People Ex Rel. G.E.S. ( 2016 )

COLORADO COURT OF APPEALS 2016COA183
Court of Appeals No. 16CA0780
Arapahoe County District Court No. 15JV1163
Honorable Bonnie McLean, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of G.E.S., Child,
and Concerning G.S.,
Respondent-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE J. JONES
Graham and Miller, JJ., concur
Announced December 15, 2016
Ron Carl, County Attorney, Marilee M. McWilliams, Senior County Attorney,
Aurora, Colorado, for Petitioner-Appellee
Ranee Sharshel, Alison A. Bettenberg, Guardians Ad Litem
Pickard & Ross, P.C., Joe Pickard, Justin Ross, Kerry Simpson, Littleton,
Colorado, for Respondent-Appellant
¶1 G.S. (father) appeals the judgment adjudicating his daughter,
G.E.S., dependent and neglected and adopting a treatment plan for
him. Because we conclude that the district court erred in admitting
unduly prejudicial testimony regarding polygraph examinations, we
reverse the judgment adjudicating the child dependent and
neglected as well as the related dispositional order adopting a
treatment plan, and remand the case for a new trial.
I. Background
¶2 In May 2015, father’s then twelve-year-old stepdaughter, J.O-
E., told her therapist that father had made her uncomfortable by
talking about inappropriate things and touching her
inappropriately. The therapist called the police and the Arapahoe
County Department of Human Services (department).
¶3 An intake caseworker from the department immediately went
to meet with the child at the therapist’s office, and the child made
similar statements to the caseworker. The child then participated
in a recorded forensic interview. She said that father had touched
both her vaginal area and her breasts and had talked to her about
sexual things.
1
¶4 Shortly thereafter, however, the child told her mother that her
statements about father sexually abusing her were untrue. The
child met with a police detective and, in another recorded interview,
recanted her prior statements that father had acted inappropriately
toward her. The police closed their case.
¶5 In the meantime, the family voluntarily cooperated with the
department and followed the department’s recommended safety
plan. As part of the plan, father left the family home and had no
contact with his infant child (G.E.S.) or any of his three
stepchildren. The department also asked him to complete a
psychosexual evaluation and disclose the results to the department.
Father agreed to do the evaluation and completed it after a few
months. The evaluator recommended that father undergo a
polygraph examination, but father declined.
¶6 Although the child had recanted, the department believed the
child’s original statements about sexual abuse by father.
Explaining that father’s unwillingness to undergo the recommended
polygraph examination prevented the case from moving forward
voluntarily, the department filed a dependency and neglect petition
as to G.E.S.
2
¶7 Father denied the petition’s allegations and requested a jury
trial. At trial, the department sought to prove that G.E.S. was
dependent and neglected because:
 the parent subjected the child to mistreatment or abuse
or had suffered or allowed another to mistreat or abuse
the child without taking lawful means to stop such
mistreatment or abuse and prevent it from recurring;
 the child lacked proper parental care through the acts or
omissions of the parent;
 the child’s environment was injurious to her welfare; and
 the parent failed or refused to provide proper or
necessary subsistence, education, medical care, or any
other care necessary for the child’s health, guidance, or
well-being.
See § 19-3-102(1)(a)-(d), C.R.S. 2016.
¶8 The department argued that this was a prospective harm case.
See People in Interest of D.L.R., 638 P.2d 39, 43 (Colo. 1981) (the
statutory grounds for dependency and neglect can be satisfied by
showing prospective harm to the child). Its theory was that G.E.S.
was at risk in the future because father had sexually abused his
3
stepdaughter and had not cooperated with the department in
attempting to assess the safety of the home. See People in Interest
of S.N., 2014 COA 116, ¶¶ 16-17 (“[T]o determine whether a child is
dependent and neglected based on prospective harm, it must be
determined whether it is likely or expected that the child will lack
proper parental care through the actions or omissions of the parent
. . . . Prospective harm thus requires a prediction of whether, based
on the parent’s past conduct and current circumstances, it is likely
or expected that the parent will fail to provide proper care for the
child in the future.”) (citation omitted).
¶9 The court presented the jurors with a special verdict form,
which asked the following questions:
Question 1: Did [father] mistreat or abuse
[G.E.S.] or tolerate or allow another person to
mistreat or abuse [G.E.S.] without taking
lawful means to stop such mistreatment or
abuse and prevent it from being repeated?
Question 2: Is [G.E.S.] lacking proper parental
care as a result of [father]’s acts or failures to
act?
Question 3: Is [G.E.S.]’s environment
injurious to her welfare as a result of [father]’s
acts or failure[s] to acts?
4
Question 4: Did [father] fail or refuse to
provide proper or necessary subsistence,
education, medical care or any other care
necessary for [G.E.S.]’s health, guidance, or
well-being?
¶ 10 The jury answered “Yes” to the first three questions but “No” to
the fourth.
¶ 11 After the jury returned its verdict, the court entered judgment
adjudicating G.E.S. dependent and neglected. The court then held
a dispositional hearing at which father agreed to the department’s
proposed treatment plan. The court adopted that plan.
II. Father’s Contentions
¶ 12 Father contends that the jury’s verdicts should be reversed
because the district court erred in admitting evidence that he
underwent a psychosexual evaluation, refused to undergo a
polygraph examination, and later underwent a polygraph
examination but did not tell the department. He also contends that
the court erred in admitting the child’s hearsay statements about
sexual abuse without the child testifying. We agree with father that
the court erred in admitting evidence that he had taken a
psychosexual evaluation and in admitting polygraph evidence.
Because these errors were not harmless, we reverse.
5
A. Psychosexual Evaluation and Polygraph Evidence
1. Law
¶ 13 The purpose of an adjudicatory trial is to determine whether
the factual allegations in the dependency and neglect petition are
supported by a preponderance of the evidence, and whether the
status of the subject child warrants intrusive protective or
corrective state intervention into the familial relationship. People in
Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009).
¶ 14 Before an adjudication, the court may issue temporary orders
providing for the child’s custody, protection, support, medical
evaluation or medical treatment, surgical treatment, psychological
evaluation or psychological treatment, or dental treatment as it
deems in the child’s best interests. § 19-1-104(3)(a), C.R.S. 2016.
And, parents may voluntarily work with the department to alleviate
any child welfare concerns. See, e.g., § 19-3-308.3(2), C.R.S. 2016
(creating a differential response program in which the family may
voluntarily participate); § 19-3-501(1)(c), C.R.S. 2016 (allowing
informal adjustment without the filing of a dependency and neglect
petition with the consent of the parents); People in Interest of L.B.,
254 P.3d 1203, 1205 (Colo. App. 2011). But, a parent need not
6
cooperate with the department’s efforts to investigate the factual
allegations supporting the petition. See, e.g., E.S.V. v. People, 2016
CO 40, ¶ 5. Rather, it is the department’s burden to prove, by a
preponderance of the evidence, the petition’s allegations. § 19-3-
505(1), C.R.S. 2016; People in Interest of S.N., 2014 CO 64, ¶ 9.
¶ 15 Because a dependency and neglect proceeding is preventative
as well as remedial, an adjudication may be based not only on
current or past harm but also on prospective harm. D.L.R., 638
P.2d at 43. The fact finder may properly consider the treatment
accorded other children in determining whether the child at issue is
dependent and neglected. Id. at 42.
¶ 16 Evidence of polygraph test results are per se inadmissible at
an adjudicatory trial because they are not reliable. People in
Interest of M.M., 215 P.3d 1237, 1248 (Colo. App. 2009). Such
evidence presents a “serious risk” of unfair prejudice and
misleading the jury, and “there is an inherent danger that a jury
will rely too heavily” on such evidence. People v. Anderson, 637
P.2d 354, 361 (Colo. 1981). The prohibition of polygraph evidence
extends to expert opinions, based in whole or in part, on
polygraphs. M.M., 215 P.3d at 1250.
7
¶ 17 Nonetheless, a mere reference to polygraph testing does not
require reversal. Bloom v. People, 185 P.3d 797, 806 (Colo. 2008);
People v. Banks, 2012 COA 157, ¶¶ 89-96, rev’d on other grounds
sub nom. People v. Tate, 2015 CO 42, ¶¶ 61-62. Reversal is
required when the admission of such evidence prejudices a parent.
M.M., 215 P.3d at 1251-52. This occurs when the inadmissible
polygraph evidence becomes inseparable from the admissible
evidence. Id. at 1252.
2. The Evidence Presented at Trial
¶ 18 Before trial, father filed a motion in limine asking the court to
exclude any evidence related to his psychosexual evaluation and
any reference to his refusal to participate in a polygraph
examination. Both the department and the guardian ad litem (GAL)
argued that psychosexual evaluations are a tool used by
caseworkers to assess safety and are part of the department’s
evaluative process and thus relevant to explain the department’s
involvement. The GAL said that the psychosexual evaluator
recommended that father participate in an instant offense
polygraph examination, and the department characterized the
polygraph examination as part of the evaluation process.
8
¶ 19 The GAL also argued that father’s failure to undergo a
polygraph examination was relevant to show father’s lack of
cooperation, and that his lack of cooperation was relevant to the
petition’s allegations of mistreatment, abuse, and injurious
environment.
¶ 20 Father argued that polygraph evidence is unreliable and
therefore usually per se inadmissible. He continued that any
relevance of the psychosexual evaluation and the subsequent
recommendation for a polygraph examination would be overly
prejudicial and would confuse the jurors. He explained that, to the
extent that the evidence’s asserted relevance was to show that he
did not cooperate with the department, this evidence would unfairly
prejudice him because it would lead to an implication that he had
declined to take the polygraph examination because he had
committed the alleged sexual abuse.
¶ 21 The court was persuaded that the evaluation and the
polygraph refusal were part of the evaluative process to determine
the safety of the children. The court ruled that the probative value
of this evidence outweighed its prejudicial effect and thus allowed
evidence that father had taken the psychosexual evaluation and
9
had declined to take the polygraph. The court made clear that
evidence of the results of the psychosexual evaluation would not be
admissible and noted that, because father did not take a polygraph
examination, there was no issue as to the results of such an
examination.
¶ 22 During its presentation of evidence, the department offered the
testimony of the intake caseworker about the psychosexual
evaluation and the polygraph. She testified that she thought the
child’s initial statements were credible because the child was matter
of fact and was able to provide details. Because the intake
caseworker felt the child’s statements were credible, she believed
that the family was in need of services and that the department
should continue to investigate its child protection concerns.
¶ 23 She told the jury that to assess for safety, the department
asked father to complete a psychosexual evaluation and a
polygraph. She described the evaluation and the polygraph to the
jury as “an assessment tool that’s used to determine if there is any
risk for future maltreatment,” specifically, future sexual abuse. She
agreed that the evaluation and polygraph were necessary to finish
the assessment of the child’s safety. Both the intake caseworker
10
and the permanency caseworker testified that father completed the
psychosexual evaluation, but had not completed a polygraph
examination. The permanency caseworker testified that because
father did not complete the polygraph examination, he did not
complete the assessment process.
¶ 24 The department also presented an expert in sexual abuse.
She reiterated that when there is an allegation of inappropriate
touching, a psychosexual evaluation is typically requested to
determine the risk of future inappropriate behavior and that
completing the entire evaluation is important.
¶ 25 Father presented his own expert on sexual abuse and child
protection. That witness agreed that when there is an allegation of
sexual abuse, there is an evaluation that social services
departments use to assess safety. And, he agreed that a good
clinician collects as much information as possible in assessing
outcries of sexual abuse. But, he also testified that sexual abuse
cannot be diagnosed.
¶ 26 Father then testified. Before his cross-examination began,
father’s counsel alerted the court to a further fact ― namely, that
father had completed a polygraph examination privately, the results
11
of which father had not provided to the department. Father’s
counsel asked the court to prohibit the department from inquiring
during cross-examination as to whether father had taken a
polygraph. Counsel reasoned that if the jurors learned that father
had taken a polygraph examination, but had not provided the
results to the department, they would presume that the
examination results were not favorable to father, which would
amount to inappropriately admitting the polygraph results. The
court ruled that the department could ask father whether he had
taken a polygraph examination and could follow up by asking father
whether he had “turned it over” to the department, but reiterated
that polygraph results were not admissible.1
3. Polygraph Evidence
¶ 27 Father contends that the court erred in admitting any
references to a polygraph. He argues that, in allowing witnesses to
testify that he had refused to take a polygraph examination and in
allowing the department to ask him whether he had turned over the
results of the polygraph examination he did take to the department,
1In light of this ruling, father’s attorney asked him about the
polygraph on direct examination.
12
the court allowed jurors to infer that, in the case of the former, he
believed that taking an examination would reveal that he had
sexually abused his stepdaughter and, in the case of the latter, that
the results were unfavorable to him. We agree.
¶ 28 A typical juror would have viewed the polygraph evidence as
tending to show that father had abused his stepdaughter. Because
the credibility of stepdaughter’s initial report was the central issue
in the case, we conclude that it is unlikely in the extreme that the
jurors would not have used the evidence as bearing on that
question. And although no polygraph results per se were related to
the jury, the implications that father feared taking a polygraph
examination and had “failed” the examination he ultimately took
were unmistakable. And admitting polygraph results by implication
is not substantially different from actually admitting results. See,
e.g., M.M., 215 P.3d at 1250 (expert opinions that were formed by
relying on polygraph results renders the expert’s testimony
inadmissible because the basis of the opinion is unreliable).
Therefore, we agree that the district court erred in allowing this
testimony.
13
4. Prejudicial Implication that Father Feared or Failed the
Polygraph
¶ 29 But this does not end the analysis. We must also determine
whether the admission of the evidence prejudiced father. See id. at
1251-52. We conclude that the implications that father feared
taking a polygraph and failed the polygraph are inseparable from
the other evidence and that insufficient admissible evidence
untainted by the implication of the polygraph evidence remains.
¶ 30 The department advanced two theories as to why G.E.S. was
dependent and neglected. First, the department alleged that father
had sexually abused the stepdaughter, placing G.E.S. at risk for
sexual abuse. As noted, the admission of the evidence suggesting
that father feared a polygraph and had failed the polygraph could
have made it more likely in the jurors’ minds that he had sexually
abused the stepdaughter.
¶ 31 We acknowledge that the jurors viewed the stepdaughter’s
forensic interview in which she made the sexual abuse allegations,
and also viewed her recorded interview with the police later
recanting her allegations and could have assessed the credibility of
the two statements for itself. But, we cannot say that the jurors’
14
determination was free of improper consideration of the polygraph
given the evidence the department presented to support the child’s
initial outcry. The department’s position was that the child’s initial
outcry was “credible.” The department’s expert witnesses opined
that the initial outcry was credible and gave details on why those
specific statements should be believed. The department also asked
its sex abuse expert, “[D]o you have any concerns about the
credibility of the outcry?” The expert replied, “I do not.” See CRE
608(a); People v. Eppens, 979 P.2d 14, 17-18 (Colo. 1999) (witnesses
are not permitted to offer opinions that a child was telling the truth
on the specific occasion that the child reported sexual abuse);
People v. Cernazanu, 2015 COA 122, ¶¶ 11-22 (same).2
¶ 32 The department’s experts also testified about why a child
might recant an allegation of sexual abuse. The department’s sex
abuse expert explained that recantation is “completely
understandable.” She related that child abuse victims are under
2 Given that this court and the supreme court have long held that a
witness may not vouch for the credibility of another witness on a
particular occasion, the admission of the vouching testimony by the
department’s witnesses was obviously erroneous. Allowing such
testimony is so prejudicial that a court should step in and disallow
it notwithstanding the absence of an objection.
15
pressure — caught between wanting their abuse to stop and
wanting their family to stay together. She elaborated that once
there is an outcry and a family member is removed, there is a
burden of guilt, fear of what will happen next, and fear of being
ostracized from the family, all of which pressure the victim who
made the disclosure. The permanency caseworker expressed
concern that the stepdaughter felt guilty about father having to
leave the home and that there were some indications that her
siblings knew father was out of the home because of her.
¶ 33 In explaining why victims recant, the experts told the jurors
that recantations almost never occur because the allegations are
false. Rather, the department’s sexual abuse expert explained that
the rate of false allegations of sex abuse “is really very small,” and
noted that it was between two and eight percent.
¶ 34 Given the inherently prejudicial nature of the polygraph
evidence, and the lack of otherwise admissible evidence
overwhelmingly proving the allegations of dependency and neglect,
the erroneous admission of the polygraph evidence was not
harmless. Indeed, the prejudice to father was only increased by the
16
testimony of several witnesses improperly vouching for the victim’s
credibility (at least with respect to her initial allegations).
5. Prejudicial Implications Related to Father’s Level of Cooperation
¶ 35 We are also concerned about the prejudice surrounding the
department’s second theory as to why G.E.S. was dependent and
neglected: that she was at risk because father failed to cooperate
with the department’s evaluative process because he did not
complete both the psychosexual evaluation and the polygraph. In
relation to this theory, father contends that the court erred in
admitting any testimony of a polygraph because such evidence is
per se not relevant to the adjudicatory proceedings. He also objects
to admitted expert testimony regarding the necessity for a
polygraph and father’s refusal to provide one. For similar reasons,
he contends that the court erred in admitting evidence that he
participated in a psychosexual evaluation due to its irrelevance and
unfair prejudice. Under the circumstances here, we are persuaded
that the prejudicial impact of the polygraph evidence, together with
the prejudice flowing from evidence of his partial cooperation with
the department’s request that he complete its evaluative processes,
also dictate reversal.
17
¶ 36 Relevant evidence is evidence having “any tendency to make
the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” CRE 401. But even relevant evidence may
be excluded when “its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.” CRE 403.
In evaluating the evidence’s probative value, the “court should
consider the logical force of the evidence and the proponent’s need
for the evidence.” Martin v. People, 738 P.2d 789, 794 (Colo. 1987).
¶ 37 Father voluntarily agreed to take the psychosexual evaluation.
The permanency caseworker’s testimony made clear that no
treatment plan had been adopted, and the department was not in
the treatment phase of the case because there had been no
adjudication. She also noted that father’s participation was on a
voluntary basis. There was no indication that father was not within
his rights to refuse the department’s requests that he cooperate
with its evaluative process. Even assuming the psychosexual
evaluation and polygraph were necessary for the department to
18
assess the potential threat to the child as part of its normal
evaluative process, we are not persuaded that the department may
then use a refusal to complete the voluntary evaluative process to
show that the child was dependent and neglected.
¶ 38 Under the Children’s Code, father had no duty to cooperate by
completing a psychosexual evaluation and polygraph. The
probative value of telling the jurors that the department needed to
continue to evaluate the safety of the home was low because no
department witness testified that they were uncertain of the
truthfulness of the stepdaughter’s outcry. As noted above, the
department’s witnesses characterized the stepdaughter’s outcry as
“credible.”
¶ 39 Because the department believed the outcry, we disagree with
the district court that the probative value of father’s willingness to
cooperate with the psychosexual evaluation and of the polygraph
evidence outweighed the evidence’s prejudicial effect. Given the
department’s position that the stepdaughter’s initial outcry was
truthful, evidence of its need for further investigation related to the
sexual abuse allegations could have been confusing to the jury. At
a minimum, evidence of father’s failure to complete the evaluative
19
process leads to the prejudicial implication that he failed to
complete the process because he had sexually abused the
stepdaughter and was attempting to evade further inquiry.
¶ 40 We also observe that allowing this type of evidence at an
adjudicatory proceeding places a parent between a rock and a hard
place. As discussed, participating in the psychosexual evaluation
and polygraph at this stage is purely voluntary. But if evidence of
refusal is admissible, the parent must choose between, on the one
hand, participating in a test that, in the case of the psychosexual
evaluation, is designed for persons who have been found to have
engaged in sexual abuse, and, in the case of a polygraph, is
unreliable or, on the other hand, refusing to participate and having
that refusal used against him as “lack of cooperation.”
¶ 41 That father was under no obligation to complete a
psychosexual evaluation or undergo a polygraph examination
distinguishes this case from People in Interest of L.K., 2016 COA
112 (cert. granted Nov. 7, 2016). In that case, a treatment plan
required the father to participate in sex offender treatment and take
a polygraph examination, so his refusal could be used to support
20
termination of his parental rights based on failure of the treatment
plan.
¶ 42 In short, we are convinced that the prejudice of this evidence,
together with the implication that father feared and failed a
polygraph, dictates that the judgment should be reversed.
¶ 43 Having concluded that the court should not have allowed
evidence of father’s participation in the psychosexual evaluation or
of a polygraph to be presented to the jury because of its prejudicial
impact, we need not address father’s contentions that the evidence
should not have been admitted based on his due process rights,
attorney-client privilege, and CRE 408.
B. The Child’s Hearsay Statements
¶ 44 Because it may arise on remand, we address, and reject,
father’s last contention that the court erred in admitting the child’s
hearsay statements.
1. Law
¶ 45 Section 13-25-129(1), C.R.S. 2016, authorizes the admission
of an out-of-court statement made by a child describing an
unlawful sexual offense, which would otherwise not be admissible.
Such statements are admissible if the court determines that (1) the
21
time, content, and circumstances of the statements provide
sufficient safeguards of reliability; and (2) the child either testifies at
trial or is unavailable as a witness and there is corroborative
evidence of the act which is the subject of the statements. Id.
¶ 46 In criminal cases, the Sixth Amendment and its associated
right to confront witnesses require that out-of-court testimonial
statements be subject to cross-examination before being admitted.
See People in Interest of R.A.S., 111 P.3d 487, 490 (Colo. App. 2004)
(holding that the admission of an unavailable child’s forensic
interview violated a juvenile’s Sixth Amendment right to
confrontation in a delinquency case). But, a division of this court
has held that due process does not necessitate extension of the
Sixth Amendment’s right to confront witnesses to litigants in
dependency and neglect cases. People in Interest of S.X.M., 271
P.3d 1124, 1127 (Colo. App. 2011). And, the potential traumatic
impact of a child victim’s giving testimony of sexual abuse may form
the basis of a finding of unavailability if the child’s emotional or
psychological health would be substantially impaired if the child
was forced to testify. People v. Diefenderfer, 784 P.2d 741, 750
(Colo. 1989).
22
¶ 47 We review the admission of child hearsay statements for an
abuse of discretion. People v. Phillips, 2012 COA 176, ¶ 63. The
district court does not err in finding that a child is unavailable to
testify if adequate evidence in the record supports that finding.
Diefenderfer, 784 P.2d at 748, 751.
2. District Court’s Order
¶ 48 In its order allowing the child’s hearsay statements to be
admitted, the court recounted the child’s therapist’s testimony that
the child’s mental and emotional health would be gravely
endangered if the child testified. The court ruled that if the child’s
mental health on the date of trial was the same as at the time of the
pretrial evidentiary hearing, she would be deemed unavailable to
testify. The court also ruled that there was corroborative evidence
of the act which was the subject of the statements, and that the
right of confrontation does not extend to litigants in a dependency
and neglect case.
3. Discussion
¶ 49 Adequate evidence from the pretrial hearing supports the
court’s finding that the child was unavailable to testify. The child’s
then-current therapist testified that the child had difficulty
23
regulating her emotions and “can quickly move to a very low place.”
The child’s former therapist said that the child had been
hospitalized because of suicidal threats and had engaged in other
self-harming behavior in the past. The then-current therapist said
that the child felt a lot of pressure and responsibility for separating
the family. She believed that testifying would be harmful for the
child because it would increase the pressure she felt, which would
lead to increased difficulty regulating her emotions and increased
suicidality. She explained that, even within the safe space of
therapy, the child did not feel comfortable talking about the
allegations. On the first day of trial, the parties agreed that the
child’s therapist had not changed her opinion about the child
testifying.
¶ 50 On appeal, father does not challenge the court’s findings that
the time, content, and circumstances of the statements provide
sufficient safeguards of reliability and that corroborative evidence
supported the child’s statements. We agree with the district court
that the Sixth Amendment’s Confrontation Clause does not extend
to dependency and neglect cases, and the record supports the
court’s finding that the child was unavailable to testify because
24
testifying would gravely harm her mental and emotional health.
Thus, we conclude the court did not abuse its discretion in
admitting the child’s statements without the child testifying at trial.
See Phillips, ¶ 63.
III. Conclusion
¶ 51 The judgment adjudicating the child dependent and neglected
and entering a dispositional order is reversed. The case is
remanded for a new trial.
JUDGE GRAHAM and JUDGE MILLER concur.
25