Opinion
DA 23-0415
03-19-2024
IN THE MATTER OF: P.P., A Youth in Need of Care.
For Appellant Mother: Allen P. Lanning, Law Office of Allen P. Lanning, PC. For Appellant Father: Colin M. Stephens, Stephens Brooke, P.C. For Appellee: Austin Knudsen, Montana Attorney General, Cori Losing, Kevin Downs, Lewis and Clark County Attorney, Mary Barry.
Submitted on Briefs: February 21, 2024.
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis And Clark, Cause No. CDN-2021-88 Honorable Kathy Seeley, Presiding Judge
For Appellant Mother: Allen P. Lanning, Law Office of Allen P. Lanning, PC.
For Appellant Father: Colin M. Stephens, Stephens Brooke, P.C.
For Appellee: Austin Knudsen, Montana Attorney General, Cori Losing, Kevin Downs, Lewis and Clark County Attorney, Mary Barry.
OPINION
MIKE McGRATH, JUDGE.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 K.P. (Mother) and T.P. (Father) separately appeal from the July 7, 2023 Findings of Fact, Conclusions of Law, and Order on March 17, 2022, Petition (Order) of the First Judicial District Court terminating their parental rights. The District Court held that Mother and Father subjected their child, P.P., to aggravating circumstances such that reunification services need not be provided to them and terminated their parental rights. We affirm.
¶3 P.P. was born May 28, 2021. Mother was an attorney working in Helena. Father worked in law enforcement in Helena at the time of P.P.'s birth but transferred to a position in Great Falls in August 2021 so he could prepare the family's new home in Choteau. Mother and P.P. continued to live in an interim apartment in Helena while preparing to sell their old house. Father saw P.P. in person about 18 days in September and received updates, pictures, videos, and video calls from Mother while he was away.
¶4 P.P. began to develop injuries to her face in her first four months, which should have been "an immediate red flag" according to Krista Westerhold (Westerhold), a child protection specialist supervisor who testified at the termination hearing-"if a child's not mobile . . . if they don't cruise, they shouldn't bruise." By the time P.P. was one month old, she had a bruise on one eye and abrasions on her nose, which Father saw but which did not happen in his care. For the next three months, Father admitted he repeatedly saw other bruises on P.P.'s face, including, on September 25, "I don't know if it was dark -whether it's blood, dried blood, whatever it is underneath her eye." Nevertheless, Father, a trained first responder and mandatory reporter, never sought treatment or an opinion from P.P.'s pediatrician, Dr. Loomis (Loomis).
At P.P.'s two-month checkup, parents asked about a "red spot" in P.P.'s eye, which by that time had healed to only a few millimeters and did not cause Loomis concern. Loomis was shown a picture of P.P.'s fresh injury at the termination hearing and testified that if she had seen that, she "would have had them go to the emergency room escorted by the police for an evaluation for abuse."
¶5 On Monday, September 27, 2021, P.P.'s daycare noted a black eye and wrote: "[P.P.] has bruises + scratches frequently. We're now documenting with pictures. Mom said she hit herself with toy per [employee]. [Employee] will ask mom nonchalantly again." The owner of the daycare (Anderson) did not think the injury was "developmentally appropriate" for her age as P.P. had only managed to roll over for the first time in their care the next day, September 28. Staff started to assemble their records and had everything put together on September 28. Anderson decided to call the Department of Public Health and Human Services (Department) that evening after a meeting with staff. However, Anderson got a migraine and instead called the morning of September 29.
¶6 Father picked P.P. up from daycare on September 28 and took her home, where Mother and Father were packing the house. Father fed P.P. a normal amount at around 6:00 p.m. that evening. Shortly after that, Father's boss came by the house to pick some things up. They met in the garage for 15 to 25 minutes, while Mother and P.P. were inside. Father's boss remembered hearing P.P. crying during this time. At around 9:00 p.m., Father took P.P. back to the apartment to put her to bed while Mother continued packing up the house. P.P. did not take very much of her bottle for her nightly feeding.
¶7 The next morning, Father went in to wake P.P. up for her 6:00 a.m. feeding. He was unable to wake P.P. up-"[s]he wasn't waking up for anything" and "wasn't responding"-the best P.P. could manage was briefly opening her eyes before closing them again. A little after 6:00 a.m., Mother called the pediatrician who advised her to bring P.P. in if she did not have a fever. Despite living five minutes from the ER, parents took P.P. to the ER "approximately an hour later." When Father was strapping P.P. in to take her to the ER, it was the first time he noticed a "rhythmical jerking" of one of her hands, which he knew was "nothing good."
¶8 P.P. was admitted to the ER around 7:15 a.m. Dr. Andy Coil (Coil), the attending ER physician at St. Peter's hospital, noticed when he first saw P.P. that it was obvious "[s]he was dying" and that "you didn't need to be a doctor to realize she was in peril." P.P. was life-flighted to Logan Health in Kalispell, where Dr. Stidham (Stidham), a pediatric intensivist, provided P.P.'s initial care. An MRI of P.P.'s brain "showed significant, extensive injury with hypoxic ischemic injury to the brain and some degree of subdural hemorrhage" and cerebellar laceration. An MRI of her spine showed significant ligamentous injury. A skeletal survey showed bilateral rib fractures in the healing stage "including the right, 5th, 9th, 10th, 11th posterior right ribs, and 9th, 10th, and 11th posterior left ribs." In addition, P.P. had retinal hemorrhages, a healing fracture of the distal fifth metatarsal, and other injuries. Parents were repeatedly told that doctors did not think P.P.'s prognosis was survivable, and Stidham encouraged palliative care.
¶9 Within the first 24 hours of P.P.'s treatment, it was abundantly clear to Stidham that P.P.'s injuries were "conclusively consistent with non-accidental trauma or child abuse." All the doctors who took care of P.P. during her time at Logan Health felt very clearly that her injuries were categorically consistent with non-accidental trauma.
¶10 On September 29, the Department received reports from the daycare and the hospital concerning P.P.'s injuries. After investigating, the Department concluded it had no suspicion that P.P. was injured at the daycare. While still in the hospital, the Department removed P.P. from her parents' care on October 15 due to concerns of physical abuse and neglect and filed a petition for emergency protective services and temporary investigative authority.
¶11 On October 22, the District Court granted emergency protective services, set a show-cause hearing, and appointed a Court Appointed Special Advocate (CASA) and Guardian Ad Litem (GAL) for P.P. At the show-cause hearing, Mother and Father stipulated to the Department's petition for 90 days of temporary investigative authority into the allegations of child abuse, and the court set an adjudicatory hearing for January 25, 2022. The court granted parents' motion to continue the adjudicatory hearing and reset it for March 23. On March 17, the Department filed a petition seeking adjudication as a youth in need of care, determination that reunification services need not be provided, for permanent legal custody, and for termination of parental rights (Petition) and requested the court set a pre-adjudication and termination hearing. The court then held a pre-termination hearing where parties agreed to a hearing on the Petition for the week of June 27. The parties then agreed to further delay the hearing until after Mother's criminal trial, and the court scheduled the hearing for the week of January 23, 2023. After Mother was convicted in the related criminal trial, both Mother and Father urged the court to reset the hearing until after Mother's April sentencing. The court reluctantly reset the hearing for late April 2023. At the five-day hearing, all parties had the opportunity to present and cross examine witnesses. The court issued its Order on July 7, 2023, finding aggravating circumstances allowing the Department to not offer reunification services to parents and terminated Mother's and Father's parental rights. The parents separately appeal.
Mother was convicted of assault on a minor in violation of § 45-5-212(2)(c), MCA, on December 15, 2022.
¶12 We review a court's decision to terminate parental rights for abuse of discretion. Inre T.D.H., 2015 MT 244, ¶ 18, 380 Mont. 401, 356 P.3d 457. A district court's findings of fact are reviewed for clear error. In re T.D.H., ¶ 18. A parent's right to the care and custody of a child is a fundamental liberty interest that must be protected by fundamentally fair procedures, but a child's best interests take precedence, and a court must give primary consideration to the child's physical, mental, and emotional conditions and needs. In re T.D.H., ¶ 18.
Appointment of an Attorney or Guardian ad Litem
¶13 Both Mother and Father argue that the District Court erred by failing to appoint an attorney or GAL for P.P. in the five months before the termination hearing. "In every judicial proceeding, the court shall appoint a court-appointed special advocate as the guardian ad litem for any child alleged to be abused or neglected," or, if one is not available, the court may appoint an attorney as GAL. Section 41-3-112(1), MCA; see also § 41-3-607(4), MCA. In addition, once appointed, any party may petition the court to replace the GAL. Section 41-3-112(5), MCA. As relevant here, a child has a right to counsel in termination proceedings when a GAL is not appointed. Section 41-3-425(2)(b), MCA (2021); In re K.H., 2012 MT 175, ¶28, 366 Mont. 18, 285 P.3d 474.
We note that the Legislature recently amended this statute to make counsel mandatory in these proceedings. But the effective date of this amendment was not until after the termination hearing in this case and is not at issue here. See 2023 Mont. Laws ch. 655; § 1-2-201(1)(a), MCA. Unless otherwise noted, all citations to this statute are to the 2021 version.
¶14 The District Court appointed a GAL for P.P. in its October 22, 2021 order granting emergency protective services. CASA/GAL Loretta Miller (Miller) was ordered to appear on behalf of P.P. on November 15. At the April 20, 2022 pre-termination hearing, while Miller was still the GAL, Father asked the court to additionally appoint an attorney for P.P. The court denied that request as it would not be helpful given Miller's involvement in the case and P.P.'s inability to express her own wishes. Miller interviewed witnesses and submitted multiple reports for the court's benefit for nearly a year. On October 20, 2022, the Executive Director of CASA moved the court to remove Miller as P.P.'s CASA/GAL due to the complexity of the case. No party objected or requested a new GAL or attorney be appointed. The court granted that motion and removed Miller on November 9. At that time, no new GAL or attorney was appointed to act on behalf of P.P.
¶15 Four months later, and one month before the termination hearing, on March 15, 2023, Father moved the District Court to appoint counsel for P.P. now that there was no GAL. The State objected to the motion and Mother did not respond with her position until April 19, the day before the hearing started, when Mother filed a motion to dismiss and included the lack of a GAL as a basis to dismiss. Also on April 19, Father supplemented his motion to appoint counsel for P.P. Mother's motion to dismiss was not fully briefed or ready for a decision. The court had not even seen the most recent filings due to their late submission.
¶16 At the beginning of the hearing the next day, the Department brought Father's motion to appoint an attorney or GAL for P.P. to the court's attention. The District Court expressed concern that the parties had left this issue until the last minute, especially given that the prior GAL was removed without objection months before. Father admitted that at no time did he file a notice of submittal on his motion for the court's consideration.Because Father did not want a continuance of the hearing, he presented "a remedy or solution for the court to consider." Father thought that Sarah Corbally (Corbally) could be appointed as GAL because she was already up to date on the case, having reviewed the entirety of Mother's criminal case, interviewed most of the parties, and testified earlier in the day at Mother's sentencing hearing-purportedly on behalf of P.P.'s best interests. The court was uncomfortable with the suggestion given that Mother had hired Corbally to testify at her sentencing hearing, but the Department said it would not object if the parties were willing to waive the issue. Mother discussed Father's idea with her attorney, and the attorney represented "we have no objection at all and would really []join the motion to have Sarah Corbally designated as the guardian ad litem." The District Court again expressed displeasure with the situation the parties had put it in but, given the statutory requirement and at Mother's and Father's behest, appointed Corbally as GAL without objection by any party.
See Montana First Judicial District Court Rule 5(F)(i) ("When any motion has been fully briefed . . . the movant shall advise the Court by filing and serving a 'Notice of Submittal.' Until such notice has been filed and served, the matter will not be deemed submitted for decision.").
¶17 Generally, failure to strictly comply with statutory requirements constitutes grounds for reversal, but we will apply harmless error when the error would have no significant impact on the result and there is no showing of substantial injustice. In re J.C., 2008 MT 127, ¶¶ 43-44, 53, 343 Mont. 30, 183 P.3d 22. Here, P.P.'s lack of GAL for five months before the termination hearing-after having the benefit of a GAL for a year-was harmless error. The court had the full benefit of Miller's prior work and reports throughout the proceedings. During the time P.P. lacked a GAL, P.P. was in a stable placement and the relevant facts were already before the court from Miller's work. Parents both sought Corbally's appointment at the hearing. Parents also could have petitioned the court to replace the GAL in a timely fashion. See § 41-3-112(5), MCA. In the five months before the termination proceedings, the only activity in the case were the parents' motions to continue the hearing and to dismiss and Mother's motion to disqualify the Department's attorney.
¶18 Nor can there be any serious contention that Corbally was not sufficiently prepared as Mother argues. Corbally testified at the termination hearing that, prior to being appointed as GAL, she had read the entire transcript from Mother's criminal trial; reviewed a partial record of the Department's file, the prior GAL's reports, the petition for termination, the Interstate Compact on the Placement of Children reports and summaries, all the notes in the Child and Adult Protective Services system; and met with the former GAL. In addition, during the termination proceedings, Corbally interviewed both Mother and Father, both sets of grandparents, and Mother's brothers, and reviewed the Department's file and discussed it with the child protection specialist supervisor assigned to the case.
Mother argues she received ineffective assistance of counsel when counsel did not earlier petition the court for a GAL or attorney for P.P., nor move to continue the hearing when a GAL was appointed for P.P. on the day of the hearing. We note that Mother was an experienced attorney herself and, after consulting with her counsel, "ha[d] no objection at all and would really []join the motion to have Sarah Corbally designated as the [GAL]." Mother would have lacked standing to petition the court for a continuance based on Corbally's preparation, which was within Corbally's own power if she felt she was unprepared. See § 41-3-112(3)(g), MCA.
¶19 The only contention of what more Corbally could have done is to have filed a petition for guardianship under § 41-3-444, MCA. But before a court could appoint a guardian for P.P., it would have to find that "the department has given its written consent to the appointment of the guardian," which the Department is adamant it would not have given in this case. Section 41-3-444(2)(a), MCA. Thus, because of the unique circumstances in this case, P.P.'s lack of a GAL during the five months before termination was harmless error.
Reasonable Efforts to Reunify the Family
¶20 Both parents argue that their due process rights were infringed because the Department did not make reasonable efforts to reunify the family before the court ruled no reunification efforts were necessary. Similarly, parents argue that the court abused its discretion by delaying the no-reunification-efforts-necessary hearing until the termination hearing, which took place more than a year after the Petition was filed.
¶21 Generally, the first goal of the Department should be reunification with the parents rather than termination. In re R.K., 2023 MT 161, ¶ 31, 413 Mont. 184, 534 P.3d 659; see also § 41-3-423(1), MCA. "It is inappropriate in a dependency proceeding to immediately seek or encourage termination, absent the presence of certain statutory factors, without making sincere efforts at reunification." In re R.K., ¶ 31 (emphasis added). Nevertheless, the Department "may, at any time during an abuse and neglect proceeding, make a request for a determination that preservation or reunification services need not be provided," which may be done if a number of findings are made by the court including, as relevant here, that the parent has subjected the child to aggravating circumstances such as chronic abuse or severe neglect, committed aggravated assault on the child, or committed neglect that resulted in serious bodily injury of the child. Section 41-3-423(2)(a), (c), (d), MCA (emphasis added).
¶22 Parents argue that the Department was required to provide reunification services until the court made a finding that aggravating factors were present in this case. The Department argues that providing reunification services while it was seeking termination and an order allowing it to not provide reunification services would be an act of bad faith in contravention of their statutory requirements.
¶23 In re C.B. precludes parents' arguments. See In re C.B., 2019 MT 294, 398 Mont. 176, 454 P.3d 1195. Here, as in In re C.B., the Department sought not to provide reunification services as well as termination of parental rights in a single petition as contemplated by § 41-3-422(1)(a)(v), (vii), and (viii), MCA. See In re C.B., ¶ 23. Section 41-3-423(2)(a) and (d), MCA, exempts the Department from providing reunification services if the parent has subjected the child to chronic abuse or neglect which resulted in serious bodily injury, § 41-3-422(1)(a)(viii), MCA, contemplates a petition combining a determination that reunification services need not be provided and termination of parental rights together, and provides no timeline for a hearing on a reasonable efforts motion. In re C.B., ¶¶ 23, 29. Mother and Father attempt to distinguish In re C.B. because the amount of time between the petition and hearing in In re C.B. was four and a half months whereas here it was more than a year.
¶24 However, like in In re C.B., both Mother and Father had notice that the Department was seeking a determination that reasonable efforts need not be provided and termination in the same Petition. Both actively pursued continuation of the hearing such that it took the court more than a year between Petition and hearing. After the Department filed its Petition on March 17, 2022, the court and the parties attended an April 20 status hearing to set a date for the hearing. At the status hearing, the Court expressed its desire that the termination hearing take precedent to Mother's criminal trial. There was some discussion of bifurcating the Petition and conducting separate hearings for a finding of whether reasonable efforts were required and for termination. The court set a hearing for the week of June 27 (only three months after the Petition was filed) and asked the parties to provide clarity on whether they wanted a bifurcated hearing for that week or to resolve the entire Petition that week. The parties provided no clarification for the court on that issue.
¶25 On June 8, 2022, the Department filed an unopposed motion to continue the hearing until after Mother's criminal trial. The court set another status hearing. At that status hearing, all parties stipulated to continuing the hearing and again discussed the potential of bifurcating the proceedings, but Father worried that there would be a lot of duplicative evidence if it was done that way. The court said the parties would have to talk about that amongst themselves and that it was "certainly not opposed to however we want to go forward as far as trying to get this done." In the meantime, the court set a hearing date for the week of January 23, 2023, after Mother's criminal trial, and said that it would cross the bridge of bifurcating the hearing "if you file it and when we talk about it." Again, no additional filings were made on that issue.
¶26 After Mother's conviction, both parents filed motions to continue the hearing until after sentencing. The Department opposed the motions. The court set a hearing and reluctantly granted the motions, setting the hearing for April 2023, after Mother and Father vociferously requested an extension. Neither parent objected nor sought a separate, earlier hearing on the Department's petition for no reunification services. Indeed, they actively sought the extensions that led to such a long delay between the Petition and the hearing. We cannot now say that the court erred. Mother and Father had notice and an opportunity to ask the Court to conduct separate hearings-they chose not to. Accord In re C.B., ¶¶ 18, 31.
Separately, Mother argues that if we find against her on this issue, it reinforces her argument that she received ineffective assistance of counsel and was prejudiced when counsel did not object or seek a separate hearing. See In re E.Y.R., 2019 MT 189, ¶22, 396 Mont. 515, 446 P.3d 1117. Mother claims prejudice because she would have received services and a treatment plan if the hearing had been earlier that, properly completed, would have provided valuable evidence of her ability to parent and correction of "conditions that led to removal." This argument presupposes that the court would not have found that Mother subjected P.P. to chronic abuse, severe neglect, and neglect which resulted in serious bodily injury if it had held the hearing earlier. Mother does not even challenge these factual and legal findings on appeal and there can be no serious contention that an earlier hearing would have changed its findings. A treatment plan is not required when the court has found such circumstances exist and therefore one would not have been offered nor helped Mother to contest the factors that led to termination here. See § 41-3-609(1)(d), (4)(a), MCA.
¶27 Additionally, neither Mother nor Father can demonstrate how the outcome would have been different had the alleged due process violation not occurred. See In re C.B., ¶ 18. Father presented evidence at the hearing of his accomplishments on a "de facto" treatment plan: he signed up for and regularly attended counseling; he completed several parenting classes; he had regular supervised contact with P.P. while in placement with her grandparents and made daily calls and frequent visits; he attended most of P.P.'s medical appointments in person or via zoom; he maintained stable employment; no evidence was presented that drugs or alcohol were issues that needed addressing; he did not lack any education, knowledge, or resources; and he had ample support available from relatives and friends. Father does not point to any services the Department could offer him that might have changed the fact that clear and convincing evidence showed aggravating factors were present-that while P.P. was in his care, he knew or should have known that P.P. was exposed to unreasonable physical risk that resulted in serious bodily injury. See §§ 41-3-102(22), -423(2)(d), -609(1)(d), MCA. Father has not established that the outcome would be different, and the District Court did not abuse its discretion when it heard all of this evidence but still found that P.P.'s prior injuries and permanent disabilities stemming from them require a safe caregiver that supported terminating Father's parental rights.
¶28 Similarly, Mother does not contest the evidence of P.P.'s serious bodily injuries or permanent disability. Instead, she argues the District Court abused its discretion by improperly focusing on that evidence and not of the evidence Mother presented of her love and support of P.P. during and after her hospitalization and the bond that has grown between them since P.P.'s hospitalization. Mother also points to evidence that P.P. has not suffered further harm while parents were with her-under supervision-since her hospitalization. As an appellate court, it is not our job to reweigh evidence or substitute our evaluation of the evidence for that of the trial court. In re J.L., 277 Mont. 284, 290, 922 P.2d 459, 462 (1996). If a district court finds the statutory criteria for termination are met, it is not required to consider other options prior to terminating parental rights. In re A.B., 2020 MT 64, ¶38, 399 Mont. 219, 460 P.3d 405. Mother does not challenge the District Court's factual findings.
¶29 Clear and convincing evidence showed Mother and Father subjected P.P. to circumstances listed in § 41-3-423(2)(a) through (e), MCA. Section 41-3-609(1)(d), MCA. Terminating their parental rights was not an abuse of discretion.
Judicial Notice
¶30 Finally, Father contends that it was improper for the District Court to take judicial notice of Mother's criminal trial during the termination proceedings as Father was not able to cross examine witnesses or present evidence at Mother's criminal trial. He argues that the judicial notice violated the fundamental fairness of the proceeding and his guarantee of due process.
¶31 Rules 201 and 202 of the Montana Rules of Evidence allow a court to take judicial notice of (1) facts not subject to reasonable dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned and (2) laws including records of any court in Montana. In re K.C.H., 2003 MT 125, ¶ 15, 316 Mont. 13, 68 P.3d 788. Nevertheless, Father's fundamental liberty interests must be protected by fundamentally fair procedures, which includes an equal opportunity to present evidence and scrutinize the State's evidence and to not be placed at an unfair disadvantage during the termination proceedings. In re J.C., ¶ 35. To establish a claim for a violation of due process, Father must demonstrate how the outcome would have been different had the alleged due process violation not occurred. In re C.B., ¶ 18.
¶32 Specifically, Father challenges two findings of fact. First, the court found that "[a]n ophthalmologist examined [P.P.'s] eyes and found bilateral 360-degree retinal hemorrhages." (Emphasis added.) The only evidence that P.P. had bilateral 360-degree retinal hemorrhages was produced at Mother's criminal trial. The evidence produced at the termination hearing was that P.P. had "retinal hemorrhages" and that P.P.'s treating physician consulted with an ophthalmologist during treatment. Although the evidence of bilateral 360-degree retinal hemorrhages was not produced at termination, the court's characterization was an insignificant variation. Father cannot demonstrate a different outcome from this alleged due process violation, nor does Father demonstrate that this was a fact subject to reasonable dispute.
¶33 Father also objects to the District Court's finding that "[e]very treating professional who testified in this case and the criminal case opined that [P.P.'s] injuries were the result of non-accidental trauma." (Bold emphasis in original, italicized emphasis added.) Independent of the criminal case, multiple treating physicians testified at the termination hearing that "it was abundantly clear that there was no mechanism consistent with these extensive traumatic injuries for [P.P.], and . . . was conclusively consistent with non-accidental trauma or child abuse." Father did not question this conclusion on cross, though he had the opportunity to do so.
¶34 Father concedes that the District Court could properly take judicial notice of Mother's criminal conviction. The jury specifically found, beyond a reasonable doubt, that Mother's assault on P.P. resulted in serious bodily injury. This is a fact "not subject to reasonable dispute." M. R. Evid. 201.
¶35 The District Court found that Father's neglect of P.P. "resulted in serious bodily injury: multiple bone fractures, retinal and subdural hemorrhages, cervical damage, and serious brain injury." These findings were all supported by substantial evidence at the termination hearing, where Father had the opportunity to present evidence and cross examine witnesses.
¶36 The State was required to prove by clear and convincing evidence that Father "committed neglect of a child that resulted in serious bodily injury." Sections 41-3-423(2)(d), -609(1)(d), MCA. Significantly, Father does not contest the court's factual findings that led to its conclusion of law that Father neglected P.P.
¶37 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review.
¶38 Affirmed.
We Concur: JAMES JEREMIAH SHEA, BETH BAKER, LAURIE McKINNON, JIM RICE JJ.