Opinion
No. A114958.
4-20-2007
In re Elizabeth B. et al., Persons Coming Under the Juvenile Court Law. SOLANO COUNTY HEALTH AND SOCIAL SERVICES DEPARTMENT, Plaintiff and Respondent, MARICRUZ B., Defendant and Appellant.
NOT TO BE PUBLISHED
Maricruz B. appeals from an order terminating her parental rights as to her daughters Elizabeth and Rosa. She contends the order must be reversed because (1) the court failed to apply the correct standard when finding it was likely the children would be adopted, (2) substantial evidence does not support the courts conclusion that the children were adoptable, and (3) the court erred when it declined to find applicable the exception to termination that is set forth in Welfare and Institutions Code section 366.26, (c)(1)(A). We conclude the court did not commit any prejudicial errors and affirm.
Unless otherwise indicated, all further section references will be to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 18, 2004, one of appellants neighbors called the police to report that appellants three-year-old daughter Rosa had showed up at her residence playing with a box of matches. When the neighbor tried to return the girl to appellants trailer, there was no answer.
Police officers arrived and knocked on the door of appellants trailer. Appellant emerged several minutes later appearing as though she had just woken up. She could not state accurately where Rosa was.
Officers entered the trailer. "The smell was horrific . . . ." There was dirt everywhere. Dirty smelly clothes were piled in the bathtub and were covered with mold and mildew "at least an inch thick". The trailer did not have electricity or running water and there was no food.
As the officers were speaking with appellant, her boyfriend arrived with appellants six-year-old daughter Elizabeth. Elizabeth was wearing dirty clothes and she had no shoes. Both children were dirty and had severe cases of head lice. Rosas front teeth showed signs of decay and she had a sore toe that needed medical attention. The officers notified child protection officials.
On October 19, 2004, the Department of Social Services ( the Department) filed a petition alleging that Elizabeth and Rosa were dependent children within the meaning of section 300, subdivision (b). Both children were removed from appellants custody after a detention hearing. On January 13, 2005, appellant submitted to the petition, and the court sustained it.
A dispositional hearing was scheduled. Reports for that hearing showed appellant and her children had many challenges before them. Appellant had been the subject of at least ten prior referrals to child protection officials, although none had been sustained. A substance abuse assessment determined that appellant was at a particularly severe stage of addiction and recommended that she participate in an intensive treatment program. Appellant denied she had a substance abuse problem. Appellant visited with Elizabeth and Rosa sporadically. She missed seven visits, showed up late for one visit, and terminated another visit early. A social worker noted that Elizabeth and Rosa were both uncomfortable around men. Elizabeth said appellants boyfriend hit her. Rosa had trouble sleeping and was subject to crying spells. A mental health assessment indicated Elizabeth suffered from anxiety about school, her appearance, and her competence. A foster mother reported that Rosa was biting, hitting, and calling people bad names.
At the disposition hearing, held on February 24, 2005, the court ruled Elizabeth and Rosa could not safely be returned to appellants custody. The court adopted a reunification plan that required appellant to refrain from using illegal drugs, to submit to drug and alcohol testing, and to obtain counseling focusing on parenting and substance abuse issues.
A review hearing was scheduled. Reports prepared prior to that hearing showed appellant and her children continued to struggle. Appellant had not contacted her social worker since March 22, 2005, and she had not responded to the social workers attempts to contact her. Appellant still visited her children sporadically. She missed two visits in March, one in April, and two in May. A mental health evaluation completed in March 2005 described Rosa as a "bright" child. However, the report said Rosa was exhibiting several types of problematic behavior. She cried nonstop, licked things, slept poorly, suffered from encopresis and enuresis, hoarded food, ate from the dog dish, hit peers, and lied. The report noted that "[b]ased on Rosas history of neglect by her primary caregiver, these clinically significant behaviors could be considered as appropriate reactions given her early childhood experiences." Elizabeth continued to suffer from head lice even though she had been treated many times. Although Elizabeth struggled in school, she was making progress with the assistance of her foster parents.
The social worker who was supervising appellants case believed it was unlikely Elizabeth and Rosa would be returned to appellants care. However, the worker recommended that appellant receive six additional months of reunification services.
The trial court followed the recommendation and granted appellant an additional six months of reunification services.
Another review hearing was scheduled. The report for that hearing stated appellants social worker had tried to contact her many times to discuss her case plan but that appellant repeatedly had failed to show up for meetings. Appellant continued to visit her children inconsistently. She failed to attend two visits in July 2005 even though she said she would be present. Elizabeth was disappointed and she told her social worker "Im not going to keep coming to these visits if she doesnt start showing up." In the months that followed, appellant missed several more visits. Appellant did not complete a substance abuse program, she did not complete parenting classes, and she had not obtained stable housing.
Elizabeth and Rosa had made significant progress. Both children were living together with foster parents who were committed to providing them with long-term stability. Elizabeth was described as an affectionate child. She was making progress in school, making friends, and developing positive peer relationships. Rosa was responding positively to her structured and nurturing environment. While Rosa continued to have significant behavioral and emotional problems, her foster parents were working to address those problems and Rosa was showing some signs of improvement.
Based on the evidence that showed appellant had failed to comply with her case plan, the report recommended that the court terminate reunification services.
The court followed the reports recommendation. On January 24, 2006, it terminated reunification services and set the matter for a hearing to determine whether appellants parental rights should be terminated. Appellant did not challenge that decision by filing a petition for a writ.
The termination hearing was held on June 6, 2006. The report for that hearing stated that since November 2005, Elizabeth and Rosa had been living together with foster parents who planned to adopt them. The foster parents were family-oriented people who were committed to meeting the childrens emotional and physical needs. Elizabeth was described as a "very happy child" who did not have any developmental delays or unmet medical needs. The report said Rosa was "thriving" in her placement. The report acknowledged that Rosa had exhibited behavioral problems in the past, but said she was receiving therapy to deal with those issues. Rosas foster parents described her as a "challenging, but . . . delightful child."
After considering this evidence, the juvenile court ruled it was likely Elizabeth and Rosa would be adopted and it terminated appellants parental rights.
II. DISCUSSION
A. Whether the court applied the correct standard
Before a court may terminate parental rights, it must find, by clear and convincing evidence that it is likely the child will be adopted. (§ 366.26, subd. (c)(1).)
Section 366.26, subdivision (c)(1) states, in part, "If the court determines, based on the assessment provided . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption."
The court here made that finding explaining its decision as follows: "One of the things that I have to do is make a finding as to whether or not these children are adoptable. I believe they are. I believe they are in a present placement that is very committed to the adoption, and even if it fell through that because of their ages, their general overall health, and their activity levels, that they would remain very adoptable, so Im going to find they are adoptable."
The minutes of the hearing and the written order indicate the court found Elizabeth and Rosa to be adoptable. However in each, the court failed to check a box that indicates the court had made its finding by clear and convincing evidence. Appellant now focuses on these omissions, arguing they demonstrate the court failed to make the adoptability finding by the required clear and convincing evidence standard.
A fundamental rule of appellate review is that a judgment or order is presumed to be correct. (In re Sade C. (1996) 13 Cal.4th 952, 994.) One aspect of that rule is that we are required on appeal to resolve all ambiguities in favor of affirmance. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We are also required by statute to presume that an official duty has been regularly performed. (Evid. Code, § 664.) Our Supreme Court has stated that these rules "[encompass] a presumption that the trial court applied the proper burden of proof in matters tried to the court. [Citations.]" (Ross v. Superior Court (1977) 19 Cal.3d 899, 914; see also People v. Clements (1962) 202 Cal.App.2d 284, 286, People v. Stroud (1969) 273 Cal.App.2d 670, 678-679.)
Applying those principles here, absent evidence rebutting the presumption, we must conclude the court applied a clear and convincing standard when making its adoptability finding even though it did not expressly state it had done so.
Appellant contends the court below applied an incorrect standard of proof. She relies on the fact that the juvenile court did not check the box on the Judicial Council form that the courts are obligated to use. Appellant cites no authority for the proposition that an omission on a Judicial Council form alone rebuts the presumption that the court applied the correct standard, nor for her argument that the omission is evidence that the court did not use the clear and convincing standard. Furthermore, the way in which the court completed the form supports the presumption that it did apply the correct standard. The clear and convincing finding is set forth in item 8. The form instructs that if item 8 is checked, the court should proceed to item 9. The court proceeded to item 9 as if it had made the clear and convincing finding in item 8, but overlooked checking item 8.
Appellant also notes that the report prepared prior to the hearing did not discuss the clear and convincing standard and that neither counsel mentioned that standard in their arguments to the court. However, that standard has been in place for many years. (See Stats. 1987, ch. 1485, § 47, p. 5639.) Silence on an issue that is not in dispute is insufficient to rebut the presumption.
The juvenile courts statement from the bench that the children were "very adoptable" is consistent with the clear and convincing standard: the court did not find the adoptability issue to be a close question. The juvenile court demonstrated a thorough command of juvenile dependency legal requirements, including applicable standards of proof, in all other phases of these proceedings. Appellant has not directed us to any errors in the record that indicate otherwise. We conclude appellant has not rebutted the presumption that the juvenile court applied the correct standard of proof.
Neither of the cases appellant cites convince us the trial court erred. The issue in In re S.B. (2005) 130 Cal.App.4th 1148, was whether child protection officials and the juvenile court investigated a childs possible Indian heritage adequately. The appellate court ruled those investigations were adequate based in part on the fact that boxes in the underlying petition that would indicate the Indian Child Welfare Act might apply were not checked. (Id. at p. 1161.) We have no quarrel with the decision in In re S.B. or with its conclusion that boxes that are not checked can be substantial evidence of what the court did. However, here we are not dealing with sufficiency of the evidence but with whether the trial court applied the correct legal standard. Under the authority we have cited, we must presume the court applied the correct standard. In re S.B. is not controlling.
We reach a similar conclusion about In re M.V. (2006) 146 Cal.App.4th 1048. There, the minor was removed from his home and placed with foster parents who had a family dog. When the child was bitten in the face by the dog, child protection officials filed a motion under section 388 to remove the child from the foster familys home. The juvenile court granted the petition stating, "`When I look at these photographs and know that there was a prior injury to a child by this same animal, I can do nothing but grant the motion." (Id. at p. 1056.) The foster parents appealed the decision and the In re M.V. court reversed. The court noted that the burden on the agency in the juvenile court was to establish by a preponderance of the evidence that a change of circumstances existed and that the proposed change was in the childs best interest. (Id. at p. 1059.) The court ruled the juvenile courts ruling was inadequate because it did not show that the juvenile court understood the decision it was required to make: "the findings before us are not sufficient to support a finding of changed circumstances or a finding that the proposed change was in M.V.s best interests. Our conclusion is bolstered by the absence of any indication on the record that the court understood the necessity of finding that the agency had the burden of proving by a preponderance of the evidence that changed circumstances existed and that the proposed change was in M.V.s best interests." (Id. at p. 1060.)
By contrast, the record in this case shows the court understood the decision it was obligated to make. The court was required to determine whether it was likely that Elizabeth and Rosa would be adopted, and the court made that finding explicitly. The courts only mistake is that it did not state it had done so by clear and convincing evidence. We must presume the court made that finding under the correct standard. In re M.V. is not controlling.
We note the In re M.V. court did not discuss or attempt to distinguish the many cases that hold a reviewing court must presume the trial court applied the correct legal standard. Cases are not authority for propositions that are not considered. (People v. Williams (2004) 34 Cal.4th 397, 405.)
We conclude the courts statement of findings is adequate.
Having reached this conclusion, we need not decide whether appellant waived the issue, or whether trial counsel was ineffective because he failed to raise it in the court below.
B. Sufficiency of the evidence
Appellant contends the juvenile courts ruling that it was likely Elizabeth and Rosa would be adopted is not supported by substantial evidence.
As we have said, before a court may terminate parental rights, it must find, by clear and convincing evidence, that it is likely the child will be adopted. (§ 366.26, subd. (c)(1).) "Clear and convincing" evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) "The issue of adoptability requires the court to focus on the child, and whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt. It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time." (In re Brian P. (2002) 99 Cal.App.4th 616, 624, internal citations omitted.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family [Citation.]." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)
On appeal, we review the record in the light most favorable to the lower courts ruling to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that Elizabeth and Rosa were likely to be adopted. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
Applying these standards, we conclude the trial courts ruling was well supported. The report prepared prior to the section 366.26 hearing discussed this issue at length. It said it was "highly likely" that Elizabeth and Rosa would be adopted. That statement was supported by a substantial body of evidence.
The report said Elizabeth and Rosa were adoptable both because they were living with foster parents who planned to adopt them, and because their lack of medical and unmet emotional needs rendered them generally adoptable.
The prospective parents home had been evaluated and approved in a home study completed in July 2005. The prospective parents themselves had been evaluated and had passed criminal and other background checks. The prospective parents understood the legal and financial responsibilities they were undertaking. They had the financial and physical ability to care for the children. Elizabeth and Rosa had been living with the prospective parents since November 2005 and were "thriving in the home." According to the report, the prospective parents were "committed to doing whatever it takes to adopt the children."
At the section 366.26 hearing, the court questioned the social worker on this point:
"Q. [The Court] Ms. Halliday, how committed are the present placement to adopting these children?
"A. They came into our system as a fost-adopt family, so they already have a home study written, and its approved, and they took placement of the children in November of 05 with the plan of wanting to adopt two children.
"Again, Rosa is a very active child, but they have completely met her needs, and they are very committed. They love these children. They are very supportive of them emotionally, and I had a conversation with them just last week, and they are still interested in pursuing the adoption.
"Q. And if this placement fell through for whatever reason in the future, would the children still be adoptable?
"A. I believe so, yes.
"Q. And do you want to illuminate on that, why[?]
"A. Again, they just have come a long way. If you would have asked me that question a year ago, I probably would have said no just because of where they were at emotionally and educationally, but we put in the support services. The foster parents have learned a lot, and the children I think have learned a lot.
"And especially the children, they are just very endearing children, and I think any parent would be lucky to have them."
We conclude substantial evidence supports the juvenile courts conclusion that Elizabeth and Rosa were adoptable.
Having reached this conclusion, we need not decide whether appellant waived this issue.
Appellant contends the trial court erred. First she argues the courts finding is flawed because there is substantial evidence that suggests Rosas "actual likelihood of . . . adoption [is] quite remote." Appellant focuses on the mental health assessment of Rosa that was completed in March 2005 that showed she was exhibiting many negative behaviors. In addition appellant notes that Rosa was diagnosed as having an "adjustment disorder" and she contends there is insufficient evidence in the record that this disorder had been evaluated fully. Furthermore, appellant characterizes as "weak" the evidence that indicated it was likely Rosa and Elizabeth would be adopted if the proposed adoption fell through. We reject these arguments because they fail to take into account the applicable standard of review. On appeal, we are obligated to review the record in the light that is most favorable to the courts ruling. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.) Here, the court ruled Rosa (and Elizabeth) were adoptable and that decision is supported by substantial evidence. A judgment based on substantial evidence will be upheld on appeal even though substantial evidence to the contrary also exists. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Next, appellant argues the courts adoptability ruling was flawed because it was based in part on a flawed section 366.26 report. Specifically, the report indicates an "Adoptability Review" was completed in May 2005. Appellant argues that any conclusion that the children were adoptable as of that date would be inconsistent with the mental health assessment of Rosa that was completed only two months earlier that showed she was exhibiting significant behavioral problems. We reject this argument because it is based on a false premise. While the section 366.26 report does state that an adoptability review was completed in May 2005, the report does not state that Rosa was adoptable as of that date. Indeed, since the vast majority of information in the section 366.26 report reflects events that occurred after May 2005, it is clear the reports conclusion of adoptability is not tied to that date.
Having reached this conclusion, we need not decide whether trial counsel was ineffective because he failed to cross-examine the social worker on this alleged inconsistency.
Next, appellant contends that evidence in the record which indicates the foster parents were willing and able to adopt Rosa must be deemed "unreliable" because child protection officials failed to obtain an adequate assessment of Rosas mental health problems. Therefore, appellant argues, "any potential interest in adoption expressed by the current foster parents must be deemed unsettled since vital information about Rosas mental health needs [had] not been provided . . . ." We reject this argument for two reasons. First, the section 366.26 report said Rosa was receiving "mental health therapy services through a local provider to deal with issues of adjustment and attachment . . . ." The report also said Rosa and her foster family were "receiving services through FamiliesFirst to assist with adjustment and attachment issues." From this, the court could conclude that Rosa was receiving whatever help she needed to overcome the problems she was experiencing. Second, and more importantly, the prospective adoptive parents were not coming into this process blindly. By the time of the termination hearing, they had lived with Rosa on a day-to-day basis for more than six months. While acknowledging that Rosa was a "challenging" child, they remained "committed" to adopting her. Based on this evidence, the juvenile court could reasonably conclude the prospective parents fully understood whatever problems Rosa had and that they were still willing to adopt her.
Appellants final argument in her challenge to the adoptability finding is based on the following interchange that occurred when Elizabeths and Rosas attorney was cross-examining the social worker about where the children wanted to live:
"Q. Ms. Halliday, when you did ask Elizabeth and Rosa about placement, where they would like to live, what did they tell you?
"A. They said they would like to stay with the current care providers and be adopted by them.
"Q. . . . Did they mention if they want to still see their mother or live with her at some time, did they mention anything like that?
"A. They mentioned — I dont know if I specifically asked the question, and I have not discussed with them either about what this really means, that adoption would mean that they wouldnt have contact with their mom any longer."
Later, counsel for appellant questioned the social worker on this issue:
"Q. Now, you indicated that youd asked the children where they wanted to stay; is that right?
"A. Uh-huh.
"Q. And they said they wanted to stay where they are currently?
"A. Correct.
"Q. But then you also testified that you did not tell them that if they were going to be adopted, they would not have contact with their mother anymore; is that right?
"A. Not specifically, no.
"Q. So is it fair to say the way the questioning was asked to the children that they would assume things are going to stay the way they are right now, that they live where they are but they still see their mom?
"A. Thats fair to say."
Appellant now contends the courts adoptability finding should be reversed because the social worker "affirmatively [misled] the children in order to increase the likelihood that they would express a desire for adoption." This overstates the import of the social workers exchange with the children. The social worker did not affirmatively mislead the children. At most, she did not explain to the children every consequence of their possible adoption. Given the childrens young ages, and the significant trauma to which they had been exposed, this was not an unreasonable decision. Defense counsels artful cross-examination made the limits of the childrens understanding clear. This is not grounds for reversal.
C. Application of section 366.26, subdivision (a)(1)(A)
At the section 366.26 hearing, appellants counsel urged the court not to terminate appellants parental rights arguing the exception to termination that is set forth in section 366.26, subdivision (c)(1)(A) applied. The juvenile court declined to make that finding. Appellant now claims the trial court erred.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, the court must select adoption as the permanent plan, unless it finds that termination of parental rights would be detrimental to the child under one of the exceptions that are set forth in section 366.26, subdivisions (c)(1)(A) through (c)(1)(F). The "beneficial relationship" exception applies where "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).)
A parent has the burden of proving that the beneficial relationship exception applies. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) To do so, the parent must do more than demonstrate frequent and loving contact with the child, the existence of an emotional bond, or that parent and child find their visits pleasant. (Id. at p. 827.) The parent must show that her relationship with the child "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
There must be a compelling reason for applying the parental benefit exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Determining whether the exception applies is a "quintessentially discretionary determination." (Id. at p. 1351.) Thus, we review the juvenile courts determination for an abuse of discretion. (Ibid.)
Although appellate courts routinely have applied the substantial evidence standard when reviewing termination orders, Division Three of this court has ruled the appropriate standard is abuse of discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) We will apply the Jasmine D. standard recognizing, as it did, that the practical differences between the two standards is insignificant when reviewing termination orders. (Ibid.)
Applying that standard, we find no abuse here. The parental benefit exception only applies where a parent shows regular visitation and contact with the child. (In re Zeth S. (2003) 31 Cal.4th 396, 412, fn. 9.) Appellant failed to satisfy this threshold requirement. The report for the termination hearing shows appellant visited her children on only 10 of 26 available visits. At the hearing itself, appellant testified to a different number. She admitted she attended only 15 of 32 visits. Under either version, the trial court reasonably could conclude that the exception to termination set forth in section 366.25, subdivision (c)(1)(A) did not apply because appellant had not maintained regular visitation and contact with her children.
Appellant contends the trial court erred because the Departments evidence concerning missed visits was "fundamentally inconsistent and inaccurate." However, even if we were to assume, arguendo, that the Departments numbers were inaccurate, appellant herself admitted that she missed 17 of 32 visits. Appellants testimony, by itself, was more than sufficient to support the juvenile courts decision.
Having reached this conclusion, we need not decide whether trial counsel was ineffective because he failed to cross-examine the social worker about errors the Department may have committed when calculating the number of visits appellant completed.
Appellants next argument is based on an event that occurred in July and August 2005. According to the record, the Department temporarily suspended appellants visitation rights because she had not kept in contact with the Department. Appellant now seems to argue the trial court could not rely on her lack of visits because the Department violated her Constitutional rights when it suspended her visitation rights.
We reject this argument on procedural grounds. Appellant never raised this issue in the court below. She cannot raise it for the first time on appeal. (In re Brian K. (2002) 103 Cal.App.4th 39, 42.)
Next, appellant contends the Department unconstitutionally interfered with her ability to visit with her children. She complains the Department required that she speak English to her children rather than using her native Spanish language. She states that the room where the visits occurred was small and was inhospitable because initially it did not have any books or toys. She also complains that she was required to visit both children at the same time which was difficult because Rosa was so demanding. Appellant has not cited any authority that suggests these types of problems can result in a Constitutional violation. Indeed, she has not cited any authority at all. We conclude the issue is waived. (In re S.C. (2006) 138 Cal.App.4th 396, 408.) Indeed, it is also waived because appellant did not raise this issue in the court below. (In re Brian K., supra, 103 Cal.App.4th at p. 42.)
Finally, appellant contends it was improper for the trial court to rely on what she characterizes as the "improperly obtained evidence of the childrens wishes" when ruling on her section 366.26, subdivision (c)(1)(A) request. Since we have already concluded that evidence was not improperly obtained, we reject this derivative argument as well.
III. DISPOSITION
The order terminating parental rights is affirmed.
We concur:
SIMONS, J.
GEMELLO, J.