Dept. of Human Services v. T. D. G.

465
Submitted October 10, reversed and remanded December 18, 2019
In the Matter of N. A. G.,
a Child.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Respondent,
v.
T. D. G.,
aka T. D. G.,
Appellant.
Lane County Circuit Court
17JU08577; A170989
455 P3d 591
In this juvenile dependency case, father appeals the juvenile court’s denial of
his motion to dismiss jurisdiction. The juvenile court asserted jurisdiction over
father’s son, N, in October 2017, based on threats of harm to N from father’s phys-
ical abuse of N’s older brother J, father’s use of physical discipline, and father’s
driving behavior. In March 2019, father moved to dismiss jurisdiction as to N,
arguing that there was no evidence that the conditions that initially endangered
N persisted. The juvenile court denied the motion. Father appeals. Held: The trial
court erred in denying father’s motion. The state did not meet its burden to prove
that the factual bases for jurisdiction continue to pose a current threat of serious
loss or injury to N that is reasonably likely to be realized.
Reversed and remanded.
Ilisa Rooke-Ley, Judge.
G. Aron Perez-Selsky filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
AOYAGI, J.
Reversed and remanded.
466 Dept. of Human Services v. T. D. G.
AOYAGI, J.
In this juvenile dependency case, the juvenile court
asserted jurisdiction over father’s son, N, in October 2017,
based on threats of harm to N from father’s physical abuse
of N’s older brother, father’s use of physical discipline, and
father’s driving behavior.1 In March 2019, father moved to
dismiss jurisdiction, arguing that there was no evidence
that the conditions that initially endangered N persisted.
The juvenile court denied the motion. Father appeals.
Because we agree with father that the state did not meet
its burden to prove that the factual bases for jurisdiction
continue to pose a current threat of serious loss or injury to
N that is reasonably likely to be realized, we conclude that
the trial court erred in denying father’s motion and, accord-
ingly, reverse.
FACTS
“[W]e view the evidence, as supplemented and but-
tressed by permissible derivative inferences, in the light
most favorable to the juvenile court’s disposition and assess
whether, when so viewed, the record was legally sufficient to
permit [the] particular outcome.” Dept. of Human Services v.
J. M., 275 Or App 429, 431, 364 P3d 705 (2015), rev den, 358
Or 833 (2016) (internal quotation marks omitted). We state
the facts in accordance with that standard.
N lived with father, mother, and older brother J
until he was two years old. When N was two, father was
incarcerated. For several years thereafter, N alternated
between living with his maternal grandparents and living
with mother. Since age five, N has lived with his maternal
grandparents.
When N was seven years old, father was released
from prison and moved to Eugene. Six months later, J, who is
two years older than N, moved in with father. N continued to
live with his maternal grandparents in nearby Springfield.
From ages seven to 10, N visited father on a regular basis.
1
The juvenile court also asserted jurisdiction over N on several bases
regarding mother, but mother is not a party on appeal, so we do not discuss those
bases.
Cite as 301 Or App 465 (2019) 467
When N was 10, father finished college and got a job
in Bend. He and J moved to Bend. Father had planned for N
to move to Bend too, but N was seeing a therapist (for atten-
tion deficit hyperactivity disorder and trauma), and both the
therapist and N’s grandparents suggested that father wait
to move N. N therefore continued living with his grandpar-
ents in Springfield. After father’s move, N’s visits with his
father were less frequent. Father and J eventually moved
from Bend to Redmond.
In October 2017, when N was 12 years old, DHS
became involved with the family after N told his therapist
about two incidents. First, N told his therapist that father
had smoked marijuana and driven erratically with N in the
car. Second, N told his therapist that, during a road trip in
July or August 2017, father had thrown J up against a car,
put his hand around J’s throat, and “lift[ed] him up.” Upon
learning what N told his therapist, DHS removed J from
father’s home.
The juvenile court subsequently asserted jurisdic-
tion over both J and N. As to N, the court held a jurisdictional
hearing in January 2018. It determined that it had juris-
diction over N on three bases regarding father: (1) “father
physically abused his older son, and represents a threat of
harm to the child”; (2) “father’s use of physical discipline
represents a reckless disregard to injury and represents a
threat of harm to the child”; and (3) “father’s driving behav-
ior while under the influence of marijuana frightens the
child, and represents a threat of harm.” N continued to live
with his maternal grandparents as his DHS placement.
In connection with asserting jurisdiction, the court
ordered father to engage in certain services: (1) “[p]articipate
in and successfully complete a DHS/CWP approved parent
training program, sign releases of information, and demon-
strate skills learned in the program”; (2) “[m]aintain safe
and stable housing as approved by DHS/CWP”; (3) “[p]artic-
ipate in and successfully complete a comprehensive psycho-
logical evaluation with a DHS/CWP approved provider, sign
releases of information, and follow services recommended
from the evaluation”; (4) “[p]articipate in and successfully
complete a substance abuse evaluation with a DHS/CWP
468 Dept. of Human Services v. T. D. G.
approved provider, sign releases of information, follow any
and all recommendations for treatment and demonstrate a
drug-free lifestyle”; and (5) “[p]articipate in therapeutic ser-
vices with the child as recommended by the child’s thera-
pist.” DHS gave father a letter of expectation outlining the
services ordered by the court and a timeline for working
toward the return of N and J.
Father engaged in services of the type ordered, but
he did not comply with aspects of the court’s order, particu-
larly as related to DHS approvals and information releases.
Father completed two parenting programs focused on teen-
agers that had been recommended by the Deschutes County
DHS office; father testified that those programs were useful
but generalized for a group setting, and the court described
his attitude toward them as “unenthusiastic.” Father par-
ticipated in a substance abuse evaluation, which indicated
that there was no need for substance abuse services. Father
engaged in individual counseling. And father participated
in a psychological evaluation. The psychological evaluator
issued a report stating that she saw “no indication that
[father] is an angry, impulsive, or controlling individual”
and that, although father could benefit from continued indi-
vidual counseling, she did not recommend any services for
father.
According to DHS, none of the foregoing services
were approved by DHS, nor did father sign information
releases for DHS. In general, father has been “open” (in the
DHS caseworker’s words) about his negative feelings toward
DHS and has indicated his belief that DHS should not be
involved in his family and has “kidnapped” his child.2
In July 2018, after father had engaged in the
above-described services, J returned home to father. Father
worked with a DHS-recommended family builder to develop
a transition plan for J. Father had a good relationship with
2
It appears that father’s negative feelings toward DHS take the form of both
noncooperation (as discussed above) and at least occasional outright hostility.
For example, after the hearing at which the juvenile court asserted jurisdiction
over J and N, father told the DHS caseworker to “f-off,” called a Child Protective
Services worker “the c-word,” and “flipped off” the caseworker and the CPS
worker as he left. According to father, his reluctance to work with DHS is because
he is scared of DHS.
Cite as 301 Or App 465 (2019) 469
the family builder, despite the connection to DHS. The fam-
ily builder’s report contained positive statements about
father but also indicated that father, while understanding
the safety concerns identified by DHS, minimized their
effect on his children and had unpredictable responses to
feedback or suggestions. In any event, J returned home and
has lived with father since July 2018. According to J, since
returning home, father’s discipline usually consists of father
sending J to his room and then talking to J about what he
did wrong, and there is “[a] lot less voice-raising” than there
was before the DHS removal. The juvenile court terminated
its jurisdiction over J in November 2018.
N has not seen father much since the juvenile
court took jurisdiction of him. Between October 2017 and
January 2019, N and father had five visits. The last visit
was in January 2019, when father, J, and N took a ski
trip. N describes that trip as “fun.” Nothing about father’s
demeanor on that trip worried N. N does not recall whether
father ever raised his voice during the ski trip.
After the ski trip, in February 2019, a DHS case-
worker told father that DHS would not allow N to visit father
until DHS saw father’s home. Father was unwilling to tell
DHS his and J’s address. Father sent a text to N: “Sounds
like we won’t see each other until you’re 18. I’m not work-
ing with that piece-of-shit liar [a specific DHS caseworker]
or your lousy grandparents. They can all fuck off. So good
luck, dude, I’ll see you in five years. Love you.” N remem-
bers receiving that text but “really do[es]n’t know” how it
made him feel. Father testified that he realizes that the text
“probably hurt [N’s] feelings.”
In March 2019, when N was 14 years old, father
moved to dismiss jurisdiction over N. The juvenile court
held a hearing on the motion in April.3 DHS called the DHS
caseworker, N, N’s therapist, and N’s grandmother to tes-
tify. Father called himself, his girlfriend, J, and the DHS
caseworker.
3
Father made his motion to dismiss in conjunction with a permanency hear-
ing. Only the ruling on the motion to dismiss is before us on appeal, so we limit
our discussion to the motion to dismiss.
470 Dept. of Human Services v. T. D. G.
As relevant here, N testified that he wants to see
father once or twice a month but to continue living with his
grandparents. He feels like his grandparents are his parents,
and their home is “basically the only home [he’s] known.”
N does not want to move from Springfield to Redmond to
live with father, because he would have to “move counties,”
“wouldn’t have any friends there,” and “wouldn’t really know
anyone.” Also, N “like[s] living with [his] grandparents.” He
“do[es]n’t really have, like, a relationship with [his] dad.”
N’s primary concern about living with his father is that “I
don’t really know him at all. We don’t really hang out a lot.”
As noted, the last time N saw father was on the ski trip
in January, which was “fun.” Asked if he recalled whether
father had ever raised his voice during that trip, N could
not recall him doing so. Asked if it scares him when father
raises his voice, N said that it does “[a] little bit.”
N’s therapist testified that N had “reported to [her]
several times that he’s afraid to live with his dad; he doesn’t
want to live with his dad.” She did not indicate when N made
those statements. N’s therapist would not recommend joint
therapeutic sessions with N and father at this time—“[a]nd
the only reason is because [father] still has yet to take any
accountability for the things that have happened.” Asked
whether she had concerns about N moving in with father
without such therapeutic services, the therapist said that
she did: “My concerns are I fear, that given the number
of threats that [N] has reported to me that his father has
made, that eventually his dad is going to end up hitting him.
That’s my fear.” The therapist was not asked and did not
specify the nature of the referenced threats or when they
had been made or reported. When asked how she thought it
would affect N if he were removed abruptly from his grand-
parents’ home, the therapist said, “It would be extremely
traumatic. In my opinion it would traumatize him greatly.”
The DHS caseworker testified that N is developing
normally and has no special needs. N missed seven days of
school in the first quarter of the 2018-2019 school year, had a
D or F in four classes, and was suspended from school twice
in 2018 (once for making a “gun hand” gesture and once for
physically fighting a student with autism). With regard to
Cite as 301 Or App 465 (2019) 471
the services that father has participated in, father did not
obtain approval from DHS for those services. Father also
did not sign information releases, which prevented DHS
from providing background information to the instructors
and evaluators and communicating with them to ensure
they heard more than one “side of the story” and understood
what DHS hoped to address. Father did provide the psychol-
ogist with copies of the children’s petitions for jurisdiction,
shelter order, protective custody reports, screening reports,
and assessment summaries—and DHS would have provided
those same documents to a DHS-approved psychologist. The
caseworker did not criticize any of the services that father
received or the service providers, but he believed that they
would have been more effective if DHS had approved them
and had been able to communicate with the providers.
J testified that he is happy living with father.
Whereas his grandparents “never asked about homework”
and made it easy to get away with skipping school, father
helps him with homework, makes sure he goes to school on
time every day, and supports after-school activities. J under-
stands that N does not want to live with father the way that
J did, but he also thinks that grandparents’ home is not “a
great place for [N],” because N does not get help with home-
work, does not go outside, and “his fun is sitting in his room
and playing [video games] by himself.” As for father’s dis-
cipline methods, J testified that father does not use phys-
ical discipline, that father is not aggressive, and that he is
not afraid of father. Father uses nonphysical discipline and,
even as to that, there is “[a] lot less voice-raising” since he
returned home than there was before the DHS removal.
Father’s testimony about his current discipline
methods was consistent with J’s testimony. Father stated
that he endeavors to be more consistent, stops “talk-back”
right away instead of letting it happen a few times before
addressing it, and imposes consequences for misbehavior.
When J requires discipline, father sends J to his room and
then has a conversation with him about what he did wrong.
Father also takes away privileges from J and assigns chores
to J (for which he pays J) as discipline. J’s grades and school
attendance have improved dramatically since J moved
472 Dept. of Human Services v. T. D. G.
in with father. Father expressed frustration with how N’s
grandparents have handled N’s poor academic performance
and misbehavior at school. Father stated that he has high
standards for his children. He believes that there should be
consequences for poor behavior, whereas, in his view, N’s
grandparents “coddle” N and, when he misbehaves, just tell
him to “[g]o to [his] room and play video games.”
Father further testified that he understands that
N prefers living with his grandparents. However, father
“believe[s] that [his] parenting and [his] moral values have
a heavier weight [than N’s] choice of what he wants.” In
father’s view, N “doesn’t know what’s best for him.” J also
“didn’t want to leave his friends” and “didn’t want to do all
this stuff,” but, now, “[J] realizes that [moving] was a better
choice for him.” Father concluded, “What I want for [N] I
know he’s going to turn out to be a better person than on the
road he’s going right now.” If N moves to Redmond, father
intends to have a “long transition plan,” which includes
having N spending every other weekend with his maternal
grandparents so that he can maintain that relationship.
The juvenile court took the matter under advise-
ment at the conclusion of the hearing and, ultimately, denied
father’s motion to dismiss jurisdiction. Father appeals.
ANALYSIS
Under ORS 419B.100(1)(c), the juvenile court has
jurisdiction over a child “[w]hose condition or circumstances
are such as to endanger the welfare” of the child. The ques-
tion is whether, “under the totality of the circumstances,
there is a reasonable likelihood of harm to the welfare of the
child.” Dept. of Human Services v. A. R. S., 258 Or App 624,
633, 310 P3d 1186 (2013), rev dismissed, 2014 WL 5462426(2014). “[I]n order for a juvenile court to take jurisdiction
over a child on the ground that the child is endangered, the
state must establish both that the child is at risk of a cer-
tain severity of harm and that there is a reasonable likeli-
hood that the risk will be realized.” Dept. of Human Services
v. S. D. I., 259 Or App 116, 121, 312 P3d 608 (2013). “To do
so, the state must present evidence about both the severity
of the harm and the likelihood that it will occur.” Id.Cite as 301 Or App 465 (2019) 473
Once the court has taken jurisdiction, “[f]or the
court to maintain jurisdiction, the jurisdictional bases—i.e.,
the conditions or circumstances—must continue to pose a
current threat of serious loss or injury, and there must be
a reasonable likelihood that the threat will be realized.”
A. R. S., 258 Or App at 633-34. That is, “the conditions or
circumstances must present a threat of danger—i.e., serious
loss or injury—that is current and not speculative.” Id. at 634(emphasis added). “A wardship cannot continue if the juris-
dictional facts on which it was based have ceased to exist.”
Dept. of Human Services v. J. M., 260 Or App 261, 267, 317
P3d 402 (2013).
Importantly, if a parent moves to dismiss jurisdic-
tion while a child’s permanency plan is reunification, the
burden of proof is on DHS, not the parent, to show that the
conditions or circumstances giving rise to jurisdiction still
exist. Dept. of Human Services v. T. L., 279 Or App 673, 687,
279 P3d 741 (2016); see also J. M., 260 Or App at 267 (“DHS
has the burden of showing that the conditions that were
originally found to endanger the child persist.”). Specifically,
“DHS must show, by a preponderance of the evidence, that
the factual bases for jurisdiction persist to the degree
that they pose a current threat of serious loss or injury
that is reasonably likely to be realized.” J. M., 260 Or App
at 267.
In this case, there were three jurisdictional bases
at issue when father moved to dismiss jurisdiction: father’s
physical abuse of J, father’s use of physical discipline, and
father’s driving behavior. We begin with the last basis.
In opposing father’s motion to dismiss, DHS presented no
evidence regarding father’s current driving behavior or
marijuana use, and, in denying father’s motion to dismiss,
the court did not mention or make any findings regarding
father’s current driving behavior or marijuana use. On
appeal, the state makes no substantive mention of that
jurisdictional basis. Therefore, it is undisputed that DHS
failed to prove any continued risk of harm to N from father’s
driving behavior related to marijuana.
We next turn to the court’s findings and conclusions
regarding physical abuse of J and use of physical discipline.
474 Dept. of Human Services v. T. D. G.
In denying father’s motion, the court found “that the condi-
tions that initially endangered the child persist and pose
a threat of harm; particularly the Father’s use of physical
discipline and his disregard for how that represents a threat
of harm to the child.” (Emphasis added.) The court further
noted that father “continued to deny” having choked J in
2017 and “refuses to acknowledge any deleterious effect”
on N.
The difficulty with the court’s ruling as it pertains
to physical discipline is that it depends on father’s ongoing
“use of physical discipline,” but there is no evidence that
father has continued to use physical discipline or is likely
to do so in the future. Although father disputed having used
inappropriate physical discipline prior to DHS’s removal of
J, father agreed with the family builder not to use any phys-
ical discipline when J returned. The only evidence is that he
has complied with that condition. On this record, the last—
if not only—incident of physical abuse or physical discipline
against J occurred in July or August 2017. At the time of the
hearing, J had been back home and living with father for
approximately eight months—including five months with no
DHS involvement—during which there was no evidence of
a single incident of father physically disciplining or physi-
cally abusing J. To the contrary, father, father’s girlfriend
(who lives with father and J), and J all testified that father
has only used nonphysical discipline since J returned home.
That is particularly significant since there is no evidence
that father has ever used physical discipline against N or
physically abused N.
As for father’s refusal to admit to choking J, that is
something that N’s therapist, DHS, and the juvenile court
all focused on. On appeal, DHS argues that father’s refusal
to admit to choking J (as the juvenile court found that he
did when taking jurisdiction) has “prevented [father] from
learning and implementing ways in which he could prevent
that kind of escalation with [N] in the future.” While it is no
doubt beneficial for parents in juvenile dependency actions
to take full responsibility for their past actions, a parent’s
unwillingness to admit to every fact found by the juvenile
court, or failure to take full responsibility for past actions,
Cite as 301 Or App 465 (2019) 475
does not in and of itself give the court jurisdiction over a
child. Rather, as we have said before, “[e]vidence that a par-
ent has not fully acknowledged the extent or consequences
of his or her past endangering conduct can be a basis for con-
tinued jurisdiction only if there is evidence that the parent’s
failure to do so makes it likely that the parent will engage in
the conduct again.” Dept. of Human Services v. L. C., 267 Or
App 731, 743, 343 P3d 645 (2014) (emphasis added).
In this case, there is no evidence that would allow
a determination that, “under the totality of the circum-
stances, there is a reasonable likelihood” that father will
physically abuse J again or use physical discipline again
unless he admits to choking J in July or August 2017.
A. R. S., 258 Or App at 633. At the time of the hearing, J had
been living with father for eight months, and the only evi-
dence was that father has changed his disciplinary methods
since receiving services and now relies exclusively on non-
physical discipline in disciplining J. The DHS caseworker
testified that he had “no safety concerns” about J living with
father. Indeed, even as to nonphysical discipline, J reports
“[a] lot less voice-raising” since he returned home.4
In concluding that continued jurisdiction was war-
ranted, the court emphasized differences between J and
N, particularly their “different ages,” “different placement
preferences,” and “different dispositions.” J was willing to
return home to father, while N did not want to. N is “a sensi-
tive child [who] tends to be more open and affectionate than
his brother, [J],” and N had a “severe stress reaction” for two
weeks after testifying at the original jurisdictional hearing.
It would be “extremely traumatic” for N to return to father,
the court continued, citing N’s therapist’s testimony.
The issue before the court, however, was not
whether N preferred to live with his grandparents or his
father, or even which home would be “better” for him. The
4
To the extent that DHS argues on appeal that father’s new nonphysical dis-
cipline methods may be less effective with N than they have been with J, because
N is more “sensitive” than J, and could result in “serious emotional, behavioral,
and possibly physical consequences for [N],” that argument tends toward the
speculative on this record. In any event, the argument is inconsistent with the
bases of jurisdiction, which pertain to physical abuse of J and the use of physical
discipline.
476 Dept. of Human Services v. T. D. G.
only issue was whether the conditions or circumstances that
gave rise to jurisdiction continued to pose a risk of serious
loss or injury to N that was reasonably likely to be realized.
The conditions or circumstances at issue in this case are
father’s physical abuse of J and father’s use of physical disci-
pline. The fact that N is two years younger than J, prefers to
continue living with his grandparents, and is more sensitive
than J has little or nothing to do with the likelihood that, if
N moves in with father, father will physically abuse J or use
physical discipline against J or N.5
Lastly, in denying father’s motion, the juvenile
court referenced father’s hostility toward DHS, his blam-
ing of N’s grandparents, his failure to obtain DHS approval
for services he received, and his failure to sign releases of
information to DHS. Hostility towards DHS is not itself a
basis to continue jurisdiction. Cf. State ex rel Dept. of Human
Services v. Smith, 338 Or 58, 83-84, 106 P3d 627 (2005) (in
a parental-rights-termination case, the existence of hostility
towards DHS “did not, without more, constitute evidence of
a condition seriously detrimental to the child” (emphasis in
original)). Nor does failure to fully comply with the court’s
order as to services, in and of itself, allow the court to con-
tinue jurisdiction. Rather, again, it was DHS’s burden to
prove that the circumstances or conditions that gave rise to
jurisdiction continue to pose a serious risk of injury or loss
to N that is reasonably likely to be realized. If they do not,
the fact that father failed to fully comply with the court’s
order, was uncooperative with DHS, and expressed dissat-
isfaction with some aspects of grandparents’ parenting does
not permit continued jurisdiction.
As we said in J. M., “[w]hen a parent has partici-
pated in some services, yet there is concern that the par-
ent has not internalized better parenting techniques, the
5
We note that, in this case, the juvenile court has never asserted jurisdic-
tion over N on the basis that father lacks a relationship with N and needs DHS’s
assistance to establish such a relationship. Although N has not lived with father
for many years, that was not one of the original grounds of jurisdiction over N,
nor did DHS seek to amend the petition to add allegations regarding father’s rela-
tionship with N (or lack thereof). As such, the court was limited to considering
the existing jurisdictional bases. Dept. of Human Services v. C. L. M., 300 Or App
603, 605, 454 P3d 28 (2019).
Cite as 301 Or App 465 (2019) 477
dispositive question is not what a parent believes, but what
that parent is likely to do. In such circumstances, legally
sufficient evidence links the lack of insight to the risk of
harm.” J. M., 275 Or App at 441 (emphasis in original; inter-
nal quotation marks, brackets, ellipses, and citations omit-
ted). Here, although father may still dispute what exactly
he did to J in July or August 2017, the only evidence is that
father agreed with the family builder to stop using any
physical discipline, has in fact stopped using physical disci-
pline, and has only used nonphysical discipline in the eight
months since J returned home. The DHS caseworker him-
self testified that he had “no safety concerns” for J, and the
court noted at the hearing that it “underst[oo]d that [father]
is parenting [J] now and it’s going great.”
The court’s determination that N nonetheless con-
tinued to be at current risk of serious harm from father’s
physical abuse of J and use of physical discipline, and that
such harm was reasonably likely to be realized, cannot be
squared with the evidentiary record. DHS argues that “a
parent’s ability to safely care for one child is not determina-
tive of whether other children can safely be returned home.”
That is certainly true, but, in this case, the first jurisdic-
tional basis pertains to father’s physical abuse of J, so N’s
safety is inextricably linked to J’s as to that jurisdictional
basis—and it appears to be undisputed that J is no longer at
risk of physical abuse by father (or at least not a risk that is
reasonably likely to be realized). As to father’s use of phys-
ical discipline, there is no evidence—nor does DHS explain
why it would be the case—that father is more likely to phys-
ically discipline N, whom he has never previously physically
disciplined (based on this record), than J, whom father has
previously physically disciplined. The undisputed evidence
that father no longer physically disciplines J—and had not
for at least eight months at the time of the hearing on father’s
motion—is therefore directly relevant to the risk to N in this
particular case and in these particular circumstances.
Although it is possible that father could physically
abuse J again, or that he could resume the use of physical
discipline in the future, the record in this case was insuffi-
cient for the court to determine that father’ physical abuse
of J and use of physical discipline continue to pose a current
478 Dept. of Human Services v. T. D. G.
threat of serious loss or injury to N that is reasonably likely
to be realized. Accordingly, we reverse the trial court’s
denial of father’s motion to dismiss jurisdiction.
Reversed and remanded.