Opinion
No. 107736
04-18-2019
In Re: P.A.R. A Minor Child [Appeal by K.C., Mother]
Appearances: Scott J. Friedman, for appellant. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, Cheryl Rice, Michelle A. Myers, and Joseph C. Young, Assistant Prosecuting Attorneys, for appellee.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division
Case No. AD17901036
Appearances:
Scott J. Friedman, for appellant. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, Cheryl Rice, Michelle A. Myers, and Joseph C. Young, Assistant Prosecuting Attorneys, for appellee. MARY J. BOYLE, P.J.:
{¶ 1} Appellant, K.C. ("mother"), appeals from the trial court's judgment granting Cuyahoga County Department of Children and Family Services ("CCDCFS" or "the agency") permanent custody of one of her children, P.A.R. (d.o.b. June 29, 2016). She raises two assignments of error for our review:
1. The trial court erred in adopting the magistrate's decision to terminate the Appellant's parental rights, in violation of her rights under the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution.
2. The appellant was denied the effective assistance of counsel, in derogation of her rights under the Sixth Amendment to the United States Constitution, and Article I, Section 10 of the Ohio Constitution.
{¶ 2} Finding no merit to her assignments of error, we affirm.
I. Procedural History and Factual Background
{¶ 3} On January 18, 2017, CCDCFS filed a complaint for neglect, dependency, and legal custody to mother with protective supervision of P.A.R. The complaint alleged the following:
The instant appeal only concerns P.A.R. Two of mother's other children were also subjects of the same complaint, but those children were committed to the permanent custody of CCDCFS in a separate case.
1. On January 18, 2017, Mother brought the children * * * to CCDCFS because she is overwhelmed with caring for them. Mother is unwilling to provide care for P. Jam. C. and P. Jay C.
2. Mother has been diagnosed with major depression and adjustment disorder, which prevents her from providing care for the children, P. Jam. C. and P. Jay. C. Mother is not participating with recommended mental health services, including being non-compliant with taking her medications.
3. Mother has three older children adjudicated neglected and dependent and committed to the permanent custody of CCDCFS. * * * The children, P. Jam. C. and P. Jay. C., were previously adjudicated dependent and committed to the legal custody of Mother with protective supervision. * * *
4. Alleged father of P. Jam. C. and P. Jay. C., * * * has failed to establish paternity, support, visit, or communicate with the children since their births.
5. Father of P.A.R. * * * is willing to provide care and support his child.
{¶ 4} The trial court appointed a guardian ad litem ("GAL") for P.A.R., and CCDCFS filed a case plan for mother that listed mother's mental health diagnosis for depression and the fact that she was not receiving treatment as the concern that needed to be addressed. The case plan also stated that mother "does not recognize that the behaviors that she describes her children as displaying are age appropriate behaviors" and that she reported "being overwhelmed with managing the behaviors of her children." The case plan stated that P.A.R.'s father "is actively involved in his son's life, visiting on the regular basis."
{¶ 5} In March 2017, CCDCFS filed a notice of amendment of dispositional prayer, amending its complaint from requesting protective supervision of P.A.R. to requesting the court to grant CCDCFS temporary custody of P.A.R.
{¶ 6} The trial court appointed a GAL for mother.
{¶ 7} CCDCFS subsequently moved for predispositional emergency temporary custody of P.A.R. and attached an affidavit from a CCDCFS worker assigned to the case. That affidavit stated the following:
1. On March 27, 2017, the father destroyed cabinets, fixtures in the family apartment and threw food and articles about the apartment. The child was present at the time.
2. Mother returned to the home and found that the child had a contusion on his forehead. The child was then seen by medical providers and mother returned to the family home with the child.
3. The father has moved out of the apartment, and he is not appropriate to provide care for the child.
4. Mother is overwhelmed with the child and no longer willing to provide care for the child.
{¶ 8} The trial court granted CCDCFS's motion and awarded the agency emergency custody of P.A.R.
{¶ 9} CCDCFS subsequently amended its complaint from neglect to dependency and requested temporary custody of P.A.R. The trial court also held a hearing, during which the child's GAL, the mother's GAL, counsel for mother, the CCDCFS worker assigned to the case, and counsel for the agency were present. The court adopted the magistrate's decision awarding the agency emergency temporary custody and adjudicated P.A.R. dependent.
{¶ 10} The magistrate held a hearing on April 20, 2017, during which mother, her counsel, mother's GAL, and the children's GAL were present. The family's social worker was also present and testified about mother's failure to make any progress on her case plan and expressed concerns with the state of mother's house during her last visit. The magistrate granted CCDCFS temporary custody of P.A.R.
{¶ 11} In May 2017, the trial court adopted the magistrate's decision and committed P.A.R. to the temporary custody of CCDCFS and adopted the agency's case plan for mother, which required mother to "complete a psychological evaluation and follow through with treatment recommendations" and "demonstrate emotional stability." The plan's amended cover sheet stated that during a supervised visit with P.A.R., mother "became argumentative and hostile[,]" tried to remove P.A.R., and threatened the supervisor and security.
{¶ 12} CCDCFS filed a semiannual review ("SAR") for P.A.R. in July 2017, that stated he was doing well in foster care and was bonded with his foster family. It noted that mother "has yet to engage in mental health services" and that her "mental health is untreated." It noted that during visits with P.A.R., mother was "not fully attentive" to him and that visits were suspended after she tried to take P.A.R. and until she completed her psychological evaluation and services. The review recommended continuing temporary custody and that mother should work on case plan services. It stated that mother was referred to "ABC Services" but that she refused service and would not allow a worker from the agency to refer her for a mental health assessment. Finally, the review stated that a substance abuse assessment would be added to mother's case plan and that the worker was continuing to look for possible placement with a relative.
{¶ 13} In December 2017, mother's case plan was amended to include a drug assessment "due to concerns of mother abusing illegal substances."
{¶ 14} During that time, CCDCFS moved to modify its temporary custody of P.A.R. to permanent custody and attached an affidavit from the CCDCFS social worker, which stated that mother failed to complete a psychiatric evaluation, parenting classes, and a drug assessment. It also stated that mother failed to visit with the child since May 18, 2017, when she attempted to leave with P.A.R. at a supervised visit.
{¶ 15} The GAL for P.A.R. filed a report stating that the child was doing well in his foster placement and appeared "well groomed and healthy." She stated that it was in P.A.R.'s best interest to remain in the foster placement.
{¶ 16} CCDCFS filed another SAR in January 2018, which stated that mother completed a psychological evaluation but failed to follow through with the recommendations that stemmed from that evaluation, including medication. As to the parenting objectives, the report stated that CCDCFS referred mother to an "ABC program" but that mother refused the services. It said that while mother reported going to the classes, there was no documentation verifying mother's claims. Finally as to the drug abuse assessment, the report said that mother did not yet provide urine samples as requested. The report stated that mother had some progress toward addressing her mental health concerns, insufficient progress toward her substance abuse concerns, and insufficient progress toward her parenting concerns.
{¶ 17} In March 2018, P.A.R.'s GAL filed another report stating that P.A.R. was doing well in his foster placement. The report also said that mother "disengaged from the mental health services and doesn't take medication" and "failed to comply with the case * * * plan." It concluded that P.A.R. should remain in foster placement and believed that granting CCDCFS permanent custody was in his best interest.
{¶ 18} In August 2018, the magistrate held a hearing on CCDCFS's motion for permanent custody, during which counsel for CCDCFS, counsel for mother, P.A.R.'s GAL, the CCDCFS social worker, and mother were present.
{¶ 19} The CCDCFS social worker testified that she received the case in February 2017 after mother contacted the agency stating she felt "overwhelmed" and requested assistance. She testified that mother had lost permanent custody of two of P.A.R.'s older siblings.
{¶ 20} The social worker explained while the agency initially filed for protective supervision of P.A.R., CCDCFS eventually requested temporary custody because "mother had agreed to do a mental health assessment, but she did not follow through[.]" She said mother's case plan included a "parenting [class], [a] mental health evaluation[,] and [a] drug and alcohol assessment." The social worker said that mother completed a mental health evaluation, but that based on the evaluation, mother was recommended to receive individual counseling, therapy and medication management, and a psychiatric evaluation and that mother refused to comply with those recommendations. She said mother also refused urine screens related to her drug assessment. She testified that the only component of the case plan that mother completed was the parenting class. The social worker testified that mother's visitation with P.A.R. was suspended after she tried to remove him in May 2017, and that mother did not request another visitation with P.A.R. for over a year.
{¶ 21} She explained that P.A.R.'s father was not involved with the child and was not available for the agency to offer him services. She also said that P.A.R.'s father had not contacted the child since March 2017. The social worker stated that the only relative they were able to identify as a potential caregiver for P.A.R. was a paternal aunt who lived out of state, but that the investigation was still ongoing.
{¶ 22} The social worker testified that P.A.R. was doing well in his foster placement, where he has been for a majority of his life. She concluded that P.A.R. was in need of permanency.
{¶ 23} On cross-examination, the social worker admitted that the agency was seeking permanent custody of P.A.R. before the two-year timeframe of temporary custody was reached and the investigation of P.A.R.'s paternal aunt was completed.
{¶ 24} Mother testified that she went to CCDCFS for assistance because she "had a relationship with foster mom of the other three children that were first put in custody and * * * so that [the children] could be close * * * with their siblings." Mother admitted during cross-examination that she had previously lost permanent custody of five of her six children and that P.A.R. was the only child that she still had custody of.
{¶ 25} As to the drug assessment, mother explained she went to Recovery Resources a few times, but that she was having issues with her insurance. She also stated that she was unable to pay for the service at that time. She stated that she recently went to a different service provider but continued to have insurance-related issues. When asked on cross-examination whether she knew that the agency provided counseling without the need for insurance, mother testified that the social worker did not inform her of that.
{¶ 26} Mother also stated that she was constantly trying to contact her social worker about these issues as well as her case-plan objectives. She said that she oftentimes did not receive a response. She also said that she did not believe the social worker when she was told that she had to complete additional evaluations and assessments. She later testified that she understood that she was required to complete those additional objectives and that she attempted to do so.
{¶ 27} When asked about her financial support, mother said she was "wait[ing] for Social Security" and that it has "been hard for [her] to find a job[.]"
{¶ 28} P.A.R.'s GAL recommended permanent custody to CCDCFS, stating that mother "does not follow through and ultimately puts kids in danger and in unstable housing and unstable care." She also said that mother's psychological evaluation showed that "mother needs psychological and mental health and drug abuse" assistance. She explained, "Mother does have extensive drug abuse from previous cases that we were dealing with and the pattern is usually the same as she has mental health issues that she's not dealing with and then when she starts using drugs then it all exacerbates and she loses control over the ability to provide basic care for the children." She told the court that the last time she was in mother's house, there were cockroaches everywhere.
{¶ 29} The magistrate's decision made the following findings, which the trial court adopted and approved verbatim:
[T]he Court finds by clear and convincing evidence that a grant of permanent custody is in the best interests of the child and the child cannot be placed with one of the child's parents within a reasonable time or should not be placed with either parent.
The child is not abandoned by the mother or orphaned or has not been in temporary custody of [CCDCFS] * * * for twelve or more months of a consecutive twenty-two month period.
The child is abandoned by the father.
Following the placement of the child outside the child's home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home.
The father has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child.
The parent has had parental rights terminated with respect to a sibling of the child and the parent has failed to provide clear and convincing evidence to prove, that notwithstanding the prior termination, the parent can provide a legally secure permanent placement and adequate care for the health, welfare and safety of the child.
* * *
[T]he child's continued residence in or return to the home of [mother] would be contrary to the child's best interest.
The Court finds that [CCDCFS] has made reasonable efforts to prevent the removal of the child, to eliminate the continued removal of the child from his home, or to make it possible for the child to return home. These efforts are: parenting education classes, substance abuse assessment and treatment as recommended, mental health services and psychological evaluation. The parent refused services.
{¶ 30} The magistrate recommended terminating mother's and father's parental rights and responsibilities, granting CCDCFS permanent custody of P.A.R., and approving the permanency plan for permanent custody. Neither mother nor father filed objections to the magistrate's decision.
{¶ 31} It is from the trial court's judgment adopting and approving the magistrate's decision that mother now appeals.
II. Law and Analysis
A. Adoption of the Magistrate's Decision Terminating Parental Rights
{¶ 32} In her first assignment of error, mother argues that the trial court erred in "adopting the magistrate's decision to terminate the Appellant's parental rights, in violation of her rights under the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution." Specifically, she argues that "[t]he trial court failed to conduct the mandatory statutory analysis when it determined that the termination of [mother's] parental rights was in [P.A.R.'s best] interests." She argues that the trial court's and magistrate's decision "simply relied upon conclusory restatements of the statutory language" and "did not provide any factual basis to support its conclusion that removal was in [P.A.R.'s best] interest." She said that failure "constituted prejudicial error."
{¶ 33} In support of her assignment of error, mother cites to In re B.D., 11th Dist. Lake Nos. 2009-L-003 and 2009-L-007, 2009-Ohio-2299. In that case, the father and mother of the child appealed the trial court's decision awarding permanent custody to the agency, arguing that the trial court erred by failing to discuss and consider all of the factors set forth in R.C. 2151.414(D) in its decision awarding permanent custody.
{¶ 34} The Eleventh District agreed, stating, "[T]he trial court must discuss, in its judgment entry, each of the R.C. 2151.414(D) factors when reaching a determination concerning the best interest of the child and the failure to do so constitutes prejudicial error." Id. at ¶ 104, citing In re Bentley, 11th Dist. Ashtabula No. 2004-A-0075, 2005-Ohio-1257. The court noted that while the trial court "explicitly stated it 'considered all relevant factors, including those set out by statute[,]'" the trial court's "best interest analysis was premised upon its limited consideration of two of the potentially ten (or more) statutory factors." Id. at ¶ 105. The Eleventh District stated that its review "of the evidence submitted at the permanent custody hearing demonstrates many more than the foregoing two factors discussed by the court were germane to the case" and that "multiple other factors under R.C. 2151.414(D) [were] relevant to B.D.'s best interests that the court completely failed to discuss." (Emphasis sic.) Id. at ¶ 112. Emphasizing the seriousness of terminating a parent's rights and responsibilities, the court concluded that "[a] judgment entry that discusses some, but not all of the factors listed in R.C. 2151.414(D) 'must be reversed.'" (Emphasis sic.) Id. at ¶ 114, citing In re Kelley, 11th Dist. Ashtabula No. 2002-A-0088, 2003-Ohio-194. The court therefore found that the trial court abused its discretion in awarding the agency permanent custody and concluded that the trial court's decision was "deficient on its face." Id. at ¶ 115.
{¶ 35} In re B.D., however, is noncontrolling, and our appellate district has already rejected mother's argument in previous cases.
{¶ 36} For example, in In re I.M., 8th Dist. Cuyahoga Nos. 82669 and 82695, 2003-Ohio-7069, the child's father appealed an award granting CCDCFS permanent custody, arguing that the trial court failed to make certain findings required by statute and that "the judgment entry [was] deficient on its face because it [did] not address the factors set forth in R.C. 2151.414(D) and (E)." Id. at ¶ 26. We disagreed, stating,
R.C. 2151.414(D) requires the court "consider all relevant factors" as set forth in this subsection. R.C. 2151.414(E), on the other hand, requires that the court to "consider all relevant evidence" before determining that one or more of the conditions exist as set forth in this subsection before it enters a finding that the child cannot be placed with either parent.(Emphasis sic.) Id. at ¶ 27. We said that "[t]he statute does not require the court to list [the R.C. 2151.414] factors or conditions it found applicable before making its determination that the child cannot be placed with either parent or that the permanent custody is in that child's best interest." Id. We continued,
Father could have requested a written opinion that set forth the court's findings of fact and conclusions of law as authorized by R.C. 2151.353(A)(4) upon the court's grant of permanent custody, but did not do so. Absent such a request and as long as the record supports the court's decision, the trial court was not required to journalize an entry that demonstrates that it considered statutory factors or evidence to support those factors before making a finding that the child could not be placed with either parent and that permanent custody is in the child's best interest.Id.
{¶ 37} We then found that the evidence supported the trial court's finding that granting the agency permanent custody of the child was in the child's best interest and overruled the father's assignment of error. Id. at ¶ 33.
{¶ 38} We have reaffirmed the principles set forth in In re I.M. many times. See In re L.D., 8th Dist. Cuyahoga No. 104325, 2017-Ohio-1037, ¶ 48 ("This court has rejected the proposition that it is reversible error that a trial court judgment did not explicitly discuss each of the statutory best interest factors[.]"); In re B.M., 8th Dist. Cuyahoga No. 96214, 2011-Ohio-5176, ¶ 29. Likewise, other appellate districts also hold that a trial court is not required to set forth all of its factual findings and conclusions of law in a judgment entry awarding custody absent a request for a written opinion. See In re C.S., 4th Dist. Athens No. 15CA18, 2015-Ohio-4883, ¶ 30-31; In re Templeton, 12th Dist. Brown Nos. CA2000-07-019 and CA2000-07-020, 2001 Ohio App. LEXIS 774, 11 (Mar. 5, 2001).
{¶ 39} Here, like In re I.M., mother failed to request a written opinion that set forth the trial court's findings of fact and conclusions of law. Absent such a request, the trial court was not required to "apply the facts of the case to the statutory factors" in its judgment entry as mother argues. Instead, the trial court was only required to "enter a finding that the child [could not] be placed with either parent within a reasonable time or should not be placed with either parent" and whether permanent custody was in P.A.R.'s best interest. R.C. 2151.414. We already set forth the trial court's findings in its adoption and approval of the magistrate's decision. We find that those findings were sufficient, and, therefore, that the magistrate's decision and trial court's judgment were not deficient.
{¶ 40} Further, like in In re I.M., we find that the record supports the trial court's grant of permanent custody. The CCDCFS social worker testified that mother failed to complete her mental-health objectives — individual counseling, therapy and medication management, and a psychiatric evaluation — that were recommended as a result of her psychological evaluation and failed to comply with her drug assessment case-plan objectives. The record also establishes that mother's parental rights had already been terminated for mother's other five children. Finally, the record shows that the agency recommended mother to a number of services to assist her in completing her case-plan objectives, but that mother failed to avail herself of most of those services.
{¶ 41} Finally and importantly, mother did not object to the magistrate's decision and therefore she cannot "assign as error on appeal the court's adoption of any factual finding or legal conclusion." Juv.R. 40(D)(3)(b)(iv). "An appellate court will not consider any error which the complainant could have called to the trial court's attention at a time when such error could have been corrected or avoided by the trial court." In re T.J.W., 7th Dist. Mahoning Nos. 13 JE 12, 13 JE 13, and 13 JE 14, 2014-Ohio-4419, ¶ 12, citing In re I.T.A. & A.A., 7th Dist. Belmont Nos. 11 BE 27 and 11 BE 29, 2012-Ohio-1689. Mother does not raise an assignment of error contesting the factual findings related to her appeal; instead, her first assignment of error simply argues that the trial court's and magistrate's decisions were deficient by failing to include factual bases to support their conclusions and simply relied on conclusory statements, but does not contest the actual findings. Even if mother did raise an issue with the findings on appeal, we would review for plain error. See In re T.R., 8th Dist. Cuyahoga No. 102071, 2015-Ohio-4177, ¶ 51. However, mother does not argue plain error on appeal, and therefore, she has failed to preserve the issue for appellate review. In re T.J.W. at ¶ 12.
{¶ 42} Accordingly, we overrule mother's first assignment of error.
B. Ineffective Assistance of Counsel
{¶ 43} In her second assignment of error, mother argues that her counsel was ineffective because "he failed to object to the magistrate's decision." Specifically, she argues that "given the vagueness, lack of legal analysis, and conclusory nature of the magistrate's decision, [mother's] counsel had an obligation to object to the magistrate's decision." She also states that the magistrate's findings that "CCDCFS made reasonable efforts to prevent removal of the child, including offering [mother] parenting education classes, substance abuse assessment and treatment as recommended, mental health services and psychological evaluation" and that mother "refused services[,]" "misrepresent[ed] the evidence presented at the hearing." She therefore argues that her attorney's failure to "raise these issues and object to the magistrate's decision fell below an objective standard of reasonableness" and that had her attorney objected, "the result of the proceeding would have been different."
{¶ 44} "'The established test for ineffective assistance of counsel used in criminal cases is equally applicable to actions seeking to force the permanent termination of parental rights.'" In re N.P., 8th Dist. Cuyahoga Nos. 97846, 97848, 97849, 97850, 97851, 97852, 97853, 97854, and 97855, 2012-Ohio-4298, ¶ 37, quoting In re C.M., 9th Dist. Summit Nos. 23606, 23608, and 23629, 2007-Ohio-3999.
This two-part test requires a demonstration that counsel's performance fell below an objective standard of reasonable representation and that the client has suffered prejudice. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Proof of both parts of the test is necessary to establish the claim. Bradley, 42 Ohio St.3d at 142. In applying the test, the reviewing court should recognize that counsel is strongly presumed to have rendered adequate assistance. Id.Id. Juv.R. 40(D)(3)(b)(iv) states,
Waiver of right to assign adoption by court as error on appeal. Except for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).
{¶ 45} Mother has not shown prejudice; namely, that had her counsel filed objections to the magistrate's decision, the result of the custody proceedings would have been different. First, mother argues that her trial counsel should have objected to the vagueness of the magistrate's decision. Mother does not identify what parts of the decision were vague and seems to again challenge the lack of factual findings. As we said above, however, the magistrate was not required to include all of its factual findings and conclusions of law absent a request from mother. Therefore, we reject this argument.
{¶ 46} Second, mother argues that her trial counsel should have objected to statements that she alleges misrepresented the evidence presented at trial. Mother takes issue with the following statement:
[CCDCFS] has made reasonable efforts to prevent the removal of the child, to eliminate the continued removal of the child from his home, or to make it possible for the child to return home. These efforts are: parenting education classes, substance abuse assessment and treatment as recommended, mental health services and psychological evaluation. The parent refused services.
{¶ 47} She states that the evidence shows, however, that mother completed parenting classes and a mental health evaluation and attended Recovery Resources, and that the social worker did "not observe any signs that drug use affected [mother's parenting]."
{¶ 48} Mother is correct that the evidence shows that she did complete parenting classes and a mental health evaluation. Nevertheless, we find that even if mother's counsel had objected to correct those mistakes, the proceeding would have resulted in the same outcome. The evidence supports the magistrate's findings that mother failed to attend a drug abuse assessment, which the social worker testified was added to mother's case plan after mother accidentally texted a CCDCFS intake worker inquiring about marijuana. Further, the social worker testified that based on the mental health evaluation, mother was recommended to receive individual counseling, therapy and medication management, and a psychiatric evaluation and that mother refused to comply with those recommendations. Finally, the record shows that mother previously lost her parental rights for five children. As a result, we find that mother has failed to establish prejudice and, therefore, that her counsel was ineffective.
The CCDCFS social worker testified about adding a drug abuse assessment to mother's case plan and the text message that the intake worker received during the April 20, 2017 hearing in front of the magistrate. --------
{¶ 49} Accordingly, we overrule mother's second assignment of error.
{¶ 50} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
MARY J. BOYLE, PRESIDING JUDGE ANITA LASTER MAYS, J., and
RAYMOND C. HEADEN, J., CONCUR