Filed 5/20/21 In re D.L. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re D. L., a Person Coming B307147
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. Nos. 19CCJP03178,
19CCJP03178A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
PATRICIA F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Brett Bianco, Judge. Affirmed
Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Appellant.
Office of the County Counsel, Rodrigo A. Castro-Silva,
County Counsel, Jessica S. Mitchell, Deputy County Counsel, for
Plaintiff and Respondent.
INTRODUCTION
Appellant Patricia F. (mother) challenges a juvenile court
order awarding sole legal custody to child D.’s father upon
termination of juvenile court jurisdiction. The juvenile court case
was initiated after mother and newborn M. tested positive for
amphetamine and methamphetamine at the time of M.’s birth in
April 2019. The juvenile court exercised jurisdiction pursuant to
Welfare and Institutions Code section 3001 over M., three-year-
old P., and seven-year-old D. on the basis of mother’s drug abuse
and mother’s history of domestic violence with her boyfriend, M.
and P.’s father. The court found that D.’s father, who shared
custody of D., was non-offending.
The court did not detain the children from mother, and
mother initially complied with the case plan, which included drug
testing and a drug abuse treatment program. However, on April
29, 2020, the Los Angeles County Department of Children and
Family Services (DCFS) filed a petition under section 387 after
mother stopped drug testing and participating in services. The
children were detained, D. was placed with father, and the court
sustained the section 387 petition. Mother did not resume
services under the case plan, and when the court terminated
jurisdiction over D. in August 2020, it awarded sole physical and
sole legal custody to father, with monitored visitation for mother.
1All further statutory references are to the Welfare and
Institutions Code.
2
Mother now challenges only the court’s award of legal custody.
We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention
D. and his half-siblings came to the attention of DCFS in
April 2019, when M. tested positive for amphetamine and
methamphetamine at birth. At the time, D. was seven years old
and lived part-time with mother in her parents’ (maternal
grandparents’) home. Also living in the home were D.’s three-
year-old half-sister P.; P. and M.’s father, Joseph; a maternal
aunt; and maternal great-grandfather. Mother and father shared
custody of D., so D. lived with father several days per week.
A children’s social worker (CSW) visited mother’s home on
April 26, 2019, and found the home clean and well-furnished.
Mother denied any domestic violence between her and Joseph,
but Joseph admitted that he had been charged for a domestic
violence incident involving mother in 2014. The maternal aunt
living in the home told the CSW that she was in the process of
getting a restraining order against Joseph. Mother said that if
maternal aunt got a restraining order, mother would remain in
the home and Joseph would move out. The CSW observed the
children, who appeared clean, well-fed, and appropriately
dressed.
Mother said she did not use drugs “that much,” but the
CSW noted that mother had sores and scabs suggesting regular
methamphetamine use. Mother agreed to submit to drug tests
and enroll in an outpatient drug treatment program. Joseph
declined to submit to drug tests. Father told the CSW that he
suspected mother was on drugs, but he could not prove it.
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DCFS did not immediately detain the children. The CSW
visited the home again on May 8, 2019. Mother had not yet
enrolled in the outpatient drug program, but she had tested
negative twice. Later that day, mother initiated the process to be
assessed for the outpatient drug treatment program. DCFS
noted that mother was “very cooperative” and had “a strong
support system in the home of the maternal grandparents and
aunt.” DCFS stated in the detention report that it wanted to
“pursue the least restrictive route for this family in filing a
petition with the Court for Court ordered Family Maintenance
services.” DCFS recommended that the children be detained in
maternal grandparents’ home, with monitored visitation for
mother and Joseph.
On May 20, 2019, DCFS filed a juvenile dependency
petition under section 300, subdivision (b)(1). Count b-1 alleged
that M. tested positive at birth for amphetamine and
methamphetamine, and that “mother’s substance abuse and
[Joseph’s] failure to protect [M.] endangers the child’s physical
health and safety.” Count b-2 alleged that mother “has a history
of substance abuse and is a current user of amphetamine and
methamphetamine which renders the mother incapable of
providing [M., P., and D.] with regular care and supervision.”
Count b-2 further alleged that Joseph “knew or reasonably
should have known that the mother was abusing illicit drugs and
[Joseph] failed to protect” the children. Count b-3 alleged that
Joseph was a user of marijuana, which rendered him incapable of
caring for P. and M.
On May 21, 2019, DCFS filed a last-minute information
stating that Joseph had voluntarily moved out of maternal
grandparents’ home. When Joseph went to maternal
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grandparents’ house to see the children, he and mother got into a
verbal altercation. Joseph picked up three-year-old P., put her in
the back seat of his car without a car seat, and attempted to drive
away. Mother tried to stop him by pulling the keys from the
ignition, but Joseph drove away, dragging mother about 10 feet
before she fell to the ground. The family called 911, and law
enforcement told mother that Joseph would be arrested for
domestic violence. Mother also said she would seek a restraining
order against Joseph.
At the detention hearing on May 21, 2019, the court noted
that father was non-offending. The court found that there were
“reasonable services available to prevent detention,” and ordered
D. released to mother and father. The court also released P. and
M. to mother, detained P. and M. from Joseph, and entered a no-
contact order for D. and Joseph. The court warned mother that if
she tested positive for drugs, the children would be detained from
her. The court ordered DCFS to work with mother and father to
work out a schedule for D.’s custody.
B. Jurisdiction and disposition
On July 1, 2019, DCFS filed an amended petition under
section 300, subdivision (b)(1). The first two counts remained the
same. Count b-3 relating to P. and M. was revised to allege that
Joseph had a substance abuse history and that he was a current
user of marijuana and methamphetamine. DCFS also added
count b-4, alleging that mother and Joseph had a history of
domestic violence, including a 2014 incident in which Joseph was
arrested for domestic violence, an incident in which Joseph
punched mother in the face when she was pregnant with P., and
the recent incident in which Joseph drove away with P. in the
car. Count b-4 alleged that Joseph’s violent conduct and mother’s
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failure to protect the children, including allowing Joseph access
to the children, placed the children at risk of harm.
A jurisdiction/disposition report dated July 23, 2019 stated
that D. was living with mother and doing well. D. told the DCFS
investigator that he had not witnessed mother or Joseph doing
drugs or fighting, but he said that mother and Joseph sometimes
argue. D. was in second grade and doing well in school. P. and
M. also appeared to be doing well.
Mother admitted to “smoking meth” the day before she
gave birth to M., and to using methamphetamine throughout the
pregnancy. Mother said that she did not use methamphetamine
while watching the children, because maternal grandparents
cared for the children while she was using. Mother enrolled in an
outpatient drug treatment program in June 2019, and she had
several negative drug tests and one no-show. Mother also
admitted the domestic violence history with Joseph, but stated
that D. did not witness the altercations. Mother also stated that
the incident involving Joseph driving away with P. in the car
“wasn’t something big,” and the report of the incident was
exaggerated. Mother admitted that she had been arrested for
prostitution when she was 18 years old, after she and Joseph had
“come up with a plan to make more money by prostituting.”
Mother and Joseph were still together and intended to continue
their relationship.
Mother stated that she and father met in high school, and
mother got pregnant with D. shortly thereafter. Mother and
father separated when D. was about one year old, and they had
co-parented D. since then with no issues.
Joseph denied the allegations, said he knew nothing about
mother’s drug use, and stated that he uses marijuana. Regarding
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the domestic violence incident involving P., Joseph said that
mother assaulted him when he took P. for a visit. Joseph stated
that he and mother have a good relationship as long as maternal
family does not “get involved.” Joseph told the DCFS
investigator that he was not interested in participating in
services.
In a last-minute information, DCFS included information
from an interview with father. Father worked full time for a gas
distribution company, and typically had D. in his care from
Friday night to Monday morning. Father said he wanted full
custody of D., because he felt D. would be safer in his care.
Father had suspected in the past that mother was using drugs
and he tried to get a sole custody order, but the court denied his
request because he did not have sufficient proof. D. told father
that mother and Joseph were visiting with each other outside
maternal grandparents’ house, where D. could see them through
the window. Father stated that he did not want Joseph to have
access to D., because father believed Joseph was a drug user, and
because of Joseph’s past aggressive behavior.
DCFS found the family to present a high risk of future
abuse or neglect. DCFS recommended that D. remain released to
mother and father, and that mother be provided with family
maintenance services.
At the adjudication and disposition hearing on August 20,
2019, mother pled no contest to the first amended petition, as
further amended by interlineation. Count b-2, as sustained,
stated that mother has an unresolved history of substance abuse
and is a recent user of amphetamine and methamphetamine, and
that mother’s drug abuse placed the children at risk of harm.
Count b-4, regarding mother and Joseph’s history of domestic
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violence, was sustained without further amendment. The court
dismissed counts b-1 and b-3. The court found father to be non-
offending. The court therefore found D. to be a person described
by section 300, subdivision (b)(1), and placed him in the home of
parents under DCFS supervision. As to P. and M., the court
released the children to mother and provided visitation for
Joseph, acknowledging that Joseph no longer lived in the
maternal family’s home.
A status review report dated February 18, 2020 stated that
father and mother continued to share custody of D. Father and
mother had stipulated to a 50-50 custody arrangement, and D.
told the social worker that he enjoyed spending time at both
homes. The status review report stated that father and mother
“communicate regularly and work together to ensure [D.] is
getting the care and support that he needs.” D. was doing well in
school, but his attendance record showed “excessive tardiness and
unverified absences.” D. was in therapy for anxiety, and was
making progress toward his treatment goals.
Mother was in partial compliance with her case plan. She
consistently attended parenting classes, she was participating in
an outpatient drug treatment program, and she told the CSW
that she was confident in her sobriety. Mother was employed and
taking classes online. However, the status review report noted
that mother missed a drug test on December 24, 2019, and had “7
declined drug tests during mother’s drug program (although
mother has completed the drug program).” DCFS found that
mother was in partial compliance with court orders regarding
drug treatment and testing, and in compliance with the other
aspects of the court’s orders. The CSW had to contact mother on
maternal grandmother’s phone, because mother’s phone had been
8
disconnected. Joseph was staying with his parents, did not have
a working phone number, and refused to make himself available
to the CSW. DCFS found that the risk of abuse or neglect
remained high, and recommended that family maintenance
services be continued.
A last-minute information stated that Joseph had been
arrested on February 2, 2020 for possession of a substance that
appeared to be methamphetamine. DCFS requested that family
reunification services be terminated for Joseph. At the review
hearing on February 18, 2020, the court held that continued
jurisdiction was warranted, and ordered the parents to continue
participating in all previously ordered services.
C. Section 387 petition
On April 29, 2020, DCFS filed a petition under section 387
alleging that mother failed to drug test eight times from
February 18 to April 20, 2020, and that she was discharged from
her domestic violence prevention program on March 1, 2020 due
to lack of attendance. The petition also stated that although
Joseph’s visits with P. and M. were required to be monitored,
mother and Joseph were together with the children without an
approved monitor.
A detention report filed April 29, 2020 stated that on April
27, D. was detained from mother and placed with father. In
March 2020, DCFS received a report that mother was in
possession of drug paraphernalia. Mother denied that she was
using drugs again, but the CSW observed that mother had not
been drug testing and she had marks on her face suggesting drug
use. The maternal aunt reported to the CSW that she learned
that mother had been fired from her job. On April 14, 2020,
mother took the children from maternal grandparents’ home and
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left with Joseph because she was angry at maternal
grandparents. Mother still did not have a phone; maternal
grandparents reported that Joseph broke mother’s phone. After
mother took the children from maternal grandparents’ home,
maternal grandparents went to Joseph’s parents’ home to look for
mother and the children; while maternal grandparents were
there, Joseph threatened to kill them. Maternal grandparents
called police, but they did not do anything. The CSW confirmed
reports that mother stayed at a hotel on the night of April 15, but
it was unclear whether mother had the children with her at the
time.
When the CSW spoke with mother the following day,
mother explained that she stayed at a hotel to avoid telling
maternal grandparents that she lost her job. Mother said she did
not know why she lost her job. Regarding maternal grandparents
going to Joseph’s house, the detention report stated, “Mother
states [Joseph] threaten[ed] to kill [maternal grandparents]
because she thinks [maternal grandmother] grabbed him or
touched him. The children were asleep during the interaction.
The mother failed to demonstrate insight into the safety and risk
factors this could pose to the children’s well-being.” The report
noted that mother “appears very fixated on maintaining the
relationship” with Joseph. Mother told the CSW she did not
know she was supposed to be drug testing. DCFS stated that
mother’s “continued possible use[ ] of controlled substances and
her inability to end contact” with Joseph posed a risk to the
children. It also noted that although mother had completed part
of her drug treatment program, she failed to complete the after-
care drug program, and “[i]t does not appear that mother’s
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progress partial compliance [sic] can resolve the current safety
concerns.”
At a hearing on the section 387 petition on May 4, 2020, the
court noted that mother admitted most of the allegations in the
petition, and held that detaining the children was appropriate.
The court ordered that mother’s visitation be monitored.
D. Termination of jurisdiction
A jurisdiction/disposition report dated August 3, 2020
stated that D. remained living with father. Father reported that
D.’s anxiety had decreased and he was doing well. Mother had
had not drug tested in May or June, and there was no later
information about drug tests in the record; mother said she was
not using drugs. In July 2020, mother again told the social
worker that she did not know that she was supposed to continue
drug testing, and blamed the former social worker for not doing
her job. Mother told the CSW, “I have shown that I can test
negative and do my services. Now, I have no resources
whatsoever from that social worker. I was kicked out during a
pandemic and had nowhere to go and tested positive for
Coronavirus. I did not have a place to go and sometimes I stay
with Joseph; this is very stressful and I have no help
whatsoever.” Joseph had been arrested in May 2020 for felon in
possession of a firearm and possession of a controlled substance.
DCFS recommended that the section 387 petition be
sustained. It further stated, “At this time DCFS does not have
any concerns for [father] and the child, [D.],” and recommended
that jurisdiction be terminated with a family law order giving
father sole physical and sole legal custody, and providing mother
with monitored visitation.
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A status review report dated August 17, 2020 stated that
D. remained with father and was doing “very well.” Father
maintained a relationship with maternal grandparents, who were
caring for P. and M., and the children had sibling visits. The
report noted that “during this review period, the mother’s
relationships with her family members has become increasingly
fraught, as drug paraphernalia belonging to the mother was
found in the home and the mother resumed her romantic
relationship with [Joseph]. The mother also lost her
employment.” Mother had not resumed drug testing or any other
programs, and DCFS noted that although mother “could
articulate things she was learning in classes, she is unable to
apply this to her own situation.” DCFS again asked that the
section 387 petition be sustained.
At the adjudication hearing on August 3, 2020, the court
sustained the section 387 petition, and found that the previous
disposition had been ineffective in ensuring the protection of the
children. Counsel for DCFS and the children requested that the
court terminate jurisdiction over D., with physical and legal
custody to father and monitored visitation for mother. Mother’s
counsel opposed the termination of jurisdiction, stating that
mother wanted further opportunities to reunify with D. Mother
asked for joint legal custody if the court were inclined to
terminate jurisdiction, asserting that there was “no indication
that mother would be unable or would make it difficult to make a
decision for the child’s well-being.” Father’s counsel asked the
court to terminate jurisdiction with sole physical and sole legal
custody to father, stating, “It would be impossible for [father] to
work with the mother on this case regarding legal issues such as
educational, medical decisions. He would not be able to make it
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work based on her history and lack of compliance in the case
plan.”
The court terminated jurisdiction over D. It ordered
physical and legal custody to father, with monitored visitation for
mother. The court requested that a family law order be prepared,
and stated, “The rider should reflect those components of
mother’s case plan which she needs to complete before she may
have unmonitored visitation” with D. The court’s exit order, filed
August 7, 2020, awarded father “sole legal custody, sole physical
custody, with monitored visitation for the mother, 3 times a week
for 3 hours each visit.” Mother timely appealed.
DISCUSSION
On appeal, mother challenges only the court’s award of sole
legal custody to father. DCFS asserts that the custody order was
appropriate. “When the juvenile court terminates its jurisdiction
over a dependent child, section 362.4 authorizes it to make
custody and visitation orders that will be transferred to an
existing family court file and remain in effect until modified or
terminated by the superior court.” (In re Roger S. (1992) 4
Cal.App.4th 25, 30.) We review a “juvenile court’s decision to
terminate dependency jurisdiction and to issue a custody (or
‘exit’) order pursuant to section 362.4 for abuse of discretion.”
(Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)
Legal custody involves “the right and the responsibility to
make the decisions relating to the health, education, and welfare
of a child.” (Fam. Code, § 3006.) “When making a custody
determination in any dependency case, the court’s focus and
primary consideration must always be the best interests of the
child.” (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.)
Thus, “the court's power under section 362.4 require[s] it to make
13
an informed decision concerning the best interests of the child.”
(In re John W. (1996) 41 Cal.App.4th 961, 972.)
Mother asserts that “DCFS did not present any evidence to
support its recommendation that Father be granted sole custody.”
She also argues that father “never reported that he had difficulty
communicating with Mother or that they were unable to work
together to make decisions about” D. DCFS asserts that the trial
court did not abuse its discretion, because the evidence showed
that mother failed to comply with her court-ordered case plan
and D. was thriving in father’s care.
We find no abuse of discretion. The evidence supports a
finding that the best interests of D. were served by placing legal
custody with father, the non-offending parent who was providing
D. a safe and stable home. DCFS’s reports throughout the case
stated that D. was thriving in father’s care. By contrast,
mother’s actions were not conducive to the well-being of the
children. She used drugs while pregnant with M. and
maintained a relationship with Joseph despite their violent
history, which included a physical altercation involving P. while
the case was pending. Although the children were not initially
detained from mother, her continued failure to comply with court-
ordered programs led to their detention a year after the case was
initiated. Toward the end of the case, mother was not employed,
she did not have a phone, all three children had been removed
from her care, and it was unclear where she was living. Mother
remained in a relationship with Joseph, who was arrested twice
on drug possession charges (plus a weapons charge) while the
case was pending. When asked about her failure to complete
court-ordered programs, mother blamed the social worker and
other factors instead of taking responsibility for the issues that
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led to the juvenile court’s exercise of jurisdiction. The juvenile
court held that mother’s visitation with the children should be
monitored, a finding that mother does not challenge. The
evidence supported the court’s finding that it would be in D.’s
best interest to place legal custody with father, who
demonstrated consistency and stability in providing for D.’s
needs.
Mother contends this case is dissimilar to In re Jennifer R.
(1993) 14 Cal.App.4th 704 (Jennifer R.), in which the mother,
Shannon, challenged the lower court’s award of legal custody over
the child, Jennifer, to the father. The Court of Appeal affirmed
the custody order, noting that Shannon “did not follow through
on drug rehabilitation referrals and failed to drug test while
assuring her therapist she was drug free and had completed
rehabilitation. She was irregular in her visitation with Jennifer
and angry about restrictions upon the conduct of those visits.
There were reports of Shannon acting inappropriately with
Jennifer during visitation. Shannon had an extensive history of
serious mental illness. [¶] The report by her own expert showed
she had significant emotional disturbances and developmental
and learning disabilities. Dr. Schramm’s report indicated
Shannon's ability to anticipate the consequences of her behavior
and her ability to form general concepts when faced with new
leaning situations was impaired. He also reported Shannon
withdrew from and did not get along with others and further
reported she may be impulsive, maladjusted, and emotionally
unstable. While Dr. Schramm recommended increased and
unsupervised visitation, his report viewed as a whole does not
support Shannon's claim she is capable of sharing legal custody
but rather supports the court's determination such participation
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would not be in Jennifer's best interests. Shannon’s inability
throughout these proceedings to care for herself and her children,
her failure to make progress in overcoming the problems leading
to Jennifer’s removal, her inconsistency and inappropriateness in
visitation, as well as Dr. Schramm’s report amply support the
court's decision Shannon’s participation in making important
decisions relating to Jennifer's welfare would not be in the child’s
best interests.” (Id. at p. 713.)
Mother asserts that this case is distinguishable. Although
mother admits that she “stopped complying with her service
plan,” she argues that the facts here were not as severe as those
in Jennifer R., and the evidence showed that she was appropriate
in her visits with D. We agree that the facts in Jennifer R. are
distinguishable, but there are also many similarities: mother
failed to comply with her case plan, she failed to drug test while
insisting that she was not abusing drugs, and she failed to show
insight into the issues leading to juvenile court jurisdiction
despite having her children removed from her care. Moreover,
nothing in Jennifer R. suggests that it delineates the limits upon
which a court may find that legal custody with one parent is in
the child’s best interests.
Mother argues that the evidence showed that placing sole
legal custody with father was against D.’s best interests, because
for most of D.’s life mother and father had worked together to
ensure D.’s needs were met. Mother points to portions of the
record noting that mother and father had successfully co-
parented D. before the juvenile court case began. She argues
that there was no evidence showing that mother’s issues
“prevented her from being able to work with Father to make . . .
necessary decisions about [D.’s] upbringing.”
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The court’s focus, however, was D.’s best interest—not
mother’s ability to work with father. The court was not required
to rely on the parents’ history of co-parenting in determining D.’s
best interests. Moreover, the evidence showed that the parents’
history was not without difficulty. Father told a social worker
that he suspected mother was abusing drugs as early as 2017,
before the juvenile court case began and while mother and father
were co-parenting D., but father was unable to get a family court
custody order due to lack of proof. While the juvenile court case
was pending, mother did not have a phone and the record
indicates that the social workers had difficulty contacting
mother. Mother violated court orders regarding having the
children with Joseph and she failed to comply with her case plan,
even after the children had been removed from her care. It was
reasonable for the court to conclude that it was in D.’s best
interest to have father alone make important educational and
medical decisions for D.
Mother also asserts that D. told social workers he liked
having both mother and father involved in his life. Indeed, the
record makes clear that D. was well-bonded with mother, his
siblings, and mother’s other family members. However,
“although a child’s wishes may be evidence of what is in his best
interest, they cannot be dispositive.” (In re Jacob P. (2007) 157
Cal.App.4th 819, 832.) The evidence supports the court’s finding
here, and we cannot substitute a different decision for that of the
juvenile court. (See, e.g., In re Stephanie M. (1994) 7 Cal.4th 295,
318-319 [“‘The appropriate test for abuse of discretion is whether
the trial court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the
17
reviewing court has no authority to substitute its decision for
that of the trial court.’”].)
We therefore find that the trial court’s award of sole legal
custody to father was not an abuse of discretion. Nothing in this
opinion forecloses any future finding that joint legal custody
would be in D.’s best interests, should circumstances warrant.
DISPOSITION
The juvenile court’s custody order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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