Opinion
A119444
6-26-2008
In re TREY D. et al., Persons Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. J.A., Defendant and Appellant.
Not to be Published
J.A. (mother), mother of Trey D. (Trey), age 14, and Jayla D. (Jayla), age nine, appeals from the juvenile courts order terminating her parental rights to Trey and Jayla and selecting adoption as the permanent plan. She contends the court erred in finding her children were adoptable, and in failing to provide notice as required by the Indian Child Welfare Act (ICWA). We affirm the juvenile courts adoptability finding but reverse and remand for the limited purpose of securing compliance with ICWAs notice requirements.
FACTUAL AND PROCEDURAL BACKGROUND
On July 17, 2002, the Sonoma County Human Services Department (the department) filed original petitions alleging that Trey, then eight years old, and Jayla, then three years old, were at risk of serious physical and emotional harm due to their parents history of domestic violence for which father was incarcerated at the time, allegations of mothers physical abuse of their older sister Amie, and mothers substance abuse. According to the petition, the childrens father, Jason D. (father), hit, kicked and choked mother in front of the children on numerous occasions. Mother acknowledged she "has a problem with Vicoden and has been addicted for a while." She agreed to participate in voluntary family maintenance services but failed to maintain contact with the social worker and did not follow through with recommended services. On July 25, 2002, the department filed an amended petition detailing additional domestic violence and substance abuse allegations and removing the Welfare and Institutions Code section 300, subdivision (g) allegation because father was no longer incarcerated.
Amie was 12 years old at the time the original petition was filed. Appellant does not contest the juvenile courts orders relating to Amie, who was ordered into a planned permanent living arrangement with relatives. Accordingly, we refer to her only as relevant to Trey and Jaylas appeal.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
A jurisdiction and disposition report stated the children were in foster care. Weekly visits were arranged for mother and father but Trey "express[ed] his anger by boycotting visits." Jayla was too young to be interviewed but was "of normal growth and development" and "appear[ed] happy in the foster home." The parents were willing to participate in reunification services but were "in serious denial about the reasons they are now in Juvenile Court with their children removed from their care." According to the report, mother said her paternal great-grandmother "was supposed to be part Cherokee, but did not belong to a tribe," and that she was not aware of any Native American ancestry in fathers family. The department recommended that the allegations in the amended petition be found true and that both parents receive reunification services. The parents submitted on the amended petition and the recommendations set forth in the jurisdiction and disposition report.
On February 3, 2003, the department filed a supplemental petition alleging that the maternal grandparents with whom the children had been staying since September 18, 2002, were no longer able to care for the children. The maternal grandmothers sister had been killed in a car accident in January 2003, and she was having difficulty caring for the children while grieving the loss of her sister. Trey was detained at a childrens home pending an appropriate foster home placement, and Jayla was placed in a foster home.
According to a six month review report dated February 18, 2003, Trey was living in a childrens home and Jayla was living in a foster home. Father had not reported any Native American ancestry. The report described the children as "three well-mannered siblings" and stated there were several relatives and family friends who were interested in caring for them. The report described Trey as a "friendly nine-year-old boy [who is] playful and likes being with his family." Trey had a learning disability and was in need of more individualized special education services. He was in good health and his medical needs were being met at the childrens home, but he was "very sad" at the home and cried a lot. Jayla was described as an "adorable, energetic four-year-old girl" in good health. Her foster mother had not reported any significant problems. The court continued reunification services.
A twelve-month status review report dated July 28, 2003, stated the children were living in an emergency foster home and had become attached to their foster mother. Trey was in good health and "seemed much more cheerful" since leaving the childrens home. At the time of the report, he was in counseling and had only one recent behavioral incident, involving "sexual play" with two other boys at the foster home. Jayla was in good health, seemed happy at the foster home, and was doing well in school. Both parents were, "at best, in early recovery from substance abuse," and neither had demonstrated the ability to maintain stable housing or employment. The California State Department of Social Services (State Adoptions) considered all three children adoptable but found it would be difficult to place all three of them together as a sibling group. Various relatives were interested in adopting the children, but issues had been identified that prevented the department from recommending placement with any of them. The report recommended that the court continue reunification services for an additional six months. Both parents submitted on the report and recommendation.
An 18-month status review report dated January 20, 2004, recommended that the children remain in out-of-home placement and that reunification services be terminated because the parents had not made sufficient progress in their reunification plan. The report described Trey as "cute, ten-year-old boy" who loves sports and was making progress in meeting his educational goals. It described Jayla as a "humorous, outspoken five-year-old girl" who followed directions in school and maintained appropriate behavior in class. Trey and Jayla had been placed in a new foster home on August 15, 2003. Trey did not like the placement, and family members felt it would be best if the children were moved to a different foster home. Jayla began exhibiting sexualized behavior. On January 16, 2004, Trey and Jayla were moved to a new foster home. State Adoptions revised its original adoptability finding, citing the childrens emotional and behavioral problems. The social worker opined that a planned permanent living arrangement was the most appropriate option for the children.
A "planned permanent living arrangement" includes long-term foster care with mandated periodic status reviews by the court for a dependent child who cannot be returned to parental custody and is not suitable for adoption or guardianship. (See In re Stuart S. (2002) 104 Cal.App.4th 203, 206-209.)
On February 4, 2004, Trey and Jayla were moved to a new foster home because "the childrens needs were greater than anticipated [and] the foster parents felt uncomfortable and threatened by the biological parents." The parents submitted on the recommendation that the children be placed on a planned permanent living arrangement.
In a status review report dated August 11, 2004, the department recommended continuing a planned permanent living arrangement for the children. Trey was in good health and was seeing a therapist weekly to address his issues of loss and neglect. He had some problems with other children at school but had no developmental delays that would make him eligible for Regional Center services and "continue[d] to show improvement." Jayla was in good health but was having behavioral problems at school, including sexually acting out and having frequent outbursts. She was making little academic progress and was scheduled to repeat Kindergarten. She informed her therapist of a "sexual encounter" that had occurred at her maternal grandmothers house. She acted out, especially after visiting with her birth family. The children had adjusted well to the foster home in which they had been living since February 4, 2004. In the report, the department repeated the previous information about Native American ancestry and asked the court to make a finding regarding whether ICWA applied.
The department submitted an addendum report dated September 1, 2004, recommending ceasing all visitation between the children and family members. Jaylas therapist opined that visitation was detrimental to Jayla, as indicated by Jaylas "inability to manage or calm herself for up to several days after a visit, [the] continued fragmentation of her personality, her constant disruption of stabilization with the foster family, and her defiant and sexualized behaviors upon return from visits." All parties submitted on the recommendation. The court found ICWA did not apply.
An exception was to be made for one visit to celebrate the childrens birthdays.
A status review report dated June 10, 2005, provided that Trey was learning disabled but was doing well and making progress in his weekly therapy sessions. Jayla was learning disabled and emotionally disturbed, but her therapist reported that Jaylas behavior had improved. Both children were doing well in their foster home and their behavior stabilized when visits with family members were limited. The proposed findings and orders included a finding that adoption or legal guardianship would be appropriate. Father submitted on the report and recommendation. Mother did not appear at the hearing.
In a status review report dated December 7, 2005, the department recommended continuing a planned permanent living arrangement. Trey and Jayla continued to do well in the foster placement where they had lived for almost two years. They had academic and behavioral difficulties at school, but the foster parents were working closely with school staff to monitor the children. Neither child was on psychotropic medication. The department and State Adoptions prepared a joint case review in which they indicated that Trey and Jaylas foster parents wanted to adopt both children. The report also reflected that Trey would be "O.K." with being adopted by his foster parents if he could not be adopted by his paternal grandmother. All parties submitted on the recommendation of continuing a planned permanent living arrangement.
In a status review report dated June 9, 2006, the department continued to recommend a planned permanent living arrangement. The report also stated the children were closely bonded with the foster parents and were interested in being adopted by them. Trey was described as being "quite settled and emotionally comfortable and attached in his foster family." Jayla continued to have problems at school, and her behavioral problems increased after family visits. Jayla was healthy, and there were no developmental concerns. Both parents submitted on the report and recommendation. The court found that "a specific goal of adoption or legal guardianship continues to be appropriate."
In a report dated November 27, 2006, the department recommended continuing the planned permanent living arrangement. Trey and Jayla had been with their foster parents for almost three years. Trey was in middle school and was meeting academic expectations. When he had several outbursts, he asked for help in dealing with his anger. Overall, his behavior in school was appropriate. Jayla was disruptive in school but was being sent to the principals office less frequently. The report concluded that "[a]doption will be the likely permanent plan for Trey and Jayla."
The department submitted an addendum report indicating that Trey and Jaylas foster parents had completed a home study. The department requested that the court schedule a permanency hearing under section 366.26 (section 366.26 hearing). All parties submitted on the addendum report and its recommendations, and the matter was set for a section 366.26 hearing.
Section 366.26 governs termination of parental rights and permanency planning for children in dependency proceedings.
In the selection and implementation report prepared for the section 366.26 hearing, State Adoptions and the department stated that Trey and Jayla were likely to be adopted. The joint assessment recommended that parental rights be terminated and a permanent plan of adoption be ordered. Mother had not visited with Jayla for three months and had not visited with Trey for five months. Father had not visited the children since December 2004. The report stated that in preparing the joint assessment, a department social worker and State Adoptions staff had interviewed the children, their teachers and therapists, the foster parents and the foster family agencys social worker who had supervised the placement over the course of the three years in which the children had been placed with the foster parents. The children were observed in their foster home and all available records concerning the childrens medical, psychological and scholastic or developmental background were reviewed.
Trey voluntarily stopped attending visits in December 2006.
According to the selection and implementation report, Trey was in good health and there were no developmental concerns. He attended a special day class for some subjects but was in regular classes for most subjects. He was described as "skilled and well-liked." He was developing friendships and had a best friend. His progress in the seventh grade was "surprisingly good." He sometimes made poor choices, including sneaking out of a sleepover late at night with other boys, and "steal[ing] items left out on the table at home (but not in public places)." He had been on psychotropic medications for depression and anger since January 3, 2007. Jayla was also in good health, and there were no developmental concerns. She received special services in the classroom but was making progress. Jaylas teacher reported problems with anger and socialization but the special services teacher did not see the same problems. Both teachers reported that they liked Jayla and enjoyed her personality. Jayla was more in tune with her anger and was incorporating tools to calm herself.
Both children confirmed that they wished to be adopted by their foster parents. The report stated that they asked questions about the adoption process and expressed impatience regarding the delay. Trey began calling his foster parents "Mom" and "Dad" once he learned that a section 366.26 hearing had been set, and referred to his biological mother as "Jaylas mom." The children had a stable, trusting relationship with their foster parents and were described as having "substantial emotional ties" to them. The foster parents were found to be suitable for and committed to adopting the children. The home study was expected to be approved. Legal and financial rights and responsibilities had been explained to the foster parents, who indicated their understanding and willingness to accept the responsibilities of adoptive parents.
The department submitted an addendum report dated April 26, 2007, requesting that the termination of parental rights be suspended because there were allegations of physical abuse in the foster parents home that required investigation. During the course of the investigation, Trey stated he did not wish to be adopted.
A second addendum report dated May 31, 2007, reiterated that Trey and Jayla were likely to be adopted, and the department recommended that parental rights be terminated and a plan of adoption be ordered. The children had been removed from the foster parents house for two nights while allegations were being investigated. The department social worker, the adoptions worker and the childrens attorney met with the children on numerous occasions throughout the course of the investigation. An Emergency Response social worker also interviewed the child who had made the allegation, as well as Trey, Jayla and both foster parents. The allegations were determined to be unfounded, and Trey and Jayla confirmed that they wanted to be adopted by their foster parents. The report further provided that the foster parents, Trey and Jayla had started attending family therapy sessions with a licensed clinical social worker who specialized in working with adoptive families. Trey and Jayla said they were troubled by the delay in court proceedings. The foster parents expressed their dedication to supporting the children regardless of any challenging behaviors they may present. On August 14, 2007, Jayla was approved for psychotropic medications to address her emotional problems including irritability, anxiety and angry outbursts. Mother and father contested the recommendation to terminate parental rights.
At the scheduled contested hearing on August 13, 2007, mother submitted a petition for modification pursuant to section 388. The minors counsel and the department objected to the petition and it was denied. Trey was present with counsel, having been subpoenaed by father to testify. Trey testified in chambers and expressed his wish to be adopted by his foster parents. Jaylas attorney, who was permitted to present Jaylas position, testified that Jayla had expressed "many times" that she wished to be adopted, and had asked mother not to fight the adoption.
Vicki Campbell, a senior adoption specialist at State Adoptions, testified that she had reviewed the case file, had worked closely with the adoption specialist previously assigned to the case, and concurred with the recommendation that parental rights be terminated. She testified that she had been in the foster parents home, had met with the children and knew the family very well. She had worked as the foster familys social worker before inheriting the case as the adoption specialist. As the foster familys social worker, she conducted the adoptive home study and prepared the home study report.
The previous adoption specialist had left her job with State Adoptions by the time the contested hearing was held.
Campbell opined that Trey and Jayla were likely to be adopted if parental rights were terminated. She believed she would be able to find parents, other than the current foster parents, who were willing to adopt the children together. She had experience with adoptions involving sibling groups of the same approximate age as Trey and Jayla. She stated that "[m]ost of our children do have special issues," and stated she had methods for recruiting families wanting to adopt older children with special issues. She testified that many of the children served by State Adoptions were in therapy and that being in therapy did not hinder a childs ability to be adopted. She believed that neither Trey nor Jayla had any medical disability that would prevent them from being adopted. She testified that if the current foster parents were unable to adopt Trey and Jayla, it could take six to nine months to find a new adoptive placement. Campbell disagreed with fathers counsels suggestion that there was only a small pool of potential parents for Trey and Jayla. The court found the children were adoptable.
Mother and father testified that they loved their children. Mother acknowledged she was not ready to have the children returned to her but said she did not believe it was in the childrens best interests to be adopted. Father acknowledged he had not visited the children for over two years but said he was "not ready to give up." The juvenile court terminated mother and fathers parental rights to Trey and Jayla and adopted the recommended findings and orders contained in the departments selection and implementation report.
DISCUSSION
Substantial evidence supports the juvenile courts adoptability finding.
Mother contends that substantial evidence does not support the juvenile courts finding that Trey and Jayla are adoptable because the evidence shows only that the children were likely to be adopted by their foster parents, and not by any other individuals. We disagree.
To terminate parental rights and select adoption as a minors permanent plan, the juvenile court must find by clear and convincing evidence that it is likely the minor will be adopted if parental rights are terminated. (§ 366.26, subd. (c)(1).) To determine whether a minor is likely to be adopted, the court focuses on whether the minors age, physical condition, and emotional state will create difficulty in locating a family willing to adopt the minor. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary for the minor to be in a potential adoptive home or for proposed adoptive parents to be "waiting in the wings." (Id. at p. 1649.) What is required is clear and convincing evidence that adoption is likely to be realized within a reasonable time. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.)
"Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) Further, "in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child." (Id. at p. 1650.)
We review an adoptability finding to determine whether there was substantial evidence for the lower court to have reasonably made the finding by clear and convincing evidence. (In re Christiano S. (1997) 58 Cal.App.4th 1424, 1431.) In evaluating whether there is substantial evidence to support a finding, we review the record in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the finding. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) It is not our task to reweigh or express our independent judgment of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Angelia P. (1981) 28 Cal.3d 908, 924.)
Substantial evidence supports the juvenile courts finding that Trey and Jayla are adoptable. Throughout their dependency, Trey and Jayla were in good health, and neither had developmental delays. They were described at various times as "wonderful children," "well-mannered," and "well-adjusted." Trey was described as "friendly," "playful," "cute," "quiet," "very agreeable," "lov[ing] sports" and "well-liked" at school. He was "quite settled and emotionally comfortable and attached to his foster family." Jayla was described as "happy," "adorable," "energetic," "humorous" and "outspoken." She had various problems at school, but her instructors agreed they liked her and enjoyed her personality.
Appellant correctly points out that during one period of the dependency, the department was recommending a planned permanent living arrangement for Trey and Jayla because they were deemed not adoptable at that time due to their emotional and behavioral problems. However, this recommendation was made during a disruptive period when the children experienced multiple moves in foster care. Once their placement stabilized, the foster parents expressed the desire to adopt the children despite their continuing issues. (See In re Sarah M., supra, 22 Cal.App.4th at p. 1650 ["a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family"].)
The senior adoption specialists testimony also provides support for the juvenile courts finding that the children were adoptable by their foster parents, or by others. As noted, Campbell testified that Trey and Jayla were likely to be adopted if parental rights were terminated. She testified that if the prospective adoptive parents were unable to adopt the children, she would be able to find other families willing to adopt them. She testified that the likelihood of adoption was not decreased due to the childrens special issues.
Appellant asserts that Campbell was "the only person who believed that Trey and Jayla might be generally adoptable," and that her testimony was insufficient to support the adoptability finding because she lacked "specific" knowledge regarding the childrens medical needs. The record shows, however, that a department social worker and State Adoptions staff together issued an assessment report recommending adoption as the permanent plan, after interviewing numerous individuals including the childrens teachers and therapists and reviewing all available medical, psychological, developmental and scholastic records concerning the children. It was the collective conclusion of various experts, and not just the opinion of Campbell, that Trey and Jayla were adoptable. Substantial evidence supports the juvenile courts finding that Trey and Jayla are adoptable.
ICWA notice requirements were not met.
Mother contends the order terminating parental rights should be vacated because ICWA notice requirements were not followed. We must agree.
Congress enacted ICWA in 1978 "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . ." (25 U.S.C. § 1902; In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) ICWA sets forth specific notice requirements so that tribes will be made aware that a dependency action is pending and will have the opportunity to exercise their right to intervene in the action. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.)
ICWAs requirements must be followed in involuntary child custody proceedings when a court "knows or has reason to know" that an Indian child is involved. (25 U.S.C. § 1912(a); In re S.B. (2005) 130 Cal.App.4th 1148, 1157; see also Cal. Rules of Court, rule 5.480.) An "Indian child" is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe . . . ." (25 U.S.C. § 1903(4).) An Indian child, parent or Indian custodian or tribe may challenge the termination of parental rights on the ground that the notice requirements of ICWA were not followed. (25 U.S.C. § 1914.)
California has adopted this definition of "Indian child." (See § 224.1, subd. (a).)
While it is true that merely having an Indian relative does not make a minor an "Indian child" under ICWA, a court may not dispense with ICWAs notice requirements based upon its conclusion that a minor does not satisfy the definition of an Indian child. Notice must be sent whenever there is reason to believe the minor may be an Indian child. (In re Desiree F., supra, 83 Cal.App.4th at p. 471.) "The Indian status of the child need not be certain to invoke the notice requirement. [Citation.]" (Ibid.) "Because the question of membership rests with each Indian tribe, when the juvenile court knows or has reason to believe the child may be an Indian child, notice must be given to the particular tribe in question or the Secretary [of the Interior]." (Ibid.)
Congress has recognized that "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe . . . ." (25 U.S.C. § 1901(3).) "Given the interest protected by [ICWA], the recommendations of the guidelines, and the requirements of our court rules, the bar is indeed very low to trigger ICWA notice." (In re Antoinette S. (2002) 104 Cal.App.4th 1401, l408 (Antoinette S.).) "Because of the important interests at stake, courts around the country `have interpreted the ICWA notice provision broadly. (Dwayne P., supra, 103 Cal.App.4th at pp. 256-257 [citing cases]; see, e.g., In re M.C.P. (1989) 153 Vt. 275 [571 A.2d 627, 634-635] [`it is preferable to err on the side of giving notice . . .].)" (Id. at p. 1407.)
In Antoinette S., for example, the fact that the father "believed his deceased maternal grandparents had Native American ancestry" was sufficient to trigger the notice requirements of ICWA, despite the fact that he was not sure what his grandparents names were, did not know their birth dates, and did not know whether they were members of a tribe. (Id. at p. 1405.) The court held: "Because `biological descendance is often a prerequisite for tribal membership," "the suggestion of Indian ancestry" was "enough to trigger notice." (Id. at p. 1408.) Further, the fathers failure to raise ICWAs notice requirement below did not waive the issue on appeal. (Ibid. ["[B]ecause it is critical to the tribes in which the dependent child may have existing or future membership, and because tribes depend on parents in the first instance to notify state social workers and courts of known or potential Indian ancestry, parents who have failed to raise the notice issue below may raise it on appeal"].)
Similarly, we conclude that mother is not precluded from raising the issue of ICWA applicability for the first time on appeal. (See, e.g., Antoinette S., supra, 104 Cal.App.4th at p. 1408; In re Marinna J. (2001) 90 Cal.App.4th 731, 733.) We also conclude that mothers statement that her paternal great grandmother "was supposed to be part Cherokee" was sufficient to trigger ICWA. Although mother acknowledged that the great grandmother was not a member of a tribe, and there is no evidence that mother was a member of any tribe, these facts are not dispositive because enrollment is not the sole means to establish trial membership. (See Dwayne P., supra, 103 Cal.App.4th at p. 254 [noting that "a child may qualify as an Indian child within the meaning of the ICWA even if neither of the childs parents is enrolled in the tribe"].) "[T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.]" (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) In light of the minimal showing required to trigger the statutory notice provisions, we conclude ICWA applied and the statutory notice provisions should have been followed.
Moreover, we reject the departments argument that any error in failing to provide notice was harmless. An ICWA notice violation may be held harmless when "the childs tribe has actually participated in the proceedings" or "when, even if notice had been given, the child would not have been found to be an Indian child . . . ." (See In re S.B., supra, 130 Cal.App.4th at p. 1162.) Here, no tribe had "actually participated in the proceedings," and we cannot determine whether the minors would have been found to be Indian children, had notice been provided. Thus, the error was not harmless.
The facts in this case are distinguishable from those in the two cases on which the department relies in asserting the error was harmless. In In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431, and In re H.B. (2008) 161 Cal.App.4th 115, 120-121, the departments failure to ask the parents regarding Native American ancestry was harmless error where the parents provided no information below or on appeal showing that, had they been asked about Native American ancestry, they "would have been able to proffer some Indian connection sufficient to invoke the ICWA."
DISPOSITION
The order terminating parental rights is vacated and the matter is remanded to the juvenile court with directions to order compliance with the notice provisions of ICWA. If, after proper inquiry and notice, no response is received from a tribe indicating the minors are Indian children, all previous findings and orders shall be reinstated with respect to the minors. If a tribe determines that the minors are Indian children, the court shall conduct a new section 366.26 hearing with respect to the minors in conformity with ICWA and applicable state law.
We concur:
Siggins, J.
Jenkins, J.