[Cite as In re H.K., 2018-Ohio-3645.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: H.K. : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. 18-COA-003
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of
Common Pleas, Juvenile Division, Case
No. 20173044
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 10, 2018
APPEARANCES:
For: Ashland County JFS For: Appellant
CHRISTOPHER TUNNELL ROBERT GOLDBERGER
Ashland County Prosecutor 10 W. Newlon Place
110 Cottage Street, Third Floor Mansfield, OH 44902
Ashland, OH 44805
JOSHUA T. ASPIN
Assistant Prosecutor
110 Cottage Street, Third Floor
Ashland, OH 44805
[Cite as In re H.K., 2018-Ohio-3645.]
Gwin, P.J.
{¶1} Appellant-mother appeals the December 29, 2017 Judgment Entry of the
Ashland County Court of Common Pleas, Juvenile Division, which terminated her parental
rights with respect to her minor child, H.K. (b. Oct. 10, 2006) and granted permanent
custody of the child to appellee, Ashland County Department of Jobs and Family Services
(hereinafter “ACJFS”).
Facts and Procedural History
{¶2} On April 4, 2016, H.K. was removed from her parent's home. A shelter care
hearing was held in Ashland County Common Pleas Court, Juvenile Division, and H.K.
was placed in the temporary custody of ACJFS.
{¶3} On April 5, 2016, ACJFS filed a Complaint alleging H.K. to be a dependent
child. The Complaint sought temporary custody of H.K. be granted to ACJFS. On April
6, 2016 Appellant, entered an admission to the Complaint.
{¶4} By Judgment Entry filed April 13, 2016, the Court found H.K. to be a
dependent child with respect to Appellant. On July 6, 2016, the Court conducted a
disposition hearing. By Judgment Entry filed July 19, 2016, the Court found it in the best
interest of H.K. to be placed in the temporary custody of ACJFS.
{¶5} On June 8, 2017, ACJFS filed a motion seeking Permanent Custody of H.K.
Hearings were held on August 30, 2017 and September 18, 2017.
The Permanent Custody Trial.
{¶6} H.K. and her sibling I.K. were removed from their parent's home due to
allegations the father, E. K. physically abused I.K.1 The father was subsequently convicted
1Appellant has filed a separate appeal with respect to the minor I.K. See, In re I.K., 5th Dist.
Ashland No. 18-COA-004.
Ashland County, Case No. 18-COA-003 3
of Endangering Children, a felony of the third degree and Domestic Violence, a felony of the
fourth degree. He was sentenced to thirty-six months in prison with an expected release
date of March 18, 2019. Appellant was convicted of Complicity (Endangering Children), a
felony of the third degree. She was sentenced to 180 days jail-time followed by six
months in a halfway house and four years of probation. As a condition of her felony
probation Appellant is not allowed contact with her children I.K. and H.K.
{¶7} On October 3, 2016, an Amended Case Plan was filed with the Court. The
Amended Case Plan removed both of H.K.'s parents from the Case Plan as both were
incarcerated at the time. On February 6, 2017, an Amended Case Plan was filed with
the Court that added Appellant as a participant for Case Plan services on the basis that
she had been released from incarceration.
{¶8} Upon her release from the halfway house, Appellant took up residence
with K. C. Appellant was living at a trailer house with K.C., his mother and a grandson.
At that time, there were concerns of recent drug use in that residence and a recent drug
investigation by the Sherriff s Office that recovered drug paraphernalia from K.C.’s
bedroom. On June 20, 2017, K.C. was administered a drug screen at the jail following
his arrest. He tested positive for amphetamine, methamphetamine, THC, and cocaine.
In July 2017, Appellant voiced her intention to move from K.C.’s trailer within a month.
However, as of the August 30, 2017 hearing Appellant was continuing to reside at that
residence.
{¶9} Prior to the August 30, 2017 hearing additional allegations surfaced
regarding the father sexually abusing H.K. When questioned by the caseworker Appellant
stated that she did not believe that her children had been sexually abused. Appellant
Ashland County, Case No. 18-COA-003 4
gave a lengthy recorded interview to Detective Kim Mager. There is no evidence that
Appellant was involved with any sexual abuse of H.K. However, during the interview
Appellant did admit to observing odd circumstances over the years between H.K. and her
Father. Appellant walked in on H.K. and her Father naked under the covers on several
occasions. Appellant would remove H.K. from the room and confront Father. Appellant
did not report the incidents because she was afraid the Father would hurt her or the
children.
{¶10} The evidence established that Appellant completed parent education. The
evidence further established that Appellant participated regularly in mental health
services at Appleseed Community Mental Health Center, that she attended regularly, and
that the services were designed to address the identified issues. The evidence further
indicated, however, that little to no progress was made. Specifically, although her
participation was acknowledged, i.e., that she attended the sessions, she was never able
to articulate or demonstrate that she could interpret and understand what was being
presented. No one had ever observed her actually parenting the children because she
was not permitted to have contact with the children pursuant to the terms of her probation.
When asked what she would do in a domestic violence situation, her only response was
that she just would not be in such a relationship.
{¶11} The evidence established that Appellant was deceptive with the ACJFS
caseworker about her living arrangements. The caseworker began looking for Appellant
in order to have regular contact with her sometime around April 2017, and Appellant did
not report that she was residing with K.C. She did say she was living with a friend, but
did not provide a name. Ultimately, at a home visit in July 2017, Appellant acknowledged
Ashland County, Case No. 18-COA-003 5
K. C. was her boyfriend and resided in the home. Also residing in the home was B.C., K.
C.’s mother, and a grandson. The caseworker was able to observe the home and
described it as an older trailer that was cluttered, dirty and ridden with fleas. There was
insufficient space for children and too many people were residing in the home for it to be
appropriate as a placement for the children.
{¶12} H.K. has received a mental health diagnosis of Reactive Attachment
Disorder and ADHD, along with at least one other diagnosis. She could not deal with
emotions and was engaging in self-harming behavior. She also has an IEP and was
noted to be substantially behind educationally. She was to be tested for developmental
disability services. She needs assistance in all educational areas. She is likewise
participating in counseling and has made some progress as her self-destructive behaviors
have decreased significantly. She also previously had night tremors, which have also
decreased.
{¶13} Counselor’s testified that H.K. was initially very quiet and very sad. She
barely spoke and made no eye contact, seemed scared and provided very little
information. She was additionally diagnosed with Adjustment Disorder and later with
Reactive Attachment Disorder. She had been traumatized and suffers from Post-
Traumatic Stress Disorder based upon her history. She has a treatment plan with the
goal of dealing with her anxiety and being able to connect with people. During the course
of her treatment, she reported to her counselor being the victim of sexual abuse
perpetrated by her father, which is a new allegation in this case. The treatment plan was
then changed to deal with that issue. The counselor described H.K.’s progress as
"amazing.” She now appears happy and gets along with other people. Her relationship
Ashland County, Case No. 18-COA-003 6
with her foster parents is bonded and loving and she considers them her mother and
father. All of the children that are in and come through that home are considered her
brothers and sisters. She has a safe and secure environment and she is now flourishing
in that environment. It is the opinion of H.K. the counselor that visits with her biological
parents will be very detrimental to her.
{¶14} Evidence was presented that established that Appellant after her release
from the halfway house did actually participate in the Case Plan and worked on Case
Plan provisions. She successfully completed parent education at Ashland Parenting Plus.
In addition, she completed numerous programs and classes while at the halfway house,
including drug and alcohol services, an emotional healing group, co-dependency
program, financial management program, employment readiness training, domestic
violence program and a trauma program. She had been released from the halfway house
only five months prior to the filing of the Permanent Custody Motion.
{¶15} Appellant has been cooperative with ACJFS since her release and has
shown interest in the children. However, she has not taken any actions to attempt to
remove the No Contact Order.
{¶16} The children's Guardian Ad Litem has thoroughly investigated these cases,
participated in all proceedings in these cases and filed several detailed written reports
with the Court.
{¶17} On December 29, 2017, the Court filed a Judgment Entry granting Children
Services permanent custody of H.K. The trial court found that H.K. was in the custody of
ACJFS for twelve or more months of a consecutive twenty-two month period. The Court
Ashland County, Case No. 18-COA-003 7
further found that it was in the best interest of H.K. that the motion for permanent custody
be granted.
Assignment of Error
{¶18} Appellant raises one assignment of error,
{¶19} “I. THE COURT ERRED IN GRANTING PERMANENT CUSTODY TO THE
AGENCY WHEN NOT HAVING CLEAR AND CONVINCING EVIDENCE THAT IT WAS
IN THE BEST INTEREST OF THE CHILD.”
Law and Analysis
Burden of Proof.
{¶20} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent’s interest in the care, custody
and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S.
745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a parent’s
rights has been described as, “* * * the family law equivalent to the death penalty in a
criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th Dist. 1991).
Therefore, parents “must be afforded every procedural and substantive protection the law
allows.” Id.
{¶21} An award of permanent custody must be based upon clear and convincing
evidence. R.C. 2151.414(B)(1). The Ohio Supreme Court has defined “clear and
convincing evidence” as “[t]he measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the allegations sought to be established.
It is intermediate, being more than a mere preponderance, but not to the extent of such
Ashland County, Case No. 18-COA-003 8
certainty as required beyond a reasonable doubt as in criminal cases. It does not mean
clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-104, 495 N.E.2d
23 (1986).
Standard of Review.
{¶22} The Ohio Supreme Court has delineated our standard of review as follows,
Where the degree of proof required to sustain an issue must be clear
and convincing, a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the
requisite degree of proof. See Ford v. Osborne, 45 Ohio St. 1, 12 N.E. 526,
Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264, and Frate v. Rimenik, 115
Ohio St. 11, 152 N.E. 14.
Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954). A court of appeals will
affirm the trial court's findings “if the record contains competent, credible evidence by
which the court could have formed a firm belief or conviction that the essential statutory
elements for a termination of parental rights have been established.” In re Adkins, 5th
Dist. Nos. 2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, 2006 WL 242557, ¶17.
{¶23} In Cross, the Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for resolving
disputed facts. The degree of proof required is determined by the impression
which the testimony of the witnesses makes upon the trier of facts, and the
character of the testimony itself. Credibility, intelligence, freedom from bias
or prejudice, opportunity to be informed, the disposition to tell the truth or
Ashland County, Case No. 18-COA-003 9
otherwise, and the probability or improbability of the statements made, are
all tests of testimonial value. Where the evidence is in conflict, the trier of
facts may determine what should be accepted as the truth and what should
be rejected as false. See Rice v. City of Cleveland, 114 Ohio St. 299, 58
N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added).
Requirements for Permanent Custody Awards.
{¶24} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon filing of a motion for permanent custody of a
child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶25} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two-month period, or has not been in the temporary custody of one
or more public children services agencies or private child placing agencies
for twelve or more months of a consecutive twenty-two-month period if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
Ashland County, Case No. 18-COA-003 10
child was previously in the temporary custody of an equivalent agency in
another state, and the child cannot be placed with either of the child's parents
within a reasonable time or should not be placed with the child's parents;
(b) the child is abandoned;
(c) the child is orphaned and there are no relatives of the child who
are able to take permanent custody; or
(d) The child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for twelve or
more months of a consecutive twenty-two-month period, or the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period and, as described in division (D)(1) of
section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state.
{¶26} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
A. Temporary Custody for at least 12 out of a consecutive 24 month period-R.C.
2151.414(B) (1) (d).
{¶27} The “12 of 22” provisions set forth in R.C. 2151.413(D)(1) and R.C.
2151.414(B)(1)(d) balance the importance of reuniting a child with the child’s parents
Ashland County, Case No. 18-COA-003 11
against the importance of a speedy resolution of the custody of a child. In re C.W., 104
Ohio St.3d 163, 2004–Ohio–6411, 818 N.E.2d 1176, ¶22. Through the “12 of 22”
provisions in the permanent-custody statutes, the legislature provides parents with 12
months to work toward reunification before an agency can institute a permanent-custody
action asserting R.C. 2151.414(B)(1)(d) grounds. Id.
{¶28} “Before a public children-services agency or private child-placing agency
can move for permanent custody of a child on R.C. 2151.414(B) (1) (d) grounds, the child
must have been in the temporary custody of an agency for at least 12 months of a
consecutive 22-month period.” In re: C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818
N.E.2d 1176 at paragraph one of the syllabus. When calculating this time period, the
Court in C.W. cautioned, “the time that passes between the filing of a motion for
permanent custody and the permanent custody hearing does not count toward the 12-
month period set forth in R.C. 2151.414(B)(1)(d).” Id. at 167, 2004-Ohio-6411, 818
N.E.2d at 1180, ¶26.
{¶29} R.C. 2151.414(B)(1)(e) states that, “[f]or the purposes of division (B)(1) of
this section, a child shall be considered to have entered the temporary custody of an
agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of
the Revised Code or the date that is sixty days after the removal of the child from home.”
{¶30} In the case at bar, H.K. was removed from the Appellant’s home on April 4,
2016. Sixty days from April 4, 2016 would be June 3, 2016. The trial court adjudicated
H.K. a dependent child by Judgment Entry filed April 13, 2016. Accordingly, the “earlier
date” that H.K. will be deemed to have enter the temporary custody of ACJFS for
purposes of R.C. 2151.414(B) (1) (d) is April 13, 2016. ACJFS filed the Motion for
Ashland County, Case No. 18-COA-003 12
Permanent custody on June 8, 2017, 1 year, 1 month and 26 days after H.K. is deemed
to have entered the temporary custody of ACJFS.
{¶31} Accordingly, the trial court correctly found that H.K. had been in the
temporary custody of the ACJFS for over twelve months. Appellant has not challenged
this finding on appeal.
{¶32} If the court finds that R.C. 2151.414(B)(1)(d) applies, then it need not also
find that the child cannot or should not be placed with either parent within a reasonable
time. In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 21; In re
A.M.1, 4th Dist. Athens Nos. 10CA21 through 10CA31, 2010-Ohio-5837, 2010 WL
4890433, ¶ 31; In re J.R., 5th Dist. Stark No. 2016CA00018, 2016-Ohio-2703, ¶ 38 (citing
In re Calhoun, 5th Dist. Stark No. 2008CA00118, 2008-Ohio-5458); In re Williams, 10th
Dist. Franklin No. 02AP-924, 2002-Ohio-7205; In re J.F., 8th Dist. Cuyahoga No. 105504,
2018-Ohio-96, 2018 WL 386668, ¶ 51; In re K.W., 4th Dist. Highland No. 17CA7 & 17CA8,
2018-Ohio-1933, ¶63.
{¶33} As findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are
alternative findings, each is independently sufficient to use as a basis to grant the motion
for permanent custody. In re Daltoni, 5th Dist. Tuscarawas No.2007 AP 0041, 2007–
Ohio–5805. This finding alone, in conjunction with a best interest finding, is sufficient to
support the grant of permanent custody. In re Calhoun, 5th Dist. Stark No.2008CA00118,
2008–Ohio–5458.
Best Interest of the Child, R.C. 2151.414(D).
{¶34} In determining the best interest of the child at a permanent custody hearing,
R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including,
Ashland County, Case No. 18-COA-003 13
but not limited to, the following: (1) the interaction and interrelationship of the child with
the child’s parents, siblings, relatives, foster parents and out-of-home providers, and any
other person who may significantly affect the child; (2) the wishes of the child as
expressed directly by the child or through the child’s guardian ad litem, with due regard
for the maturity of the child; (3) the custodial history of the child; and (4) the child’s need
for a legally secure permanent placement and whether that type of placement can be
achieved without a grant of permanent custody.
{¶35} The focus of the “best interest” determination is upon the child, not the
parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a
grant of permanent custody would have upon the parents. In re: Awkal, 95 Ohio App.3d
309, 315, 642 N.E.2d 424(8th Dist. 1994). A finding that it is in the best interest of a child
to terminate the parental rights of one parent is not dependent upon the court making a
similar finding with respect to the other parent. The trial court would necessarily make a
separate determination concerning the best interest of the child with respect to the rights
of the mother and the rights of the father.
{¶36} This Court has held that a trial court is not required to specifically enumerate
each factor under R.C. 2151.414(D) in its decision. In re: Turner, 5th Dist. Tuscarawas
No. 2006-CA045, 2006-Ohio-6793, ¶34; In the Matter of the Franklin Children, 5th Dist.
Tuscarawas No. 2001 AP 03 0023, 2001 WL 1772921(Jan. 28, 2001); In Re: Parker, 5th
Dist. Tuscarawas No. 2000AP120096, 2000AP120097, 2001 WL 1782603(Apr. 25,
2001); In the Matter of the Schupbach Children, 5th Dist. Tuscarawas No.
2000AP010005, 2000 WL 964981(May 6, 2000). See also, In re: Hershberger, 3rd Dist.
Allen Nos. 01-04-55, 01-04-61, 2005-Ohio-429; In re Heyman, 10th Dist. Franklin No.
Ashland County, Case No. 18-COA-003 14
96APF02-194, 1996 WL 465238 (Aug. 13, 1996). Nevertheless, there must be some
indication on the record that all of the necessary factors were considered.
{¶37} In the case at bar, the trial court made findings of fact regarding the child’s
best interest. It is well-established that “[t]he discretion which the juvenile court enjoys in
determining whether an order of permanent custody is in the best interest of a child should
be accorded the utmost respect, given the nature of the proceeding and the impact the
court’s determination will have on the lives of the parties concerned.” In re: Mauzy
Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073(Nov. 13, 2000), quoting
In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424(8th Dist. 1994).
{¶38} As an appellate court, we neither weigh the evidence nor judge the
credibility of witnesses. Our role is to determine whether there is relevant, competent and
credible evidence, upon which the fact finder could base its judgment. Cross Truck v.
Jeffries, 5th Dist. Stark No. CA–5758, 1981 WL 6321 (Feb. 10, 1982). “Reviewing courts
should accord deference to the trial court’s decision because the trial court has had the
opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that
cannot be conveyed to us through the written record, Miller v. Miller, 37 Ohio St.3d 71,
523 N.E.2d 846 (1988).
{¶39} In the present case, the trial court’s decision indicates it considered the best
interest factors. Upon review of the record, it is clear that the record supports the trial
court’s finding that granting the motion for permanent custody is in H.K.’s best interest.
The trial court concluded the child’s need for legally secure placement could not be
achieved without awarding permanent custody to ACJFS. In the case at bar, in addition
to the testimony, the trial court considered the reports of the GAL.
Ashland County, Case No. 18-COA-003 15
{¶40} The court found that H.K. has not seen Appellant since being removed from
the home on April 4, 2016 and there is no present evidence of a bonded, loving
relationship. The Court further found that H.K. does not desire to see either of her
parents.
{¶41} The trial court further found H.K. and I.K. are in separate foster homes but
do have a relationship with each other, are able to see each other on a regular basis and
for the most part interact well. The evidence would indicate that this contact would likely
continue.
{¶42} The Court found that both of the children have excellent bonded
relationships with their respective foster parents and all persons in their foster homes.
Each child feels loved, protected, and secure in its present environment; all of their needs
are met; and each has made progress under the most difficult of circumstances. All
interactions and interrelationships between the children and all persons in their respective
foster homes are positive and those relationships significantly improved the well-being of
each of the children.
{¶43} Concerning Appellant, the Court found that although Appellant is not
presently incarcerated, she does not have stable, i.e., suitable, housing for the children
and her living arrangements would not be in H.K.’s best interest. Further Appellant has
not addressed her issues that contributed to the reasons these cases were filed in the
first place and the children will continue to be at risk if they resided with her. In addition,
both these children have numerous special needs. Those needs require specialized
placements and specialized services, which neither parent had ever provided to the
Ashland County, Case No. 18-COA-003 16
children. The evidence would indicate that neither is in a position to provide for those
needs in the future.
{¶44} The evidence did demonstrate that Appellant successfully completed some
aspect of her case plan. On that point, the evidence demonstrates that any improvement
that Appellant has made in his life is tentative and, perhaps, temporary, and that she is at
risk of relapse. The trial court found that Appellant was not able to be a successful parent
H.K.
{¶45} As already noted, Appellant failed to remedy the problems that initially
caused the removal of the child from the home. Very little if anything, has changed with
respect to Appellant’s life choices since this case began. She does not understand the
problems with her behavior, or her lifestyle. Appellant displays poor judgment and poor
coping skills. Appellant has been unable to demonstrate any meaningful change in her
lifestyle during the pendency of the case.
{¶46} In the case at bar, upon review of the record on appeal and the findings and
conclusions of the trial court, we conclude the grant of permanent custody of H.K. to
ACJFS was made in the consideration of the child's best interest and did not constitute
an error or an abuse of discretion under the circumstances presented.
Conclusion.
{¶47} For these reasons, we find that the trial court's decision that permanent
custody to ACJFS was in the child's best interest was based upon competent, credible
evidence and is not against the manifest weight or sufficiency of the evidence.
Ashland County, Case No. 18-COA-003 17
{¶48} Because the evidence in the record supports the trial court's judgment, we
overrule Appellant's sole assignment of error, and affirm the decision of the Ashland
County Court of Common Pleas, Juvenile Division.
{¶49} Appellant’s sole assignment of error is overruled.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur