Opinion
No. 354550 No. 354551
05-20-2021
In re E. WEIDMAN, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oscoda Circuit Court Family Division
LC No. 19-000676-NA Before: JANSEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ. PER CURIAM.
In case no. 354550, respondent-father appeals as of right the order of the trial court terminating his parental rights to respondents' minor child under MCL 712A.19b(3)(c)(i) (failure to rectify the conditions that led to the adjudication), (g) (failure to provide proper care or custody), (j) (reasonable likelihood child would be harmed if returned to parent), and (h) (deprivation of a normal home for more than two years because of parent's incarceration). In case no. 354551, respondent-mother appeals as of right the order of the trial court terminating her parental rights to the child under MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.
I. FACTS
Respondents were married, and their child was born in 2012. When the couple divorced, respondent-father was awarded custody of the child. Respondent-mother, who has schizophrenia, bipolar disorder, anxiety, and depression, was permitted supervised visitation.
On April 29, 2019, respondent-father was arrested following an incident in which he fired a gun from his porch toward his girlfriend while the child was inside the home. Petitioner, the Department of Health and Human Services, petitioned the court to take jurisdiction of the child and remove him from respondent-father's home. The petition alleged that respondent-father has an extensive criminal history that includes domestic violence, endangering his older children, and illegal drug use. The petition also alleged that respondents have an extensive history of intervention by Child Protective Services (CPS), and respondent-mother has a history of mental illness. The petition indicated that the family previously had been provided with multiple services designed to prevent removal of the child from the home.
On the night of his arrest, respondent-father placed the child with a couple who had been family friends and mentors since 2013. The trial court thereafter found that it was contrary to the child's welfare to remain in respondent-father's home and ordered that the child remain with the family friends, who thereafter became the child's foster parents. The trial court ordered supervised parenting time for respondent-mother. Although respondent-father's parenting time was suspended while he was in jail, the trial court ordered that upon release he was to be permitted supervised parenting time with the child at the discretion of petitioner if he had clean drug screens.
At the adjudication hearing, both parents entered pleas, admitting certain allegations of the petition. The trial court accepted the pleas, authorized the issuing of the petition, and assumed jurisdiction over the child. Petitioner informed the trial court that respondent-mother had begun supervised visitation with the child, but that respondent-father's visitation had been suspended because he had tested positive for methamphetamine.
Petitioner thereafter entered into parent-agency treatment plans with both respondents. The parent-agency treatment plan for respondent-father identified the barriers to reunification as resource availability and management, his interpersonal skills, housing, parenting skills, domestic relations, substance abuse, and emotional stability. The parent-agency treatment plan for respondent-mother identified substance abuse, emotional stability, parenting skills, resource availability and management, communication and interpersonal skills, domestic relations, and housing as the barriers to reunification. Both treatment plans provided for services for respondents with the goal of reunifying the child with the parents. Pursuant to the parent-agency treatment plan, respondent-father was offered a psychological examination, counseling, anger management, substance abuse counseling, parenting skills classes, and supervised visits with the child. Respondent mother was offered counseling, parenting skills classes, mental health services, assistance with housing, and supervised visits with the child.
In December 2019, petitioner requested that the trial court change the goal of the proceedings from reunification to termination. The foster care caseworker testified that the parties had not made sufficient progress in the previous six months to suggest that the parents would be able to have the child return to their care in a reasonable amount of time. Although respondent-father had participated in some services, including trauma-based parenting classes, before he was sentenced to prison for the shooting incident, he had made little progress. He continued to deny that he had caused trauma to the child with regard to the shooting incident and demonstrated greater concern for his girlfriend than for the child. The caseworker further testified that respondent-father tested positive for methamphetamines just before being incarcerated.
With respect to respondent-mother, the caseworker testified that she did not have the financial ability to support herself and a child, that the results of her psychological evaluation indicated that she had high-risk aspects of her personality related to schizophrenia and mood dysphoria, that she had both psychotic symptoms and cognitive deficits, and that her progress in overcoming the barriers to reunification was poor. Although respondent-mother visited with the child, she struggled to remain at the visit for the full two hours, struggled to complete the visit without a cigarette, and often left early because she did not feel well. The caseworker further reported that visiting with respondent-mother caused the child stress. The trial court, however, declined to change the goal to termination at that time.
In March 2020, petitioner again sought to change the goal of the proceedings because neither parent had made progress on their parent-agency treatment plan. The caseworker testified that neither parent was in a position to have a suitable home or to complete the treatment plan in a reasonable amount of time. In October 2019, respondent-father had been sentenced to 17 to 48 months imprisonment for the shooting incident. Before being imprisoned, he tested positive for THC and methamphetamines on three occasions. He showed no benefit from the parenting classes he had attended before being incarcerated, and continued to deny that the child had suffered any trauma. Although respondent-father participated in domestic violence counseling, the counselor reported that he had not made progress, but instead was focused on how to reunite with his girlfriend. Petitioner also asserted that respondent-father would be incarcerated until at least January 2021, and by that time, the child would have been in foster care for 23 months. After release, respondent-father would have to begin again working to fulfill his parent-agency treatment plan.
The caseworker testified that respondent-mother had been participating in her treatment plan, but had made virtually no progress engaging and communicating with the child. Respondent-mother often missed her weekly counseling appointments and would not answer her door when the worker visited. Respondent-mother completed a parenting skills program, but made no progress and had difficulty completing a visit with the child. The caseworker testified that respondent-mother continued to be unable to care for the child unsupervised.
The trial court found that a goal change was in the child's best interests, changing the permanency goal for the child to adoption. Petitioner thereafter filed a supplemental petition for termination of respondents' parental rights. At the hearing on the petition, respondent-mother testified that she loves the child and wanted to be involved in his life and activities, and that she had complied with her treatment plan to the best of her ability. The caseworker, however, testified that each of the barriers identified in the parent-agency treatment plans continued to exist. Respondent-mother's psychological evaluation revealed continued mental illness and emotional instability. She had not had unsupervised visitation with the child since he was an infant, and her psychological evaluation cautioned against her having unsupervised visitation. Respondent-mother's progress with respect to housing was partial; she had obtained a two-bedroom apartment, but continued to struggle financially with housing and related costs. She had made some progress in the family support program with daily living skills, but when visiting the child, respondent-mother had difficulty focusing on the child. The caseworker summarized that respondent continued to be unable to parent the child unsupervised.
With respect to respondent-father, the caseworker testified that during the five months the case was open before he was incarcerated, he continually was in crisis and made no progress on the parent-agency agreement. He reported suicidal ideations because of his disrupted relationship with his girlfriend. The girlfriend continued to live in his home, and there continued to be domestic violence and substance abuse issues between them. He failed three drug screens before going to prison, and admitted to the caseworker that he used vodka and marijuana to lessen his anxiety. Although referred for substance abuse counseling, domestic relations counseling, and anger management counseling, he did not complete counseling before he went to prison, and his therapist reported that his progress was poor.
The caseworker testified that before his incarceration, petitioner provided respondent-father with gas cards for transportation, and the instructors met one-on-one with him so that he could complete his parenting class before he went to prison, but he did not benefit from the class. After he was imprisoned, he was permitted weekly phone calls with the child, but rarely availed himself of phone contact with the child. The caseworker also testified that respondent-father's parental rights to five children had been terminated previously because of domestic violence and substance abuse. The psychologist evaluating him concluded that respondent-father's personality, mental and emotional health, history of domestic violence, and substance abuse weighed against reunification with the child. The caseworker testified that although a bond existed between respondent-father and the child, the child very much wanted to stay with the foster parents. She testified that even if respondent-father were released from prison in January 2021, she did not believe that sufficient progress toward reunification would be made within a reasonable time because he would need at least nine months to demonstrate that he could maintain sobriety and complete services, resulting in the child being in foster care for almost three years in that scenario.
Respondent-father testified that while incarcerated he had completed two phases of substance abuse recovery, he was participating in a domestic violence prevention class and also an employment readiness class, was the chair of the AA and NA group in prison, and had no prison disciplinary tickets. Upon his release from prison, he intended to continue with substance abuse recovery and counseling and to take a parenting class. He also testified that he knew that he struggled to put the child first, but that he had a good bond with him.
The trial court found that petitioner had established the statutory grounds for termination of both respondents' parental right under MCL 712A.19b(3)(c)(i), (g), and (j). The trial court also found with respect to respondent-father that petitioner had established the statutory ground for termination under MCL 712A.19b(3)(h). The trial court further found that it was in the child's best interests to terminate the parental rights of both respondents. Respondents now appeal from the trial court's orders terminating their parental rights to the child.
II. DISCUSSION
A. RESPONDENT-MOTHER'S ADMISSION
Respondent-mother contends that the trial court erred when it accepted her admission of the allegations in the petition, which established the trial court's jurisdiction over the child. She argues that the trial court failed to advise her that her plea could be used against her during subsequent termination proceedings, thereby failing to comply with MCR 3.971(B)(4). We disagree.
We note initially that because respondent-mother did not move to withdraw her plea in the trial court or otherwise object to the advice of rights she was provided, this issue is unpreserved. See In re Pederson, 331 Mich App 445, 462; 951 NW2d 704 (2020). We therefore review this issue for plain error affecting substantial rights. Id. at 463.
The Department of Health and Human Services is authorized to petition the trial court regarding suspected child abuse or neglect, requesting that the trial court assume jurisdiction over a child. In re Ferranti, 504 Mich 1, 15; 934 NW2d 610 (2019). Upon receiving a petition, the trial court must hold a preliminary hearing and, if the trial court finds probable cause that one or more of the allegations of the petition is true and supports termination, the trial court may authorize the filing of the petition. Id.
If the trial court authorizes the petition, the next step in the process is the adjudication phase; in this phase, the question is whether the trial court may assume jurisdiction over the child. Id. When a parent admits the allegations of the petition that establish the trial court's jurisdiction over the child, the trial court may then exercise jurisdiction over the child. Id. In admitting the allegations, a parent waives the right to a trial on the issue of jurisdiction. See In re Pederson, 331 Mich App at 464. Because a parent thereby waives constitutional rights, the parent must be advised of the direct consequences of the waiver. Id. The procedures of the adjudicative hearing thus protect a parent from the erroneous deprivation of the constitutional right to parent his or her child. In re Ferranti, 504 Mich at 16. In that regard, MCR 3.971(B) provides, in relevant part:
(B) Advice of Rights and Possible Disposition. Before accepting a plea of admission or plea of no contest, the court must advise the respondent on the record or in a writing that is made a part of the file:
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(4) of the consequences of the plea, including that the plea can later be used as evidence in a proceeding to terminate parental rights if the respondent is a parent.
Respondent-mother contends that the trial court did not advise her on the record that her plea thereafter could be used as evidence in a proceeding to terminate her parental rights. However, at the preliminary hearing, the trial court inquired whether respondent-mother had received an advice of rights form and whether she had reviewed it. Respondent-mother indicated that she had received the advice of rights form and that it had been read to her. She also indicated that she understood her rights contained in the form. The form states, in relevant part that "[i]f I am a parent of the child(ren), my plea can later be used as evidence in a proceeding to terminate my parental rights." The advice of rights form is included in the lower court record, is signed by respondent-mother, indicates that the form was read to her, that she received a copy of the form, and that she understood her rights.
Respondent-mother suggests that the court was required to inquire further to ensure that she understood that the plea later could be used as evidence in a proceeding to terminate parental rights, but does not cite authority for this proposition. The record in this case reflects that respondent-mother specifically told the trial court that she understood the form, and there is no indication in the record that respondent-mother's mental health issues prevented her from understanding the advice of rights form that had been read to her. --------
Thereafter, at the continued preliminary hearing/adjudication hearing, the court again confirmed that respondent-mother had reviewed the advice of rights form and that she had signed it. Respondent-mother responded "no" when the court asked her whether she had any questions about the form that she needed to discuss with her attorney before she entered a plea. Because respondent-mother was properly advised, as required by MCR 3.971(B)(4), that her plea could "later be used as evidence in a proceeding to terminate parental rights," no error occurred. See In re Pederson, 331 Mich App at 466.
B. STATUTORY GROUNDS FOR TERMINATION
Both respondents contend that the trial court clearly erred by finding that clear and convincing evidence established a statutory basis to terminate their parental rights under MCL 712A.19(b)(3)(c)(i), (g), and (j). Respondent-father additionally argues that the trial court erred by terminating his parental rights under MCL 712A19b(3)(h).
To terminate parental rights, the trial court must find that at least one statutory basis for termination under MCL 712A.19b(3) has been proven by clear and convincing evidence. In re Keillor, 325 Mich App 80, 85; 923 NW2d 617 (2018). We review for clear error the trial court's factual findings as well as its determination that a statutory basis for termination of parental rights has been proven by clear and convincing evidence. Id. A factual finding is clearly erroneous if we are left with a definite and firm conviction that a mistake has been made, giving due regard to the trial court's special opportunity to observe the witnesses. Id. We will not find that a trial court's finding is clearly erroneous unless it is more than possibly or probably incorrect. In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011). Only one statutory ground for termination need be established to warrant termination of parental rights. Id. at 32.
In this case, the trial court terminated both respondents' parental rights under MCL 712A.19b(3)(c)(i), (g), (i), and also, with respect to respondent-father, (h). Those statutory sections provide:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
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(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
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(g) The parent, although, in the court's discretion, financially able to do so, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.
(h) The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child's proper care and custody, and there is no reasonable expectation that
the parent will be able to provide proper care and custody within a reasonable time considering the child's age.
(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.
We conclude that the trial court did not clearly err by determining that there was clear and convincing evidence to support termination of respondents' parental rights under MCL 712A.19b(3)(c)(i). Termination of parental rights is proper under subsection (c)(i) when "the totality of the evidence amply supports" that the parent has not accomplished "any meaningful change in the conditions" that led to the trial court assuming jurisdiction of the child, In re Williams, 286 Mich App 253, 272; 779 NW2d 286 (2009), and when there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age. MCL 712A.19b(3)(c)(i).
Here, the record reflects that the conditions that led to respondent-father's adjudication were criminality, domestic violence, substance abuse, and lack of parenting skills. Respondent-father had a long history of substance abuse. He tested positive for methamphetamine and THC while this case was open, including in the days just before he was imprisoned, indicating that substance abuse remained a barrier to reunification. Although respondent-father reported that he was maintaining sobriety in prison, he also testified that he was not given drug tests in prison.
When determining whether a parent would be able to rectify the conditions that led to termination within a reasonable time, this Court focuses on the time required to rectify the barriers, as well as how long the children "could wait for this improvement." In re Dahms, 187 Mich App 644, 648; 468 NW2d 315 (1991). In this case, at the initial dispositional hearing, the child was nearly seven years old, and was eight years old at the termination hearing. The caseworker testified that the child needed permanence, stability, and finality. She indicated that respondent-father was not close to rectifying any of the issues that led to the child being removed from his care, and she explained that it would take six to nine months of services after he was released from prison before he could begin to reunite with the child. She testified that respondent-father would have to demonstrate sobriety after he was released from prison, and that waiting for respondent-father to be released from prison and then another six months to nine months for him to work on services would be traumatic for the child. We therefore conclude that the trial court did not err by finding that termination of respondent-father's parental rights was proper under MCL 712A.19b(3)(c)(i).
Respondent-mother argues that the trial court clearly erred by finding statutory grounds for termination of her parental rights under MCL 712A.19b(3)(c)(i), (g), and (j). Respondent-mother directs this Court attention to a number of cases in which a respondent achieved proper care and custody through placement with a relative. See In re Sanders, 495 Mich 394, 421; 852 NW2d 524 (2014); In re Mason, 486 Mich 142, 161 n 11; 782 NW2d 747 (2010); In re Pops, 315 Mich App 590, 599; 890 NW2d 902 (2016). Indeed, a respondent can achieve proper care and custody through placement of a child with a relative. In re Baham, 331 Mich App 737, 754; 954 NW2d 529 (2020), citing Mason, 486 Mich at 161 n 11. In this case, however, the foster parents are not relatives of the family, and respondent-mother has not provided authority to support her assertion that a parent's placement of a child with a nonrelative constitutes proper care and custody. Nor did respondent-mother place the child with the foster parents. Respondent-father asked the foster parents to take the child on the night of his arrest, and the trial court then ordered that the child remain with the foster parents.
Moreover, the trial court did not clearly err by finding that termination of respondent-mother's parental rights was warranted under of MCL 712A.19b(3)(c)(i). The record reflects that the conditions that led to respondent-mother's adjudication were mental illness, substance abuse, lack of parenting skills, lack of appropriate housing, and financial instability. Although respondent-mother complied with some aspects of her parent-agency treatment plan, she did not benefit from the services offered. As a result, respondent-mother was still unable to parent the child without supervision or provide for the child at the time of termination. We therefore conclude that the trial court did not err by finding that termination of respondent-mother's parental rights was proper under MCL 712A.19b(3)(c)(i). Again, because only one ground for termination must be proven, we need not consider whether clear and convincing evidence existed to support termination under the additional statutory sections.
C. BEST INTERESTS OF THE CHILD
Both respondents also contend that the trial court clearly erred by finding that it was in the child's best interests to terminate their parental rights. We disagree.
Once a statutory ground for termination has been demonstrated, the trial court must find by a preponderance of the evidence that termination is in the best interests of the child before terminating parental rights. MCL 712A.19b(5); In re Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015). If the trial court finds that a preponderance of the evidence establishes that termination is in the best interests of the child, the trial court is required to terminate the parent's parental rights. MCL 712A.19b(5). This Court reviews for clear error the trial court's decision regarding a child's best interests. In re Medina, 317 Mich App 219, 226; 894 NW2d 653 (2016).
When determining whether the termination of parental rights is in a child's best interests, the trial court should weigh all the available evidence. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). The trial court typically should consider a variety of factors, including the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability, and finality, the advantages of a foster home over the parent's home, the parent's compliance with the case service plan, the parent's visitation history with the child, the child's well-being in the foster home, and the possibility of adoption. Id. In addition, the trial court should consider the child's safety and well-being, including the risk of harm a child might face if returned to the parent's care. See In re VanDalen, 293 Mich App 120, 142; 809 NW2d 412 (2011). In considering the child's best interests, the trial court should focus on the child and not the parent. In re Moss, 301 Mich App 76, 87; 836 NW2d 182 (2013). At this stage, the interest of the child in a stable home is superior to any interest of the parent. In re Medina, 317 Mich App 219, 237; 894 NW2d 653 (2016).
Respondent-father argues that the trial court erred by focusing on the child's need for permanency instead of focusing on the efforts he was making in prison and the effect that termination of his parental rights would have on his bond with the child. The bond between a parent and child is just one factor that the trial court may consider, however, and a factor that may be outweighed by other factors that prove termination of parental rights is in the child's best interests. See In re Jones, 316 Mich App 110, 120; 894 NW2d 54 (2016). Here, a preponderance of the evidence established that the best-interest factors weighed in favor of termination of respondent-father's parental rights. Respondent-father failed to make progress on the primary issues of domestic violence and substance abuse, and failed to benefit from the services offered. The psychologist's report concluded that the child would be at risk of harm if reunified with respondent-father and that there was minimal hope for reunification because of respondent-father's emotional instability and longstanding substance abuse. The child was doing very well in foster care, the foster parents were willing to adopt him, and the child expressed a preference for living with the foster parents. The child needed permanence and stability, and the trial court gave strong weight to the child's need for safety and stability. Considering the whole record in this case, the trial court did not clearly err by concluding that a preponderance of the evidence supported a finding that it was in the child's best interests to terminate respondent-father's parental rights.
Respondent-mother argues that the trial court erred by concluding that it was in the child's best interests to terminate her parental rights because the trial court was required to consider the option of placing the child in a guardianship with the foster parents. "[T]he appointment of a guardian is done in an effort to avoid termination of parental rights," In re TK, 306 Mich App 698, 705; 859 NW2d 208 (2014), but is "only appropriate after the court has made a finding that the child cannot be safely returned to the home, yet initiating termination of parental rights is clearly not in the child's best interests." Id. at 707. In addition, "the court must find that it is in the child's best interests to appoint a guardian." Id.
Here, the evidence presented supports the trial court's decision to terminate respondent-mother's parental rights instead of placing the child in a guardianship. A guardianship is not a permanent option, and, therefore, it would not provide the stability that the trial court found the child needed. There was no indication that respondent-mother would be capable of parenting the child within a reasonable time and, therefore, being placed in a guardianship would likely result in the child remaining in a temporary placement for a long period of time. Further, the record indicates that the child had been placed with the foster parents for 14 months at the time of termination of respondent-mother's parental rights. The foster parents met all the child's needs, he was bonded to the family, and adoption would provide the child with the stability and permanence that he needed. Accordingly, the trial court did not clearly err by concluding that it was in the child's best interests to terminate respondent-mother's parental rights.
D. REASONABLE EFFORTS
Respondent-father also contends that petitioner failed to make reasonable efforts to reunify him with the child. To preserve the challenge that petitioner failed to make reasonable efforts toward reunification, a respondent must raise the issue when the services are offered. In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). Because respondent-father failed to object to the services at the time they were offered, we review this unpreserved challenge to the trial court's finding that reasonable efforts were made for plain error affecting substantial rights. See, e.g., In re VanDalen, 293 Mich App at 135. In this case, respondent-father failed to demonstrate plain error affecting substantial rights because the record supports the trial court's finding that petitioner provided ample services to him and made reasonable efforts to reunify him with the child.
Respondent-father asserts that petitioner offered only two classes related to parenting before his incarceration, one of which was not available to him at the time because of his impending incarceration, and that petitioner did not make any efforts toward reunification after he was incarcerated. Absent circumstances not present here, petitioner "has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d 637 (2017). A parent's incarceration does not relieve the state of its duty to engage the parent. In re Mason, 486 Mich at 152. Included in the requirement to make reasonable efforts is the creation of a service plan, which outlines the steps that the agency and the parent "will take to rectify the issues that led to court involvement and to achieve reunification." In re Hicks/Brown, 500 Mich at 85-86, citing MCL 712A.18f(3)(d).
In this case, the record establishes that respondent-father received a case service plan and a parent-agency treatment plan outlining the goal of reunification and the steps and services necessary to achieve that goal. Before his incarceration, he was referred to and completed a psychological evaluation, and was referred to and participated in substance abuse counseling, domestic violence counseling, and anger management counseling. He also was referred to and participated in a trauma-focused parenting class and was provided gas cards for transportation. He was referred to Foster Care Supportive Visitation for parenting skills. He was provided drug screens and supervised visitation. While in prison, he received supervised telephone parenting time with the child, monthly reports from the caseworker regarding the child, and he participated in all hearings. The caseworker testified that respondent-father was on the list for substance abuse and anger management counseling in prison, and was only prevented from participating by the Department of Corrections' policy based upon his anticipated release date. Under these circumstances, the trial court did not plainly err by finding that DHHS made reasonable efforts to reunify respondent-father with the child.
Affirmed.
/s/ Kathleen Jansen
/s/ Amy Ronayne Krause
/s/ Michael F. Gadola