Opinion
A149590
06-29-2017
In re C.D., et al., Persons Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Petitioner and Respondent, v. J.D., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. SJ12020005, SJ12020006)
J.D. (Mother) appeals from a juvenile court order and final judgment terminating dependency jurisdiction over her children, C.D. and S.D. (the children), granting Mother and the children's father, R.D. (Father) joint legal custody, but granting Father physical custody. Mother contends the juvenile court erred in denying her request for a contested hearing regarding the custody order. We shall affirm the order and final judgment.
I. BACKGROUND
A. The initial dependency petition (November 2012)
In November 2012, Alameda County Social Services Agency (Agency) filed a petition to declare the children dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b), and placed the children in protective custody, after Mother was observed intoxicated and stumbling in a park, having driven the children there with a blood/alcohol level of 0.38. The petition alleged that Mother and Father, then married to each other, both abused alcohol, interfering with their ability to care for the children, and engaged in domestic violence against each other in the children's presence while intoxicated; the children reported Mother regularly hit them and was verbally abusive to them; and Father failed to protect the children from Mother when she was drinking. In December 2012, the children were adjudged to be dependents of the court, and the juvenile court ordered family reunification services for Mother and Father.
All statutory references herein are to the Welfare and Institutions Code.
Mother was arrested for public intoxication and child endangerment.
The Agency's six-month status review report attached a family assessment memorandum from its family preservation program. The memorandum advised that Mother and Father were alcoholics and the children had been subjected to domestic violence and physical abuse. According to the memorandum, Mother was the primary aggressor. She would hit and slap Father when under the influence of alcohol, and also hit, kick, and slap the children, which Father never did. In the final months before the Agency filed the dependency petition, as Mother's drinking and violent behavior worsened, Father reported he would lock himself and the children in a room of the family house for protection.
After the petition was filed, while the children remained in foster care, both parents reportedly received services to address their alcoholism, making progress in that area, and Mother transitioned to living outside the family home, initially in a residential treatment program and eventually in a rented room. Both parents had supervised and then unsupervised visitation with the children, which generally went well. The children had one-week visits with Father in the family home, and they and Father attended individual and family therapy sessions, with family therapy also recommended for Mother only after she had received individual therapy.
In December 2013, the juvenile court placed the children with Father, under the Agency's supervision, ordering visitation for Mother, and continued services for both parents. Mother began attending family therapy in February 2014, resumed caring for the children in the family home after school while Father worked, and joined the family for weekend outings.
Later the same month, however, Mother reportedly relapsed. In the May status report, the family case worker recounted Mother was behaving differently towards the children, speaking very negatively towards C.D. in particular, and seeming very angry with Father. The therapist reported Mother reacted with inappropriate anger to a relatively minor incident involving Father and C.D., apparently unable to contain her rage, and seemed to be drunk and possibly psychotic when she arrived for a subsequent individual therapy session. Thereafter, Mother ceased communication with the case worker and stopped testing for controlled substances. The Agency was unable to locate her or reestablish contact before the June 2014 status review hearing, and the juvenile court consequently continued the children's placement with Father under Agency supervision.
B. The supplemental petition (October 2014)
In October 2014, the Agency detained the children a second time and filed a supplemental petition under section 387, alleging Father had relapsed multiple times in the past six months, had been drinking together with Mother, and in the children's presence, and in October drank to the point of passing out three days in succession. Although Mother was only allowed supervised visitation, Father had left the children in her care while she was intoxicated and, in September 2014, Mother reportedly twice picked the children up from the afterschool program while intoxicated.
Mother also was arrested in June 2014, following an automobile collision, for driving while under the influence of alcohol.
At a hearing in February 2015, after concluding Mother and Father had made only partial progress toward alleviating or mitigating the problems necessitating the children's removal, the juvenile court scheduled a section 366.26 hearing in June to consider termination of parental rights and permanency planning for the children. A month before the scheduled hearing, Father filed section 388 petitions contending he had made substantial progress toward his case plan objectives and requesting the children be placed with him. The court scheduled the hearing on Father's requests to coincide with the section 366.26 hearing in June 2015.
According to the Agency, Mother was arrested for driving without a license in June 2015.
In its section 366.26 report, the Agency recommended the children's foster parents be appointed as their legal guardians, with Mother and Father to be granted visitation, and termination of the dependency case. Although it was apparent Mother cared a great deal for the children, the Agency reported, she continued to struggle with her sobriety, the children reported she seemed drunk during a visit they had in March 2015, and they expressed they did not feel safe in her care. The children appeared much more attached to Father, who visited regularly, the Agency reported, but, as less than a year had passed since his relapse requiring the children's second removal from the family home, the Agency recommended placing them permanently with the foster parents instead, allowing Mother and Father visitation.
The same foster parents cared for the children following both detentions.
After the section 366.26 hearing was again continued, the Agency submitted a further status report, advising that the children had visited twice with Father overnight, were looking forward to trial visits with him in July and August, and wanted to be returned to him. Father continued testing negative for alcohol and attending AA meetings, the Agency reported, and Mother continued to struggle with her sobriety. In an addendum report, the Agency advised that the children had successfully completed the trial visits with Father and wanted to remain in his home. Observing that Father, by then, had completed an outpatient recovery program, submitted to alcohol testing, regularly attended AA, built a supportive network of relationships in the clean and sober community, and addressed all past safety concerns, the Agency modified its recommendation, suggesting the children be returned to him, with Mother to continue her supervised weekly visitation. On receipt of the recommendation, the court extended the children's trial visit with Father to September 10, 2015, continuing the combined permanency planning and section 388 hearings to that date.
C. Combined permanency planning and section 388 hearing (September 2015)
At the September 2015 hearing, the Agency recommended placing the children with Father and keeping the dependency action open. Father withdrew his section 388 requests. The children's counsel agreed with the recommendation, but Mother did not. Mother asked the juvenile court to award physical custody equally to her and Father, testifying the children repeatedly told her they wanted to live with her. Father should not be awarded sole physical custody, Mother also testified, because, about a year and a half earlier, she had seen him pick C.D. up by his collar, and he recently had left the children—then 9 and 11 years old—alone at home for the day when he went to work. Additionally, Mother testified, she knew the children's needs best because, before the dependency petition was filed, she had always taken care of them as "a full-time mom." Mother testified she feared Father would begin drinking again and also objected that the Agency, in December 2013, had decided to recommend returning the children to Father, even though she (Mother) had been sober longer by that juncture. The Agency never adequately considered placing the children with her, Mother protested. "I was never an option," she testified. Father's counsel responded that his client's test results had been clean every week for the past 10 months. After the parties concluded their arguments, the juvenile court judge adopted the Agency's recommendation, ordering the children placed with Father, under the Agency's supervision, observing it was clear from the Agency's most recent report the children wished to live with Father.
The parties then addressed Mother's visitation. The child welfare worker advised Mother had supervised visitation at that point because, in the past six months, she had arrived to visit the children while under the influence. The children's counsel added the children were more comfortable when Mother's visits were supervised, although counsel requested the length of Mother's weekly supervised visits be increased, from two to three hours. Father's counsel also argued Mother had not provided evidence she had tested clean for controlled substances, had completed any outpatient program, or had participated in AA. Mother's counsel replied that Mother had participated in a rehabilitation program for 10 months, and was devoted to AA and her recovery. The Agency explained Mother's rehabilitation program would not provide the results of her testing for controlled substances, contending it would be violating her constitutional rights to do so. The juvenile court ultimately increased Mother's supervised weekly visitation to three hours.
The record does not indicate whether Mother ever asked or authorized her program to release such information to the juvenile court.
D. Dismissal of the dependency case with exit order (August 2016)
At the December 2015 status review hearing, having received an Agency report that the children were enjoying their weekly supervised visits with Mother without problems, the juvenile court increased Mother's weekly visitation to six hours, and authorized overnight visits. In February 2016, the Agency reported Mother had filed for divorce and the family court case was pending. In the meantime, the Agency reported, Mother had a full-time job, continued her supervised visits with the children each Sunday, and had begun supervised overnight visits. All agreed things were going very well, the Agency relayed, although Mother wanted the children to live with her or, at least, wanted more time with them. Father remained in compliance with all aspects of his case plan, and had submitted corroborating documentation.
In its July 2016 status report, the Agency recommended dismissing the dependency action, and submitted a proposed exit order awarding the parents shared legal custody, giving Father physical custody, and continuing Mother's supervised weekly visitation. The parents agreed with the dismissal recommendation, the Agency reported, but Mother was "very upset" by the recommendations for physical custody and continuation of supervised visitation. According to the children's therapist, the children had adjusted well to living with Father and were thriving. Father had been sober 18 months and was fully compliant with all aspects of his case plan. The children reported enjoying their visits with Mother, except when she complained about not having more time with them and about Father being controlling, which they found distressing. Recently, the Agency reported, the two individuals who had supervised Mother's visits had declined to continue, and the Agency could not evaluate Mother's ability to have unsupervised visits, because it had no evidence she had addressed her substance abuse issues, although one of the people who had supervised Mother's visits spoke very highly of her. As the issue could be explored in family court if needed, the Agency advised, it nonetheless recommended dismissal of the dependency action, because there were no remaining safety concerns.
At the subsequent status review hearing, Mother's counsel advised that the parties were near an agreement and requested mediation. The children's counsel asserted the mediation would address visitation, and Mother's counsel agreed, adding, "It would be to get the visitation custody order in place." The parents' counsel discussed whether the person who had supervised Mother's visitation should attend the mediation, and the juvenile court then ordered mediation on "the issue of visitation," directing the parties to return to court on August 30, 2016.
On that date, the parties returned to court, presenting the partial agreement reached in mediation. The partial agreement sought court approval of a plan allowing Mother unsupervised visitation for the remainder of the dependency case. But it also stated the parties had not agreed on "a custody and visitation agreement at dismissal" and Mother was "requesting a contested hearing." The Agency's counsel advised that its overall recommendation was unchanged, with the exception of the visitation terms listed in the partial agreement. Mother's counsel confirmed Mother was requesting a contested hearing. In response to the court's inquiry, he added that she wanted to contest the exit order concerning custody. Mother was concerned about the children's school performance, counsel explained, so wanted the court to award her physical custody on school days (Monday through Friday), allowing Father to have the children on weekends (from Friday afternoon until Monday morning). Observing that this would be "a substantial change," the juvenile court judge advised counsel, "I'll tell you right offhand that is not likely to happen." The judge then announced he intended to adopt the Agency's proposed exit order, although, on the recommendation of the Agency and the children's counsel, he agreed to modify Mother's visitation to match the parties' mediation agreement, allowing her unsupervised weekend visitation with overnights.
The Agency originally recommended Mother be permitted supervised visits every other Saturday from 2 p.m. to 6 p.m. The parties agreed in mediation, however, that Mother could have unsupervised visits on the first and third weekends of each month, from 8 p.m. Friday until 8 p.m. Sunday, and on the fourth Sunday of each month from 12 p.m. to 6 p.m. Father told the juvenile court he agreed with the modified visitation plan and agreed with it remaining in effect after dismissal of the dependency case.
Although Mother's counsel's renewed his objection, the juvenile court judge proceeded with this plan, advising the parties, "The court is not going to have any further hearings on this matter." "If the parties believe that they need to have any further litigation or discussion about this," the judge added, "they can do that in Family Court." After Mother requested and was denied leave to address the court directly, her counsel advised she wanted to say she had "never been given the opportunity to have her kids." Mother then interjected, advising that she intended to appeal the court's ruling. After agreeing Mother had the right to do so, the juvenile court judge approved the Agency's exit order, modifying Mother's visitation as discussed, and dismissed the dependency case.
II. DISCUSSION
"When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make 'exit orders' regarding custody and visitation. (§§ 364, subd. (c), 362.4; In re Kenneth S., Jr. (2008) 169 Cal.App.4th 1353, 1358.) Such orders become part of any family court proceeding concerning the same child and will remain in effect until they are terminated or modified by the family court. (In re Roger S. (1992) 4 Cal.App.4th 25, 30 (Roger S.).)" (In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123 (T.H.).)
Mother contends the juvenile court prejudicially erred when it denied her request for a contested hearing on custody before issuing its exit order. Correctly noting the juvenile court has a special responsibility to children in dependency proceedings and must look to the totality of their circumstances when making decisions regarding them (In re Chantal S. (1996) 13 Cal.4th 196, 201), Mother cites cases concluding a juvenile court should consider evidence offered by a parent that is relevant to an exit order. (See, e.g., In re Armando L. (2016) 1 Cal.App.5th 606, 614, 617-620 (Armando L.); In re Michael W. (1997) 54 Cal.App.4th 190, 194-196 (Michael W.); Roger S., supra, 4 Cal.App.4th at pp. 27, 29-31.) Although she acknowledges case law concluding a juvenile court may "require[] an adequate offer of proof as a condition precedent to a contested hearing" (In re Earl L. (2004) 121 Cal.App.4th 1050, 1052-1053 (Earl L.); accord, In re Tamika T. (2002) 97 Cal.App.4th 1114, 1116, 1121-1122), Mother contends the juvenile court here erred because it denied her a contested hearing on the exit order without explicitly requesting such a showing. We are unconvinced.
We reject the Agency's contention that Mother forfeited this argument because, after the court indicated it would not hold another contested hearing, having renewed his objection, Mother's counsel stated that he was "submit[ting] the matter." Viewed in context, it is evident counsel merely intended, by his remark, to signal that he was submitting to the authority of the court's ruling. In doing so, he did not waive his client's right to challenge the ruling on appeal. (See, e.g., People v. McCarrick (2016) 6 Cal.App.5th 227, 260 [" ' "An attorney who submits to the authority of an erroneous, adverse ruling after making appropriate objections or motions, does not waive the error in the ruling" ' "].)
While the juvenile court judge did not specifically use the words "offer of proof," he did inquire about the nature of the challenge Mother wished to present, asking if she intended to contest the recommendation to terminate dependency jurisdiction and allowing her time to consult with her counsel. After Mother's counsel advised that she wished to contest the exit order, the judge probed further. In the course of the ensuing exchange, Mother's counsel explained that Mother wanted a modified custody order, placing the children with her during the school week, because she worried about their school performance. Through her counsel, Mother also reiterated her complaint from the earlier (September 2015) contested hearing on custody, that the option of placing the children with her had not been considered.
Although the juvenile court judge was brisk and directed in his inquiry, he gave Mother an opportunity to explain the exit order she wanted. Mother did not avail herself of this opportunity by suggesting any changed circumstances, for example, indicating the children now wanted to live with her. Nor did she purport to dispute the Agency's most recent report that the children were thriving in Father's custody and receiving good grades. Neither Mother nor her counsel claimed to have any new evidence that the juvenile court should consider. On these facts, the juvenile court did not err in declining to hold a contested hearing.
Mother submits the juvenile court's refusal meant it "did not hear all of the relevant evidence proffered by the parties," citing T.H., supra, 190 Cal.App.4th at p. 1124, and Michael W., supra, 54 Cal.App.4th at p. 196, to suggest this was error. But, as noted, the record does not indicate Mother actually proffered any evidence, and the cited cases do not compel reversal. T.H., supra, 190 Cal.App.4th 1119, for example, is not on point, as the Court of Appeal there considered an entirely different issue, namely, whether the juvenile court erred by stating in an exit order that the father's supervised visitation was " 'to be determined by the parents.' " (Id. at pp. 1121-1122.) Answering the question in the affirmative, after concluding the order effectively delegated to the mother the discretion to allow the father's visitation, the Court of Appeal remanded the case to the juvenile court to establish the amount of the father's visitation. (Id. at p. 1124.) In so doing, the Court of Appeal suggested the juvenile court "should consider any relevant evidence proffered by the parties" given the passage of time since the last review hearing. (Ibid.) But, notably, it expressly declined to consider the father's argument about the juvenile court's refusal to hold a hearing on the exit order. (Id. at pp. 1122, 1124.) As " ' "[a]n opinion is not authority for propositions not considered" ' " (People v. Knoller (2007) 41 Cal.4th 139, 154-155), the T.H. case cannot be considered authority on the issue of a juvenile court's obligation to hold an evidentiary hearing about an exit order.
Both Michael W., supra, 54 Cal.App.4th 190, and Roger S., supra, 4 Cal.App.4th 25, did address the question. But, neither compels a juvenile court to hold a contested hearing on an exit order in every instance that it is requested. Rather, they were primarily considering whether, pursuant to In re Elaine E. (1990) 221 Cal.App.3d 809, 814-815, a parent was precluded from presenting evidence concerning the exit order, and was relegated instead to the procedure provided in section 388. Both Michael W. and Roger S. concluded that the answer was no, relying on section 362.4, which the Elaine E. court did not discuss. (See Michael W., supra, at pp. 194-195; Roger S., supra, 4 Cal.App.4th at p. 30.) The courts reasoned that, " '[w]hen the juvenile court terminates its jurisdiction over a dependent child, section 362.4 authorizes it to make custody and visitation orders that will be transferred to a[] . . . family court file and remain in effect until modified or terminated by the superior court. As section 362.4 gives the juvenile court power to fashion termination orders, it makes no sense to interpret section 364 to preclude the court from considering evidence relevant to that task.' " (Michael W., supra, at p. 195; accord, Roger S., supra, at p. 30.)
Section 362.4 provides that when "the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child . . . , and proceedings for the dissolution of marriage . . . of the minor's parents . . . are pending in the superior court . . . , the juvenile court . . . may issue . . . an order determining the custody of, or visitation with, the child. [¶] Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court. The order of the juvenile court shall be filed in the [superior court] proceeding . . . at the time the juvenile court terminates its jurisdiction over the minor . . . ."
Section 388, " 'on the other hand,' " both courts observed, was " 'a general provision to be used by any interested party when circumstances merit an examination of the orders affecting a dependent child other than the periodic reviews prescribed by statute; if the petition is sufficiently compelling, the court is empowered to set an immediate hearing on the matter. In [Michael W. and Roger S., supra], however, the trial court had the parties before it for the specific purpose of assessing progress and determining whether judicial intervention could be withdrawn. Having decided to terminate jurisdiction, the court[s] chose to exercise [their] power to make a termination order. [They] erred, however, in refusing to consider the [parents'] evidence on visitation.' " (Michael W., supra, 54 Cal.App.4th at p. 195; accord, Roger S., supra, 4 Cal.App.4th at p. 30.)
In Michael W., the mother had presented evidence to support her request for a hearing on the exit order in the form of a declaration from her doctor, providing updated information about her progress during recent counseling and also " 'strongly recommend[ing]' " unmonitored visits be reinstated. (Michael W., supra, 54 Cal.App.4th at p. 196; see also id. at p. 193.) In Roger S., the father offered to present the testimony of four witnesses, if allowed an evidentiary hearing on the exit order to support his request for unmonitored visitation. (Roger S., supra, 4 Cal.App.4th at p. 28.) In contrast, here, as noted, Mother did not suggest she had any evidence to offer if a contested hearing were scheduled on the exit order. She did not even expressly request an evidentiary hearing, but simply reiterated a desire to contest (or oppose) the exit order's award of physical custody to Father, renewing her prior claim that she had not been adequately considered for placement. Mother's point that she wanted to have the children with her during the school week because she worried about their performance added nothing substantive to her prior argument, at the September 2015 hearing, that, because she had been home with the children full-time while Father worked, before the filing of the dependency petition, she was the parent best equipped to care for them. The Agency's report confirmed that the children were receiving good grades while living with Father, and Mother offered no evidence indicating school-related problems that might justify changing custody when the children otherwise were thriving in their current placement.
While we agree with Roger S. that, when issuing an exit "order determining the custody of, or visitation with, [a] child" (§ 362.4), which order will be "transferred to the family court, the juvenile court has the power to hear [relevant] evidence" (Roger S., supra, 4 Cal.App.4th at p. 30, italics added), and we agree with Michael W. that the juvenile court should consider a parent's proffered evidence on this subject (Michael W., supra, 54 Cal.App.4th at p. 195), it does not follow that the juvenile court must always grant a request for a contested hearing on an exit order. Where, as here, the dependency case had been pending for almost four years, a contested custody hearing previously had been held, all parties agreed jurisdiction should be dismissed, the existing custody arrangement was beneficial to the children, the exit order granted the noncustodial parent regular unsupervised visitation, and the noncustodial parent proffered no new evidence supporting a change in custody, we cannot conclude the juvenile court erred in declining to hold a further contested hearing.
Mother's additional citation to Armando L., supra, 1 Cal.App.5th 606, does not alter this conclusion. In that case, the agency "summarily" placed the child with his father during the 18-month review period, and the same month recommended dismissal of dependency jurisdiction with an exit order giving the father physical custody. (Id. at pp. 612-613.) The mother objected to the agency's recommendations, contending the court should retain jurisdiction, award her physical custody, and order family maintenance services for the child, and she sought to present evidence on all three issues. (Id. at pp. 613, 617-618.) After the juvenile court denied her request, dismissed jurisdiction and issued an exit order granting the father physical custody, the mother appealed and the Fifth Appellate District reversed. (Id. at pp. 613, 619-621.) Among other things, the Court of Appeal concluded the juvenile court had erred in issuing the exit order without ever allowing the mother an evidentiary hearing to contest custody. (Id. at pp. 618-620; see, e.g., id. at p. 618 ["there was no court hearing on the issue of [the child's] custody"; "mother never had a judicial determination on [that] issue"].)
The facts were different here. Unlike in Armando L., supra, 1 Cal.App.5th 606, Mother had the opportunity to—and did—present evidence at the September 2015 contested hearing regarding custody and received a judicial determination on the issue. At the subsequent August 30, 2016 hearing, her counsel did not request the opportunity to present new or additional evidence. Again, on the facts presented here, we cannot conclude the juvenile court erred as a matter of law in declining Mother's request for a contested hearing.
As we conclude Mother did not have a right to another contested hearing, we need not address her additional argument that the asserted right supplied good cause for a continuance, which she contends the juvenile court erroneously and implicitly denied her.
We also reject Mother's argument that the juvenile court's refusal of her request constituted a denial of due process. As Mother acknowledges, " '[d]ue process is a flexible concept which depends upon the circumstances and a balancing of various factors. [Citation.]' [Citation.]" (Earl L., supra, 121 Cal.App.4th at p. 1053.) A court may " 'require an offer of proof to insure that before limited judicial and attorney resources are committed to a hearing on the issue, [the parent] ha[s] evidence of significant probative value. If due process does not permit a parent to introduce irrelevant evidence, due process does not require a court to hold a contested hearing if it is not convinced the parent will present relevant evidence on the issue he or she seeks to contest. The [juvenile] court can therefore exercise its power to request an offer of proof to clearly identify the contested issue(s) so it can determine whether a parent's representation is sufficient to warrant a hearing involving presentation of evidence and confrontation and cross-examination of witnesses.' [Citation.]" (Ibid.)
Here, the Agency submitted a report in July 2016 recommending an exit order giving Father physical custody, a recommendation that the Agency noted left Mother "very upset." At the subsequent status review hearing on August 2, however, rather than objecting to the recommendation or suggesting his client wished to present evidence on that point, Mother's counsel simply advised the juvenile court the parties were near agreement and requested mediation. When the other parties indicated the mediation would address Mother's visitation, suggesting this was the only remaining issue in dispute, Mother's counsel did not directly correct them, but, rather, expressed his agreement, and then added the mediation "would be to get the visitation custody order in place." The parties returned to court four weeks later, having reached an interim agreement on visitation but no agreement on custody, and Mother's counsel simply requested a contested hearing. The court then probed about the nature and purpose of the request, giving counsel time to consult with his client. Although it did not explicitly use the words "offer of proof," the juvenile court allowed Mother and her counsel the opportunity to explain the asserted need for the additional hearing, and Mother and her counsel, by then, had had ample time to consider what evidence, if any, might be presented to support a contest. As Mother nonetheless failed to proffer relevant evidence of "significant probative value" (Earl L., supra, 121 Cal.App.4th at p. 1053), the juvenile court did not deny her due process by refusing her request.
Having concluded there was no error, we need not address Mother's argument regarding prejudice.
III. DISPOSITION
The juvenile court order and final judgment are affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.