Filed 12/10/13 Veronica M. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
VERONICA M.,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE G048848
COUNTY,
(Super. Ct. No. DP-022456)
Respondent;
OPINION
ORANGE COUNTY SOCIAL SERVICES
AGENCY et al.,
Real Parties in Interest.
Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Dennis J. Keough, Judge. Petition denied.
Rebecca Captain for Petitioner.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J.
Agin, Deputy County Counsel, for Real Party in Interest, Orange County Social Services
Agency.
Veronica M. (mother) seeks extraordinary relief from an order of the
juvenile court terminating reunification services and setting a permanency planning
hearing for her child, A.C. After reviewing the petition on the merits, we deny relief.
(Cal. Rules of Court, rule 8.452(h).)
FACTS
Mother gave birth to A.C. prematurely, at 34 weeks gestation, in January
2012. He weighed just five pounds, three ounces.
When A.C. was about five weeks old, a social worker visited the home to
investigate a report of general neglect of the child by mother. The social worker’s
resulting report, which was inconclusive on abuse, stated the mother “has post partum
depression, is not all there, and . . . made a statement that she wanted to throw the baby
out the window.” The report noted the baby’s low birth weight and failure to gain
weight: A few days before the social worker’s visit, A.C. had been weighed at a clinic,
registering just six pounds, one ounce. Mother and the presumed father, Ezequiel C.
(father), with whom mother and baby were then living, signed a Children and Family
Services Safety Plan, agreeing to participate in a Postpartum Wellness Program and
Stress Free Families Program, to fill mother’s prescription for antidepressant medication,
and to take A.C. to the pediatrician.
In April 2012, mother and father brought 10-week-old A.C., vomiting and
stricken with diarrhea, to the emergency room at the urging of a neighbor who was
concerned the child was seriously underweight. Emergency room personnel found the
baby’s condition alarming: At 7 pounds, 12 ounces, he was below the third percentile in
weight, had sunken eyes, skinny arms and legs, and a protruding belly. A doctor
diagnosed A.C. with “failure to thrive” and determined the cause was environmental
because, once admitted to the hospital, the infant ate normally and steadily gained weight.
2
On April 18, 2012, while A.C. was still at the hospital, the social services
agency (SSA) placed him in protective custody. On April 20, SSA filed a detention
petition for A.C.
The detention report listed the many warning signs of problems in the
home. Along with A.C.’s diagnosed failure to thrive, the report noted mother’s
diagnosed postpartum depression and her complaint of auditory hallucinations. Father
relayed that mother “does not show any interest in caring for the baby.” The report also
noted mother’s report of having been twice physically abused by father, first during her
pregnancy, when father slapped her face for buying the “wrong” tortillas, and then again
on April 7 or 8, when father grabbed mother by the hair and dragged her while the baby
was present.
The detention report noted that mother had not complied with the
psychiatric medication regime prescribed for her, nor had she followed through on the
referrals given to her as part of the agreed safety plan. She had also neglected to take
A.C. to his pediatrician for scheduled appointments, preventing the doctor from
adequately monitoring A.C.’s weight gain.
The report further noted that the maternal grandmother had multiple prior
child abuse referrals and mother had been in foster care and group homes from the age of
13 through 18. Mother stated that she had suffered from depression since the age of 12 or
13, and had been prescribed psychotropic medication while in foster care.
At the April 23, 2012, detention hearing the court ordered reunification
services and gave the parents separate, supervised visitation of two hours each, three
times a week. Mother’s visitation was conditioned on her keeping her psychiatric
appointments and complying with her medication orders. Three days later, A.C. was
placed in a foster home with a “non-relative extended family member,” a placement that
remained constant throughout these dependency proceedings.
3
The May 16, 2012, jurisdiction/disposition report and June 1 addendum
noted some concerns with mother’s visitation. (Because other alone contests the juvenile
court orders, this statement of facts focuses on mother.) The caretaker, who monitored
visitation, reported mother’s apparent lack of concern when A.C. was ill (she refused to
leave a party to bring a thermometer when A.C. had a fever), mother’s disinterest in
attending the baby’s doctor visits, her admitted dislike for babies in general because they
are “too small,” her observed difficulties in changing A.C., and her impatience in feeding
him.
At the June 4, 2012, combined jurisdiction/disposition hearing, mother
pleaded no contest to the amended dependency petition alleging neglect through failure to
protect (Welf. & Inst. Code, § 300, subd. (b)).1 The court found that the cause of A.C.’s
failure to thrive was environmental; that his parents had neglected the infant by failing to
ensure he received “regular, frequent, and consistent feedings” and the medical care
needed to address his lack of weight gain; that in early March 2012 mother was
diagnosed with postpartum depression, with symptoms that included “lack of interest in
caring for the child,” but she “neglected to take her prescribed medication or seek
continued treatment,” placing A.C. at risk; that A.C. had been exposed to an act of
domestic violence (the hair pulling and dragging incident) and the parents have “a
conflictual relationship” which has escalated to physical violence, putting A.C. at risk of
bodily harm.
The court adopted the recommended case plan objectives and
responsibilities for mother that included completion of a domestic violence program
(Personal Empowerment Program or PEP), general counseling, psychiatric treatment and
compliance with the medication regime prescribed, and parenting education. The court
1 All further statutory references are to the Welfare and Institutions Code.
4
continued the existing visitation plan (two-hour visits, three times per week), and set a
six-month review for November 27, 2012.
In July 2012, father was arrested on charges of committing forcible sex
offenses against mother. He remained incarcerated throughout the rest of these
proceedings and he has chosen not to contest the dependency orders.
Six-month Review
A series of status review reports prepared for the six-month review hearing
painted a disappointing picture of mother’s compliance with her visitation and service
plan.
During this six-month review period, mother did not participate in any
counseling. She completed her parenting classes, but did not complete the entire 10-
week PEP domestic violence program. She finished 7 of the 10 PEP classes by the end of
November 2012, but waited until late January 2013 to complete the eighth class, and then
failed to undertake the last two required classes.
Mother attended quarterly medication monitoring appointments (June,
September and December of 2012) with a psychiatric nurse practitioner who diagnosed
mother with “[m]ajor depressive disorder, recurrent episode,” and noted mother’s
medication compliance was “[g]ood,” with no side effects, and that mother felt the
“medication is helping me.” The treatment plan was to “[c]ontinue medication as
prescribed.” Despite that directive, mother stopped taking her antidepressants in January
2013 on her own initiative, without the approval of her psychiatric nurse practitioner,
because she had become pregnant and was worried the drugs would harm her developing
fetus.2
2
The father of the unborn child was a man mother had begun dating in July 2012
–– the month father was incarcerated. In mid-January 2013, a pregnant mother began
living with this new boyfriend, but he was arrested and deported the next month.
5
Mother was inconsistent with visitation. In June 2012, she attended only 2
of 13 possible visits with A.C., and stayed for about 30 minutes or less at each visit.
During the month of July, mother “visited an average of once to twice a week,” rather
than the allowable three times per week. In August, mother visited an average of once a
week. While visiting A.C. during this three-month period, mother made minimal
attempts to take care of the infant’s needs, leaving A.C.’s feeding, diaper changes and
clothes changes to the caretaker. On one visit in July, mother responded to the
caretaker’s description of A.C. having soiled his clothes and baby bouncer from diarrhea
with the comment: “‘I would have bathed him in cold water so he can learn.’”
In September 2012, mother made six of eight possible visits. Unlike the
earlier visits monitored by the caretaker in the caretaker’s home, a social worker
monitored these visits at an agency office, and reported mother was “appropriate,”
“affectionate and playful with the child.” At these visits, mother attended to the baby’s
needs and “interacted well” with him. A social worker made similar reports of the
October visits, though noting that mother needed “prompting” to attend to the baby’s
needs for feeding and diaper changes.
Mother missed two visits during the first two weeks of November, and
between November 27 and January 11, 2013, she missed 6 out of 20 possible visits. The
social worker noted these visits were “good,” that mother was appropriate and “very
affectionate,” and handled all feeding and diaper changes. The social worker noted,
however, that mother often had to be “re-directed when feeding the child; she gives up
easily when the child does not want to eat.” To mother’s “credit,” the report noted that
she “continues to demonstrate improvement” and “accepts suggestions well.”
Between January 14 and February 6, 2013, mother missed 7 out of 11
visits, and she missed two more visits in the next two weeks. Since the beginning of the
dependency case, mother never attended a single one of A.C.’s many medical
6
appointments, despite being encouraged by the social worker and caretaker to attend
them.
In the weeks leading up to the six-month review hearing set for February
25, 2013, the assigned social worker tried repeatedly to contact mother to set up a
meeting to discuss her case plan, but was unable to reach mother. The case worker left
messages with the maternal grandmother, with whom mother had been living before
moving out in mid-January 2013. The maternal grandmother promised to pass the
messages on to mother, and later reported having done so. Nevertheless, mother did not
contact the social worker.
Mother did not show up at the six-month review hearing on February 25,
2013. The court found mother had made “minimal” progress toward meeting the goals of
her service plan, continued reunification services, and set a 12-month review for May 28,
2013.
Twelve-month Review
The social worker submitted a series of reports for the 12-month review
that once again presented a picture of mother’s inconsistent visitation and failure to
commit fully to completion of her service plan during the period preceding the
evidentiary hearing that began on July 25, 2013.
On February 25, 2013, mother called the social worker to explain that she
had missed that day’s six-month review hearing because she had overslept and, upon
waking, could not find her clothes for court. Mother said that she was living with “a
friend” because she could not get along with her mother, but she gave her mother’s
address for mailing purposes. Mother made an appointment to meet the social worker
two days later, but failed to show up. The social worker tried to reach mother, but the
maternal grandmother reported that her daughter had moved to an unidentified homeless
shelter on March 5. The social worker did not hear from mother again until May 8, with
the looming 12-month review hearing then set for May 28, 2013.
7
At that point, mother’s visitation and service plan compliance since the six-
month review was virtually nonexistent. Mother had not visited A.C. since February 25,
2013. After resurfacing on May 8, mother waited another two weeks to visit A.C. Her
May 24, 2013 visit was her first contact with the child in three months. She had yet to
attend a single medical appointment for A.C., and had not attended any of the therapy
sessions the Regional Center provided to address the child’s numerous, substantial
developmental delays.
Mother had not yet begun any individual counseling. Nor had she yet
completed the two PEP classes left unfinished in the last review period. (She did
eventually complete the last two classes by the July 25, 2013, hearing.) Mother had
unilaterally stopped taking her prescribed psychotropic medication in January 2013 due
to her pregnancy — which she first revealed to her social worker in the May 8 phone call
–– and had neither resumed taking her medication nor met with her psychiatrist since her
last appointment in December 2012.
After mother visited A.C. on May 24, 2013, her visitation continued to be
inconsistent. She attended just four of eight possible visits in June, and failed to provide
documentation to support her claim of having missed two visits for medical reasons. Her
visits with the child, however, were positive: She was “appropriate,” “affectionate” and
“playful” with A.C., and fed and changed him.
During this review period, mother was expelled from two shelters for
homeless pregnant women before moving into a third shelter just two days before the
evidentiary hearing began on July 25, 2013. She stayed the longest at the first shelter,
from March 5, 2013 to June 17, 2013, when she was asked to leave because she had spent
a night away without permission. (Because this was her second unapproved overnight
absence, the shelter rejected her excuse of having to babysit her younger sister while her
mother was ill.)
8
While at shelter No.1, mother began individual counseling in June 2013,
and completed two counseling sessions before being expelled from the shelter on June
17. Mother was at shelter No. 2 only briefly, from June 29 to July 8, 2013, when she was
expelled for lacking identification. Her effort to obtain an identification card from the
Department of Motor Vehicles was unsuccessful when she discovered she was a dollar
short of the $8 cost after a three-hour wait in line.
She was admitted to shelter No. 3 on July 23, 2013. At the evidentiary
hearing, her new case manager at the shelter, Rebecca Younger, was very positive about
mother’s compliance with shelter rules and programs during the two days she had been
there. Younger explained that mother was in the shelter’s one-year program for pregnant
women, which included assistance with parenting, counseling, baby care, education or
job planning, child care and housing, among other services. Mother was scheduled to
begin individual counseling through the shelter.
When mother testified at the hearing, she had been at shelter No. 3 for nine
days. She explained that she could have A.C. live with her at the shelter and she had all
the supplies needed to have him in her care. She had signed a one-year contract with the
shelter and was learning to be a better mother. She was attending the required Narcotics
Anonymous meetings (though drug use was not among her problems) and parenting
classes. She was set to begin individual counseling that week. The shelter provided full
day preschool onsite.
At the conclusion of the evidentiary hearing, the court found that mother
“has not regularly and consistently . . . participated in her visitation[,] nor has she made
significant progress in resolving the problems that led to the child’s . . . removal.” The
court noted the legal presumption that arises from a parent’s failure to participate and
progress in the case plan, and found that return of A.C. to mother would create a
substantial risk of detriment to the child’s well-being. The court further concluded that it
could not find mother had the capacity to complete the case plan objectives and provide
9
for the child’s safety, protection, physical and emotional well-being and special needs.
The court ordered reunification services terminated and set a permanency plan hearing on
December 11, 2013.
DISCUSSION
A. Applicable Legal Standards
At the 12-month review hearing, the court must return the child to the
parent’s physical custody unless the court finds, “by a preponderance of the evidence,
that the return of the child . . . would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child.” (§ 366.21, subd. (e).)
Though SSA has the burden of proving such detriment, the statute provides that the
parent’s failure “to participate regularly and make substantive progress in court-ordered
treatment programs shall be prima facie evidence that return would be detrimental.”
(Ibid.) The court’s finding of detriment is reviewed for substantial evidence. (Angela S.
v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
If the court does not order the child returned to the parent at the 12-month
review hearing, the court may continue reunification services “only if it finds that there is
a substantial probability that the child will be returned to the physical custody” of the
parent within 18 months of the date the child was originally removed from the home.
(§ 366.21, subd. (g)(1).)
The statute limits the court’s ability to extend services past the 12-month
review by requiring the court to make three subordinate findings before concluding there
is a substantial probability of return. The statute provides, in pertinent part, as follows:
“[I]n order to find a substantial probability that the child will be returned to the physical
custody of his or her parent [within the statutory timeframe] . . . , the court shall be
required to find all of the following: (A) That the parent or legal guardian has
consistently and regularly contacted and visited with the child. (B) That the parent or
legal guardian has made significant progress in resolving problems that led to the child’s
10
removal from the home. (C) The parent or legal guardian has demonstrated the capacity
and ability both to complete the objectives of his or her treatment plan and to provide for
the child’s safety, protection, physical and emotional well-being, and special needs.”
(§ 366.21, subd. (g)(1)(A)-(C), italics added.) Again, the court’s findings on each of
these three questions is reviewed for substantial evidence. (In re Shaundra L. (1995)
33 Cal.App.4th 303, 316.)
In this writ proceeding, mother challenges the court’s findings on two
issues as lacking sufficient evidentiary support. The two findings are that return of A.C.
to her custody would create a substantial risk of detriment to his well-being, and that
there is no substantial probability of returning A.C. to her custody within the requisite 18-
month time frame. As will be explained below, the record provides ample support for
both findings.
B. The Record Supports the Finding of Substantial Risk of Detriment
Mother argues substantial evidence does not support the court’s finding that
returning A.C. to her custody would create a substantial risk of detriment to the child’s
physical or emotional well-being. More specifically, she contends that SSA “failed to
demonstrate how A.C. would be at risk in mother’s care.” She points out that A.C. was
removed from the home for three reasons: his diagnosed “failure to thrive,” mother’s
postpartum depression and resulting “problems,” and mother’s “domestic violence
relationship” with father. She contends that all three reasons are now resolved: A.C. is
healthy and her positive visits with him demonstrate her ability to care for him in the
shelter where she now resides; there is “no evidence of continued mental health
problems” on her part, and she is no longer in a relationship with her batterer, father. She
concludes that, because the initial reasons for detention are now resolved, there is no
evidentiary basis for the court’s finding of detriment.
Mother’s argument is well off the mark. Fundamentally, she ignores the
fact that her demonstrated failure “to participate regularly and make substantive progress
11
in court-ordered treatment programs” constituted “prima facie evidence that return would
be detrimental,” thereby shifting to mother the burden of proving that return would not be
detrimental. (§ 366.21, subd. (e); In re Cory M. (1992) 2 Cal.App.4th 935, 949-950,
superseded by statute on another point, as stated in In re Jasmine D. (2000) 78
Cal.App.4th 1339, 1342.) The other defect in her argument is its premise: that her
current circumstances prove that the reasons for removal no longer pertain, and, thus,
there is no risk of detriment in returning A.C. to her custody. The court’s finding to the
contrary has solid support in the record.
1. Mother Failed To Participate Regularly and Make Substantive Progress
in Court-ordered Treatment Programs
There were five components of mother’s service plan and she failed to
participate regularly or make any substantive progress as two of the five requirements.
Specifically, though the service plan required that she obtain counseling, she made no
effort to obtain any counseling until almost exactly a year later, in June of 2013, and even
then she only attended two counseling sessions. That, clearly, is not “regular”
participation, nor could it have resulted in “substantive progress,” in the court-ordered
counseling program. Additionally, the service plan required mother to cooperate with her
treating psychiatrist and to take the psychiatric medication prescribed for her. Mother
blatantly defied this requirement by unilaterally ceasing to take her prescribed
antidepressant medication from January 2013 onward due to her pregnancy, and by
failing to attend any further psychiatric appointments. SSA aptly contends this
noncompliance with two crucial aspects of her service plan created “gaping holes in the
safety net essential to little [A.C.’s] well[-]being.”
SSA explained the significance of these two unmet requirements of the
service plan by pointing to the grave danger A.C. faced as an infant in mother’s care. At
10 weeks old, he was abnormally thin, with sunken eyes and protruding belly, because
his mother’s postpartum depression and resulting lack of interest in caring for her baby
12
left him seriously underfed and bereft of medical attention. A psychiatrist diagnosed
mother as having “[m]ajor depressive disorder, recurrent episode” and prescribed
antidepressants for improved functioning. When mother decided in January 2013 to stop
taking her medication and to stop obtaining psychiatric care, she was subjecting A.C. to
the risk of renewed neglect due to her untreated major depression. Additionally, the new
pregnancy posed the risk of a future recurrence of the severe postpartum depression that
caused her to neglect A.C. as an infant. At the 12-month review hearing, the court
expressed concern about this very risk of “postpartum issues” stemming from the new
pregnancy. It seems beyond debate that, together, the court-ordered psychiatric treatment
and counseling services were measures that could have both enlightened mother as to the
nature and scope of her mental health challenges and lessened the dangers her mental
illness posed to a small child in her care.
Mother’s petition does not dispute that she failed to comply with the
psychiatric treatment/medication component of her service plan, but instead implicitly
argues that her noncompliance should be excused as unnecessary. She asserts that
“[t]here were no reported concerns of mother’s mental health. There was no evidence
presented at trial that mother’s discontinuation of her medication to protect her [unborn]
baby caused any adverse reactions.” In effect, mother contends that, because no harm
resulted from her avoidance of psychiatric treatment and medication, her failure to
“participate regularly” in this particular court-ordered treatment program should not
constitute prima facie evidence of detriment under section 366.21, subdivision (e).
But mother offers no authority for this novel assertion that a parent in a
dependency proceeding can blithely ignore a court-ordered treatment plan and then avoid
the consequence of that conduct by asserting the requirement was unreasonable or
unnecessary. (See In re Cory M., supra, 2 Cal.App.4th at pp. 949-950 [mother’s “failure
to follow the prescribed treatment program furnished prima facie evidence of detriment”
notwithstanding mother’s assertion that the order to take psychiatric medication was
13
unreasonable].) Mother’s failure to participate regularly and make substantive progress
in the court-ordered psychiatric treatment program furnished prima facie evidence that
returning A.C. to her custody would cause detriment to his well-being. The same
consequence flowed from her failure to participate regularly in counseling.
2. Mother Failed to Disprove the Prima Facie Showing of Detriment
Because mother did not comply with her case plan, the burden shifted to
her to prove that returning A.C. to her care would not be detrimental. (In re Cory M.,
supra, 2 Cal.App.4th at pp. 949-950.) Mother failed to meet that burden.
Mother’s showing of lack of detriment consisted, essentially, of the
following facts: She does not currently suffer from postpartum depression or any
“continued mental health problems”; she currently enjoys loving and “affectionate” visits
with A.C.; she currently lives in a shelter that can accommodate A.C. and assist her in
caring for him and his newborn sibling; and she is no longer in a domestic violence
relationship. All of these facts, taken together, do not dispel the risk of detriment in
returning A.C. to mother that arises from her failure to obtain needed psychiatric
treatment and counseling.
SSA persuasively argues that mother’s conduct in stopping medication
without consulting her psychiatrist, and then failing to attend any further psychiatric
appointments, “was compelling evidence that she did not appreciate the risk her mental
health problems presented and that she could not be relied upon to address them.”
Moreover, SSA contends that mother’s failure to participate in regular counseling
significantly increased the chance she would repeat her earlier dangerous behavior of
living with an abuser or neglecting her child when depression overwhelms her. On the
latter point, SSA asserts: “Absent significant progress in counseling[,] the court had no
evidence that Mother appreciated the gravity of [A.C.’s medical] condition [at removal],
her role in its exacerbation, or that she understood how to prevent future neglect and the
importance of obtaining medical care.”
14
It also bears noting that from initial detention through the 12-month review,
mother never demonstrated a strong commitment to regaining custody of A.C. She
delayed completing much of her service plan; for long stretches she failed to remain in
contact with the social worker, and, most importantly, she was woefully inconsistent in
visitation. Mother even went three months without seeing A.C. in the crucial period just
before the original hearing date for the 12-month review.
Importantly, mother never attended any of A.C.’s medical appointments
and attended just one of his therapy sessions, and then only for 30 minutes of the two-
hour session. Given the child’s significant developmental delays, mother’s complete
disinterest in learning how to help her son overcome these challenges is particularly
distressing. The court remarked on mother’s brief observance of a single therapy session
as “going to some core aspects of this case . . . .”
In light of mother’s failure to obtain needed psychiatric treatment and
counseling, her history of half-hearted efforts at reunification only underscores the risk of
detriment to the child were he returned to her custody. The record provides ample
support for the court’s finding of detriment.
C. Substantial Evidence Supports the Finding of no Substantial Probability of Return
Within 18 Months
Mother also argues the court erred in terminating reunification services
because there was a substantial probability A.C. would be returned to her custody within
the 18-month statutory timeframe. She argues the court’s finding of no such substantial
probability lacks evidentiary support. Mother is wrong.
As explained above, the court may not extend reunification services absent
a finding of a substantial probability the child will be returned to the parent’s physical
custody within 18 months of removal. (§ 366.21, subd. (g)(1).) That finding, in turn,
depends on three subordinate findings, none of which the court made here. Specifically,
the court must find the parent has maintained consistent and regular contact, has made
15
significant progress in resolving the problems that led to removal, and has demonstrated
the “ability both to complete the objectives of his or her treatment plan and to provide for
the child’s safety, protection, physical and emotional well-being, and special needs.”
(§ 366.21, subd. (g)(1)(A)-(C),)
Our previous analysis of the evidentiary support for the court’s detriment
finding is equally applicable to the issues raised here. To recap, mother’s failure to
maintain consistent and regular contact with A.C. is beyond dispute. Similarly, mother
did not make significant progress in resolving the problems that led to A.C.’s removal,
given her rejection of psychiatric treatment and prescribed medication, and her failure to
engage in counseling to address her past domestic violence experiences and the persistent
mental illness that has plagued her since adolescence. Finally, mother’s failure to
commit to the hard work of regaining custody of A.C. demonstrated that she is not able to
provide for A.C.’s well-being and special needs.
The trial court did not err in finding no substantial probability of A.C.’s
timely return. Based on that finding, the trial court properly terminated reunification
services and set the permanency planning hearing.
16
DISPOSITION
The petition is denied.
THOMPSON, J.
WE CONCUR:
MOORE, ACTING P. J.
ARONSON, J.
17