upon finding the State has met its evidentiary burden, a court still should not terminate parental rights unless it determines to do so is in the child's best interest. La. Ch. C. art. 1037(B). Whether termination of parental rights is warranted is a question of fact, and a trial court's factual determinations will not be set aside in the absence of manifest error. State ex re. H.A.B., 10-1111, p. 31 (La. 10/19/10), 49 So.3d 345, 368.

In the instant case, the trial court terminated A.S.'s parental rights under La. Ch. C. arts. 1015(4)(j), 1015(5) and 1015(6). On appeal, A.S. contends that the trial court erred in finding that DCFS proved any of these legal grounds for termination of her parental rights by clear and convincing evidence.

Louisiana Children's Code article 1015(4)(j) provides:

(4) Misconduct of the parent toward this child or any other child of the parent or any other child which constitutes extreme abuse, cruel and inhumane treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
* * *
(j) Abuse or neglect after the child is returned to the parent's care and custody while under department supervision, when the child had previously been removed for his safety from the parent pursuant to a disposition judgment in a child in need of care proceeding.

At the termination hearing, DCFS presented evidence that E.O. first came into its care on July 15, 2016, after it was determined that E.O. had received a skull fracture that was inconsistent with the explanation provided by A.S., and that A.S. had been involved in a domestic dispute with E.O.'s father, C.O., prior to E.O.'s injury. A.S. subsequently stipulated that E.O. was a child in need of care. After obtaining a protective order against C.O., the trial court ordered that E.O. be returned to A.S.'s care under the continued supervision of DCFS, and the matter was set for further review on January 24, 2017. However, on December 12, 2016, E.O. was again removed from A.S.'s care by DCFS after receiving a report of neglect/medical neglect and determining that E.O.'s birth weight had decreased from the thirty-eighth percentile to the eighth percentile while in the care of A.S. A.S. did not offer any evidence to contradict that offered by DCFS.

Accordingly, from our review of the record, we find no manifest error in the trial court's finding that DCFS proved this ground for termination of A.S.'s parental rights by clear and convincing evidence.

We also find no manifest error in the trial court's finding that DCFS proved by clear and convincing evidence that A.S.'s parental rights should be terminated under La. Ch. C. art. 1015(5). Louisiana Children's Code article 1015(5) provides:

(5) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child's parent continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.

According to the record, at the time DCFS filed its certification for adoption and petition for termination of parental rights on February 1, 2018, A.S. had not paid child support nor had she provided significant contributions to E.O.'s care and support since E.O. was removed from her care on December 12, 2016, a period of over a year. This fact is not contested by A.S. Furthermore, while A.S. made a payment of a portion of the amount of support/parental contributions that she owed to DCFS immediately prior to the trial of this matter, such payment does not defeat the application of La. Ch. C. art. 1015(5). See La. Ch. C. art. 1015(5) (noting that period for abandonment is as of time the petition for termination is filed); see also In re MDA, 427 So.2d 1334, 1336 (La. App. 2 Cir. 1983).

Furthermore, we find no manifest error in the trial court's finding that DCFS proved by clear and convincing evidence that A.S.'s parental rights should be terminated under La. Ch. C. art. 1015(6). Louisiana Children's Code article 1015(6) provides:

(6) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.

Louisiana Children's Code article 1036, which addresses proof of parental misconduct, provides in pertinent part:

C. Under Article 1015(6), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent's failure to attend court-approved scheduled visitations with the child.
(2) The parent's failure to communicate with the child.
(3) The parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
(4) The parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan.
(5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent's lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
(8)(a) The parent's failure to provide a negative test result for all synthetic or other controlled dangerous substances, except for any drug for which the parent has lawfully received a prescription, at the completion of a reasonable case plan.
(b) For purposes of this Article, "controlled dangerous substance" shall have the meaning ascribed in R.S. 40:961.
D. Under Article 1015(6), lack of any reasonable expectation of significant improvement in the parent's conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

DCFS presented documentary evidence and testimony at the trial in support of its petition to terminate the parental rights of A.S. under La. Ch. C. art. 1015(6). According to the case plan filed into the record, DCFS required A.S. to: (1) maintain housing that is physically safe and meets the child's basic needs; (2) contribute payments toward the cost of her child's care while in foster care in the amount of $ 100.00/month; (3) undergo a substance abuse and mental health assessment; (4) obtain and maintain income; (5) undergo random drug screens; (6) complete anger management and demonstrate an ability to control her emotions and handle conflict in an alternative manner; and (7) complete parenting education.

Subsequent case plans were offered into evidence at trial detailing A.S.'s failure to comply with her case plan. A May 16, 2017 case plan noted that A.S. had failed to comply with the requirements of her plan, and while A.S. stated that she had completed a mental health assessment, attended counseling, and obtained employment at Waffle House, she did not provide any documents verifying her assertions. Additionally, a November 11, 2017 case plan again noted that A.S. had failed to make her parental contributions; refused her consent for medical treatment for E.O and was fifty-two minutes late on the date of E.O.'s surgery; had attended four therapy appointments, missed four appointments, and had not been to any appointments within the last five months; had an anger management assessment, missed her next four appointments, but had attended appointments in the last few weeks;

was homeless and living in her car; and was currently unemployed. The case plan also noted that A.S. was in a relationship with B.M., who has a criminal history, is on probation, and has been reported to DCFS as being violent toward and controlling of A.S.

Additionally, Marla Wright, the DCFS foster care worker assigned to the matter, testified as to A.S.'s compliance with the case plan. According to Wright, A.S. completed parenting education in February 2017. Furthermore, Wright stated that while A.S. did not have a drug screen or substance abuse assessment for the first twelve months of her case, A.S. finally had a substance abuse assessment in December 2017, and has been going to classes since that date and has not tested positive for drugs since that time.

However, as to the other parts of her case plan, Wright stated that despite A.S.'s notification at a permanency hearing in November 2017 that DCFS was changing the goal from reunification to adoption, A.S. failed to demonstrate any progress in complying with her case plan until February 2018 after the petition for termination was filed. According to Wright, A.S. has undergone a mental health assessment and attended eleven appointments, seven of which have been since February 2018. Furthermore, Wright stated that A.S. has failed to pay any parental contribution toward the care of E.O. since E.O. was removed from her care in December 2016, but acknowledged that A.S. presented DCFS with a $ 400.00 money order in March 2018 at the pre-trial conference.

Wright stated that with regard to housing, A.S. has failed to maintain stable housing for the entirety of the case. After E.O. was removed from her care in December 2016, A.S. lived with her father who DCFS had determined was unsuitable due to his criminal history and alcoholism. Wright stated that A.S. informed her in July 2017 that she was living in a trailer, and upon inspection of the trailer, Wright discovered that A.S. was borrowing electricity from her neighbor by the use of extension cords and had a tent set up inside the trailer over a bed. Wright further stated that A.S. informed her in September 2017 that she was homeless; in October 2017 that she was given a camper, but did not provide any further information or address; in November 2017 that she was living in her vehicle; and in February 2018 that she was living with her father. Throughout this period of time, Wright stated that she offered assistance to A.S. in finding suitable housing, including offering to assist her in completing an application for low-income housing through the federal government, but that A.S. never provided her with the employment verification necessary to complete the application. It was not until April 23, 2018, one day prior to the trial of this matter, that A.S. informed Wright that she had been living in a two bedroom trailer in Walker, Louisiana for about one week, which Wright visited and found to be suitable.

Wright further stated that with regard to employment, A.S.'s income has been sporadic. Between March and May 2017, A.S. provided five or six weeks of paycheck stubs from employment at Waffle House. However, Wright did not receive another paycheck stub from A.S. until March 2018, which was for payment of $ 61.00 from the Salad Station. Wright stated that on the day prior to trial, A.S. provided her with a paycheck stub from Waffle House, indicating that she had started working there on April 16, 2018. According to Wright, there is no consistency in A.S.'s income so as to demonstrate that she will be able to provide for E.O.

With regard to anger management, Wright stated that A.S. had completed anger management courses but has not demonstrated an improvement in her ability to manage her temper. Wright stated that during her visitation with E.O. in March 2018, A.S. was told to go inside for the visitation because it was cold and E.O. was not dressed appropriately for the cold weather, and A.S. became angry, flung open the door to the building, yelled at the foster parents, made demeaning comments to the foster father, and yelled as she went into the visiting room. Wright stated that she warned A.S. that if her behavior continued, DCFS would end the visit, and despite this warning, A.S. continued her behavior and DCFS ended the visit.

Finally, Wright noted that A.S. had likewise not changed her behavior with regard to abusive and dangerous relationships. Wright stated that despite A.S.'s completion of a domestic violence program, A.S. admitted in February 2018 that she was in a relationship with B.M., who often accompanied her during the visitations with E.O., and that B.M. was a methamphetamine user and convicted felon, had given her stolen items for which she did not file a report with the police, and been involved in an altercation with her on February 21, 2018.

From our review of the entire record, we cannot say that the trial court was manifestly erroneous in finding that A.S.'s parental rights should be terminated under La. Ch. C. art. 1015(6). As noted by Wright, while A.S. may have taken steps in the right direction at the very end, she had the opportunity throughout the duration of her case to show that she was willing and able to care for E.O. and failed to do so. Furthermore, the evidence clearly indicates that A.S. has failed to show a change in her behavior.

In addition, we find no error in the trial court's determination that termination of A.S.'s parental rights is in the best interest of E.O. As noted above, A.S. has demonstrated an inability to comply with her case plan and continues to demonstrate an inability to make good, safe choices for herself and her child. At the time of trial, E.O. was twenty-two months old and had lived with his foster parents for eighteen of those months. According to Wright, E.O. has bonded with his foster parents and is happy and progressing well. Wright stated that the foster parents have taken good care of E.O. and treat him like he was their own. Therefore, considering the evidence in the record demonstrating grounds for termination and that termination of A.S.'s parental rights is in the best interest of E.O., we find no error in the trial court's judgment terminating A.S.'s parental rights and finding E.O. is free and eligible for adoption.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to A.S.

AFFIRMED.

      The trial court initially placed E.O. with his maternal grandparents. However, E.O. was removed and placed with foster parents when DCFS learned that the maternal grandparents were not suitable.

      We note that A.S.'s behavior at trial further evidenced that her behavior has not changed. During the testimony of the DCFS worker regarding the events that occurred on December 12, 2016 when E.O. was removed from the care of A.S., including the violent behavior exhibited by A.S., A.S. began laughing, which was specifically pointed out by the trial court on the record.


source: Caselaw Access Project

author: MCCLENDON, J.

license: Public Domain

text:
    Stefanie Nelson BERNARD v. Matthew Scott BERNARD
    Linda Allen v. Stefanie Nelson Bernard and Matthew Scott Bernard
    2018 CU 1149 2018 CU 1150
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 12, 2019
    Dede Sabagh Ferrara Walker, LA, Counsel for Appellant, Matthew Scott Bernard
    Sherman Q. Mack, C. Glenn Westmoreland, Emily Guidry Jones, Albany, LA, Counsel for Appellee, Linda Allen
    BEFORE: WHIPPLE, C.J., McCLENDON, HIGGINBOTHAM, JJ.
   MCCLENDON, J.

In this custody dispute, the father seeks reversal of the trial court's judgment that granted sole custody of his biological child to the child's maternal grandmother. For the reasons that follow, we reverse the portion of the judgment that awards sole custody of the child to the child's maternal grandmother and vacate the remainder of the judgment which sets forth the visitation schedule. We award joint custody to the father and maternal grandmother, with the grandmother to be domiciliary custodian, and remand to the trial court to establish a joint custody visitation schedule.

FACTS AND PROCEDURAL HISTORY

The child, S.M.B., was born in October 2009 during the marriage of Matthew Scott Bernard and Stefanie Nelson Bernard. The couple separated and subsequently divorced when S.M.B. was very young. Stefanie was awarded sole custody of S.M.B. in a considered decree rendered on March 29, 2010. Although Matthew was awarded reasonable visitation, it is undisputed that he did not have a significant role in S.M.B.'s life until December 2015. This is, at least in part, due to Matthew's incarceration. Since his release in December 2015, Matthew has maintained regular contact and visitation with S.M.B. The record reveals that Matthew has turned his life around and has become a productive, law-abiding member of society.

S.M.B., who was nearly eight years old at the time of the instant custody proceeding in September 2017, has lived most of his life with his maternal grandmother, Linda Allen. For the majority of that time, S.M.B. lived in Linda's home with his mother, Stefanie. However, Stefanie became addicted to drugs after S.M.B. was born and, in March 2016, six-year-old S.M.B. found his mother unconscious on the bathroom floor of Linda's home, with needles in close proximity. Linda testified that prior to this she was unaware that Stefanie was using drugs in her home. As a result of her drug use, Stefanie has not lived in Linda's home with S.M.B. since March 2016. Instead, Stefanie has been in and out of drug rehabilitation and/or sober living facilities.

Due to Stefanie's addiction, Matthew filed a petition to modify custody in September 2016, naming Stefanie as a defendant. In his first amending and supplemental petition to modify custody and rule for contempt, Matthew clarified that he was seeking sole custody of S.M.B. In response to Matthew's petition, Linda filed a petition for child custody against Stefanie and Matthew in which she sought sole custody of S.M.B. with Stefanie and Matthew to enjoy supervised visitation. The matters were consolidated for purposes of determining custody.

The initial custody trial took place in February 2017. After hearing testimony from Linda, Stefanie, Matthew, and witnesses on Matthew's behalf, the trial court entered an interim order granting sole custody to Linda Allen with reasonable custodial periods in favor of Matthew. Specifically, the trial court awarded visitation to Matthew on alternating weekends and on Wednesdays following his weekend visitation. Linda was ordered to keep Matthew and Stefanie informed of all medical and educational issues concerning S.M.B. and to include them as authorized persons to receive information from third parties concerning S.M.B.'s school and educational issues. The trial court acknowledged Matthew's significant transformation but expressed concern that removing S.M.B. from Linda's home, the only stable home he has ever known, was not in S.M.B.'s best interest. The trial court awarded custody on an interim basis to enable Matthew to accept more parental responsibility before custody was determined on a permanent basis. At the close of the February 2017 proceeding, the court stated that it intended to reunite S.M.B. with his parents if they continued to make improvements.

The hearing to review custody and to establish a permanent custody plan took place on September 28, 2017. The trial court again heard testimony from Linda, Matthew, and witnesses on Matthew's behalf concerning S.M.B.'s welfare and his relationship with Matthew since the February 2017 interim order. At the conclusion of the hearing, the trial court awarded sole custody to Linda, with Matthew to enjoy liberal visitation on alternating weekends, Wednesdays, holidays, and during the first and third weeks of June and July. A detailed visitation schedule was set forth in the judgment. Stefanie was awarded visitation as mutually agreed upon by Stefanie and Linda. Linda was again ordered to keep Matthew and Stefanie informed of all medical and educational issues concerning S.M.B. and to include them as authorized persons to receive information from third parties concerning S.M.B.'s school and educational issues.

A judgment was signed on November 6, 2017. Matthew timely filed a motion for new trial, which was denied in January 2018. Following this, Matthew filed the instant appeal, assigning the following as error:

The trial court erred in awarding custody of the minor child to Linda Allen because she failed to prove that an award of custody to the father would result in substantial harm to the child.

DISCUSSION

Although a considered decree of custody exists between S.M.B.'s parents, it is undisputed that Stefanie, who was previously awarded sole custody, is unable to care for S.M.B. due to her drug dependency. Stefanie candidly testified that it would be detrimental to S.M.B. if she retained sole custody and acknowledged that a significant change in circumstances has occurred since the original custody decree in 2010. Therefore, modification of the preexisting custody arrangement was required.

This proceeding is the initial custody contest between a parent and a nonparent. In a conflict between a parent and a nonparent, the parent enjoys the paramount right to custody of a child and may be divested of that right only for compelling reasons shown by clear and convincing evidence. LSA-C.C. art. 133 ; see also Smith v. Tierney, 04-2482 (La.App. 1 Cir. 2/16/05), 906 So.2d 586, 590.

In such an initial custody contest between a parent and a nonparent, the burden of proof is on the nonparent to show that granting custody to the parent would result in substantial harm to the child, thus necessitating an award of custody to a nonparent. LSA-C.C. art. 133. In this circuit, the words "substantial harm" carry no magical connotation. "Detrimental" and "substantial harm" have been used interchangeably in the jurisprudence. Smith, 906 So.2d at 590. If divestiture or modification of parental custody is warranted under the article 133 test, custody is awarded in the best interest of the child in the following order of preference: to "another person with whom the child has been living in a wholesome and stable environment, or otherwise to any person able to provide an adequate and stable environment." Smith, 906 So.2d at 590.

The best interest of the child is the guiding principle in all custody determinations. The factors set forth in LSA-C.C. art. 134 for determining the best interest of the child "should be followed in actions to change custody, as well as in those to fix it initially." Tracie F. v. Francisco D., 15-1812 (La. 3/15/16), 188 So.3d 231, 239, citing LSA-C.C. art. 134, Revision Comment (d) (emphasis original).

The trial court is vested with broad discretion in child custody and visitation proceedings because of its superior opportunity to observe the parties and the witnesses who testified at trial. Accordingly, on appeal, the trial court's custody determination is entitled to great weight and should be overturned only when there is a clear abuse of discretion. Smith, 906 So.2d at 591.

Based on the trial court's oral reasons for ruling at the conclusion of the September 2017 custody hearing, it appears the trial court's decision to grant sole custody to the child's grandmother was based, in large part, on the length of time Linda has been S.M.B.'s primary caregiver. The court concluded that removing S.M.B. from Linda's home would cause substantial harm to the child. The record supports this conclusion, and we agree that an award of sole custody to Matthew would be contrary to the best interest of the child. See LSA-C.C. art. 134(4), (5) and (12). However, this finding alone is not sufficient to divest Matthew of all custody rights to S.M.B. Pursuant to LSA-C.C. art. 133, joint custody may be awarded to a parent and nonparent when an award of joint custody to one parent would not cause substantial harm to the child. See LSA-C.C. art. 133, Revision Comment (c); Smith, 906 So.2d at 590 ; McCormic v. Rider, 09-2584 (La. 2/12/10), 27 So.3d 277, 279-80, citing Smith with approval and reinstating the trial court judgment awarding joint custody to the child's biological parents and grandmother (who was also the child's adopted mother).

The record does not establish that an award of joint custody to Matthew would cause substantial harm to the child. Aside from Linda's role as primary caregiver for most of S.M.B.'s life, the parties equally satisfy many of the remaining best interest of the child factors set forth in LSA-C.C. art. 134. Both Linda and Matthew are willing and able to provide a safe and stable home for S.M.B. from this point forward. Each ensures that S.M.B.'s basic needs are met and both provide S.M.B. with his own room in their respective homes. See LSA-C.C. art. 134(3). Matthew and Linda's homes are located within one mile from each other, in the same school district, which will enable the parties to share custody with minimal disruption to S.M.B.'s daily routines. See LSA-C.C. art. 134(8) and (11).

Matthew's absence for the first half of S.M.B.'s life and his criminal record loom over his current efforts to regain custody of his son. However, the trial court recognized, as do we, that Matthew has made significant changes and improvements in his life. He is actively involved in his church and attends church services regularly with S.M.B. It is evident that Matthew is eager to continue teaching his son about his faith and hopes that, because of his troubled past, he will be able to guide S.M.B. away from repeating the same mistakes he made. For her part, Linda testified that she does not attend church and there is no evidence regarding her ability to provide spiritual guidance to S.M.B.; however, there is no indication she is moral ly unfit. Both parties appear to be of sound mental and physical health. See LSA-C.C. art. 134(2), (6), and (7).

The record further establishes that Matthew is affectionate and patient with his son. Witnesses confirmed that S.M.B. enjoys being with this father and has benefitted from Matthew's presence in his life. However, Linda testified that, even when Stefanie lived with them, S.M.B. relied on her as his primary parental figure. See LSA-C.C. art. 134(1) and (2). S.M.B. is doing well in school and is involved in extracurricular activities. Although Linda deserves the credit for ensuring that S.M.B. is well-rounded and well-adjusted, Matthew has taken an active role in these aspects of his son's life over the last (nearly) three years. Matthew attends S.M.B.'s school functions and sporting events. See LSA-C.C. art. 134(2).

This court shares the trial court's concern over Linda's demonstrated unwillingness to facilitate and encourage a close and continuing relationship between S.M.B. and his father. See LSA-C.C. art. 134(10). The record supports the trial court's observation that Linda harbors resentment toward Matthew for his prior disinterest in S.M.B., makes unilateral decisions concerning S.M.B. without consulting Matthew, fails to communicate with Matthew, and is unwilling to accommodate Matthew's requests to modify the visitation schedule. However, Linda has been the primary caregiver, and S.M.B. has clearly thrived while in her care. Additionally, we are cognizant of the fact that Matthew was absent from his son's life for an extended period of time and has a prior criminal history.

Every child custody case must be considered in light of the unique circumstances presented, and the best interest of the child is the chief consideration in all custody determinations. In addition to this, courts must be mindful of a parent's paramount right to the custody of his child. Deville v. LaGrange, 388 So.2d 696, 698 (La. 1980).

Guided by these principles, and after a careful review of the record, we are constrained to find that the trial court abused its discretion in entirely divesting Matthew of custodial rights to his child in favor of a nonparent. While we agree that the record supports the conclusion that awarding sole custody to Matthew and removing S.M.B. from Linda's home would cause substantial harm to the child, we cannot conclude that substantial harm would be caused to S.M.B. by an award of joint custody to Matthew. Instead, we find that an award of joint custody to Linda and Matthew would be in the best interest of the child. Therefore, we reverse the portion of the judgment that divests Matthew of all custodial rights and awards sole custody to Linda. We award joint custody to Linda and Matthew and appoint Linda as domiciliary custodian. Because the parties are awarded joint custody, Linda must confer with Matthew when making all major decisions regarding S.M.B. See LSA-R.S. 9:336 ; Griffith v. Latiolais, 10-0754 (La. 10/19/10), 48 So.3d 1058. In light of this determination, we vacate the remainder of the judgment setting forth the visitation schedule and remand to the trial court to establish a joint custody visitation schedule.

CONCLUSION

For the foregoing reasons, the portion of the trial court's November 6, 2017 judgment awarding sole custody of the minor child, S.M.B., to his maternal grandmother, Linda Allen, is reversed, and the remainder of the judgment setting forth the visitation schedule is vacated. Matthew Scott Bernard and Linda Allen are hereby awarded joint custody of S.M.B., with Linda Allen designated as domiciliary custodian. This matter is remanded to the trial court to establish a joint cusotdy visitation schedule.

Costs of this appeal are assessed one-half to the appellant, Matthew Scott Bernard, and one-half to the appellee, Linda Allen.

REVERSED IN PART, VACATED IN PART, AND REMANDED.

      Matthew served a three-and-a-half-year federal prison sentence for bank fraud and was released in December 2015. Matthew also served two prior prison sentences of unknown durations. According to witnesses, Matthew was convicted of first degree robbery at the age of 17, nearly 30 years ago. His second conviction was in 2000 for possession of a firearm by a convicted felon.

      Stefanie and S.M.B. lived in Linda's home with the exception of a total of two years, first when S.M.B. was two years old, then again when he was five.

      Matthew filed a rule for contempt against Stefanie because he was denied visitation with S.M.B. in the fall of 2016, contrary to the consent decree. The disposition of this request is not evident from the record, and Matthew does not raise this as an issue on appeal.

      Stefanie was awarded visitation as could be agreed upon by Stefanie and Linda.

      Linda argues that custody was initially established between her and Matthew in February 2017; therefore, she did not have the burden of proving substantial harm at the September 2017 custody review. However, the trial court expressly ruled that the February 2017 ruling was an interim order, entered without prejudice to either party, to be reviewed prior to entry of a permanent custody plan. Consequently, the cases cited by Linda on this issue are inapposite. See McCoy v. Brock, 41,948 (La.App. 2 Cir. 2/28/07), 953 So.2d 885 ; Hill v. Hill, 602 So.2d 287 (La.App. 2 Cir. 1992).

      Louisiana Civil Code art. 134 was amended by Acts 2018, No. 412, § 1, eff. May 23, 2018. Since the trial court judgment was rendered prior to the amendment, all citations to this article are to the pre-amendment version. The relevant change to article 134, as it relates to the present matter, is the addition of revised subpart (8) which considers the criminal activity of any party. Matthew's criminal history as well as his current lifestyle are addressed in this opinion.

      In McCormic, 27 So.3d at 279-80, an award of sole custody to the grandmother was not in the best interest of the child but neither was removing the child from her home, where he had lived for most of his life. Therefore, an award of joint custody was appropriate.

      At the time of the September 2017 hearing, Matthew had recently moved into a home where he intended to live with this wife, once the couple was married, along with S.M.B. and his soon-to-be step daughter. Linda and S.M.B. are the only permanent residents of her home.

      In light of S.M.B.'s age, his reasonable preference is not considered. See LSA-C.C. art. 134(9).

      At the time of the hearing in September 2017, Matthew was engaged to be married. The couple intended to be married in early September 2017; however, the wedding was postponed due to a family member's unexpected health condition. The couple expressed their intent to be married as soon as possible.

      Neither Linda nor Matthew prayed for joint custody; however, this court may enter any judgment which is just, legal, and proper upon the record on appeal. See LSA-C.C.P. art. 2164. See also Griffith v. Latiolais, 10-0754 (La. 10/19/10), 48 So.3d 1058, 1071.

      Although Linda is named domiciliary custodian, she is statutorily obligated to exchange information with Matthew and Stefanie concerning S.M.B.'s health, education, and welfare and to confer with them in exercising decision-making authority. See LSA-R.S. 9:336.

      By our ruling, we express no opinion regarding the current visitation schedule.


text:
    ATCHAFALAYA BASINKEEPER, Louisiana Bucket Brigade and 350 New Orleans v. BAYOU BRIDGE PIPELINE, LLC and Chris Martin
    NUMBER 2018 CA 0417
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 22, 2019
    Pamela C. Spees, New York, NY, William P. Quigley, New Orleans, LA, Counsel for Plaintiffs/Appellants Atchafalaya Basinkeeper, Louisiana Bucket Brigade & 350 New Orleans
    James C. Percy, Baton Rouge, LA, Marjorie A. McKeithen, New Orleans, LA, Nicole M. Duarte, Houston, TX, Counsel for Defendants/Appellees, Bayou Bridge Pipeline, LLC and Chris Martin
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   GUIDRY, J.

Plaintiffs/appellants, Atchafalaya Basinkeeper, Louisiana Bucket Brigade, and 350 New Orleans, appeal from a judgment of the trial court sustaining an exception raising the objection of no cause of action filed by defendants, Bayou Bridge Pipeline, LLC and Chris Martin. For the reasons that follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

On December 6, 2017, plaintiffs sent Bayou Bridge Pipeline (BBP) a written request for any and all public records related to the proposed Bayou Bridge Pipeline. Plaintiffs directed the public records request to BBP on the grounds that the company has claimed authority to expropriate private property in Louisiana pursuant to "common carrier" status under La. R.S. 45:251(1) and was functioning as an instrumentality of the government and therefore subject to the Louisiana Public Records Act. BBP, however, disagreed that it was subject to the Public Records Act or that it was obligated to produce the records requested.

Thereafter, when BBP failed to produce the records requested, plaintiffs filed a petition for writ of mandamus under the Louisiana Public Records Act, naming BBP and Chris Martin, President of BBP, as defendants. Plaintiffs requested that a writ of mandamus be issued directing BBP to disclose the records requested or show cause why they should not be ordered to do so as well as attorney's fees, costs, damages, and civil penalties. Defendants responded by filing an answer and asserting several exceptions. Particularly, defendants asserted that plaintiffs do not have a cause of action in mandamus for performance of a public duty, because (1) such an action lies only against a public officer and not against a limited liability company and (2) BBP is not a public body with a custodian under La. R.S. 44:1.

On January 25, 2018, the trial court held a hearing on plaintiffs' petition for mandamus and took up defendants' exception raising the objection of no cause of action. The trial court issued an oral ruling sustaining the exception and thereafter signed an order on February 5, 2018, in conformity with its ruling and giving plaintiffs fifteen days from the date of the hearing to amend the petition to state a cause of action and ordering that if plaintiffs fail to amend the petition to state a cause of action, the action shall be dismissed, with prejudice.

Plaintiffs filed a motion and order for appeal of the February 5, 2018 order, which the trial court granted on February 26, 2018. However, this court, on March 28, 2018, issued a rule to show cause, stating that the February 5, 2018 order appears to be a non-appealable judgment because it contains conditional language. Thereafter, on May 29, 2018, the trial court signed another judgment, stating that plaintiffs had failed to amend the petition within the time provided by the court and dismissed plaintiffs' action with prejudice. The plaintiffs supplemented the appellate record with this judgment, and a separate writ panel of this court maintained plaintiffs' appeal. Thereafter, defendants filed a motion to dismiss the appeal, asserting that the plaintiffs have no right to appeal from the February 5, 2018 order, because it is not a final appealable judgment and further that this court lacks appellate jurisdiction to review the trial court's May 29, 2018 judgment dismissing plaintiffs' action because plaintiffs did not move to appeal from that judgment.

DISCUSSION

In opposing defendants' motion to dismiss the appeal, plaintiffs contend that this court, and the parties, are bound by the writ panel's March 28, 2018 order maintaining the appeal. However, this court has held that a regular appeal panel has the authority, and indeed the duty, to review, overrule, modify, and/or amend a writ panel's decision on an issue when, after reconsidering the issue to the extent necessary to determine whether the writ panel's decision was correct, the appeal panel finds that the writ panel's decision was in error. Joseph v. Ratcliff, 10-1342, p. 4 (La. App. 1st Cir. 3/25/11), 63 So.3d 220, 223. Mere doubt as to the correctness of the prior ruling by a writ panel is not enough to change the prior ruling; only where it is manifestly erroneous or application of the law of the case doctrine would result in an obvious injustice should we overrule or modify the prior ruling. Joseph, 10-1342 at p. 4, 63 So.3d at 223. Furthermore, the discretionary law of the case principle does not bar us from reconsidering our prior rulings, especially when the previous decision was clearly erroneous and would result in an inappropriate review of a non-appealable judgment. Joseph, 10-1342 at pp. 4-5, 63 So.3d at 223-224.

This court's jurisdiction extends to final judgments and interlocutory judgments expressly provided by law. La. C.C.P. art. 2083. A ruling that sustains a peremptory exception and allows a period of time for an amendment of the petition is not a final judgment or an appealable interlocutory judgment. B.G. Mart, Inc., v. Jacobsen Specialty Services, Inc., 16-675, pp. 1-2 (La. App. 5th Cir. 2/8/17), 213 So.3d 1238, 1239 ; see also Shahla v. City of Port Allen, 601 So.2d 746, 750 (La. App. 1st Cir. 1992).

In the instant case, the plaintiffs filed a motion to appeal only as to the February 5, 2018 order, which sustained the defendants' exception raising the objection of no cause of action and gave plaintiffs fifteen days from the date of the hearing to amend the petition to state a cause of action. This order, therefore, clearly is not a final appealable judgment, and the writ panel's previous ruling maintaining the appeal was in error. Furthermore, because plaintiffs failed to appeal from the trial court's May 29, 2018 judgment sustaining defendants' exception raising the objection of no cause of action and dismissing plaintiffs' action with prejudice, this court lacks appellate jurisdiction to review that judgment.

Therefore, for the foregoing reasons, we dismiss the appeal and assess all costs of this proceeding to plaintiffs, Atchafalaya Basinkeeper, Louisiana Bucket Brigade, and 350 New Orleans.

APPEAL DISMISSED.


author: PENZATO, J.

text:
    Dawn GUY v. KELPS & WILL PROP SHOP
    2018 CA 0956
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 26, 2019
    Maxwell P. Smitko, Jerri G. Smitko, Houma, Louisiana, Attorneys for Plaintiff/Appellant Dawn Guy
    Renée C. Willis, Baton Rouge, Louisiana, Attorney for Defendant/Appellee Kelps & Will Prop Shop
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   PENZATO, J.

In this workers' compensation proceeding, appellant, Dawn Guy, appeals a judgment dismissing her claims against her employer, appellee, Kelps & Will Prop Shop (Kelps). For the reasons that follow we affirm.

FACTS AND PROCEDURAL HISTORY

Mrs. Guy began working at Kelps in 2007, with her duties including cleaning the building. On September 27, 2016, Kelps terminated Mrs. Guy due to a reduction in workforce. Her husband, Will Guy, who also worked at Kelps, was terminated on October 21, 2016, for the same reason as Mrs. Guy, a reduction in workforce. On December 5, 2016, Mrs. Guy filed a claim for workers' compensation against Kelps, claiming that on October 23, 2014, she suffered a work-related injury while lifting a heavy object.

Mrs. Guy testified at trial that on the date of her injury, she was lifting a garbage bag when she felt a sudden stinging, burning pain in the middle of her back. She let her husband know of the injury that day. The only person at Kelps that she informed about the injury was Gisele Andras, the bookkeeper. Mrs. Guy testified that Ms. Andras instructed her to go to the doctor and that the company would reimburse her for the visit. Ms. Andras testified that she did not know of Mrs. Guy's injury until after the doctor visit when Mrs. Guy submitted a receipt for reimbursement.

Although in her workers' compensation claim, Mrs. Guy asserted that the injury occurred on October 23, 2014, she testified at trial that the injury actually occurred about a week prior to that date, and the medical records are consistent with her testimony. Mrs. Guy was initially treated on October 23, 2014, at the Houma Family Practice Clinic by Dr. Rhonesia Simmons, a primary care physician, who diagnosed her with muscle strain and prescribed a heating pad and Flexeril, a muscle relaxer, as treatment for her injury. Mrs. Guy's medical records reveal that she only complained of mid-back pain at that time, with no complaints being made as to her low back, right hip, or in the groin area. Her medical records also reveal that she had previously seen Dr. Simmons on February 27, 2014, complaining of trouble sleeping, low back pain, and other non-related issues.

Dr. Kirk Dantin treated Mrs. Guy for subsequent visits beginning on January 6, 2015. On that date, Mrs. Guy saw Dr. Dantin for low blood pressure and made no complaints of back pain or hip pain. Dr. Dantin saw Mrs. Guy a week later on January 22, 2015, and she again voiced no complaints of back or hip pain. He testified that a muscle strain usually resolves within anywhere from a few days to a few months.

On April 7, 2015, Mrs. Guy returned with a multitude of complaints, including right hip pain. There was no notation in the medical record of how long she had been suffering hip pain, and following an X-ray, Dr. Dantin determined she had mild degenerative changes in the hip. Dr. Dantin testified that an MRI of Mrs. Guy's hip was ultimately performed on April 28, 2015. The MRI record indicates a history of right hip pain from a fall. Dr. Dantin testified that the study showed an anatomic variant, but required no treatment. Dr. Dantin did not see Mrs. Guy again until April 18, 2016, when she was treated for nasal congestion. She made no mention of back or hip pain at that visit. Dr. Dantin next saw her on October 25, 2016, for pre-operative clearance.

Mrs. Guy testified that she treated with Dr. Jake Bordelon, a chiropractor, beginning in August 2015 for three to four months. The medical records from Dr. Bordelon indicate that he treated Mrs. Guy's entire spine and her right hip.

On September 6, 2016, nearly two years after the workplace accident, Mrs. Guy saw Dr. Phillip McAllister, a neurosurgeon, complaining of low back pain, right hip pain, and balance issues. She provided information in a pre-appointment questionnaire that indicated she had not been hurt at work. Dr. McAllister performed a physical examination and determined that Mrs. Guy was experiencing problems related to her cervical spine. He recommended that she undergo MRI examinations of her cervical and lumbar spine. Dr. McAllister saw Mrs. Guy again on October 4, 2016, at which time her complaints were low back pain, right hip pain, and balance issues. The lumbar MRI reflected some mild facet changes, small anterior osteophytes, disc desiccation, and rudimentary disc at S1-S2, but an otherwise normal lumbar spine. There was also a suggestion of a tiny annular tear at L5-S1. The study of the cervical spine noted disc protrusion at C3-4 with nerve and spinal cord compression.

Dr. McAllister diagnosed Mrs. Guy with cervical stenosis with myelopathy and radiculopathy, and he recommended a cervical fusion. Mrs. Guy did not provide a history to Dr. McAllister of any accidents or trauma or that her condition was work related. Dr. McAllister did not treat Ms. Guy after October 4, 2016, and his medical records note that she was turning the matter over to workers' compensation. When asked if her spinal condition was related to a work injury, Dr. McAllister testified that he did not have a history from the patient of a work-related injury. He further indicated that it would not be possible for Mrs. Guy's cervical injury to cause pain in the low back region. He testified that someone cannot pick up a box and develop the degree of degenerative disease suffered by Mrs. Guy. Speaking hypothetically, he indicated that if a patient had enough pre-existing nerve root or cord compression and lifted something that compressed either the blood supply or the spinal cord enough at that time, it could cause an acute neural injury.

After Dr. McAllister recommended a C3-4 fusion, Mrs. Guy was scheduled to have surgery on November 4, 2016. She testified that she cancelled the surgery because her insurance was terminated.

The parties stipulated that Kelps reimbursed Mrs. Guy her $ 30.00 co-pay for the October 23, 2014 medical visit. Mrs. Guy testified that the pain in her lower back extends to her right hip. She also stated that she saw Dr. Dantin on numerous occasions and reported pain in her back. However, the medical records reflect that Mrs. Guy saw Dr. Dantin on January 6, 2015, January 22, 2015, and April 7, 2015, and there is no report of any injury or back pain on those dates.

The workers' compensation judge (WCJ) held a trial on October 3, 2017, and rendered oral reasons for judgment on February 27, 2018. The WCJ determined that Mrs. Guy had a minor accident on or around October 23, 2014, which resulted in a minor muscle strain to her mid-back. The WCJ also found that because Mrs. Guy's $ 30.00 co-pay was reimbursed by Kelps, she was not entitled to any additional medical benefits, and that the parties stipulated that any claim for indemnity benefits was prescribed. The WCJ also determined that Mrs. Guy had not carried her burden of proof that any injuries to her lower back, right hip, or cervical spine were caused by an accident or injury within the course and scope of her employment and signed a judgment in accordance with her oral ruling on March 23, 2018, dismissing Mrs. Guy's claims. It is from this judgment that Mrs. Guy appeals.

STANDARD OF REVIEW

Although the Louisiana Constitution extends appellate jurisdiction in civil cases to both law and facts, the exercise of this power is limited by the jurisprudential rule that factual determinations of the trier of fact will not be set aside by a reviewing court unless they are manifestly erroneous or clearly wrong. Brewer v. J.B. Hunt Transp., Inc. , 2009-1408 (La. 3/16/10), 35 So.3d 230, 237. It is well-settled that a court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). Accordingly, appellate review of the factual circumstances and evidence of the case will not be the basis for reversal of the trial court's judgment, in the absence of manifest error, even if the court of appeal is convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell , 549 So.2d at 844. If the factual findings are found to be reasonable and supported by the record, the trial court's determinations must be given much discretion, especially in regard to the credibility of witness testimony, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell , 549 So.2d at 844. Consequently, when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Stobart v. State, Dep't of Transp. & Dev. , 617 So.2d 880, 883 (La. 1993).

LAW AND DISCUSSION

Workers' compensation laws provide coverage to an employee for personal injury by accident arising out of and in the course of employment. La. R.S. 23:1031(A). An employee must prove the chain of causation required by the workers' compensation statutory scheme. He must establish that the accident was work-related, that the accident caused the injury, and that the injury caused the disability. Initially, a workers' compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Next, he must establish a causal connection between the accident and the resulting disability by a preponderance of the evidence. Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the fact finder based on all credible evidence. Magee v. Abek, Inc. , 2004-2554 (La. App. 1 Cir. 4/28/06), 934 So.2d 800, 806, writ denied , 2006-1876 (La. 10/27/06), 939 So.2d 1287.

As a threshold requirement, a worker in a compensation action must establish "personal injury by accident arising out of and in the course of his employment." La. R.S. 23:1031(A) (emphasis supplied); Bruno v. Harbert Int'l Inc. , 593 So.2d 357, 360 (La. 1992). The plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. A worker's testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. Bruno , 593 So.2d at 361. Corroboration of the worker's testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Bruno , 593 So.2d at 361. Barring circumstances that cast suspicion on the reliability of the worker's uncontradicted testimony, the fact finder should accept the testimony as true when determining whether the worker has discharged his burden. Brown v. Kwok Wong , 2001-2525 (La. App. 1 Cir. 12/20/02), 836 So.2d 315, 319. In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness's uncontradicted testimony, although the witness is a party, absent "circumstances casting suspicion on the reliability of this testimony." Bruno , 593 So.2d at 361 (quoting West v. Bayou Vista Manor, Inc. , 371 So.2d 1146, 1147 (La. 1979) ; citing Holiday v. Borden Chemical , 508 So.2d 1381, 1383 (La. 1987) ). If the evidence leaves the probabilities of causation equally balanced, the worker has failed to carry his or her burden of proof. Harrison v. Baldwin Motors , 2003-2682 (La. App. 1 Cir. 11/3/04), 889 So.2d 313, 316, writ denied , 2005-0249 (La. 4/1/05), 897 So.2d 609. Whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ and are not to be disturbed on review unless clearly wrong. Bruno , 593 So.2d at 361.

A claimant's lack of credibility on factual issues can serve to diminish the veracity of his complaints to a physician. Thus, in many cases, the credibility of the history given by the claimant to his physicians becomes as important as the medical opinions based in part on that history. The rule that questions of credibility are for the trier of fact applies also to the evaluation of expert testimony. Magee , 934 So.2d at 807.

Mrs. Guy alleges that the WCJ erred in determining that her cervical injury requiring surgery was not work related. Mrs. Guy argues that she suffered a work-related injury in October 2014, reported the injury to her co-worker, and received treatment which was paid for by Kelps. She claims that she did not file for worker's compensation benefits at the time of the injury because she was misled to believe that she had an ownership interest in the company. She asserts that after she was terminated, she learned that she had no ownership interest in Kelps and then filed her claim for workers' compensation.

The WCJ found that Mrs. Guy did sustain a minor injury around October 23, 2014. Based on the medical evidence, the WCJ found that Mrs. Guy had not carried her burden of proof that the cause of the problems she currently exhibited in her back, neck, and right hip, and the need for neck surgery, were caused by the October 2014 injury.

In the present case, there is evidence that discredits Mrs. Guy's version of the incident and her testimony is not corroborated by the medical evidence. There is evidence that Mrs. Guy was experiencing low back pain on February 27, 2014, prior to the October 2014 injury. When she initially was seen by Dr. Simmons after the October 2014 incident, she complained only of mid-back pain. On subsequent visits to Dr. Dantin, Mrs. Guy did not complain of back pain, neck pain, or right hip pain. She first complained of right hip pain related to a fall on April 7, 2015, at which time her physical examination was normal. Dr. Dantin opined that the injury Mrs. Guy suffered in October 2014, a muscle strain, should have resolved within anywhere from a few days to a few months. Mrs. Guy first saw Dr. McAllister almost two years after the October 2014 injury, complaining of low back pain, right hip pain, and balance issues. She denied a work-related injury and did not provide a history of accident or trauma to Dr. McAllister.

The only testimony linking the cause of Mrs. Guy's current complaints to the October 2014 injury is that of Mrs. Guy. However, her testimony is not corroborated by other evidence. Given the lack of corroboration in the medical records and medical testimony as to causation, we agree with the WCJ that Mrs. Guy did not carry her burden of proof.

The WCJ found that, taking into consideration the timing as to the dates of visits, dates of treatment, breaks in time between treatment, and the timing between her various complaints, Mrs. Guy initially suffered a minor muscle strain to her mid-back, which had resolved by January 2015. As to Mrs. Guy's remaining cervical, lumbar, and right hip complaints, the WCJ found Mrs. Guy did not carry her burden of proof that any injury to those areas was caused by the October 2014 incident.

We find the factual findings of the WCJ to be reasonable and supported by the record. Therefore, the WCJ's determinations must be given much deference, and we do not find the ruling to be manifestly erroneous or clearly wrong. See Rosell , 549 So.2d at 844.

CONCLUSION

For the above and foregoing reasons, we affirm the March 23, 2018 judgment of the WCJ. All costs of this appeal are assessed against the appellant, Dawn Guy.

AFFIRMED.

      As noted earlier, Ms. Guy did report right hip pain to Dr. Dantin with a history of a fall on April 7, 2015.

      The trial transcript has the date of the trial as October 3, 2016. However, based on the entirety of the record and the fact that the judgment lists the trial date as October 3, 2017, it is evident that the trial was conducted on the date contained in the judgment.


author: THERIOT, J.

text:
    Guy ADAMS v. Brandi Ballard ADAMS
    NO. 2018 CU 1153
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 22, 2019
    Todd C. Comeaux, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, Guy Adams
    Mary E. Heck Barrios, Denham Springs, Louisiana, Counsel for Defendant/Appellee, Brandi Ballard Adams
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   THERIOT, J.

Guy Adams appeals the "Interim Judgment on Rules" rendered by the Twenty-First Judicial District Court, which granted Brandi Ballard Adams' request for child support on an interim basis. For the following reasons, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

Guy Adams ("Mr. Adams") filed a petition of divorce against his wife, Brandi Ballard Adams ("Ms. Adams"), on December 15, 1997. They had one daughter during the marriage, who was a year old at the time the petition was filed. The trial court awarded joint custody while the divorce was pending. A judgment of divorce was signed by the trial court on April 27, 1998.

On July 31, 1998, Ms. Adams filed a rule to set child support and temporary restraining order. The trial court held a hearing on the matters on December 11, 1998. The only witnesses to testify at this hearing were Ms. Adams and her cousin, who often babysat the child. After the witness testimony, the trial court continued the case to March 22, 1999. In the interim, with no prejudice to either party, the trial court named Ms. Adams as the domiciliary parent. The trial court also ordered Mr. Adams to pay $ 260.00 per month to Ms. Adams, with the caveat that such payment would be "temporary" until the March 22, 1999 hearing and that they would "start from scratch" when the hearings continued in March. The trial court summarized its ruling by stating, "I guess really all we'd be doing is saying primary domicile and $ 260 a month child support."

The record reveals that the hearing on December 11, 1998 was never resumed. The record also reveals the original trial court judge recused himself on April 9, 1999. A second trial court judge was recused on Ms. Adams' motion in May 1999. A notice of telephone status conference was signed by a third trial court judge and filed into the record on May 20, 1999.

Following the filing of the notice of telephone status conference, the record is devoid of any activity until April 23, 2013, when Ms. Adams filed a motion and order to make past due child support executory, a rule for contempt, and a petition to modify custody and child support. On June 4, 2013, Mr. Adams filed an exception raising the objection of no cause of action. These matters came for hearing on June 24, 2013 and were continued until August 19, 2013.

On July 23, 2013, the trial court signed a "Judgment on Rules" that addressed the rule to set child support and temporary restraining order filed by Ms. Adams on July 31, 1998 and heard on December 11, 1998. The July 23, 2013 judgment reduced to judgment the orders orally rendered in court on December 11, 1998.

On July 31, 2013, Mr. Adams timely filed a motion for new trial. In a judgment signed August 27, 2013, the trial court denied Mr. Adams' motion for new trial and continued the hearing on the matters filed by Ms. Adams (based upon her April 23, 2013 motion) to September 16, 2013. The hearing was later continued to October 29, 2013, on Ms. Adams' motion. No appeal was taken by Mr. Adams of the judgment rendered by the trial court on July 23, 2013, but on June 12, 2014, Mr. Adams sought to have the July 23, 2013 judgment declared null.

On October 9, 2013, Mr. Adams submitted an ex parte motion for acknowledgement of abandonment. On October 23, 2013, the trial court signed an order to dismiss the matter, without prejudice, based on abandonment. Ms. Adams filed a motion for appeal on November 18, 2013.

On March 11, 2015, this court reversed the trial court's order to dismiss the motions filed by Ms. Adams. Adams v. Adams, 2014-0387 (La. App. 1 Cir. 3/11/15), 166 So.3d 1066. This court found that Mr. Adams' June 4, 2013 exception raising the objection of no cause of action, which was filed outside of the requisite abandonment time frame and prior to his filing of the ex parte motion to dismiss based on abandonment, illustrated an intent to seek judicial resolution of the dispute on the merits and a willingness or consent to achieve judicial resolution. Adams, 166 So.3d at 1069. This court further found that Mr. Adams' July 31, 2013 motion for new trial evidenced the same. Id. Accordingly, this court reversed the trial court's order to dismiss and remanded the matter to the trial court for further proceedings. Id. at 1070.

On June 8, 2016, Mr. Adams filed a motion for summary judgment to nullify the improper signing of the July 23, 2013 judgment. On May 22, 2017, a fourth trial court judge signed a judgment granting Mr. Adams' motion for summary judgment to nullify the improper signing of the July 23, 2013 judgment. The May 22, 2017 judgment also found the July 23, 2013 judgment to be an invalid judgment.

On October 26, 2017, a fifth trial court judge signed an "Interim Judgment on Rules," which, like the earlier July 23, 2013 judgment, reduced to writing the oral ruling made by the first trial court judge on December 11, 1998. The "Interim Judgment on Rules" ordered and adjudged that Ms. Adams would be designated as domiciliary parent, Mr. Adams would have visitation with the minor child up to 50% of the time, and that Ms. Adams' request for child support would "be granted on an interim basis, and [Mr. Adams would be] ordered to pay child support to [Ms. Adams] in the full and true sum of ... ($ 260.00) [d]ollars per month effective January 1, 1999[.]" In oral reasons, the trial court stated that, according to the transcripts of the December 11, 1998 hearing, neither party had objected to the order of interim child support. The trial court viewed the lack of objection as tacit acceptance of the order and stated, "[T]he interim child support order of $ 260.00 per month for daycare was valid, despite not being put into writing or signed by the parties." The trial court further stated:

[T]he [interim child support] order was valid and enforceable from December 11, 1998, until the maturity of the child or the arrival of another condition that would have terminated the final support. There was never a termination, there was never anything ultimately filed except to enforce what had been done. So, overall, the child support agreement was stated orally in open court with the mutual consent of the parties, therefore the interim child support agreement was valid and there was no end to it. It was supposed to be to March 22, 1998, but that never happened. Nobody changed it. So, it went on until the child reached maturity, or until some other condition happened. So, for those reasons, the $ 260.00 a month for daycare was valid[.]"

On November 9, 2017, Mr. Adams filed a motion for new trial. On March 16, 2018, the trial court signed a judgment denying Mr. Adams' motion for new trial. This judgment also ordered:

that the involvement of this division of court in this proceeding pursuant to the provisions of [La.] R.S. 13:4209, and the Court of Appeal Opinion rendered in the matter entitled [ Adams v. Adams, 2014-0387 (La. App. 1 Cir. 3/11/15), 166 So.3d 1066 ] has now been fulfilled, accordingly, all future proceedings in the matter shall be conducted before the Judge of Division "J" of this court, pursuant to the reallotment order signed herein on May 7, 2014, and 21st Judicial District Court Rules Appendix 22.0.

On April 3, 2018, following the trial court's denial of his motion for new trial, Mr. Adams filed a devolutive appeal of the October 26, 2017 judgment.

ASSIGNMENTS OF ERROR

Mr. Adams assigns the following as error.

1. The successor trial judge on June 9, 2017, exceeded its authority under La. R.S. 13:4209 in signing a written judgment that did not conform to the explicit ruling and judgment of its predecessor rendered in open court on December 11, 1998, and thereby committed legal error and an abuse of discretion.
2. The successor trial judge committed legal error and an abuse of discretion by exceeding its authority under La. R.S. 13:4209 in accepting into the record on June 9, 2017 new evidence not available to its predecessor on December 11, 1998, thereby reforming the ruling of the predecessor judge to the detriment of the Appellant.

DISCUSSION

Jurisdiction

As a preliminary matter, we must determine whether this court has jurisdiction over Mr. Adams' appeal. Mr. Adams argues that, despite the judgment being titled "Interim Judgment on Rules," the judgment is final because it includes a determination of monetary liability. Mr. Adams urges that the circumstances of this particular case necessitate treating the "Interim Judgment on Rules" as a final judgment. Alternatively, Mr. Adams asks this court to exercise its discretion to convert the appeal into an application for supervisory writs. Ms. Adams contends that this court does not have appellate jurisdiction, alleging that the "Interim Judgment on Rules" is an interlocutory judgment and is thus not appealable under La. Code Civ. P. art. 2083.

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. La. Code Civ. P. art. 1841. It may be interlocutory or final. Id. A judgment that determines the merits in whole or in part is a final judgment. Id. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. Id. An interlocutory judgment is appealable only when expressly provided by law. La. Code Civ. P. art. 2083.

A valid judgment must be "precise, definite and certain." Laird v. St. Tammany Parish Safe Harbor , 2002-0045 (La. App. 1 Cir. 12/20/02), 836 So.2d 364, 365. Moreover, a final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Carter v. Williamson Eye Center, 2001-2016 (La. App. 1 Cir. 11/27/02), 837 So.2d 43, 44. The specific nature and amount of damages should be determinable from a judgment without reference to an extrinsic source such as pleadings or reasons for judgment.

Vanderbrook v. Coachmen Industries, Inc., 2001-0809 (La. App. 1 Cir. 5/10/02), 818 So.2d 906, 913. In other words, a third person should be able to determine from a judgment the amount owed without reference to other documents. Vanderbrook, 818 So.2d at 913-14.

The "Interim Judgment on Rules" orders that the request for child support by Ms. Adams be granted on an interim basis, and orders Mr. Adams to pay child support to Ms. Adams in the amount of $ 260.00 per month, effective January 1, 1999. The "Interim Judgment on Rules" is not a final judgment. See Frankowski v. Frankowski , 2016-1313 (La. App. 4 Cir. 2/22/17), 214 So.3d 35, 37. Because this is an interim rather than a final judgment, we find that the "Interim Judgment on Rules" is not an appealable judgment.

We also decline to convert the appeal into an application for supervisory writs. See Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So.2d 34, 39 ("the decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate courts"). In Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981), the Louisiana Supreme Court directed appellate courts to consider an application for supervisory writs under their supervisory jurisdiction, even though relief may be ultimately available to the applicant on appeal, when the trial court judgment was arguably incorrect, a reversal would terminate the litigation (in whole or in part), and there was no dispute of fact to be resolved. Best Fishing, Inc. v. Rancatore, 1996-2254 (La. App. 1 Cir. 12/29/97), 706 So.2d 161, 166-67. We find that the aforementioned criteria are not met and thus, we decline to exercise our supervisory jurisdiction. See Best Fishing, Inc., 706 So.2d at 167.

CONCLUSION

For the above and foregoing reasons, the appeal in the instant matter is dismissed. All costs of this appeal are assessed to the appellant, Guy Adams.

APPEAL DISMISSED.

      The following facts are taken in part from a prior appeal - Adams v. Adams, 2014-0387 (La. App. 1 Cir. 3/11/15), 166 So.3d 1066.

      Brandi Ballard Adams is now known as Brandi Baker. She will hereto be referred to as Ms. Adams.

      The trial court awarded Ms. Adams $ 260.00 per month because that was the monthly cost of the daycare used by Mr. Adams on days he had custody but had to work. At this hearing, the parties agreed that if Mr. Adams had custody but had to work, he would bring the child to Ms. Adams.

      Regarding the Twenty-First Judicial District Court, Appendix 22.0 of Title IV of the Rules for Louisiana District Courts states:
      There shall be a Family Docket in the Twenty-First Judicial District. Divisions G and H are designated as Family Court divisions through December 31, 2014, and thereafter, Divisions J and K are designated as the Family Court divisions.
      On May 7, 2014, the trial court issued a Family Order of Reallotment, which re-allotted this case, stating:
      This matter was previously allotted to Division "D" of this Court, and involves issues properly triable by the Family Court divisions which have not been resolved prior to December 31, 2013. Therefore, the presiding judge determines that this case should be randomly allotted to one of the Family Court divisions of this Court, in accordance with the En Banc Order of May 22, 2013.
      Accordingly, the matter was re-allotted to Division "J" of the Twenty-First Judicial District Court.

      We further decline to convert the appeal to an application for supervisory writs as the motion for appeal was filed beyond the thirty-day period applicable to supervisory writs as set forth in Rule 4-3 of the Uniform Rules of the Courts of Appeal. Mr. Adams filed this appeal of the October 26, 2017 judgment on April 3, 2018.
      The "Interim Judgment on Rules" is an interlocutory judgment. There is no procedure by which a party may apply for a new trial following the denial of an interlocutory judgment. Llopis v. State, 2016-0041 (La. App. 4 Cir. 12/14/16), 206 So.3d 1066, 1069. Mr. Adams' motion for new trial did not operate to suspend the time delay for a supervisory writ. Llopis, 206 So.3d at 1070.