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    David CHAISSON v. PELLERIN & SONS, INC.
    18-828
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2019
    Tracy P. Curtis, The Glenn Armentor Law Corporation, 300 Stewart Street, Lafayette, LA 70501, Phone (337) 233-1471, COUNSEL FOR PLAINTIFF/APPELLANT: David Chaisson
    Jeffrey J. Warrens, Johnson, Rahman & Thomas, P.O. Box 98001, Baton Rouge, LA 70898-8001, Phone (225) 231-0652, COUNSEL FOR DEFENDANT/APPELLEE: Pellerin & Sons, Inc.
    Court composed of John D. Saunders, Van H. Kyzar, and Candyce J. Perret, Judges.
   KYZAR, Judge.

The plaintiff in this workers' compensation case, David Chaisson, appeals from a judgment finding that he failed to prove that he suffered a work-related accident and dismissing his claim against the defendant, Pellerin & Sons, Inc., with prejudice. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

Mr. Chaisson was a twenty-five year employee of two family-owned businesses, Pellerin & Sons, Inc. (Pellerin & Sons), a demolition company, and Pellerin & Wallace, Inc., a roofing company. He allegedly suffered a work-related injury on June 12, 2017, while working as a helper on a Pellerin & Sons' roll-off truck. The truck, driven by David Pellerin (David), a co-owner of Pellerin & Sons, was used to transport dumpsters and consisted of a cab and a rear chassis, which contained a winch and a loading mechanism. During loading, the truck is backed up to the dumpster, after which a helper attaches the winch cable to the front of the dumpster, which is then pulled onto the rear chassis. The process is reversed during unloading. During transport, the rear of the dumpster is strapped to the chassis by one strap, as required by the department of transportation.

As the driver's helper, Mr. Chaisson attached the winch cable to the front of the dumpster so it could be loaded and then strapped the rear of the dumpster to the chassis. This entailed running a strap, which was fixed to the driver's side frame of the chassis, through openings located between the skids upon which the dumpster rested and the floor of the dumpster, and then connecting the strap to the opposite side of the chassis. Mr. Chaisson and another Pellerin & Sons' employee both indicated that they pulled the strap from one side of the chassis to the other by going underneath the chassis.

On June 12, 2017, Pellerin & Sons was in the course of demolishing several buildings for Frank's International (Frank's) at 700 E. Verot School Road in Lafayette, Louisiana. Mr. Chaisson alleged that he suffered a work-related injury to his lower back when David drove the roll-off truck forward while he was under the truck strapping the dumpster to the chassis. He claimed that he quickly fell to his knees in order to prevent his head from being struck by the chassis. Mr. Chaisson at first refused to get back into the truck with David, but after he did and they reached Pellerin & Son's office, he informed David that he quit and walked off.

On July 20, 2017, Mr. Chaisson filed a disputed claim for compensation against Pellerin & Sons, alleging that he suffered an injury to his neck and lower back as a result of his June 12, 2017 accident. He claimed that Pellerin & Sons had not paid wage benefits or authorized medical treatment, and he requested that he be allowed to see the physician of his choice. Mr. Chaisson further alleged that Pellerin & Sons was liable for penalties and attorney fees based on its failure to timely pay or contest his right to workers' compensation benefits. Pellerin & Sons initially denied Mr. Chaisson's claims, but then filed a supplemental and amending answer, in which it alleged that Mr. Chaisson was intoxicated at the time of the alleged accident. Thus, it claimed that Mr. Chaisson forfeited his entitlement to workers' compensation benefits pursuant to La.R.S. 23:1081.

Following a March 1, 2018 hearing on the merits, the matter was taken under advisement by the workers' compensation judge (WCJ). Thereafter, on April 13, 2018, the WCJ issued an oral ruling, granting judgment in favor of Pellerin & Sons and dismissing Mr. Chaisson's claim against it with prejudice. A written judgment was rendered on June 5, 2018. It is from this judgment that Mr. Chaisson appeals.

On appeal, Mr. Chaisson raises three assignments of error:

1. The WCJ clearly erred by concluding that any evidence discredited or cast serious doubt on plaintiff's incident-related testimony.
2. The WCJ clearly erred by its failure to conclude that the circumstances following the incident corroborated plaintiff's testimony.
3. The WCJ clearly erred by basing its ruling on its own medical causation opinion and by misunderstanding the medical evidence, all of which the WCJ used to find plaintiff to be not credible.

In Calumet GP, LLC v. Garrett , 50,341, pp. 3-5 (La.App. 2 Cir. 1/20/16), 186 So.3d 712, 715-16, writ denied , 16-301 (La. 4/8/16), 191 So.3d 587, the second circuit set out the standard of appellate review applicable in workers' compensation cases and the burden of proof that a claimant must satisfy to prove a work-related accident:

In a workers' compensation case, the appropriate standard of review to be applied by the appellate court to the WCJ's finding of fact is the manifest error or clearly wrong standard. Dean v. Southmark Const. , 03-[ ]1051 (La. 7/6/04), 879 So.2d 112 ; Dunlap v. Madison Parish Sch. Bd. , 46,139 (La.App.2d Cir.4/13/11), 61 So.3d 833. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Dunlap,supra ; Harris v. Casino Magic , 38,137 (La.App.2d Cir.1/28/04), 865 So.2d 301, writ denied , 04-0502 (La.4/8/04), 870 So.2d 275. Unless shown to be clearly wrong, the WCJ's factual findings of a work-related disability will not be disturbed where there is evidence which, upon the trier of fact's reasonable evaluation of credibility, furnishes a reasonable, factual basis for those findings. Id. When a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO , 549 So.2d 840 (La.1989) ; Wilson v. General Motors Corp. , 45,232 (La.App.2d Cir.5/26/10), 37 So.3d 602. 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 , supra ; Morgan v. Glazers Wholesale Drug Co. , 46,692 (La.App.2d Cir.11/2/11), 79 So.3d 417. The trier of fact's determinations as to whether the worker's testimony is credible and whether the worker discharged the burden of proof are factual determinations, not to be disturbed upon review unless clearly wrong. Harris v. City of Bastrop , 49,534 (La.App.2d Cir.1/14/15), 161 So.3d 948 ; Thomas v. GM Benefits & Serv. Ctr. , 48,718 (La.App.2d Cir.1/15/14), 132 So.3d 464.
An employee is entitled to worker's [sic] compensation benefits if he receives a personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031 ; McLin v. Industrial Specialty Contractors, Inc. , 02-1539 (La.7/2/03), 851 So.2d 1135 ; Scott v. Super 1 Foods , 45,636 (La.App.2d Cir.9/29/10), 48 So.3d 1133. An employment-related accident is an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. La. R.S. 23:1021(1). The term "accident" includes a weakened condition which collapses due to a precipitous event. Rice v. AT & T , 614 So.2d 358 (La.App. 2d Cir.1993).
Although the workers' compensation law is liberally construed in favor of coverage, the claimant's burden of proving an accident is not relaxed; she must prove by a preponderance of the evidence that an accident occurred and the resulting disability is related to an on-the-job injury. McLin , supra ; Hofler v. J.P. Morgan Chase Bank, N.A. , 46,047 (La.App.2d Cir.1/26/11), 57 So.3d 1128, 1134. When the accident at question is unwitnessed, a worker's testimony alone may be sufficient to discharge claimant's burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts doubts upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert Int'l, Inc. , 593 So.2d 357, 360-61 (La.1992).

In his three assignments of error, Mr. Chaisson basically argues that the trial court was manifestly erroneous in finding him not credible as a witness and by failing to find that his testimony, alone, was sufficient to prove that the accident occurred. However, we find no merit in these arguments.

In describing the incident, Mr. Chaisson testified that he was under the truck, strapping the dumpster to the chassis, when David drove forward approximately fifty feet. He stated that while he was under the truck, he heard David put the truck into gear and rev the engine, so he let go of the strap, ducked his head, and then fell onto his knees as the truck started forward. He stated that he stopped his fall by putting his hands down onto the ground, which prevented his face from hitting the ground.

At the time of this incident, Mr. Chaisson testified that Andrus Pellerin, David's father and a co-owner of Pellerin & Sons, was standing on the passenger side of the truck, next to him. At first he stated that Andrus would not have seen him fall because he was underneath the truck. However, he later stated that Andrus would have seen the incident. He claimed that he said nothing about the incident to Andrus once he stood up. Instead, Mr. Chaisson testified that he went to the driver's side of the truck and confronted David, stating to him, "What the hell you doing? I almost got killed underneath the truck. You took off fifty, sixty feet." He stated that David stepped out onto the truck's step and started cussing him. He said that he eventually climbed into the truck, and while in the cab, David continued arguing with him and then punched him in the face. However, in a rule to show cause filed by his attorney, Mr. Chaisson claimed that David only struck him on the arm. He further denied that David said anything about him taking a drug test. Once they arrived back at Pellerin & Sons' office, he stated that he exited the truck, told David that he quit, and started walking towards the bus stop. He said that he quit because David punched him in the face and because of the incident while he was under the truck.

Mr. Chaisson testified that after he had walked a little ways from the office, he received a call from Donald Pellerin, David's brother, who said that he would pick him up and take him to his truck. When asked about the incident, he said that he replied that David "almost got me killed underneath the truck." He said that Donald only replied, "Boy, boy, boy. That boy there." He further stated that he did not complain to Donald that his back was sore.

Mr. Chaisson testified that he contacted Phyllis Dumesnil, Pellerin & Sons' office manger, the day after the incident. His testimony was conflicting as to whether he informed Ms. Dumesnil about his injury. During direct examination, he stated that he called her because his back was hurting. However, during cross examination, he said that he did not mention his back pain to Ms. Dumesnil. However, when reminded that during his deposition he said that he told her about his injury, he stated that it was accurate that he told her about his injury. Additionally, Mr. Chaisson testified that his back did not start hurting until the next day. However, in his deposition, he stated that his back began hurting while he was walking to the bus stop. He clarified that his back felt sore while he was walking to the bus stop.

Mr. Chaisson testified that he was seen by Dr. Michael Heard, a Lafayette, Louisiana orthopedic surgeon, approximately one month after his accident. He stated that he was not contacted by anyone from Pellerin & Sons concerning his workers' compensation claim during the interim. He explained that although he sought treatment from the University Medical Center in Lafayette on many occasions, he did not do so this time because he felt that Pellerin & Sons was responsible for his injury.

Mr. Chaisson testified that he applied for unemployment benefits after this incident because he needed money. He stated that although he spoke to someone from Baton Rouge, they never got back with him. He said that he was unaware that he could not receive unemployment benefits if he was hurt. He also said that he applied for Social Security benefits but was denied.

David testified that while at Frank's, he watched Mr. Chaisson through his driver's side mirror during the entire operation of loading the dumpster onto the truck. After Mr. Chaisson attached the winch to the dumpster, he stated that he saw him and Dwayne Senegal, an employee of Cecil Perry Contractors, standing at the rear of the chassis while the dumpster was pulled onto the truck. As soon as that was accomplished, David testified that he drove the truck toward the gate, so Mr. Chaisson could strap the dumpster to the truck. He claimed that he saw Mr. Chaisson in his mirror the entire time, and he never saw him affix the strap prior to him moving the truck.

David testified that he then waited for Mr. Chaisson to strap the dumpster to the truck. Instead, he said that Mr. Chaisson told him, "I'm not getting in the truck with you. I'm not going with you. I'm staying here." He stated that Mr. Chaisson had never done this before, and they started arguing. He said that he then told Mr. Chaisson, "You need to get over here. You['re] coming with me." "Get your ass in the truck. You're coming with me." David testified that Mr. Chaisson eventually strapped the dumpster down and climbed into the truck's cab. Once there, he stated that they continued arguing and that he told Mr. Chaisson, "You're drunk. You're not staying over here with these people. This is a safety place. You have no right to stay here. You're gonna hurt yourself or you're going to hurt someone." He said that he further told Mr. Chaisson, "I'm bringing you to the shop. You're going to take a drug test." He stated that Mr. Chaisson replied, "I'm not doing a f-king thing for you. I quit."

When they arrived at Pellerin & Sons' office, David testified that he walked in and asked the secretary, "What I'm supposed to do with this here drunk son of a bitch?" He stated that Mr. Chaisson started walking down the road after exiting the truck, but as he looked out the door, he saw him walk back toward the truck. He said that he asked Mr. Chaisson what he was doing, but that Mr. Chaisson answered, "I'm getting my telephone." He stated that Mr. Chaisson said, "You gonna see what I'm gonna do when I'm finished with y'all," and then he walked off.

David testified that he knew Mr. Chaisson was drunk because he noticed the smell of alcohol on him when they started working at 5:30 a.m. He claimed that Mr. Chaisson was drunk from the night before and that he was always drunk on the job. Despite his suspicion, he said that he allowed Mr. Chaisson to continue working because his father, Andrus, wanted him to work. He stated that Mr. Chaisson was still employed by Pellerin & Sons "[o]ut of the goodness of [his] father's heart." After the incident, David claimed that he intended for Mr. Chaisson to undergo a drug test because he had recently met with his insurance company, which demanded that Pellerin & Sons drug test any person it suspected of being impaired. Despite the fact that he knew that Mr. Chaisson was impaired at 5:30 a.m., he claimed that he never mentioned the drug test until the incident in question occurred, at approximately 9:00 a.m., because "when he disagreed and didn't want to get in the truck and that, I said he's drunk, and I got to do something."

David testified that Mr. Chaisson said nothing to him about the alleged incident under the truck. He said that it was his impression that Mr. Chaisson refused to get in the truck because he was either drunk or he wanted to stay at Frank's to work or scavenge for scrap iron. David admitted that he heard Mr. Chaisson say, "All I do for y'all, and that's the way you're going to treat me. I quit." He stated that he thought Mr. Chaisson said this in response to his demand that he undergo a drug test.

Although a co-owner of the business, David testified that he was unfamiliar with Pellerin & Sons' drug policy. However, he agreed that an employer is required to furnish its employees with a safe work environment, including being free from the hazards presented by an intoxicated employee. David was adamant that Mr. Chaisson was drunk when he started work at 5:30 a.m. However, in Pellerin & Sons' appeal to Mr. Chaisson's request for unemployment benefits, he stated that he only noticed that Mr. Chaisson was drunk later that morning. David denied that he used the word "later" because he did not want to admit to the Louisiana Workforce Commission that he allowed Mr. Chaisson to work despite the fact that he was drunk at 5:30 a.m.

Donald testified that he was on a job when his sister called and informed him about the incident between David and Mr. Chaisson. He stated that he called Mr. Chaisson to offer him a ride back to his vehicle, which was at David's home. He said that Mr. Chaisson accepted his offer, and after he picked him up, he asked him about what had happened. He said that Mr. Chaisson told him, "Your brother hit me." "He ain't never going to put his hands on me again. I'm going to get him." Donald testified that he asked Mr. Chaisson where David hit him, to which he replied, "In the arm." "I picked my arm up and he hit my arm." He stated that Mr. Chaisson related the incident at Frank's, by stating, "We was at Frank's over there." "I was going to strap the truck down - - strap the box down and he pulled up. And if I wouldn't have got out of the way, he would have hit me, and I would have got hurt." Donald testified that Mr. Chaisson then stated that he was going to get back at David by suing him.

Donald testified that he informed Mr. Chaisson that his sister wanted him to return to Pellerin & Sons' office to do a drug test. He stated that Mr. Chaisson responded, "I ain't taking no fucking drug test. I don't - - you can tell your sister I'm not going to sue the company. I'm going to sue your brother, personally. He's never going to put his hands on me again." Donald claimed that he then advised Mr. Chaisson to "[g]o home and sleep it off and come back to work tomorrow[,]" because he reeked of alcohol, but that Mr. Chaisson responded, "I'ain't never coming back to work." "I'm going to get him." "He ain't never going to put his hands on me again." He stated that Mr. Chaisson then continued, "When I get home, I'm going clean up, and I'm going back [to] Poppa P's again and finish it off." Donald stated that this was where Mr. Chaisson had been the night before. Although he claimed that Mr. Chaisson reeked of alcohol, he thought that the smell was from the night before. He stated:

It's not like he was drinking on the job or drinking that day. And it was periodically. I know how he is when he's drunk. He starts yapping and yapping and irritates you until you want to do him something. And he knows he's irritating you, and that's how he is when he's drunk. That's how he acts.

He further claimed that Mr. Chaisson drank every night.

Donald testified that Mr. Chaisson never said that he was under the truck when the incident occurred. He stated that if Mr. Chaisson had been hurt, he would have taken him straight to the hospital. He said that it is Pellerin & Sons' policy to immediately report accidents and for employees to undergo drug tests anytime there is a near miss. Donald testified that Mr. Chaisson should have undergone a drug test because he reported that he was nearly hurt on the job. He denied that Mr. Chaisson told him that he was almost killed as a result of the incident.

Ms. Dumesnil, Andrus' secretary, testified that she handled all workers' compensation claims for Pellerin & Sons. She stated that she learned that Mr. Chaisson quit after the incident on June 12, 2017, from David. She stated that David slammed into the Pellerin & Sons' office and asked her, "What am I going to do with that drunk?" She stated that she told David to either have Mr. Chaisson undergo a drug screen or take him home. She said that she could see Mr. Chaisson through the open door and that he was standing next to the truck, with his back turned towards her. Ms. Dumesnil testified that David further stated that Mr. Chaisson had wanted to remain at Frank's, but that he would not let him stay there because he was drunk and because it would be dangerous to leave him there.

Ms. Dumesnil testified that she spoke to Mr. Chaisson after the incident when he called to request his pay records so that he could file for unemployment benefits. She stated that he did not discuss the incident with her, other than to say that he had a disagreement with David, which did not involve her. She said that she mailed the records to him after June 15, 2017, which was Mr. Chaisson's final pay date. Ms. Dumesnil testified that she first learned about Mr. Chaisson's alleged injury when Pellerin & Sons received the First Report of Injury, approximately one month after the incident.

Andrus, a co-owner of Pellerin & Sons, testified that he ran the demolition crew with David and was on site at Frank's the day of Mr. Chaisson's alleged accident. He stated that he was operating an excavator, which was used to pack debris into the dumpsters. After David picked up a dumpster, Andrus testified that he used the excavator to scrape up any debris that had fallen to the ground during loading. He stated that he never saw Mr. Chaisson fall under the truck. He stated that if Mr. Chaisson had fallen, he would have been seen by the two safety personnel on site, who would have stopped the job. He stated that a safety man would have been standing by the truck while the dumpster was being loaded onto it. He stated that a third safety person was located on the third floor of Frank's new building, who watched the site through binoculars.

Andrus testified that he never knew why Mr. Chaisson quit, but that he had Ms. Dumesnil try to contact him at least five times because he wanted him to return to work. He stated that he only learned about Mr. Chaisson's alleged injury when Pellerin & Sons received the First Report of Injury. Andrus testified that he never saw Mr. Chaisson go under the truck to strap down a dumpster. He stated that it was unnecessary to go under the truck in order to strap down a dumpster. Instead, he stated that the helper would only have to pass the strap "over the frame of the truck[,]" then walk behind the truck to the other side, catch it, and then hook it in place and ratchet the strap tight. He further stated that Mr. Chaisson would not have been hurt if he was under the truck when David drove it forward because the strap was located past the truck's last axle.

Mr. Senegal testified that he was assigned to work as a safety person at Frank's during Pellerin & Sons' demolition at the site. He stated that his assignment came about due to numerous complaints from Frank's safety person regarding safety violations committed by Pellerin & Sons during the demolition. He said that the Frank's safety person was on site every day and watched the demolition process from the balcony of Frank's new building, which overlooked the site, and took and emailed pictures of Pellerin & Sons' safety violations to his employer, Cecil Perry. Mr. Senegal testified that he acted as safety person on site from June 2 through June 15, 2017, and that he was on site on June 12, 2017, from 7:00 a.m. through 3:30 p.m. He stated that as the safety person, he made on-the-spot safety corrections and that if a person continued making safety infractions, he was to immediately remove them from the job.

Mr. Senegal testified that the transfer of dumpsters at the Frank's site occurred approximately ten to fifteen times a day and that he watched the majority of them for safety issues. He stated that he saw no injuries or near misses during his tenure at Frank's and that he never saw anyone trip or fall during that time. Had he seen the incident in question, he said that he would have investigated it and made a call to Cecil Perry's safety hotline. Mr. Senegal further testified that he never saw Mr. Chaisson, who he knew very well, intoxicated on the site. If he had, he stated that it would have been a safety violation and that Mr. Chaisson would have been required to leave the site immediately. He further stated that although he was on site all day on June 12, 2017, he could not recall if he saw either David or Mr. Chaisson.

Concerning Pellerin & Sons' actions in moving the dumpsters, Mr. Senegal testified that he felt that the truck drivers were "kind of dangerous" and that he had to ask David to slow down a couple of times. He further stated that David was "a bit rambunctious" in moving the dumpsters and that he had to tell him several times to put on his personal protective equipment. Mr. Senegal testified that he also had to tell the helpers to wait for the truck to completely stop before they jumped out to hook the dumpster to the truck. He further stated that he had seen Andrus, who he described as a firecracker, yelling at Pellerin & Sons' workers. He also described David as "kind of fuss and cuss too. It's like that's the way they communicate. Yell and fuss and cuss."

In lieu of trial testimony, the parties introduced the recorded statements of Pellerin & Sons' employees Johnny Edwards, Carlos Caro, and Dustin Bourque. Mr. Edwards, a laborer, stated that he took over as helper on David's truck after Mr. Chaisson quit. He stated that the quickest way to strap a dumpster to the chassis was to go underneath the truck to pass the strap to the other side of the truck. He stated that he was working at Frank's at the time of the alleged accident, but that he was sweeping up debris on the side of the truck after it was loaded. He said that he was not aware of Mr. Chaisson's accident until Pellerin & Sons received notice of the incident.

Mr. Caro, a laborer, stated that he was working as a helper on another roll-off truck at the time of Mr. Chaisson's accident. He stated that he only saw the interaction between Mr. Chaisson and David, when Mr. Chaisson refused to get in the truck.

Mr. Bourque, a driver, stated he arrived at Frank's to pick up a dumpster, just after David loaded the dumpster onto his truck. He stated that David drove his truck to the gate to make way for his truck. He stated that this was where David would strap his dumpster to the truck. He then stated that when he first noticed David's truck, the dumpster was already loaded and strapped down onto the truck.

Mr. Bourque stated that he had just loaded a dumpster onto his truck, when he saw David and Mr. Chaisson arguing at the gate. He stated that Mr. Chaisson walked from the rear of the truck towards the front and told David that he was not getting in the truck. He said that David hollered at him to get in the truck because they were holding up traffic, after which they left the site.

Dr. Heard's July 13, 2017 medical records report that Mr. Chaisson experienced mid and low back pain after an incident on June 12, 2017, when "[t]he patient was under a truck trying to strap a box and the driver of the truck took off causing the patient to pull his low back." After examining him, it was Dr. Heard's impression that Mr. Chaisson suffered an occupational injury on June 12, 2017, with resulting post-traumatic midback pain and post-traumatic lower back pain, with left-sided radiculitis. Dr. Heard treated Mr. Chaisson through February 7, 2018, at which time it was his impression that Mr. Chaisson was suffering from mid back and lower back pain, with left-sided radiculitis and facet arthropathy, for which he recommended a facet injection at L4-5 and L5-S1. It was his opinion that Mr. Chaisson had not reached medical maximum improvement.

In his oral reasons for judgment, the WCJ stated as follows:

This trial involves an alleged accident, which took place on June 12, 2017. The parties agree that June 12, 2017 is the last day that Mr. Chaisson worked for Pellerin and Sons. The dispute between the parties concerns whether an accident occurred in the course and scope of employment on that day. Mr. Chaisson testified that while he was hooking up a trailer he slipped and injured his back. Mr. Chaisson alleged that in the process of securing the DOT strap David Pellerin began moving the truck forward and that this caused Mr. Chaisson to stumble and fall injuring his back.
The testimony of Mr. Chaisson is directly contradicted by the testimony of Andrus Pellerin and David Pellerin. Mr. Chaisson walked off the job according to his testimony because he felt that he was almost killed in the incident and that the employers did not really care about the fact that he was put in harms way. The employer alleges that Mr. Chaisson walked off the job, because he did not want to take a test for intoxication. Mr. Chaisson was eventually seen by Dr. Michael Heard on July 13, 2017. At that time Dr. Heard felt that Mr. Chaisson should not work and should receive medical treatment for his injury. It should be noted that the injury relayed to Dr. Heard was much the same as David Chaisson testified to.
The issue is whether David Chaisson proved that he had an accident in the course and scope of employment. An employee may prove by his or her testimony alone that an accident occurred if the employee can satisfy two elements. No other evidence discredits or cast serious doubt upon the worker's version of the incident and the worker's testimony is corroborated by the circumstances following the alleged accident. Bruno versus Harbert International Incorporated, 593 Southern Second 357 Louisiana 1992 [.] Corroboration of a worker's self serving testimony may be provided by the testimony of fellow workers, spouses, friends or by medical evidence.
When we look at this case the question arises did Mr. Chaisson prove by his testimony alone that he was involved in an accident in the course and scope of employment. The Court notes that throughout the testimony involved in this trial the Court came to doubt the credibility of everyone involved. Each person has their own ax to grind in this case. They all have interest; that they are trying to protect, therefore the Court has to cast an eye on exactly what the testimony was and who gave it. After reviewing the testimony of David Chaisson, Andrus Pellerin, and David Pellerin the Court finds that Mr. Chaisson failed to prove that an accident occurred in the course and scope of employment. Specifically the mechanism of the accident leads to questions about whether they would've lead [sic] to the injuries that Mr. Chaisson supposedly sustained. In addition, Mr. Chaisson has a complex and extensive history with regards to treatment for his back. The fact that Mr. Chaisson failed to seek medical treatment for approximately thirty days seriously calls into question the occurrence of an accident.
The Court therefore does not feel that Mr. Chaisson's credibility leans [sic] itself to establishing that an accident occurred by a preponderance of the evidence when his testimony is contradicted by other testimony and is not really corroborated by testimony and/or the medical evidence. The Court therefore denies David Chaisson's claim for workers' compensation benefits and dismisses his suit with prejudice.

After reviewing the record in its entirety, we find that the WCJ was presented with conflicting views of the evidence and that his decision rested entirely on credibility determinations he made as to all of the witnesses testifying in this matter, including Mr. Chaisson.

The testimony reveals multiple conflicting issues regarding the alleged accident and the following circumstances. Mr. Chaisson first claimed that no other witness saw the accident, but then testified that Andrus was standing next to him and would have seen him fall. David testified that Mr. Chaisson never went under the truck before he drove the truck away from the loading area. Andrus testified that he was on the excavator the entire time and never saw the incident. Mr. Senegal, the only neutral party to testify, stated that if he had seen the incident, he immediately would have investigated it and reported it on the safety hotline. He further said that the incident would have been seen by Frank's safety person, who was watching through binoculars from a point overlooking the site. Both Andrus and David claimed that it was not necessary for Mr. Chaisson to go under the truck when strapping the dumpster to the chassis. However, both Mr. Chaisson and Mr. Edwards stated that they strapped the dumpster to the chassis by going underneath the chassis. Mr. Edwards said that this was the quickest way to strap a dumpster to the truck.

Andrus stated that Mr. Chaisson would not have been hurt if he was under the truck when David drove forward because the strap was located past the truck's last axle. This was confirmed by Mr. Bourque, who stated that Mr. Chaisson could not have been hurt because he was wearing a hard hat and because the truck rolled forwards instead of backwards.

Following the incident, both Mr. Chaisson and David admit that they had words before Mr. Chaisson finally consented to get back in the truck. This was confirmed by Mr. Caro and Mr. Bourque. Mr. Chaisson then claimed that David punched him in the face, although in a prior court filing he claimed that David struck him on the arm. David claimed that he accused Mr. Chaisson of being drunk and that he said that he was taking Mr. Chaisson back to the office so he could undergo a drug test. Mr. Chaisson denied that David said anything about a drug test. David further claimed that Mr. Chaisson had been drunk since they started working at 5:30 a.m. and that he allowed him to continue working because his father, Andrus, wanted him to work.

Once they arrived back at Pellerin & Sons' office, Mr. Chaisson said that he told David that he quit and that he took off walking down the road. In his deposition, he claimed that his back started hurting as he was walking. However, he testified that his back only started hurting the next day, and he clarified that his back was sore while he was walking. He further testified that he called Ms. Dumesnil the next day to report that his back was hurting. However, he later testified that he did not tell her that his back was hurting. In his deposition, he said that he told her that his back was hurting.

David said that he told Ms. Dumesnil that Mr. Chaisson was drunk and asked her what he should do about it. She confirmed this and stated that she told him to either have Mr. Chaisson take a drug test or to take him home.

Mr. Chaisson stated that he told Donald about his alleged accident. Although Donald confirmed this, he claimed that Mr. Chaisson never said that he was under the truck when the incident occurred. Mr. Chaisson further told Donald that David hit him in the face. Donald said that Mr. Chaisson told him that he was hit in the arm. Donald further claimed that Mr. Chaisson told him that he would not submit to a drug test. He further claimed that Mr. Chaisson reeked of alcohol, although he did not claim that he was drunk.

Andrus testified that he wanted Mr. Chaisson to return to work after the incident and that he told his secretary, Ms. Dumesnil to contact Mr. Chaisson. He claimed that she tried to contact Mr. Chaisson four to five times. However, Ms. Dumesnil said that she only spoke to Mr. Chaisson after he called the office to get his pay records. She did not mention anything about Andrus having her contact Mr. Chaisson to have him return to work.

Mr. Chaisson said that he sought unemployment benefits after he quit working for Pellerin & Sons, but that he let the claim go when he learned that he did not qualify for unemployment benefits because he was hurt. However, the unemployment records reveal that on July 17, 2017, he qualified for unemployment benefits because he left his employment for good cause, due to being unsatisfied with his working conditions. This decision was appealed by Pellerin & Sons, and the decision was reversed upon a finding that Mr. Chaisson left work because he refused to take the alcohol test requested by Pellerin & Sons.

In Pellerin & Sons' appeal of the initial unemployment finding, David indicated that Mr. Chaisson arrived at his home on the date of the incident, after which they left for road calls. He then stated, "Later, Supervisor Pellerin noticed Chaisson seemed to be inebriated." However, David was adamant during his testimony that Mr. Chaisson was drunk at 5:30 a.m., when he started work. David claimed that Mr. Chaisson was always drunk on the job, but that he had never been hurt on the job. He further denied in his testimony that he stated, in Pellerin & Sons' appeal to Mr. Chaisson's unemployment claim, that he only noticed that Mr. Chaisson was drunk "later" because he did not want to admit to the Louisiana Workforce Commission that he allowed Mr. Chaisson to work while drunk.

Mr. Chaisson stated that he waited thirty days to seek medical treatment because he was hurt on the job and he felt that Pellerin & Sons was liable for his injury. However, he admitted that he sought medical treatment on many occasions from the University Medical Center.

While the context of the WCJ's oral finding regarding Mr. Chaisson's "complex and extensive history" of back treatment is unclear, as the record does not show any pre-claim treatment for back related injuries, the WCJ was presented with considerable conflicting evidence in this matter. In weighing the credibility of Mr. Chaisson against that of Andrus and David Pellerin, as well as other witnesses, he evidently determined that Mr. Chaisson's credibility was outweighed by that of the Pellerins. Thus, considering the great deference due to a WCJ's findings, when based on a credibility determination, we find no error in the WCJ's finding that Mr. Chaisson failed to prove that he suffered a work-related accident.

DISPOSITION

For the foregoing reasons, the judgment of the WCJ dismissing Mr. Chaisson's claims against Pellerin & Sons, Inc., with prejudice, is affirmed. The costs of this appeal are assessed against the plaintiff, David Chaisson.

AFFIRMED.

      Neither party indicated whether the department of transportation was the United States Department of Transportation or the State of Louisiana Department of Transportation and Development. However, 49 CFR § 393.134(b) requires, in part, that the "[s]ecurement of a roll-on/roll-off and hook lift container" that is "carried on a vehicle which is not equipped with an integral securement system" be:
      (1) Blocked against forward movement by the lifting device, stops, a combination of both or other suitable restraint mechanism;
      (2) Secured to the front of the vehicle by the lifting device or other suitable restraint against lateral vertical movement;
      (3) Secured to the rear of the vehicle with at least one of the following mechanisms:
      (i) One tiedown attached to both the vehicle chassis and the container chassis;
      (ii) Two tiedowns installed lengthwise, each securing one side of the container to one of the vehicle's side rails; or
      (iii) Two hooks, or an equivalent mechanism, securing both sides of the container to the vehicle chassis at least as effectively as the tiedowns in the two previous items.

      Mr. Chaisson also applied for unemployment benefits on June 19, 2017. However, his application was ultimately denied on August 16, 2017.

      Poppa P's is a bar.


source: Caselaw Access Project

license: Public Domain

text:
    STATE IN the INTEREST OF I.A.
    18-641
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2019
    Jami Pellerin, Public Defender's Office, Fifteenth Judicial District Court, 600 Jefferson Street, Suite 902, P.O. Box 3602, Lafayette, LA 70502, (337) 889-5676, COUNSEL FOR APPELLANT: In. A. (mother)
    Tracey Davenport-McGraw, Assistant District Attorney, Fifteenth Judicial District Court, P. O. Box 3306, Lafayette, LA 70502, (337) 232-5170, COUNSEL FOR OTHER APPELLEE: State of Louisiana
   Alexander Hurd, Acadiana Legal Services, P.O. Box 4823, Lafayette, LA 70501, (337) 365-4006, COUNSEL FOR OTHER APPELLEE: I. A. (child)

CASA Coordinator, c/o CASA of SoLa, 227 La Rue France, Lafayette, LA 70508, (337) 268-5111, OTHER APPELLEE: CASA of SOLA

Reneisha Stewart, Department of Children and Family Services, 100 Asma Blvd Ste 260, Lafayette, LA 70508, (337) 261-5901, OTHER APPELLEE: Department of Children and Family Services

Lloyd Dangerfield, Attorney at Law, 703 E. University Ave., Lafayette, LA 70503, (337) 232-7041, COUNSEL FOR OTHER APPELLEE: Donald Griffen

Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and D. Kent Savoie, Judges.

GREMILLION, Judge.

In.A., the mother of I.A., appeals the judgment of the trial court maintaining I.A. in the custody of the State of Louisiana with the goal of placing I.A. for adoption. For the reasons that follow, we affirm.

FACTS

On August 2, 2017, In.A. was placed in the custody of the Department of Children and Family Services (DCFS) after allegations were made that she had been sexually abused. She was eleven years old. She complained of stomach pain while in DCFS

custody and was taken to a nearby hospital, where personnel ascertained that In.A. was thirty-two weeks pregnant. I.A. was born on September 15, 2017. The trial court issued an instanter order placing I.A. into DCFS custody, and he and In.A. were placed at Lighthouse Ministries, a shelter for adolescent mothers and children. I.A. was adjudicated a Child in Need of Care (CINC) in January 2018.

At Lighthouse, In.A. exhibited defiant behavior. In.A. did receive parenting instruction at Lighthouse, but those lessons seem to have not been absorbed. There surfaced other concerns as well, which led the facility to request that I.A. and In.A. be placed elsewhere. According to the testimony of In.A.'s case worker, Ms. Reneisha Stewart, I.A. was moved to a foster home on March 20, 2018, because of "incident reports that were happening between [I.A.] and [In.A.] and the home felt that it was a liability on them and they didn't want anything to happen to [I.A.]" In.A. was also moved to a different facility in Baker, Louisiana. Thereafter, In.A. saw I.A. every other week during supervised visits at either the DCFS facility in Lafayette or at a park near the Lafayette DCFS facility. I.A. was appointed a Court Appointed Special Advocate (CASA) volunteer, who also attended the bi-monthly visits.

In.A. was subject to a DCFS plan with the goal of reunifying her with I.A., but "her behavior problems as well as her not willing to listen to the instructors who were trying to help her parent her child" resulted in In.A. not progressing satisfactorily in this plan, according to Ms. Stewart. Her defiance, Ms. Stewart testified, had even progressed to physical aggression against the staff of the home. After nine months, DCFS sought approval to maintain I.A. in its custody but to change the goal of the plan from reunification to adoption. This plan was submitted on June 13, 2018.

A hearing on this change in I.A.'s plan was held on June 26, 2018. At the hearing, Ms. Stewart testified to the above facts. Her testimony indicated that In.A. had problems maintaining an orderly room. According to information Ms. Stewart received from her foster caretakers, In.A. resorts to destructive tantrums when not given her way. Ms. Stewart also testified to difficulties In.A. had in following the instructions of the foster caretakers regarding her own personal hygiene. In.A.'s rough play with I.A., that resulted in a minor "bump" on his head, was of deep concern for Ms. Stewart. Daycare workers also reported to Ms. Stewart that, following a family visit, I.A. presented with scratches on his abdomen.

The report of the CASA volunteer indicated, in pertinent part:

[In.A.] has shown herself to be incapable of properly caring for her baby for an ongoing time. Information gathered by CASA, from the DCFS case files, states that Dr Pappaspyrus, child psychiatrist, diagnosed [In.A.] (at age 8) with Oppositional Defiance Disorder. In February 2018, Dr Brennan, child psychologist, has expressed her concerns in regard to [In.A.]'s behavior toward [I.A.]. There have been reports from [In.A.]'s caregivers of her behaving in violent and aggressive ways. She has had trouble maintaining her own personal hygiene. According to reports, [In.A.] will never be capable of living on her own, caring for her child without a primary caregiver, or holding a job. She attends elementary school in a special education classroom. She is currently living at Provisions Residential Care in Baker, LA. In a conversation with staff members on [In.A.]'s progress, it was reported that [In.A.] struggles with hygiene, care of her belongings and proper interactive behavior. She does have some good days. [In.A.] is going to summer school to catch up on lessons, so that she will be ready for 7th grade. Ms[.] Keisha Roberson informed CASA that [In.A.] does have a long way to go with her progress and is very immature for her age, also saying that some things will never be possible for [In.A.] because of her low IQ.
CASA has observed and/or interacted in four different family visits (9.5). [In.A.] invariably shows brief and intermittent interest in [I.A.] and then moves on to her own interests. She demonstrates that she is not aware of [I.A.]'s needs and wants at any given moment and is only concerned with her own interests. She does not show any ability or even desire to care for him for more than a few moments at any given time. [In.A.] gives most of her attention to her mother, [V.A.], to her phone, and to photos or other belongings brought to visits. She often defers to another adult when someone indicates that [I.A.] is in need of some attention. When she does have him, she demonstrates lack of understanding of basic care for him. At one visit, she wanted to give [I.A.] a french fry "because he has three teeth". No family member objected, so CASA advised her that he was too young for this food and that it could cause him to choke. According to Reneisha, DCFS caseworker, she later 'snuck' the french fry to him anyway. When family visits are set at the park, CASA must interact when necessary, such as when [In.A.] or the 8-year-old half sister brings [I.A.] to a baby swing or when someone is trying to feed him things not meant for a baby. No family member has ever brought an age appropriate toy for [I.A.] to a visit.

The CASA volunteer recommended that DCFS change the goal for I.A. from reunification to adoption. The CASA volunteer, however, did not testify at the hearing.

At the close of testimony, In.A.'s attorney argued that DCFS had not made reasonable efforts at reunification. Specifically, he argued that In.A. had not been given parenting classes since I.A. was separated from her. He also argued that In.A. had not been given reasonable assistance to manage her trauma and improve her behavior. The trial court found that In.A. was "a twelve (12) year old child trying to be a mother, and that she does not possess the ability to be a mother, based on it's not going to change with parenting skills or anything else." The trial court noted the lamentable situation this posed but found that adoption was the appropriate disposition to correct it.

An order was entered by the trial court on June 25, 2018. The order did not contain language finding that DCFS's efforts at reunification were reasonable. It did state that the new plan was in I.A.'s best interests. In.A. then perfected this appeal.

ASSIGNMENTS OF ERROR

In.A. assigns the following as errors:

1. The trial court failed to make any particularized finding regarding the Department's reasonable efforts to reunite In.A. with I.A.
2. A permanency change was not warranted by the evidence presented at the permanency hearing.
3. The Department made no reasonable efforts to reunify In.A. with I.A., so that the trial court's approval of the permanent placement plan of adoption was error.

DISCUSSION

The permanent disposition of CINC cases by hearing is governed by La.Ch.Code art. 702, which provides, in pertinent part:

B. The court shall conduct a permanency hearing within nine months after the disposition hearing if the child was removed prior to disposition or within twelve months if the child was removed at disposition, but in no case more than twelve months after the removal. Permanency reviews shall continue to be held at least once every twelve months thereafter until the child is permanently placed or earlier upon motion of a party for good cause shown or on the court's own motion.
C. The court shall determine the permanent plan for the child that is most appropriate and in the best interest of the child in accordance with the following priorities of placement:
(1) Return the child to the legal custody of the parents within a specified time period consistent with the child's age and need for a safe and permanent home. In order for reunification to remain as the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care.
(2) Adoption.
(3) Placement with a legal guardian.
(4) Placement in the legal custody of a relative who is willing and able to offer a safe, wholesome, and stable home for the child.
....
E. Except as otherwise provided in Article 672.1, the court shall determine whether the department has made reasonable efforts to reunify the parent and child or to finalize the child's placement in an alternative safe and permanent home in accordance with the child's permanent plan. The child's health and safety will be the paramount concern in the court's determination of the permanent plan.

We note specifically the language in paragraph (C)(1), which requires that the parent be "complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care." While Article 702 establishes a priority of placement, and the main priority is reunification, plan compliance and significant progress are prerequisites to its consideration. As our colleagues on the second circuit stated:

Mere cooperation by a parent is not the sole focus of the evaluation of a permanency plan. Rather, the courts must assess whether the parent has exhibited significant improvement in the particulars that caused the state to remove the children from the parent's care and custody. Stability in the home environment and relationships is a consideration in the permanency plan determination. A parent who professes an intention to exercise his or her parental rights and responsibilities must take some action in furtherance of the intention to avoid having those rights terminated.

State in Interest of E.M. , 51,511, p. 10 (La.App. 2 Cir. 6/2/17), 224 So.3d 1122, 1128.

A plan determination may be reversed only on a finding of manifest error. Id. Under the manifest error standard of review, we review the entire record to determine not whether the trial court was right or wrong, but whether the record contains reasonable support for the trial court's findings. Stobart v. State through Dep't of Transp. & Dev. , 617 So.2d 880 (La.1993).

The trial court found that In.A. was not capable of parenting, and we are unable to hold that this finding constitutes manifest error in any way. The record is clear: In.A, whether by immaturity or mental capacity, shows relative indifference to I.A.'s genuine needs. She plays with him in an inappropriate fashion, attempts to feed him inappropriate food given his developmental stage, and has been witnessed squeezing I.A.'s abdomen and attempting other forms of inappropriate physical contact, and the adults in her life, beyond I.A.'s CASA volunteer, seem unwilling to correct In.A.'s behavior. Further, In.A. has demonstrated in the past that, were those adults to correct her, she would defy that correction. In.A. is a twelve-year-old victim; yet, her minority does not lessen the obligation the law places on her as a parent. See La.Civ.Code arts. 221 through 226. In.A. is herself a CINC, and it is difficult to see how one CINC can care for the needs of her CINC child. These facts do not alter the reality, though, that In.A. was not in compliance with her case plan, which eliminated reunification as a potential permanent disposition of I.A.'s matter.

Thus, the only assignment of error we are left to consider is In.A.'s observation that the trial court's order did not find that DCFS had made reasonable efforts at reunification, which, she maintains, is a requirement. Louisiana Children's Code Article 702(E) (emphasis added) provides:

[T]he court shall determine whether the department has made reasonable efforts to reunify the parent and child or to finalize the child's placement in an alternative safe and permanent home in accordance with the child's permanent plan. The child's health and safety will be the paramount concern in the court's determination of the permanent plan.

In brief, In.A. omits the use of the disjunctive "or." That use requires that the trial court determine a) whether reasonable efforts to reunify were made, or b) whether the department made reasonable efforts to finalize the child's placement in a safe and permanent alternative home. See La.R.S. 1:9. A specific finding of reasonable efforts at reunification, then, is not required in this matter, as the trial court approved the placement of I.A. in a safe and permanent home as the first step toward DCFS taking reasonable steps to such placement. And we note that the trial court had made the determination on March 13, 2018, that DCFS was making a reasonable effort to reunify. Given the steps DCFS took while In.A. and I.A. were housed at Lighthouse, including parenting classes, we are unable to conclude that this was manifestly erroneous.

CONCLUSION

In.A. was exploited by an adult whose inability to control his baser nature visited lifelong consequences on her. It was the sorry duty of the trial court to attempt to mitigate the harm to I.A.; the wellbeing of I.A. being the paramount consideration for the trial court in this proceeding. The law imposes a heavy burden on parents of any age. That In.A. experiences difficulty in meeting these standards is to be expected. I.A., though, can ill afford to wait for his mother to grow up. He needs stability and care now. The decision of the trial court is affirmed.

AFFIRMED.

Cooks, J., Concurs and assigns written reasons.

Cooks, J., Concurs.

This case is the tragic tale of the rape of an eleven-year-old girl, In.A., by her mother's 42-year-old boyfriend that produced a child, I.A. This situation presents a unique and difficult set of problems for the State Department of Family Services and the courts. Louisiana laws regarding children in need of care were designed to address parental responsibilities of adult people, not of young children forced into parenthood at an unseemly early age. While I agree that the decision of what to do in this case focuses on I.A. and not his young mother, who is also in the State's custody as a child in need of care, I do not agree with the State, the lower court, and the majority's treatment of the relevant laws as though this young mother, herself a victim of a heinous crime, must be gauged by the standards of conduct imposed upon adults of mature age. This mother has suffered unimaginable trauma at the hands of a "mature" adult but has been afforded little to no professional help while in the care and custody of the State. According to the record she has received precious little instruction on parenting I.A. The home she is presently in does not offer parenting courses and none were being provided elsewhere as of the date of the hearing. Worse yet, she receives very little mental health therapy which is undoubtedly needed given the multiple traumas to which she has been subjected and as evidenced by some of her behavior. In my view, the record reflects this mother has largely acted as one might expect a child of such tender years to behave even if she had not been so traumatized by rape and the birth of her baby. The lower court, and the majority here, holds her to the standards of mature adults when weighing her behavior and current fitness for mothering I.A. In my view there is precious little evidence that this mother is incapable of learning to parent her child and she is subjected to platitudes that fit the mold when assessing mature adults who fail to meet the standards imposed on them for acceptable parenting. Our laws designed to provide the framework for assessing the viability of a parent's custody of its child speak only to what we can rightly expect of mature adults. The law failed to take into account this type of tragic circumstance when it imposed the timelines relied on here for this parent to demonstrate her worthiness and ability to "heave to" in convincing the courts that she can properly care for and parent her child. The tragedy that has befallen this little girl through no fault of her own is now to be compounded by the permanent loss of her child. Never have I seen a more compelling reason to give full force to the law's preference that I.A. be adopted by family rather than strangers, for in this is the only hope that as this mother grows into adulthood she may have an opportunity for some kind of relationship with her son. The record shows that the trial judge appears to place importance on the law's preference for family members as the adoptive parents and I write to stress the significant importance of this in this circumstance. I write too, because unfortunately this tragedy is one that will be repeated in various ways and will progressively call for a different approach to mothers of immature age and the removal of their children from their lives and vice versa.

In State in the Interest of J.A., 99-2905, pp. 7-9 (La. 1/12/00), 752 So.2d 806, 810-11, our supreme court stated:
In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship.
State in Interest of Delcuze, 407 So.2d 707 (La.1981).
However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. Lehman v. Lycoming County Children's Serv.'s Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982) ; see also State in the Interest of S.M., 98-0922 (La. 10/20/98), 719 So.2d 445, 452. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. See, e.g., State in the Interest of A.E., 448 So.2d 183, 186 (La.App. 4 Cir.1984) ; State in the Interest of Driscoll, 410 So.2d 255, 258 (La.App. 4 Cir.1982).
The State's parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. La. Child. CodeE art. 1001. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens. The potential loss to the parent is grievous, perhaps more so than the loss of personal freedom caused by incarceration. State in the Interest of A.E., 448 So.2d [183] at 185.

State ex rel. A.L.D. , 09-0820, pps. 8-9, (La.App. 3 Cir. 11/4/09), 21 So.3d 1109, 1114-15.

The Louisiana Supreme Court in State ex rel A.T. , 06-501 p. 4 (La.7/6/06), 936 So.2d 79, 82 (emphasis added) stated:

Title X of the Louisiana Children's Code governs the involuntary termination of parental rights. 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 determine and insure the best interest of the child, which includes termination of parental rights if justifiable statutory grounds exist and are proven by the State. State ex rel. S.M.W., 00-3277 (La. 2/21/01), 781 So.2d 1223.

The grounds for taking this "most drastic action" by the State are set forth in Louisiana Children's Code Article 1015. It is apparent to me that a simple reading of these provisions makes clear that parental rights to one's child are to be terminated only as the result of extremely serious or prolonged ill treatment of the child endangering its safety and wellbeing. It must be remembered here that In.A. did not voluntarily give up her child nor did she do anything that caused the State to remove the child from her care. It was merely a practical necessity at I.A.'s birth because his mother, herself a child in need of care removed from her mother's home because of sexual abuse, was in no position to care for him. Of all these provisions none really speak to the situation before us. Both the lower court and the majority attempt to employ the provisions of part 6 of La. Childs.Code art. 1015 which provides:

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.

But this is a forced and strained application of the law. This provision speaks of a parent's "substantial compliance with a case plan" as a necessary precedent to "the safe return of the child" to its parent's custody. The trial court and the majority pay homage to these words and strive to make the evidence on the record fit the bill, but, in reality, this young mother is not yet of an age to have any chance of "substantial compliance" with a case plan designed only for mature adults. She is herself a child in need of much care including mental health therapy and the teaching of parenting skills as she passes from sixth to seventh grade. To invoke the mantra of this provision and to say, as did the trial judge, In.A. may be a young child but she is also a "parent," is to miss the whole point of article 1015 and to completely fail In.A. in making every reasonable effort to avoid the State taking the most "drastic action" that can be taken against a citizen of this State which includes even this girl of tender age. Likewise, the trial court and the majority make a strained effort to fit In.A. into the second part of La.Childs.Code art 1015(6) which requires a finding that "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." In its attempt to guage In.A.'s performance against this requirement the trial court and the majority again hold In.A. to the standard of a mature adult "parent" faulting her for her inability and/or unwillingness to change her condition or conduct. There is a world of difference between being unable because of her tender years and simply being unwilling which the State, the trial court and the majority say is evidenced by In.A.'s irresponsible, "non-parental" behavior. I will not put the blame on this young mother in this regard and I believe it is mightily unfair to do so. I do, however, acknowledge that the tragedy of these circumstances is such that In.A. is so young and said to be developmentally challenged, evidenced by her need for special education, that she is years away from being able to meet the adult standards imposed by law. Even this is strained-by this classification Albert Einstein was developmentally challenged as he suffered from dyslexia.

In State in Interest of C.E.K. , 17-409 (La. App. 4 Cir. 12/21/17), 234 So.3d 1059, 1068, writ denied , 18-0143, pps. 13-14, (La. 3/9/18), 237 So.3d 523, the appellate court explained that:

... "the abandonment statutes must be strictly construed ... the evidence must clearly show a manifestation of an intent to permanently avoid all parental responsibility and all reasonable doubt should be resolved against such a conclusion because a decree of termination [of] parental rights is in derogation of the natural rights of parents." State in the Interest of Foret , 398 So.2d 78, 81 (La. App. 4 Cir. 1981). See also , In re A.D.H. , 01-0107, p. 5 (La. App. 3 Cir. 5/2/01), 784 So.2d 854, 858, ("the termination of parental rights is a severe action which requires an onerous burden of proof"). Indeed, the "permanent termination of the parent-child legal relationship is one of the most drastic actions the State can take against its citizens." State in Interest of C.A.C. , 11-1315, p. 7 (La. App. 4 Cir. 2/1/12), 85 So.3d 142, 146. Accordingly, in determining whether parental rights should be involuntarily terminated, our jurisprudence has developed a two-pronged test: First, the State must prove by clear and convincing evidence the existence of at least one of the statutory grounds for termination under La. Ch. C. art. 1015. Second, after the ground for termination is found, the trial court must determine whether the termination is in the child's best interests. State in Interest of A.S. , 17-0028, p. 9 (La. App. 4 Cir. 5/10/17), 220 So.3d 179, 186, writ denied , 2017-1134 (La. 9/6/17), 224 So.3d 989. See also , State in Interest of C.A.C. , 11-1315, p. 8, 85 So.3d at 147.

I readily acknowledge that it is difficult to balance the concerns for what is in the best interest of I.A. with the concern for not destroying the most powerful bond of human beings, a mother and her child's bond. I.A. is being well cared for in foster care and is in a safe and happy environment. He and his mother get to visit regularly while In.A. advances in age and continues her schooling and learning about life. She deserves, and is in great need of, mental health therapy and intensive instruction on parenting, neither of which she has received in good measure. Even at her young age, suffering traumatic stress, she has posed no real risk to her child. The majority notes there were scratches on I.A.'s abdomen after a visit with In.A., but the record shows others were present during that visit including another child and there is nothing from which to conclude that In.A. made the scratch marks. Nevertheless, the trial court and majority's apparent faulting of In.A. by implication for these scratches is as regrettable as it is unfounded. The other not-so-serious action of this young mother was an attempt at feeding I.A. a French fry during a visit and as evidence of her failure to follow instructions it is pointed out that she attempted to do so a second time. I must say I have known many adult mothers who have done the same and I do not recall anyone thinking it cause for such alarm as to amount to mistreatment. In State ex rel. A.T. , 06-501, pps. 5-13 (La. 7/6/06), 936 So.2d 79, 82-87 (emphasis added), the supreme court explained at length the State's burden to provide meaningful help to parents before permanently terminating their rights to their children:

In order to terminate parental rights, the court must find that the State has established at least one of the statutory grounds by clear and convincing evidence. State ex rel. J.A., 99-2905 (La. 1/12/00), 752 So.2d 806, 811 (citing La. Ch. C. Art. 1035(A) ; Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). Further, even upon finding that the State has met its evidentiary burden, a court still must not terminate parental rights unless it determines that to do so is in the child's best interests. La. Ch. C. Art. 1039 ; State ex rel. G.J.L., 00-3278 (La. 6/29/01), 791 So.2d 80, 85.
....
The crux of this case, and the primary reason the OCS sought to terminate parental rights, was the failure of Ms. A. to substantially comply with the case plan pursuant to La. Ch. C. art. 1015(5) by her failure to obtain housing suitable for herself and her three children. Were the issue at stake merely whether or not the trial court's factual findings, that the State had proven by clear and convincing evidence that "at least one year had elapsed since [the children were] removed from the parents' custody" and that "there has been no substantial parental compliance with a case plan ...," were manifestly erroneous, we would have to say that they were not. There is no dispute that the children were in state custody for at least one year and that all the case plans required Ms. A. to obtain and maintain adequate housing for herself and her three children and she clearly did not do so. However, the court of appeal reversed the trial court's finding not on this factual issue, but on the legal issue of whether or not OCS had a statutory obligation, after the children were turned over to OCS, to remove the impediment to reunification prior to seeking termination of parental rights. The court of appeal found that OCS had this legal obligation and that, as a matter of fact, the record reflected that OCS had not made any effort to assist Ms. A in finding suitable housing after removal of the children from Ms. A's custody.
Pursuant to the Adoptions and Safe Families Act of 1997, 42 U.S.C.A. § 601, et seq., states are mandated to establish "permanency plans" for children within the foster care system. State ex rel. J.M., 02-2089 (La. 1/28/03), 837 So.2d 1247, 1256. The Act provides that such plans must demonstrate that the State make reasonable efforts to "preserve and reunify" the family. Id. If such measures fail, the State is mandated to make reasonable efforts to place a child for adoption or with a legal guardian. Id.
Accordingly, the Louisiana Children's Code provides that, except in extraordinary circumstances as set out in La. Ch. C. art. 672.1, the State must undertake reasonable efforts to assist the parent in removing the obstacles to reunification. For instance, at the first stage of the process, "[t]he court shall immediately determine whether reasonable efforts have been made by the department to prevent or eliminate the need for the child's removal ..." before granting an instanter order taking the child into state custody. La. Ch. C. art. 619(B). Further, at the hearing for continued custody, which in this case was held on October 31, 2002, "the court shall determine whether the department has made reasonable efforts as defined in Art. 603(17) to prevent or eliminate the need for removal of the child from his home, and after removal, to make it possible for the child to safely return home. " La. Ch. C. art. 626(B). "Reasonable efforts" are defined by La. Ch. C. art. 603(17) as "the exercise of ordinary diligence and care by department caseworkers and supervisors and shall assume the availability of a reasonable program of services to children and their families."
It is undisputed in this case that the only effort OCS made to assist Ms. A in obtaining adequate housing was to provide Ms. A with rent-free housing for three months, and a two-month extension, prior to Ms. A turning the children over to OCS in October of 2002. However, the duty to make reasonable efforts to remove the impediments to reunification does not necessarily stop once the children are removed from the parent's custody. In fact, Article 672.1 sets out the only circumstances under which reunification efforts are not required and even then, the State must file a motion for a judicial determination that efforts at reunification are not required and prove as much by clear and convincing evidence. See footnote 4, supra. The State did not do so in this case.
In addition, in order to support removal of a child from the custody of a parent in any such disposition, La. Ch. C. art. 682 provides that the court must "determine whether the department has made reasonable efforts to prevent or eliminate the need for removal of the child from his home and, after removal, to reunify the parent and child or to finalize the child's placement in an alternative safe and permanent home in accordance with the child's permanent plan." Further, "[t]he department shall have the burden of demonstrating reasonable efforts." La. Ch. C. art. 682(A). Thus, at least as long as the child's permanent plan is reunification, in accordance with that plan, the State has the duty to make reasonable efforts to reunify the parent and child.
Finally, at the stage where a child has been adjudged in need of care and termination of parental rights proceedings have been filed, grounds exist for involuntary termination under La. Ch. C. Art. 1015(5) only where the child has been removed from the parents' custody for one year pursuant to court order, there has been no substantial compliance with a case plan for services which has been 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. Unlike the other grounds listed in La. Ch.C. art. 1015, termination under La. Ch. C. art. 1015(5) may only be ordered "after affirmative efforts have been attempted by the state to reunite the family by providing rehabilitative services, if needed, to the parent." Lucy S. McGough and Kerry Triche, Louisiana Children's Code Handbook, p. 522 (2006).
Here, the trial court's order terminating parental rights under La. Ch. C. art. 1015(5) was erroneous because the record reflects that OCS never undertook reasonable efforts at reunification after the children were taken into state custody. OCS admits that no rehabilitative services were offered to Ms. A to assist her in obtaining suitable housing after the children were taken into custody in October of 2002, yet this was the main, if not sole, impediment to reunification cited continuously by OCS.
Further, based on this record it is impossible to discern whether Ms. A was unable to provide adequate housing because of lack of adequate assistance or was simply unwilling to provide adequate housing. This is significant because clearly if she was simply unwilling, grounds for termination would exist. However, the State bears the burden of proof by clear and convincing evidence and where the record does not reflect that in spite of reasonable efforts by the State to provide assistance, the parent still would not obtain adequate housing, this burden cannot be met. On the other hand, under our law, a child cannot even be found to be a child in need of care under La. C.C. art. 606 where the sole ground for taking the child into state custody is that the "parent is unable to provide basic support, supervision, treatment, or services due to inadequate financial resources." La. C. Ch. art. 606(B) ; see also La. C. Ch. art. 603(14)(a) ("Consistent with Article 606(B), the inability of a parent or caretaker to provide for a child due to inadequate financial resources shall not, for that reason alone, be considered neglect"). In fact, this Court has held that termination of parental rights would be unjustified if lack of stable housing is the only ground for such termination . State ex rel. S.M.W., supra at 1236. In this case, the record does not contain clear and convincing evidence that termination is warranted under La. Ch. C. art. 1015(5).
....
Contrary to the State's argument, the judgment of the court of appeal ordering a remand to the trial court "with instructions to exercise its power under La. Ch. C. art. 677 to require the case plan for reunification of this family to include ..." does not direct the trial court to rewrite the case plan itself, nor does it determine a specific placement for the children. The remand simply directs that before Ms. A's parental rights can be terminated under La. Ch. C. art. 1015(5), the record must reflect that the State made some sort of reasonable efforts to assist Ms. A in obtaining adequate housing. However, given that these children have already been in foster care for a lengthy period, time is of the essence. Therefore, the trial court must direct these efforts will be undertaken on an expedited basis and Ms. A must actively participate in pursuing all assistance offered by OCS.

Thus, one question here is whether the trial court manifestly erred in finding that the State has made reasonable efforts to help In.A. so that she may be able to offer I.A. a safe, stable, and permanent environment in which he can thrive. This is a particularly difficult decision to make in this case because the most serious impediment to In.A. meeting this requirement is her young age. Although I think the record shows the State has not provided In.A. the level of mental health assistance she needs and deserves, nor the amount of parenting instruction she needs, I believe the facts of this case also show that because of In.A.'s young age during the future time frame for her to potentially achieve the necessary goals is prohibitively long. The law does not favor holding I.A. in prolonged limbo so that his young mother can advance in age to a point sufficient to care for herself and her young child. It is for this reason I feel I must concur in the result of the majority's ruling. Again, I stress the importance here of adoption of I.A. by maternal family members as the favored course of action. In State in Interest of P.B. , 49,668, pps. 7-11, (La. App. 2 Cir. 12/17/14), 154 So.3d 806, 812-13, our sister circuit offered a clear perspective on this difficult situation:

More than simply protecting parental rights, our judicial system is required to protect the children's rights to thrive and survive. State in the Interest of S.M., 98-0922 (La. 10/20/98), 719 So.2d 445. Furthermore, a child has an interest in the termination of rights that prevent adoption and inhibit that child's establishment of secure, stable, long term, continuous family relationships. Id.
....
That children have a need for permanency is well established in the jurisprudence and it is not the intent of either state or federal law that children remain in foster care permanently. State in the Interest of S.M., supra; State ex rel. J.M., 02-2089 (La. 1/28/03), 837 So.2d 1247 ; State ex rel. C.E.C. v. D.M.D.B., 40,409 (La.App.2d Cir.9/28/05), 912 So.2d 418. Thus, the length of time a child has been forced to remain in foster care is a factor the courts consider in the termination of parental rights decision. Id.

I do not believe we arrive at the right solution to this difficult situation by placing blame on a young child forced into motherhood against her will or force fitting the application of laws never intended to address this situation. In.A. may well be a "parent" as the trial court and the majority notes, but she is nevertheless a young child in need of much care for her own wellbeing and future happiness. I do not believe we can guage In.A.'s willingness or ability to parent her child measured against tests designed to determine whether adults of mature age are serious about correcting their shortcomings to prove they are capable of parenting their children. It is the focus on the needs and rights of I.A. which ought to guide our decision in this case-not strained assignment of blame on this innocent mother. In the words quoted by Judge Ernestine Gray in her law review article "The adoption and Safe Families Act of 1997 Confronting an American Tragedy," 46 La. Bar Journal 477, 481 (1999):

As we go about this work on a daily basis, we must remember what has been said:
We are guilty of many errors and many faults but our worse crime is abandoning the children neglecting the fountain of life.
Many of the things we need can wait. The child cannot.
Right now is the time bones are being formed blood is being made senses are being developed.
To the child we cannot answer "Tomorrow."
The child's name is "Today."

For these reasons I respectfully concur.

      In accordance with Uniform Rules-Courts of Appeal, Rule 5.2, the initials of the minors are used to preserve their confidentiality.

      The grounds for termination of parental rights are:
      (1) Conviction of murder of the child's other parent.
      (2) Unjustified intentional killing of the child's other parent.
      (3) Conviction of a sex offense as defined in R.S. 15:541 by the natural parent which resulted in the conception of the child.
      (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 inhuman 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:
      (a) Murder.
      (b) Unjustified intentional killing.
      (c) Aggravated crime against nature as defined by R.S. 14:89.1(A)(2).
      (d) Rape.
      (e) Sodomy.
      (f) Torture.
      (g) Starvation.
      (h) A felony that has resulted in serious bodily injury.
      (i) Abuse or neglect which is chronic, life-threatening, or results in gravely disabling physical or psychological injury or disfigurement.
      (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.
      (k) The parent's parental rights to one or more of the child's siblings have been terminated due to neglect or abuse, prior attempts to rehabilitate the parent have been unsuccessful, and the court has determined pursuant to Article 672.1, that current attempts to reunite the family are not required.
      (l) Sexual exploitation or abuse, which shall include, but is not limited to acts which are prohibited by R.S. 14:43.1, 43.2, 46.3, 80, 81, 81.1, 81.2, 82.1(A)(2), 89, and 89.1.
      (m) Human trafficking when sentenced pursuant to the provisions of R.S. 14:46.2(B)(2) or (3).
      (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.
      (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.
      (7) The child is in the custody of the department pursuant to a court order or placement by the parent; the parent has been convicted and sentenced to a period of incarceration of such duration that the parent will not be able to care for the child for an extended period of time, considering the child's age and his need for a safe, stable, and permanent home; and despite notice by the department, the parent has refused or failed to provide a reasonable plan for the appropriate care of the child other than foster care.
      (8) The relinquishment of an infant pursuant to Chapter 13 of Title XI of this Code.
      (9) The commission of a sex offense as defined in R.S. 15:541 by the natural parent which resulted in the conception of the child.
      (10) The child is in the custody of the department pursuant to a court order for at least one year, unless sooner permitted by the court, and the identity of the child's father remains unknown and all the following have occurred:
      (a) In the course of investigating the case and providing services to the family the department has been unable to learn the identity of the father.
      (b) No party to the proceedings or the mother, if not a party, is able to provide a first and last name of a putative father or alias sufficient to provide a reasonable possibility of identification and location.
      (c) The department has obtained all of the following:
      (i) A certified copy of the child's birth certificate with no one indicated thereon as the father of the child, or the father listed has been determined not to be the biological father of the child.
      (ii) A recent certificate from the putative father registry indicating that no person is listed or registered as the child's father.
      (iii) A recent certificate from the clerk of court in the parish in which the child was born indicating that no acknowledgment with respect to this child has been recorded.
      La. Child.Code art. 1015.