Opinion
F062708
02-16-2012
In re D.B. et al., Persons Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. KENDRA S., Defendant and Appellant.
Beth A. McCourt, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, John A. Rozum, Chief Deputy County Counsel, and Amy-Marie Costa, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. JJV064941A & JJV064941B)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Charlotte A. Wittig, Commissioner.
Beth A. McCourt, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, John A. Rozum, Chief Deputy County Counsel, and Amy-Marie Costa, Deputy County Counsel for Plaintiff and Respondent.
The juvenile court in this dependency case denied Kendra S. (mother) reunification services. Three months later, mother filed a Welfare and Institutions Code section 388 petition seeking reunification services. She asserted circumstances had changed, as she participated in a substance abuse and parenting program and no longer had contact with the children's father, Dillon B. (father). The juvenile court denied the petition without a hearing, concluding mother did not state new evidence or a change of circumstances, and the relief requested would not be in the children's best interests. Mother contends the juvenile court abused its discretion by summarily denying her section 388 petition. We affirm the juvenile court's order.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother brought her 10-month-old daughter A.B. into the hospital on September 6, 2010, because the baby had a swollen arm. The injury was described by a nurse as a yellow bruise on A.B.'s arm and the arm was noticeably bigger, due to swelling. Subsequent X-rays revealed that A.B. had suffered breaks in both bones above her wrist and a hairline fracture in the humerus, just above the elbow. The hospital contacted law enforcement, and mother told the responding officer that she had "no idea" how the injury occurred. According to mother, she had been with A.B. all day and she had not fallen from anything.
The doctor who treated A.B. informed the officer that it was possible that the injuries were inflicted by a fall, but were more likely purposely inflicted and had occurred within the past 48 hours.
When asked about the events of the previous two days, mother stated that the family had gone to her grandmother's house in Lancaster for a birthday party, but she could recall nothing that could have resulted in the injuries. Mother then received a telephone call from father who told her that, two nights earlier while they were in Lancaster, A.B. had been on a futon bed in the room where they were sleeping and had fallen onto the floor. Mother was unaware that A.B. had fallen from the bed.
Mother's brother Darryl then arrived at the hospital and told the officer that while they were all in Lancaster, he had been in the bedroom with A.B.'s father. A.B. was crawling on the bed, and when he turned to leave, Darryl heard a thump and saw that A.B. had fallen off the bed. The bed, a futon, was on cinderblocks and one and a half to two feet off of the ground. The doctor was consulted as to this scenario and again stated that it was not likely that a fall from that short distance caused the injuries.
Child protective services (CPS) was contacted and a social worker responded to the hospital. Mother told the social worker that she had been sleeping when the fall from the futon occurred and that, after Darryl notified her of the fall, she went in to comfort A.B. and lay down on the couch with her.
The attending physician told the social worker that "somebody did something to this child," and that it was "not anatomically possible" for the baby's bones to break where they did without force. The physician had never seen a similar injury where both sections of the arm were broken. According to the physician, it was not the result of being dropped.
The next day, father admitted to the social worker that he had prior child welfare history, claiming his "ex" abused the kids. He also acknowledged that he used marijuana but not if he was taking care of the children. A subsequent drug test was positive for marijuana. Father explained that two of his other children had been removed from his and their mother's care, but he claimed his ex-wife, not he, injured one of the children. The children were subsequently adopted. Records revealed that a 2004 petition found true the allegations that serious injury was inflicted on father's child. That child had suffered a skull fracture and bleeding to the head, as well as old injuries that included 11 fractured ribs, bilateral head fractures, and a leg fracture.
Mother claimed she first learned of father's prior child welfare involvement after they married. Mother said that she did not think father hurt A.B. and if she had any doubts "'he would not be living with me.'"
On September 8, 2010, A.B. was again evaluated and this time a CT scan revealed an old skull fracture. Mother, father and their two-year-old child D.B. also attended. D.B. was too restless to be thoroughly evaluated. After the appointment, mother called the social worker to say that the doctor could tell the injury was accidental and that he told her she had "two very healthy children." The social worker's report noted that this statement had not been confirmed pending the CT report and the doctor's findings.
A dependency petition filed September 9, 2010, alleged the following: pursuant to section 300, subdivision (a), allegations a-1 and a-2, that serious physical harm to A.B. by father placed her and D.B. at risk; pursuant to section 300, subdivision (b), allegations b-1, b-2, and b-3, that both parents failed to protect both children, and b-4, that father's substance abuse rendered him unable to provide the children with regular care; pursuant to section 300, subdivision (e), allegations e-1 and e-2, that father caused physical abuse to A.B., a child under the age of five, and that mother knew or reasonably should have known she was being abused; and pursuant to section 300, subdivision (j), allegation that father's previous abuse of his child placed A.B. and D.B. at risk.
At the detention hearing September 10, 2010, mother appeared with private counsel; counsel was appointed for father. Both parents denied the petition. The children were ordered detained in foster care and the matter set for pretrial on October 5, 2010.
On September 28, 2010, the Tulare County Health and Human Services Agency filed a package of privileged documents with the court, including the records from A.B.'s hospital visit and a consult note from Dr. Philip Hyden, a physician with the hospital's Child Advocacy Clinic. In the various reports, father revealed his prior CPS history and that he had been in jail for 270 days for reckless endangerment of a child because, according to him, he claimed partial responsibility for the child's injuries. The parents also reported that A.B. had fallen off a bed two months earlier. At that time, mother called a medical center and was given head injury precautions, but she did not take A.B. in to be seen. According to X-rays of A.B.'s injuries, the three fractures in one arm were inconsistent with the explanation given, and the injury was labeled "suspicious for nonaccidental trauma." The fractures of the radius and ulna near the wrist were "essentially 100% displaced," and the arm had to be realigned and a long-arm cast placed on it.
After A.B.'s initial hospital visit in September, A.B.'s foster mother brought A.B. back to the hospital to have her cast replaced. A review of previous X-rays revealed that the tenderness in A.B.'s left distal femoral region, above the knee, was possibly due to a corner fracture of the left femur and a long cast was put on her leg.
A report filed in anticipation of the jurisdiction/disposition hearing stated that mother first said she found out about father's prior child welfare history after she married him. She later said that she had heard about father's previous CPS case from his parents when they first got together and had D.B. Since then, it was her "'instinct to not completely trust'" father and that someone was always with him when he was with the children. As stated in the report, mother's "instinct was to not completely trust [father]. However, ... mother remained in a relationship with [father] despite her 'instincts' and had a subsequent child with him." Mother worked Monday through Friday and the children were cared for by father and her brother Darryl.
Father was bipolar and took Paxil and pain medication for his back and acknowledged smoking marijuana for pain, but claimed not to do so in front of the children. Both parents said father would move out in order to have the children returned.
The foster mother reported that D.B. did not speak, had daily tantrums that included banging his head on the floor, and he was aggressive toward A.B. Neither mother nor father thought D.B. had any problems. The agency sought to refer D.B. to Central Valley Regional Center (CVRC) for an evaluation and provided mother and father an application packet to complete.
Numerous relatives wished to be considered for placement and were being evaluated, although several were eliminated immediately due to drug, alcohol, or violence convictions.
The report recommended that services be denied father due to his past CPS history and denied mother because she knew or should have known that father posed a risk of serious harm to the children. The report further stated that it was not possible to fashion services for either parent given that neither parent provided a plausible explanation for A.B.'s injuries.
A CASA (court appointed special advocates) report filed on October 19, 2010, reported that D.B. became aggressive following visits with his parents, that he continued to exhibit violent tantrums and self-injurious behavior, and suggested that he be evaluated for autism.
On November 23, 2010, further privileged documents and an addendum report were filed. In the report, mother claimed that she and father did not fight or use corporal punishment on the children, and she did not think father was responsible for A.B.'s injuries. But mother stated that, if father was found to be at fault, she would not allow him around the children. The maternal grandmother reported that father had a warrant out for his arrest and Darryl was in jail due to a scheme between father and Darryl in which they burned a friend's car to claim the insurance money.
Mother refused to sign the consent form to have D.B. evaluated at CVRC, although his caregivers were increasingly worried about his out-of-control behavior. Mother also refused to sign a consent form for emergency medical services for D.B.
Following numerous continuance motions, due in part to substitutions of counsel, a jurisdiction hearing was held December 14, 2010. Dr. Hyden, an expert in the area of child abuse, described A.B.'s injury to her humerus as "a transverse" or "straight across" fracture near the elbow. He described the fractures to A.B.'s left radius and ulna as "broken through, bayonet deformity, because the bone was actually displaced and angulated in such a way that the arm, if it hadn't been treated, would have been deformed." Dr. Hyden opined that it was highly unlikely that the injuries occurred in the manner reported by the parents due to the force required to break both the radius and ulna simultaneously, as well as the humerus. Dr. Hyden also expressed concern that the parents reported seeing that A.B. was not using her arm appropriately after she was injured, but did not seek medical attention for 24 hours. A possible fracture of the left femur could not be confirmed. An older skull fracture could have been consistent with mother's report that A.B. fell from the bed a month earlier. Dr. Hyden opined that, even if the current injuries occurred as the parents described, "there is still a situation that we have a ten-month-old baby that has four fractures from falling off a bed."
The matter was continued to allow the juvenile court to consider father's previous child welfare file.
A CASA report filed February 25, 2011, stated that the children had been placed with relatives in December of 2010. When the parents visited, which they did together, they brought the children junk food and high energy drinks, against the express wishes of the relative caretaker. At the visits, the parents paid little attention to D.B., but focused on A.B. D.B.'s behavior was still difficult, but less out of control, and he had begun saying a few words. The parents asked that the caretaker not tell the social worker that they were together. The caretaker noted that the parents argued with each other at the visits and the caretaker had to intervene.
Mother finally signed the release for a CVRC evaluation for D.B., but she had cancelled three appointments for him, so he had not yet been seen.
The hearing resumed on February 28, 2011, after yet another substitution of counsel. Dr. Hyden was recalled and opined that the type of fall A.B. received would be similar to that received from a "projected fall" received by "falling off a swing set while being swung." It would require defensively putting an arm out straight, but whether 10-month-old A.B. would have been able to protect herself in such a way was uncertain.
Mother testified that she first learned of father's CPS history when she was pregnant with D.B., but that father had said it was the mother of the children who had abused them. She knew father's parental rights had been terminated, but she was not able to get more information. According to mother, she now lived alone and father had not been to her house since shortly after the case started. She did not know "for sure" that father caused A.B.'s injuries.
The juvenile court gave an indicated ruling on March 2, 2011, which included amending the petition according to proof. The court found that the two section 300, subdivision (a) allegations that father had caused the injuries had not been proved. The court added that A.B. had "also suffered a prior healing skull fracture of unknown age" to the b-1 and b-2 allegation, and found them true along with allegation b-3. It found that the b-4 allegation concerning father's substance abuse had not been proven. It amended the e-1 allegation to read: "[A.B.] is a child under the age of five years, has suffered severe physical abuse on one or more occasions inflicted by a parent or someone known to the parents. On or near 9/4/10, the child suffered a broken arm while in the parents' care, custody and control. Further, the child has a prior healing skull fracture while in the parents' care, custody and control." And the court amended the section 300, subdivision (j) allegation to include details regarding father's previous child welfare action. With these amendments, the court sustained the section 300 petition. Disposition was set for March 7, 2011.
An addendum report filed March 4, 2011, stated that, since the parents had not provided a plausible explanation for A.B.'s injuries, the social worker could not fashion a service plan likely to prevent reabuse of the children. This was further exacerbated by father's history of abusive behavior, which was not remedied by services, and mother and father's ongoing relationship, exposing the children to possible reabuse. The police had been called to mother's home as recently as February 13, 2011, for a disturbing the peace incident between mother and father. The social worker further recommended against reunification services due to mother's continued failure to make herself available for a CVRC appointment for the children, and the caretaker's reports that the children became increasingly agitated following visits with the parents.
At the March 7, 2011, disposition hearing, mother testified that she had now come to the conclusion that father was responsible for A.B.'s injuries. She insisted that father had not lived with her or visited her at her home in five months. She explained that she called the police in February because father was trying to get into her house.
On cross-examination, mother admitted that she had been driving father to visits up until a month ago. She also admitted that father's mail still came to the house and that she had not done anything to stop it. She testified that father had not done any work around her house, and that she had not driven him to court that morning.
Father then testified that mother had brought him to court that morning and that, although he lived with a friend, he continued to help mother with yard work, as recently as a "few days ago." He also testified that he sees mother every few days, that they go out to eat after church, and that he drove with mother to the children's visit "last Wednesday."
Mother was recalled and testified that, if father helped with the yard work, she did not know about it.
The children's caregiver testified that mother and father visited every Monday and Wednesday and that they arrived and left together. The caregiver also testified that mother had mentioned that father painted "something" for her within the last month.
The juvenile court found that section 361.5, subdivisions (b)(5), (7), and (11) applied to father, that section 361.5, subdivision (b)(5) applied to mother, and that section 361.5, subdivision (c) applied to both father and mother. It determined that services would not likely prevent further abuse or continued neglect of the children. Nor did the court find that failure to reunify would be detrimental to the children. The court noted that it was not convinced mother had separated from father and found her testimony not credible. In makings its determination, the court stated:
Section 361.5, subdivision (b) provides, in relevant part, that reunification services need not be provided when (5) the child was brought within the jurisdiction of the court under section 300, subdivision (e) because of conduct of the parent; (7) a sibling or half sibling was physically abused; and (11) the parental rights of a parent over a sibling or half sibling have been permanently severed.
Section 361.5, subdivision (c) provides, in relevant part, that reunification services shall not be ordered if the parent is described in section 361.5, subdivision (b)(7) or (11) unless the court finds, by clear and convincing evidence that reunification would be in the best interests of the children. And the court shall not order reunification services if the parent is described in section 361.5, subdivision (b)(5) unless it find that those services are likely to prevent reabuse or continued neglect of the child.
"The Court is not finding section 361.5(b)(6) applicable. The reason for that is, quite frankly, the Court is unable to determine which parent inflicted the severe physical harm. It's clear there was physical harm inflicted on this child. Unlike counsel for the mother, the Court is not certain who inflicted that harm, for that reason the Court is not adopting 361.5(b)(6)."No services were ordered for either mother or father. The relative caregivers indicated an interest in adopting the children and the juvenile court identified a permanent plan of adoption for A.B. and D.B. The matter was set for a contested section 366.26 hearing on July 1, 2011.
Section 361.5, subdivision (b)(6) provides, in relevant part, that reunification services need not be provided if the parent has inflicted severe physical harm to the child.
Neither mother nor father appealed from the disposition findings and orders.
Three months later, on June 2, 2011, father filed a section 388 petition. In his sworn petition he stated, "I never abused my children and I am willing to do whatever it takes to be reunited with my children." Father was currently attending a batterer's treatment class, drug testing, and had completed a parenting class on May 9, 2011. The juvenile court summarily denied the petition, finding that it did not state new evidence or a change or circumstances and did not promote the best interests of the children.
The following day, June 3, 2011, mother filed a section 388 petition requesting reunification services. The petition contained an unsigned letter from mother stating,
"I am sorry for trusting someone with my children. I have learned a tough lesson that trusting anyone with my children will require dedicated vigilance on my part. I feel that perhaps I did do something by not being in the presence of my children that very moment, but any parent can tell you that being in the presence of your children 24/7 is truly impossible."The petition also stated mother had her own home, had changed the utilities into her name, and had obtained a restraining order against father on March 7, 2011. Attached to the petition was a copy of a temporary restraining order filed May 24, 2011, but not one from March of 2011. Mother attached certificates of completion or participation in parenting classes and codependency counseling, and a short letter from a psychologist stating mother was a "capable and loving parent." She also attached phone records for May 1 through 18, 2011, to show that she had had no contact with father. The juvenile court summarily denied mother's petition, stating that it did not show new evidence or a change of circumstances and did not promote the best interests of the children.
Mother now contends that the juvenile court abused its discretion when it summarily denied her section 388 petition because she made a prima facie showing entitling her to a hearing.
DISCUSSION
"Under section 388, a parent may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the minor's best interests. [Citations.]" (In re S.M. (2004) 118 Cal.App.4th 1108, 1119.) The petition for modification under section 388 must contain a "concise statement of any change of circumstance or new evidence that requires changing the [prior] order." (Cal. Rules of Court, rule 5.570(a)(7).) The parent seeking modification must "make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]" (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) Thus, "[t]here are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.]" (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Section 388, subdivision (a) reads, in relevant part: "Any parent or other person having an interest in a child ... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court ... for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and ... shall set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction."
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When determining whether the petition makes the necessary showing, the juvenile court must liberally construe it in favor of its sufficiency. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) Section 388 specifies that the court must order a hearing be held, "[i]f it appears that the best interests of the child may be promoted by the proposed change of order ...." (§ 388, subd. (d).) "'The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.' [Citations.]" (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
We apply the abuse of discretion standard in our review of the juvenile court's decision to deny the section 388 petition without a hearing. (In re Brittany K., supra, 127 Cal.App.4th at p. 1505.) We affirm the order unless it "'"exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (Ibid.) The juvenile court's decision will not be disturbed "'"unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination."'" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Here, the juvenile court summarily denied the section 388 petition on both grounds: that it failed to show a change of circumstances and failed to show that the children's best interest would be served by the requested relief. We affirm the juvenile court's denial.
Mother first contends that the juvenile court abused its discretion because her petition made out a prima face case of changed circumstances. She notes that she successfully completed a parenting class, was taking another parenting class dealing with abuse, and was participating in codependency counseling. She also notes that her instructors indicated she was a motivated participant and her psychological evaluation indicated that she was "a very capable and loving parent." According to mother, she had "completely" separated from father, obtained a restraining order, and changed all of the household bills into her name, eliminating the need for the removal of the minors.
We conclude that the facts alleged by mother do not meet the prima facie requirement of new evidence or changed circumstances because the facts alleged, if true, would not sustain a favorable decision on the petition. (In re Brittany K., supra, 127 Cal.App.4th at p. 1505.) While each of the steps taken by mother are positive ones, when "determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
Ten-month-old A.B. was the victim of severe physical abuse by a parent, or a person known to the parents while in the care and custody of mother and father. Throughout the six-month period between A.B.'s injury in September of 2010, which brought the minors to the attention of the juvenile court, until the disposition hearing in March of 2011, neither mother nor father took responsibility for the injuries. Mother told a social worker that she became aware of father's previous child abuse allegations when she was pregnant with D.B. and, although she did not "trust" him completely, she nonetheless had another child, A.B., with him and relied on him for childcare while she worked. At the disposition hearing, mother then testified that she had come to the conclusion that father was responsible for the injuries and she insisted that she had not had contact with him for five months. But testimony at the hearing by father and the caregiver suggested that mother continued to have weekly contact with father. The court specifically found that it was unable to determine which parent inflicted the physical harm on A.B., and it found mother's testimony not credible.
Even in both mother and father's section 388 petitions, neither takes responsibility for the abuse. Mother said only that she was "sorry for trusting someone with my children," and that, if she failed by not being present at the "very moment" her child was harmed, it was "truly impossible" to be present "24/7." And although mother claimed to no longer have contact with father, the restraining order attached to the section 388 petition was filed on May 24, 2011, only days before mother filed the petition. The facts before the court at the time of the petition were no different than what they were at the time the original dispositional findings and orders were made. While mother had made some progress in some services on her own, the circumstances before the court showed that mother still lacked insight into the genesis of A.B.'s injuries. The circumstances had therefore not changed.
We also conclude that the evidence fails to establish that the minors' best interests would be served by the requested relief. The following factors should be considered in determining whether a section 388 petition addresses the best interests of the child: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) The strength of the relative bonds between the children to both parent and caretakers becomes an even more important factor when a section 388 petition is filed after reunification services have been terminated. In In re Stephanie M., supra, 7 Cal.4th at page 317, the California Supreme Court stated, "[a]fter the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point, 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. [Citation.]"
Here, the seriousness of the problem leading to D.B. and A.B.'s dependency status is not in dispute. A.B. suffered a very serious, nonaccidental injury while in the care of her parents, and there was evidence of a previous injury. Neither parent claimed responsibility for the injury. In her section 388 petition, mother contends that providing her with reunification services would provide stability and continuity to her children because D.B. and A.B. were only out of her care for nine months; that a psychologist had found her to be a "loving and caring" parent; that she had suitable housing for the children; and that she was no longer in a relationship with father, as evidenced by putting household bills into her name and getting a temporary restraining order on father, eliminating the reason for out-of-home placement.
While mother's declaration in support of her petition discusses her efforts to begin to address her parenting decisions, the petition failed to address in any way the strength of the relative bonds of the minors to mother and to the prospective adoptive parents. At the time of the disposition hearing, mother would bring junk food and high energy drinks to her visits with the children, against the wishes of the caregivers. Mother's interaction with D.B. at the visits was "minimal," and mother repeatedly made excuses for not getting D.B. to a CVRC assessment. As to the minors' bond with the caregivers, the CASA worker found that D.B.'s aggression had decreased while placed with the caregivers, and the relative caregivers indicated an interest in adopting the siblings. In her section 388 petition, mother states only that the requested change (for reunification services) would be better for the children because "[t]he children would be living with and being reared by a loving natural mother who is capable of providing for their emotional and material needs. Granting services will not have a negative effect on 'permanence.'" No mention is made of mother's visits with the children, their progress or of her relationship with them, or their bond to her.
"At this point in the proceedings, on the eve of the selection and implementation hearing, the children's interest in stability was the court's foremost concern, outweighing any interest mother may have in reunification." (In re Anthony W., supra, 87 Cal.App.4th at pp. 251-252.)As mother did not carry her burden under section 388 to show prima facie either new evidence or a change in circumstances, the juvenile court did not abuse its discretion in summarily denying the petition for modification.
DISPOSITION
The order is affirmed.
DAWSON, Acting P.J.
WE CONCUR:
POOCHIGIAN, J.
DETJEN, J.