Filed 4/15/16 In re Sawyer H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re SAWYER H., a Person Coming Under the Juvenile Court Law.

D068801

SAN DIEGO COUNTY HEALTH AND

HUMAN SERVICES AGENCY,

(Super. Ct. No. EJ3849A) Plaintiff and Respondent,

v.

MICHELLE H.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Gary M.

Bubis, Judge. Affirmed.

Michelle D. Peña, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Daniela Davidian, Deputy County Counsel, for Plaintiff and Respondent.

Neil R. Trop, under appointment by the Court of Appeal, for Minor. Michelle H. contends that the juvenile court's finding that she was offered or

provided reasonable family reunification services is not supported by substantial

evidence, and that she is entitled to six additional months of services. The San Diego

County Health and Human Services Agency (the Agency) asserts that this court need not

reach the merits of Michelle's arguments because the juvenile court did not have legal

authority at the six-month review hearing to terminate reunification services and select a

permanent plan of long-term foster care for Michelle's son, Sawyer H., and therefore,

reversal is required on procedural grounds. Sawyer, who became a nonminor dependent

during the course of this appeal, states that he does not wish to reunify with his mother

and asks this court to dismiss the appeal as moot under Welfare and Institutions Code

section 361.6.1

We deny Sawyer's request to dismiss the appeal as moot. While section 361.6

may apply in this case, the statutory scheme vests the decision whether to provide further

reunification services to a parent of a nonminor dependent in the juvenile court.

We reject the argument that reversal is required because the juvenile court lacked

authorization to terminate reunification services at the six-month review hearing. The

parties have forfeited the issue of whether Sawyer was a member of a sibling group, as

defined in section 361.5, subdivision (a)(1)(C), by failing to raise the issue at trial. Thus,

the juvenile court had the authority to terminate reunification services at the six-month

hearing under section 366.21, subdivision (e)(3). We agree with the Agency that the

1 Statutory references are to the Welfare and Institutions Code. 2 juvenile court acted in excess of its jurisdiction when it selected a permanent plan of

another planned permanent living arrangement (APPLA) for Sawyer at the six-month

hearing; however, we conclude that the error does not require reversal.

We further conclude that the Agency did not use best practices to provide

therapeutic services to Sawyer after the dispositional hearing, but that there is substantial

evidence to support the finding that reasonable family reunification services were offered

or provided to Michelle. Accordingly, we affirm the reasonable services finding.

FACTUAL AND PROCEDURAL BACKGROUND

Michelle H. is the mother of Sawyer H., who is now 18 years old, and Olivia S.,

who is now two years old.2 Sawyer does not know his father. From 2010 to 2014, the

Agency received 14 referrals alleging that Sawyer, and later, Olivia, were at substantial

risk of harm due to Michelle's mental health condition. Michelle believed that there was

a conspiracy against her family, that there were listening devices in the walls of her

home, and that her family was being stalked.

Michelle's mental health deteriorated in 2013 and 2014. She refused to allow

Sawyer to attend school or to leave home without her. During interviews with social

workers, Sawyer presented with a flat affect and displayed no emotion. When a doctor

diagnosed Sawyer with depression, Michelle accused the doctor of being part of the

conspiracy against her.

2 Olivia was also adjudicated a dependent of the juvenile court but is not a subject of this appeal. She is mentioned only where relevant to the issues on appeal. 3 During a child protective investigation in November 2014, Sawyer told a social

worker, "I do nothing, stare and sit and sleep all day." He said that he had never had any

friends. While Michelle was talking to the social worker about the conspiracy against

her, 16-year-old Sawyer came out of his bedroom, sat down next to the social worker,

and began to cry.

The Agency filed a petition under section 300 alleging that as a result of

Michelle's paranoia, Sawyer's physical and emotional health was deteriorating, and he

was at substantial risk of harm. Michelle was hospitalized for three weeks after the

detention hearing. Doctors diagnosed her condition as paranoid schizophrenia and

prescribed an antipsychotic medication for her.

The Agency detained Sawyer in a foster home. The social worker observed that

Sawyer was happy, friendly and engaged. He was doing well in a transition program to a

regular high school. When the social worker tried to set up visitation between Michelle

and Sawyer, Sawyer said that he did not want to have in-person visits with his mother

until she was more stable, but was willing to talk with Michelle by telephone twice a

week. During her telephone calls, Michelle told Sawyer that his foster family was going

to hurt him, and that the Agency and the foster family were part of the conspiracy against

her. After several weeks, Sawyer decided that Michelle's mental health condition was not

improving and he refused to talk to Michelle.

By the time of the disposition hearing in February 2015, Sawyer and Olivia were

living in separate foster care homes. The Agency did not intend to place the siblings

together in a permanent home if reunification efforts failed. Michelle's case plan required

4 her to engage in individual therapy, meet regularly with her psychiatrist, complete two

psychological evaluations, and participate in a parenting education program. The

juvenile court ordered the Agency to provide individual therapy to Sawyer, and conjoint

therapy to Sawyer and Michelle, when therapeutically appropriate.

The social worker had difficulty locating a therapist who could accommodate

Sawyer's school schedule. Shortly before the disposition hearing, the social worker

referred Sawyer to a therapist. However, Sawyer's foster parents found it difficult to

transport him to that therapist, and they had difficulty locating another therapist from the

list provided by the social worker.3 As a result, Sawyer did not begin therapy until May,

approximately three months after the disposition hearing.

Michelle participated in a psychological evaluation with Francesca Lehman,

Psy.D. Lehman diagnosed Michelle's mental health condition as Delusional Disorder,

Persecutory Type, Continuous and Anxiety Disorder Not Otherwise Specified (NOS).

Lehman considered, but did not make, a diagnosis of Paranoid Personality Disorder.

Lehman said that Michelle was not incapable of utilizing reunification services, but that

her mental health condition severely impaired her ability to benefit from such services.

Michelle participated in a second psychological evaluation with Walter J. Litwin,

Ph.D. He diagnosed her mental health condition as Posttraumatic Stress Disorder,

Psychotic Disorder NOS, Rule Out Delusional Disorder, Persecutory Type, and Paranoid

Personality Disorder. Litwin said that, with medication, Michelle had made modest

3 There was a change in social workers after the disposition hearing. 5 improvement in her mental health condition in the last six months, but she continued to

suffer from symptoms of severe mental illness. Michelle's paranoid character traits

impeded her ability to benefit from reunification services.

Brenda Mack, M.F.T., provided therapeutic services to Michelle from March to

May 2015. Mack said that Michelle had fixed delusions that did not change. Those

delusions impacted Michelle's ability to function. In her final report, Mack said that

Michelle's condition required "consistent, long-term therapeutic intervention, which

could include a specialist in dealing with Paranoid Personality Disorder, Day Treatment

Program, and Medication Management, with a time frame beyond the mandates of the

Court." When Mack went on leave, the Agency referred Michelle to another therapist.

In reports prepared for the six-month hearing in July, the Agency asked the

juvenile court to terminate reunification services and select a plan of APPLA for Sawyer.

The social worker reported that he had asked Sawyer every month about his willingness

to have contact with his mother through in-person visits, cards and letters, or telephone

calls. Sawyer continued to refuse any form of contact with his mother, and did not want

to visit Olivia. He did not present as angry, scared, upset or agitated. Sawyer was doing

well in his foster home. He did not exhibit any symptoms of depression. Sawyer had

completed 11th grade at a regular high school. Sawyer's therapist said that unless Sawyer

wanted to engage in conjoint therapy with his mother, it would not be an appropriate

intervention.

The social worker reported that Michelle did not understand why the children had

been removed from her care. Michelle maintained that she was the victim of a

6 government conspiracy. Although Michelle consistently participated in therapy and other

services, her mental health condition showed little improvement. Michelle regularly saw

a psychiatrist for medication management.

At the conclusion of the contested six-month hearing, the juvenile court found that

return to Michelle's custody would create a substantial risk of detriment to Sawyer. The

court found that reasonable services had been provided and that Michelle had not made

substantive progress with her case plan. The court terminated reunification services on

the ground that Sawyer was a member of a sibling group with one member under three

years of age and ordered a permanent plan of APPLA for Sawyer.

DISCUSSION

I

The Appeal Is Not Rendered Moot by Section 361.6

Sawyer states that he does not wish to reunify with his mother and asks this court

to dismiss the appeal as moot under section 361.6. An appeal becomes moot when,

through no fault of the respondent, the occurrence of an event renders it impossible for

the appellate court to grant the appellant effective relief. (In re Esperanza C. (2008) 165

Cal.App.4th 1042, 1054.)

Section 361.6 governs the provision of reunification services for a nonminor

dependent. It states, in relevant part: "Notwithstanding any other law, the court may

order family reunification services to continue for a nonminor dependent, . . . if the

nonminor dependent and parent, parents, or legal guardian are in agreement and the court

finds that the continued provision of court-ordered family reunification services is in the

7 best interests of the nonminor dependent and there is a substantial probability that the

nonminor dependent will be able to safely reside in the home of the parent or guardian by

the next review hearing. ¶ If the nonminor dependent or parent, parents, or legal

guardian are not in agreement, or the court finds there is not a substantial probability that

the nonminor will be able to safely reside in the home of the parent or guardian, the court

shall terminate family reunification services to the parents or guardian." (§ 361.6, subd.

(a).) Any motion to terminate court-ordered family reunification services for a nonminor

dependent prior to the hearing under section 366.31 shall be made under section 388,

subdivision (c). (§§ 361.6, subd. (c) (italics added), 366.31, subd. (d).)

Section 388, subdivision (b) provides, in relevant part, that any party, including a

nonminor dependent, may petition the court prior to the review hearing set pursuant to

section 366.31, subdivision (d), to terminate the continuation of court-ordered family

reunification services for a nonminor dependent who has attained 18 years of age. The

court shall terminate family reunification services if the nonminor dependent or parent

are not in agreement that the continued provision of court-ordered family reunification

services is in the best interests of the nonminor dependent. (§ 388, subd. (c)(4).) A

section 366.26 hearing shall not be ordered. Instead, the court may order an eligible

nonminor dependent to remain in a planned, permanent living arrangement. (§ 388, subd.

(c)(5).)

8 The record does not show that the juvenile court made any findings under sections

361.6 or 366.31, subdivision (d), as required under the statutory scheme.4 Thus, the

intervening event that would render this appeal moot has not occurred. As a reviewing

court, we cannot make the findings that are required under section 361.6. That is the

province of the juvenile court. (In re Zeth S. (2003) 31 Cal.4th 396, 405 [trial court

decides questions of fact; appellate court decides questions of law].)

II

The Issue of Whether Sawyer Was a Member of a Sibling Group Has Been Forfeited on Appeal

The Agency asserts that the juvenile court erred when it found that Sawyer was a

member of a sibling group, as defined in section 361.5, subdivision (a)(1)(C), (qualified

sibling group), and asks this court to reverse the orders terminating reunification services

and selecting a permanent plan of APPLA for Sawyer. The Agency implicitly contends

that the juvenile court's orders are contrary to statute, and subject to collateral attack as

4 The six-month review hearing, which was held on August 13, 2015, was the last review hearing before Sawyer reached the age of 18. The juvenile court did not provide the advisements required under section 366.31. "If a review hearing is the last review hearing to be held before the minor attains 18 years of age, the court shall ensure all of the following: (1) The minor's case plan includes a plan for the minor to satisfy one or more of the participation conditions described in paragraphs (1) to (5), inclusive, of subdivision (b) of Section 11403, so that the minor is eligible to remain in foster care as a nonminor dependent. (2) The minor has been informed of his or her right to seek termination of dependency jurisdiction pursuant to Section 391, and understands the potential benefits of continued dependency. (3) The minor is informed of his or her right to have dependency reinstated pursuant to subdivision (e) of Section 388, and understands the potential benefits of continued dependency." (§ 366.31, subd. (a); see also (§ 366.31, subd. (b) [describing the agency's reporting obligations at the review hearing that occurs in the six-month period prior to the minor's attaining 18 years of age, and at every subsequent review hearing for the nonminor dependent].) 9 having been made in excess of jurisdiction. " '[A]n act in excess of jurisdiction is valid

until set aside, and parties may be precluded from setting it aside by such things as

waiver, estoppel, or the passage of time.' " (In re Andres G. (1998) 64 Cal.App.4th 476,

482 (Andres G.).)

At the six-month review hearing, the Agency asserted that Sawyer and Olivia were

a qualified sibling group because Olivia was under three years of age and the children

could not be safely returned to their mother's care. The Agency asked the juvenile court

to terminate reunification services under section 366.21, subdivision (e), which permits

the juvenile court to terminate reunification services for all members of a qualified

sibling group, even those three years of age or older, at the six-month hearing for the

purpose of placing and maintaining a sibling group together in a permanent home.

(§ 361.5, subd. (a)(1)(C).)

Although the record does not contain any evidence to show that the Agency

intended to place the children together in a permanent home, Michelle did not object to

the finding that Sawyer was a member of a sibling group. (In re Dakota H. (2005)

132 Cal.App.4th 212, 222 [doctrine of forfeiture is intended to prevent a party from

standing by silently until the conclusion of the proceedings].) Thus, we conclude that the

Agency has forfeited its argument that the juvenile court was without authority to

terminate reunification services at the six-month review hearing.5

5 If a party wishes to terminate reunification services for a dependent child who was three years of age or older at the time of removal, and who is not a member of a qualified 10

III

The Juvenile Court Erred in Selecting APPLA at the Six-Month Review Hearing; The Error Does Not Require Reversal

At the six-month hearing, if the child is a member of a sibling group described in

section 361.5, subdivision (a)(1)(C), and the court finds by clear and convincing evidence

that the parent failed to participate regularly and make substantive progress in a court-

ordered treatment plan, the court may schedule a section 366.26 hearing within 120 days.

If the court finds that there is a substantial probability that the child may be returned to

his parent within six months or that reasonable services have not been provided, the court

shall continue the case to the 12-month permanency hearing. (§ 366.21, subd. (e)(1)(3).)

Section 366.21, subdivision (e), does not authorize the juvenile court to select and

implement a permanency plan, including APPLA, at the six-month review hearing. Thus,

the juvenile court's act is voidable. (In re Z.S., supra, 235 Cal.App.4th at p. 770.)

When a court with fundamental jurisdiction over the persons and subject matter in

question acts contrary to a statutory procedure or applicable rules, it does not act without

jurisdiction, but rather in excess of jurisdiction. (In re Angel S. (2007) 156 Cal.App.4th

1202, 1209.) " 'Acts in excess of jurisdiction are not void in any fundamental sense but

sibling group, the party is required to adhere to the requirements set forth in section 388, subdivision (c). (§ 361.5, subd. (a)(2).) Under section 388, subdivision (c), the court may terminate reunification services on a finding that there is a change of circumstance or new evidence that satisfies a condition under section 361.5, subdivision (b) or (e) [reunification bypass provisions] or that the action or inaction of the parent creates a substantial likelihood that reunification will not occur, and that reasonable services have been offered and provided. (§ 388, subds. (c)(1)(A) & (B), (c)(4).) If the court terminates reunification services prior to the 12-month review hearing, it must set a hearing under section 366.26 within 120 days. (§ 388, subd. (c)(5).) 11 are, at most, voidable if properly raised by an interested party.' " (In re Z.S. (2015) 235

Cal.App.4th 754, 770.) Thus, the juvenile court's order implementing a permanent plan

of APPLA at the six-month review hearing is voidable.

Reviewing courts have repeatedly allowed acts in excess of jurisdiction to stand

when the acts were beneficial to all parties and did not violate public policy. On the other

hand, courts have voided acts in excess of jurisdiction when the irregularity was too

great, or when the act violated a comprehensive statutory scheme or offended public

policy. (Andres G., supra, 64 Cal.App.4th at pp. 482-483.)

Upon terminating reunification services in Sawyer's case, the juvenile court should

have set a section 366.26 hearing within 120 days. At a section 366.26 hearing, if the

child is not adoptable and there is no one willing to accept legal guardianship, the court

must order the child to remain in long-term foster care. (§ 366.26, subd. (b)(7).)

Alternatively, the juvenile court could have set a permanency hearing under section

366.21, subdivision (f), which must be held no later than 12 months after the date the

child entered foster care. (Emphasis added.) At a permanency hearing, the juvenile court

has the authority to order that the child remain in foster care if a section 366.26 hearing

cannot be held before the child attains 18 years of age, or on a finding, by clear and

convincing evidence, that it is not in the child's best interest to hold a section 366.26

hearing because the child is not a proper subject for adoption and has no one willing to

accept legal guardianship. (§ 366.21, subd. (g)(5).)

There is no evidence in the record to show that Sawyer would have been adopted

in a reasonable time if parental rights were terminated or that there was someone willing

12 to accept legal guardianship. The juvenile court found that Sawyer was not able to safely

return to his mother's care. At the time of the six-month review hearing, the only feasible

option was Sawyer's continued placement in foster care. Thus, the court's order comports

with substantive aspects of the statutory scheme and public policy, and the irregularity is

not too great. In reaching this conclusion, we also consider that the juvenile court is

required to hold regular review hearings under sections 366.3 and 366.31, and must

review the propriety of a permanency plan of APPLA.

IV

The Record Shows that the Agency Offered or Provided Reasonable Family Reunification Services

Michelle contends that the juvenile court erred when it found that reasonable

services were provided. Michelle argues that she did not receive specialized therapeutic

services or a day treatment program, and that the Agency did not seek a third opinion

after receiving conflicting diagnoses of Michelle's mental health condition. She argues

that she was not properly medicated. Michelle also asserts that reunification was

impeded because the Agency did not provide therapy services to Sawyer for almost seven

months. Michelle argues that the juvenile court erred when it found that she had not

made substantial progress with her case plan because the evidence showed that the

Agency made it impossible for her to do so by failing to provide services that were

tailored to her mental health needs.

Family reunification services play a critical role in dependency proceedings.

(§ 361.5; In re Alanna A. (2005) 135 Cal.App.4th 555, 563; see 42 U.S.C. § 629a(a)(7).)

13 Services "may include provision of a full array of social and health services to help the

child and family and to prevent reabuse of children." (§ 300.2.) Reunification services

should be tailored to the particular needs of the family. (David B. v. Superior Court

(2004) 123 Cal.App.4th 768, 793-794.) The Legislature has charged the social services

agency with providing reasonable family reunification services. (In re Taylor J. (2014)

223 Cal.App.4th 1446, 1452 (Taylor J.).)

At each review hearing, if the child is not returned to his or her parent, the juvenile

court is required to determine whether "reasonable services that were designed to aid the

parent . . . in overcoming the problems that led to the initial removal and the continued

custody of the child have been provided or offered to the parent . . . ." (reasonable

services finding). (§§ 366.21, subds. (e) & (f), 366.22, subd. (a).) The adequacy of

reunification plans and the reasonableness of the Agency's efforts are judged according to

the circumstances of each case. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158,

1164.) To support a finding that reasonable services were offered or provided to the

parent, "the record should show that the supervising agency identified the problems

leading to the loss of custody, offered services designed to remedy those problems,

maintained reasonable contact with the parents during the course of the service plan, and

made reasonable efforts to assist the parents in areas where compliance proved

difficult . . . ." (In re Riva M. (1991) 235 Cal.App.3d 403, 414 (Riva M.).) " 'The remedy

for a failure to provide reasonable reunification services is an order for the continued

provision of services.' " (Taylor J., supra, 223 Cal.App.4th at p. 1453.)

14 We are not persuaded by the argument that Michelle did not receive reasonable

services because the Agency and the court did not resolve the disparities between the

psychological evaluations, assess her medications, or provide her with specialized

therapeutic services or a day treatment program. The purpose of the two psychological

evaluations was to assess Michelle's ability to benefit from reunification services and to

safely parent her children. The evaluators' conclusions were similar. Litwin concluded

that Michelle's paranoid character traits impeded her ability to benefit from reunification

services. Lehman concluded that Michelle's mental health condition severely impaired

her ability to benefit from reunification services.

Michelle does not show that resolution of the differences in the evaluators'

assessments of her mental health condition was necessary in order for her to receive

appropriate psychiatric care and medication. We presume that the psychiatrist who was

regularly treating Michelle drew his own conclusions about the most effective way to

treat her mental health condition. "Reasonable services" does not mean that the Agency

and the court are required to micromanage Michelle's psychiatric treatment. Indeed, it

would be inappropriate for a social worker or the court to interfere in the doctor/patient

relationship. We also reject the argument that the medication services provided to

Michelle were not reasonable under the circumstances.

Michelle argues that she did not receive reasonable therapeutic services because

therapist Mack recommended that Michelle see a therapist who specialized in treating

Paranoid Personality Disorder or participate in a Day Treatment Program. Michelle

misreads Mack's letter, which states that Michelle's condition required "consistent long-

15 term therapeutic intervention, which could include a therapist dealing with Paranoid

Personality Disorder, Day Treatment Program, and Medication Management, with a time

frame beyond the mandates of the Court." The social worker testified that Mack had

mentioned those options as possibilities, but that Mack never specifically recommended a

particular course of treatment. Mack said that Michelle was high functioning and that a

day treatment program would not be entirely appropriate for her. Both Mack and

Michelle's subsequent therapist were skilled in treating persons with personality

disorders. The record contains ample evidence to show that the Agency provided

reasonable therapeutic services to Michelle.

Michelle argues that the reasonable services finding is not supported by substantial

evidence because the Agency did not provide therapeutic services to Sawyer for almost

seven months after he was removed from Michelle's care. The record shows that the

Agency made diligent efforts to locate an appropriate therapist for Sawyer beginning

shortly after he was detained in protective custody. The social worker referred Sawyer to

a therapist only to learn that that therapist could not accommodate Sawyer's school

schedule. The record permits the reasonable inference that Sawyer's reintegration into a

school system with his peers was a priority. The social worker located another therapist

for Sawyer within a week and promptly submitted a referral to that therapist.

A new social worker was assigned to the case shortly after the February 3

dispositional hearing. The record does not show the timeline of the Agency's subsequent

efforts to provide therapy services to Sawyer. In reports prepared for the six-month

hearing, the social worker reported that the foster parents had difficulty transporting

16 Sawyer to the therapist to whom he had been referred in January.6 The social worker

provided four additional referrals to the foster parents, but none of those therapists could

see Sawyer within a reasonable time. The social worker made a referral to another

therapist on May 11, 2015. The social worker spoke to Sawyer's therapist on June 30,

who said that the therapy sessions had been focused on building the therapeutic

relationship and that Sawyer was not ready to process neglect. By the time of the six-

month review hearing, Sawyer had been receiving therapy for approximately three

months.

Michelle contends that visitation did not occur as a result of the delay in providing

therapeutic services to Sawyer. We are not persuaded by the argument that the delay in

providing therapy to Sawyer thwarted conjoint therapy between Sawyer and Michelle,

and prevented visitation. The record shows that Michelle's therapist said that Michelle

was not ready to begin conjoint therapy with Sawyer. To begin conjoint therapy, the

parent must be able to accept responsibility for neglecting his or her child. Michelle

refused to discuss the protective issues in the case with her therapists, insisting that she

and her children were victims of a conspiracy to harm them.

The Agency should have used better practices in promptly implementing Sawyer's

court-ordered therapy. However, the family reunification case plan properly focused on

6 In view of the difficulties in finding a therapist for Sawyer, it would have been the better practice to offer transportation assistance to Sawyer instead of waiting several more months to provide court-ordered therapy to him. The Agency is required to make reasonable efforts to assist the family in areas where compliance proves difficult, including providing transportation services. (Riva M., supra, 235 Cal.App.3d at p. 414.) 17 providing services to improve Michelle's mental health condition or, at minimum, her

understanding of her mental health condition. We acknowledge that the record shows

that Michelle diligently participated in services. Despite receiving ample services,

Michelle's difficult-to-treat mental health condition impeded her progress. Although we

are concerned about the Agency's delay in providing therapeutic services to a traumatized

child, the record contains substantial evidence to support the finding that under the

totality of the circumstances, the Agency offered or provided reasonable services that

were designed to aid the parent in overcoming the problems that led to the initial removal

and the continued custody of the child. (§ 366.21, subd. (e)(8).)

DISPOSITION

The order is affirmed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

18