In re A.M. CA4/2

Filed 6/30/22 In re A.M. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.M., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY
DEPARTMENT OF PUBLIC SOCIAL E078259
SERVICES,
(Super.Ct.No. RIJ2000657)
Plaintiff and Respondent,
OPINION
v.
C.M. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Michele A. Mathis,
Judge. Affirmed.
Joanne D. Willis Newton, under appointment by the Court of Appeal, for
Defendant and Appellant, C.M.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and
Appellant, B.H.
1
Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff
and Respondent.
INTRODUCTION
A juvenile court terminated the parental rights of defendants and appellants
B.H. (mother) and C.M. (father) as to their son, A.M. (the child). Mother and father
filed separate briefs, and both contend the court erred by finding the beneficial parental
relationship exception to termination of parental rights inapplicable. (Welf. & Inst.
Code,1 § 366.26, subd. (c)(1)(B)(i).) They also join in each other’s briefs. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 27, 2020, the Riverside County Department of Public Social
Services (DPSS) filed a section 300 petition on behalf of the child, who was two
months old at the time. The petition alleged that he came within section 300,
subdivision (b) (failure to protect). The petition included allegations that mother had
unresolved health issues, a substance abuse history, and a criminal history. It also
alleged that she had a history with the Los Angeles and San Bernardino County’s
Child Protective Services and received reunification services as to four of her other
children from December 2014 to November 2018; she failed to reunify with those
children, her parental rights were terminated, and a permanent plan of adoption was
implemented. The petition further alleged that mother and father (the parents)
1 All further statutory references will be to the Welfare and Institutions Code
unless otherwise noted.
2
engaged in ongoing acts of domestic violence in the presence of the child, and that
father had an extensive criminal history, including arrests and/or convictions for
murder and corporal injury to a spouse.
The social worker filed a detention report and stated that on October 18, 2020,
DPSS received an immediate response referral with allegations of general neglect.
Mother was holding the child when father slapped mother in the face. The child was
left with father while mother left the home and called law enforcement. The social
worker further reported that father was currently on parole for voluntary manslaughter.
The social worker reported that the child was placed in a confidential foster home on
October 25, 2020.
The court held a detention hearing on October 28, 2020, and detained the child
in foster care.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on November 16, 2020,
and recommended that the court sustain the petition, declare the child a dependent of
the court, and deny reunification services to mother pursuant to section 361.5,
subdivision (b)(10) and (b)(11), and deny services to the father pursuant to section
361.5, subdivision (b)(12). She recommended that the court set a 366.26 hearing in
120 days to establish a permanent plan of adoption for the child. The social worker
recommended no reunification services for mother as she failed to benefit from
previous services and her parental rights were terminated as to her other children, and
she continued to engage in domestic violence in the presence of the child. The social
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worker recommended no reunification services for father, as he had an extensive
criminal history, and admitted to being convicted of voluntary manslaughter and
serving 12 years in prison.
The social worker filed an addendum report on December 4, 2020. She
reported that there had been no consistent supervised visitation between the parents
and the child. On November 15, 2020, the parents had a scheduled supervised visit,
and father participated but mother was a no-show. The caregiver reported that father
was very engaged and attentive to the child’s needs, but the child cried through most
of the visit. The caregiver reported that father became emotional and ran away,
sobbing loudly and uncontrollably. On November 22, 2020, and November 29, 2020,
both parents were a no-show. The social worker opined that the parents had not
maintained consistent visitation with the child and, therefore, there was a minimal
bond established between them and the child.
The court held a contested jurisdiction hearing on December 9, 2020. Mother
was present, but the court found that father had voluntarily absented himself from the
proceedings. The court sustained the petition. It noted that the recommendation was
to deny services, and it granted the parents’ request to bifurcate disposition.
The social worker filed another addendum report on December 22, 2020. She
reported that father did not participate in three visits in December 2020, and that he
had maintained minimal communication with DPSS and the child. Mother
participated in visits on December 6, 2020, and December 20, 2020, but was a no-
show on December 13, 2020. During the visits, the child cried most of the time, and
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mother had difficulty calming him. She appeared frustrated when she could not stop
him from crying and asked the caregiver for help.
On January 14, 2021, the social worker filed another addendum report and
reported that on November 20, 2020, father violated his parole and a warrant was
issued for his arrest due to a recent domestic violence incident with mother. He was
eventually arrested on January 26, 2021. The social worker continued to report that
father maintained minimal communication with the DPSS and the child. He did not
participate in two additional visits since the last report. However, he did participate in
a visit on January 10, 2021. Mother participated in a visit on January 10, 2021, but
was a no-show on December 13, 2020, December 27, 2020, and January 3, 2021. The
caregiver reported that the visits went well, and the parents interacted with the child
appropriately.
The social worker filed another addendum report on February 23, 2021, and
reported that at a visit on January 28, 2021, mother was engaged and played with the
child, fed him, changed his diaper, and played music to calm him. Father participated
in a visit on January 17, 2021, and attempted to visit on February 11, 2021, but was
not allowed to while mother was visiting due to a recent domestic violence incident.
He was scheduled for a supervised visit on February 17, 2021, but was a no-show.
The social worker further reported that DPSS was concerned about the domestic
violence between the parents and mother’s failure to protect the child from harm. The
social worker stated that mother had not demonstrated she could control her anger and
negative behavior, and she appeared to be angry and “often vengeful in her behavior
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toward the Department and the caregiver.” DPSS was also concerned about father
minimizing how his actions could have negatively contributed to the safety, emotional,
and well-being of the child. Thus, the social worker recommended the child be
declared a dependent, remain placed in foster care, and that the parents be denied
services.
The court held a contested disposition hearing on March 3, 2021, adjudged the
child a dependent, and removed him from the parents’ custody. The court denied
mother services pursuant to section 361.5, subdivision (b)(11), and denied father
services pursuant to section 361.5, subdivision (b)(12). It also found that reunification
services were not in the child’s best interests. The court found the current placement
appropriate and set a section 366.26 hearing.
Section 366.26
The social worker filed a section 366.26 report on June 21, 2021,
recommending that the court set a hearing and establish a permanent plan of adoption.
According to this report, the parents had been consistent with visiting the child since
he was removed in October 2020, and the child “appear[ed] to recognize them.” The
social worker specifically reported that father had weekly supervised visits from
March 2021 to June 2021 and was attentive to the child’s needs. She reported that
father would arrive at visits with snacks, toys, and books, that he engaged with the
child appropriately, and that it was clear the child had a bond with him and enjoyed the
visits. As to mother’s visits, the social worker reported that mother was excited to see
the child, provided him with a lot of affection, and was attentive to his needs.
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The social worker also reported that the child had been placed in his current
home for eight months and appeared to be thriving. She stated the identified
prospective adoptive parent provided the child with care, supervision, and a loving
family home environment. The prospective adoptive parent consistently met the
child’s medical, developmental, and emotional needs, and the child “recognizes the
prospective adoptive parent and quickly reaches out to her.” The social worker stated
that the child and the prospective adoptive parent had an apparent bond with each
other, and that the prospective adoptive parent expressed her desire to provide
permanency for him through adoption.
The social worker filed an addendum to the section 366.26 report and stated
that the child experienced distressing emotions following visits with his parents. He
was transported by the prospective adoptive mother to the DPSS office, and the
prospective adoptive mother reported that the child’s demeanor would completely
change as he entered the room, as if he knew what was going to occur. After the
visits, the child would struggle with crying, or his sleep would be affected. The social
worker added that “it is clear by [the child’s] demeanor that he is bonded and attached
to his prospective adoptive mother and to the extended family.” The prospective
adoptive mother was committed to adopting the child and meeting all his needs. The
social worker noted that the prospective adoptive mother provided excellent care and a
warm, consistent, and calm environment for the child, and that he was content with
her. She noted that he “clearly leans towards the prospective adoptive mother as his
primary attachment figure.” The social worker reported that the prospective adoptive
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mother would not be entering a post-adoption contract with the child’s birth parents,
since she had seen the struggles the child had after visits with his parents and believed
visits would only continue to cause him anxiety and confusion as he grew older. The
prospective adoptive mother was open to accepting letters and gifts from the parents
and was willing to assist the child in locating them once he reached adulthood.
Mother filed a section 388 petition on October 29, 2021, and father filed a
section 388 petition on November 1, 2021. Both requested reunification services.2
In an addendum report filed on December 17, 2021, the social worker reported
that father had been difficult to work with, refused to follow any of the directives from
DPSS, and acted in a threatening manner toward staff members. The social worker
stated it was clear that he had not benefitted from his services as he continued to
exhibit anger issues, aggressive behaviors, and outbursts.
On December 20, 2021, the court held a combined section 388/366.26 hearing.
The court first heard argument from counsel concerning the section 388 petitions and
denied both petitions. It then proceeded to the section 366.26 portion of the hearing.
Both parents argued that the beneficial parental relationship exception to the
termination of parental rights (§ 366.26, subd. (c)(1)(B)(1)) applied, each asserting that
they had a bond with the child. The court stated it believed that both mother and father
felt “a strong sense of bond toward the child” and acknowledged that their visitations
had been appropriate. It further stated that the parents continued to be consistent with
2Father previously filed a section 388 petition on June 15, 2021, but later
withdrew it.
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the visitations. The court then stated: “But I’d countervailingly also note that the
child has been placed in its current placement for over a year at this time, since the
child was approximately two and a half months old. That home and those parents are
the parents that the child knows best at this time, and there is a substantial benefit to
the minor in not uprooting its life as well. Now that we’re at a .26, that is part of the
Court’s consideration.” The court then concluded that the parental bond exception did
not apply, stating, “So while I do believe that there are benefits to be had for
maintaining a relationship with the parents, I do not believe that those benefits
outweigh the benefit of permanency for such a young child who is not at this time even
two years old. So I do not find that the parental bond exception does apply. While
there is a benefit to the child, that is not outweighed by the benefit of permanency, and
it would not be detrimental to the child to terminate parental rights. However, I will
order the Department upon concluding the .26 hearing to make inquiries with the
prospective adoptive parents regarding a postadoption contract and ongoing contact
between the mother and/or the father with the child postadoption.”
DISCUSSION
The Beneficial Parental Relationship Exception Did Not Apply
Both mother and father contend the court erred in not applying the beneficial
parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). Mother
specifically claims the court erroneously considered whom the child viewed more as a
parent (e.g., her or the prospective adoptive parent), and whether the prospective
adoptive parent would be open to a postadoption visitation agreement. Father claims
9
the court committed reversible error when it based its finding of whether the parental
beneficial relationship exception applied, in part, on the effects of uprooting the child
from the prospective adoptive parent.3 He also joins in mother’s argument that the
court erred when it considered that the prospective adoptive parent might enter into a
postadoption visitation agreement. We conclude the court properly found the
exception did not apply.
A. Relevant Law
At a section 366.26 hearing, the juvenile court selects a permanent plan for the
dependent child. (In re K.P. (2012) 203 Cal.App.4th 614, 620.) Permanent plans
include adoption, guardianship, and long-term foster care. (In re S.B. (2008)
164 Cal.App.4th 289, 296 (S.B.); § 366.26, subd. (b)(1)-(7).) “Adoption, where
possible, is the permanent plan preferred by the Legislature.” (In re Autumn H. (1994)
27 Cal.App.4th 567, 573 (Autumn H.).) A permanent plan of adoption necessarily
involves termination of the biological parents’ parental rights to the child. (Id. at p.
574.)
In selecting a permanent plan for the child, the court is first required to
determine whether the child is likely to be adopted. (See § 366.26, subd. (c)(1).) If
the court finds, based on clear and convincing evidence, that the child is likely to be
3 We note that mother and father refer to the “prospective adoptive parents”
(plural) in their arguments. When describing the child’s placement, the court did state,
“That home and those parents are the parents that the child knows best at this time.”
However, in her reports, the social worker only referred to a singular prospective
adoptive parent. Therefore, we will refer to the prospective adoptive parent in the
singular form.
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adopted, and if there has been a previous court determination, by a preponderance of
the evidence, that it would be detrimental to the child to return the child to his or her
parent or guardian (§§ 366.21, 366.22), then the court is required to terminate parental
rights and select adoption as the child’s permanent plan, unless the parent shows that
termination of parental rights would be detrimental to the child under at least one of
several statutory exceptions to the adoption preference. (Cynthia D. v. Superior Court
(1993) 5 Cal.4th 242, 249; § 366.26, subd. (c)(1)(B)(i)-(vi).) “The statutory
exceptions merely permit the court, in exceptional circumstances [citation], to choose
an option other than the norm, which remains adoption.” (In re Celine R. (2003) 31
Cal.4th 45, 53.) The parental-benefit exception applies where the court finds a
“compelling reason” for determining that termination of parental rights would be
detrimental to the child because, in the words of the statute, “[t]he parents have
maintained regular visitation and contact with the child and the child would benefit
from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
Our Supreme Court recently clarified the proper application of the parental-
benefit exception and, in doing so, discerned “three elements the parent must prove to
establish the exception: (1) regular visitation and contact, and (2) a relationship, the
continuation of which would benefit the child such that (3) the termination of parental
rights would be detrimental to the child.” (In re Caden C. (2021) 11 Cal.5th 614, 631
(Caden C.).) As Caden C. indicates, the second and third elements of the exception
are inextricably connected.
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The Autumn H. court recognized this connection when it interpreted “the
‘benefit from continuing the [parent/child] relationship’ exception to mean the
relationship promotes the well-being of the child to such a degree as to outweigh the
well-being the child would gain in a permanent home with new, adoptive parents. In
other words, the court balances the strength and quality of the natural parent/child
relationship in a tenuous placement against the security and the sense of belonging a
new family would confer. If severing the natural parent/child relationship would
deprive the child of a substantial, positive emotional attachment such that the child
would be greatly harmed, the preference for adoption is overcome and the natural
parent’s rights are not terminated.” (Autumn H., 27 Cal.App.4th at p. 575, italics
added.)
We review the juvenile court’s findings on the first two elements of the
parental-benefit exception for substantial evidence. (Caden C., supra, 11 Cal.5th at
pp. 639-640.) “The determination that the parent has visited and maintained contact
with the child . . . is essentially a factual determination. It’s likewise essentially a
factual determination whether the relationship is such that the child would benefit from
continuing it.” (Ibid.) The third element—whether termination of parental rights
would be detrimental to the child—is “somewhat different” in that it requires the court
to “assess[] what the child’s life would be like in an adoptive home without the parent
in his life.” (Id. at p. 640.) “The court makes the assessment by weighing the harm [to
the child] of losing the relationship against the benefits [to the child] of placement in a
new, adoptive home. And so, the ultimate decision—whether termination of parental
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rights would be detrimental to the child due to the child’s relationship with [the]
parent—is discretionary and properly reviewed for abuse of discretion.” (Ibid.)
A court abuses its discretion only when it “ ‘ “has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd determination.” ’ ”
(In re Stephanie M. (1994) 7 Cal.4th 295, 318.) A reviewing court should find an
abuse of discretion, “only ‘ “if ” ’ ” it finds that no judge could reasonably have made
the decision that the judge did, when all of the evidence is viewed most favorably in
support of the judge’s decision. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
B. The Court Apparently Found That Both Mother and Father Maintained
Regular Visitation and Each Had a Relationship That Would Benefit the Child
As to the first element of the beneficial parental relationship exception, the
record shows the parents did not visit the child consistently at the beginning of the
dependency. However, at the section 366.26 hearing, the court found that the
visitation had been consistent and appropriate. (See Caden C., supra, 11 Cal.5th at
p. 631.) Respondent acknowledges the court’s finding.
As to the second element, mother asserts that the child benefitted from time
with her, since she was attentive to his needs and affectionate toward him, and she was
“appropriate and there were no concerns.” Mother points out that she played with him
on the floor, fed him, changed his diapers, read books with him, and played music to
calm him. She asserts that he “appeared to recognize [her], as well.” Father simply
asserts the court correctly found that the parents satisfied the second element. The
court stated, “I do believe that there are benefits to be had for maintaining a
13
relationship with the parents, . . .” Respondent does not appear to dispute that the
court found the child had a relationship with the parents, the continuation of which
would benefit the child. (See Caden C., supra, 11 Cal.5th at p. 631.)
C. Mother and Father Failed to Establish That Termination of Parental Rights
Would Be Detrimental to the Child
Assuming the first two elements were met, the parents have still failed to
establish that the termination of parental rights would be detrimental to the child.
“Concerning the third element—whether ‘termination would be detrimental to the
child due to’ the relationship—the court must decide whether it would be harmful to
the child to sever the relationship and choose adoption.” (Caden C., supra, 11 Cal.5th
at p. 633.) The court “decides whether the harm of severing the relationship outweighs
‘the security and the sense of belonging a new family would confer.’ ” (Ibid.; see
Autumn H., supra, 27 Cal.App.4th at p. 575.)
Mother asserts the evidence showed the visits were appropriate, and she was
attentive to his needs. She states that she “was someone he recognized in his life” and
simply concludes that “[t]his very young child will be harmed by eliminating Mother
from his life.” Father proffers no evidence regarding this third element, but instead
argues that the court erred when it considered the effects of uprooting the child from
the prospective adoptive parent, as well as the postadoption contact agreement. (See
post, § D.)
Mother’s and father’s interactions with the child do not even begin to
demonstrate that their relationship with him promoted his well-being “to such a degree
14
as to outweigh the well-being the child would gain in a permanent home with new,
adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) Neither parent has
proffered any evidence to support a finding that the child had a “substantial, positive
emotional attachment such that the child would be greatly harmed” if the relationship
was severed. (Ibid.) For this reason alone, the parental benefit exception is clearly
inapplicable. While the evidence showed the parents visited regularly, were attentive
to his needs, played with the child, and enjoyed the visits, the social worker described
the child’s response to the parents as being that he “appears to recognize them.” At
best, mother’s and father’s supervised interactions with the child “amounted to little
more than playdates for him with . . . loving adult[s].” (In re Bailey J. (2010) 189
Cal.App.4th 1308, 1316.) Furthermore, their visits did not necessarily promote the
child’s well-being, but were actually detrimental at times. The evidence showed the
child experienced distressing emotions following visits with the parents. The
prospective adoptive mother reported that the child’s demeanor would completely
change as he entered the room for the visits at the DPSS office, as if he knew what was
going to occur. Then after the visits, he would struggle with crying, or his sleep would
be affected.
In contrast, the evidence showed the child was bonded with the prospective
adoptive mother. The social worker stated that he “clearly leans towards the
prospective adoptive mother as his primary attachment figure,” and observed that “it is
clear by [the child’s] demeanor that he is bonded and attached to his prospective
adoptive mother and to the extended family.” As the court noted, the child was
15
approximately two months old when he was placed in the prospective adoptive home,
and by the time of the section 366.26 hearing, he had lived there for over one year.
The prospective adoptive mother provided excellent care and a warm, consistent, and
calm environment for the child. She was committed to adopting him and to meeting
all his needs.
Ultimately, mother and father failed to meet their burden of showing that the
child had a substantial, emotional attachment to them such that terminating the
relationship would be detrimental to him when balanced against the benefit of an
adoptive home. (Caden C., supra, 11 Cal.5th at p. 636.) Therefore, the court properly
declined to apply the beneficial parental relationship exception under section 366.26,
subdivision (c)(1)(B)(i).
D. The Court Did Not Commit Reversible Error
Mother claims the court improperly focused on whether she “acted as a parent”
compared to the prospective adoptive mother, whom the child viewed more as his
parent. Father similarly argues that the court improperly considered the effects of
uprooting the child from the prospective adoptive mother. He asserts that the court
should have focused on the impact on the child of the loss of the parent-child
relationship, rather than the impact on him of the loss of the relationship with the
prospective adoptive mother.
In support of her argument, mother cites In re L.A.-O. (2021) 73 Cal.App.5th
197 (L.A.-O.), in which the trial court found the parental-benefit exception did not
apply, partly because the parents “ha[d] not acted in a parental role in a long time” and
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partly because the prospective adoptive parents “ha[d] been acting in a parental role.”
This court noted that Caden C. did not use the words “parental role,” and because the
trial court used the terminology “parental role,” we could not tell whether its ruling
conformed with Caden C. Thus, we remanded the matter for reconsideration of the
parental-benefit exception. (L.A.-O., at p. 202.)
Here, the court’s statements should be read in context. After acknowledging
the parents had visited the child consistently and appropriately, the court stated: “I’d
countervailingly also note that the child has been placed in its current placement for
over a year at this time, since the child was approximately two and a half months old.
That home and those parents are the parents that the child knows best at this time, and
there is a substantial benefit to the minor in not uprooting its life as well. . . . [¶] So
while I do believe that there are benefits to be had for maintaining a relationship with
the parents, I do not believe that those benefits outweigh the benefit of permanency for
such a young child who is not at this time even two years old.” Contrary to mother’s
claim, the court did not focus on whether she was “acted as a parent” compared to the
caretakers, and it did not use the words “parental role,” as in L.A.-O. Rather, the court
properly assessed the parents’ visitation and their relationship with the child and
considered whether any harm would come from losing that relationship. (Caden C.,
supra, 11 Cal.5th at p. 640.) It further properly considered “how a prospective
adoptive placement may offset and even counterbalance those harms.” (Ibid.)
Moreover, contrary to father’s claim that the court erred in considering the effects of
uprooting the child from the caregiver, the court properly considered whether “the
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relationship [with him and mother] promote[d] the well-being of the child to such a
degree as to outweigh the well-being the child would gain in a permanent home with
new, adoptive parents.” (Autumn H., 27 Cal.App.4th at p. 575, italics added.)
Although the court did note that the child was thriving with the prospective adoptive
parent, the court’s analysis focused on balancing the termination of the parental
relationship against the benefits of permanency the child would gain in an adoptive
home. This was not error.
Mother also claims that the trial court committed reversible error in relying on
“a potential unenforceable [postadoption] contract with the caretakers to allow
ongoing contact.” Father joins in this argument. However, the court did not base its
decision to terminate parental rights on the prospective adoptive parent’s willingness
to allow visitation post adoption. (See S.B., supra, 164 Cal.App.4th at p. 300.)
Rather, the court first found that the beneficial parental exception did not apply, and
then it ordered the Department to “make inquiries with the prospective adoptive
parent[] regarding a postadoption contract and ongoing contact” between the parents
and the child. Thus, there was no reversible error.
To the extent mother and father join in each other’s briefs, we also affirm the
court’s judgment. Accordingly, we need not address their argument that if each
other’s parental rights are reinstated, theirs should be as well.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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