Matter of C.C. C.J. C.M.C. , 2009 MT 153 ( 2009 )


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  •                                                                                       May 5 2009
    DA 08-0468
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    
    2009 MT 153
    IN THE MATTER OF:
    C.M.C., C.C., and C.J.,
    Youths in Need of Care
    APPEAL FROM:        District Court of the Eighteenth Judicial District,
    In and For the County of Gallatin,
    Cause Nos. DN 07-17B; DN 07-18B and DN 07-19B
    Honorable Mike Salvagni, Presiding Judge
    COUNSEL OF RECORD:
    For Appellant:
    Jim Wheelis, Chief Appellate Defender; Kelli S. Sather,
    Assistant Appellate Defender, Helena, Montana
    (Attorney for Appellant and mother, S.P.)
    For Appellee:
    Hon. Steve Bullock, Montana Attorney General; Mark W. Mattioli
    Assistant Attorney General, Helena, Montana
    Marty Lambert, Gallatin County Attorney; Deborah Pratt, Deputy County
    Attorney, Bozeman, Montana
    Submitted on Briefs: March 4, 2009
    Decided: May 5, 2009
    Filed:
    __________________________________________
    Clerk
    Chief Justice Mike McGrath delivered the Opinion of the Court.
    ¶1     This is an appeal by S.P. (the mother) from the August 19, 2008 order of the District
    Court of the Eighteenth Judicial District, Gallatin County, the Hon. Mike Salvagni,
    terminating her parental rights to her minor children C.M.C., C.C., and C.J. We affirm.
    ¶2     The mother presents issues for review that we restate as follows:
    ¶3     Issue One: Whether the District Court erred in concluding that the State met the
    statutory criteria for terminating the mother’s parental rights.
    ¶4     Issue Two: Whether the mother was denied effective assistance of counsel.
    PROCEDURAL AND FACTUAL BACKGROUND
    ¶5     The mother’s children are C.M.C., a boy born in 2003; C.C., a girl born in 2004 with
    cerebral palsy; and C.J., a boy born in 2006. In March, 2007, the Department of Health and
    Human Services (DPHHS) petitioned the District Court to authorize emergency protective
    services and temporary legal custody of the children. The mother had left the children with
    her parents, saying that she was homeless and could not safely care for them. She asked that
    they be placed in the care of the State. The mother’s parents have had physical custody of
    two of the children and the other has been in foster care throughout most of the time since
    then. In April, 2007, the mother stipulated that the District Court could adjudicate the
    children to be “youths in need of care” under Montana law. After a May, 2007, dispositional
    hearing, the District Court granted temporary legal custody of the children to DPHHS for six
    months, and ordered the mother to complete a structured treatment plan. In October, 2007
    2
    the State petitioned for a six month extension of temporary legal custody to allow the mother
    more time to work on the treatment plan, and she agreed.
    ¶6     On April 29, 2008 the State petitioned to terminate the parental rights of the mother
    based upon the contention that she had failed to comply with the treatment plan. The District
    Court held an evidentiary hearing on the petition on August 5 and 6, 2008, at which the
    mother testified.   The mother was represented by counsel throughout these various
    proceedings. The District Court issued its Findings of Fact, Conclusions of Law and Order
    on August 19, 2008, terminating the mother’s parental rights.
    ¶7     The District Court’s findings of fact were comprehensive and detailed. They
    described the evidence regarding the mother’s inconsistent and half-hearted efforts and her
    substantive failure to comply with the major requirements of the treatment plan. At the same
    time, the children had thrived in their alternative placements following the award of
    temporary legal custody.
    ¶8     The treatment plan required the mother to complete a chemical dependency evaluation
    and to comply with any recommendations that resulted. The mother completed that
    evaluation with Karen Furu, whose report identified concerns that included the mother’s
    involvement in abusive relationships with men including the fathers of her children, her use
    of alcohol and drugs starting at age 16, and the fact that C.C. is a special needs child. The
    evaluation showed that the mother was in denial about substance abuse and her relationships
    with men, and had a high probability of having a substance dependency disorder. The
    mother tested positive for alcohol residue. Furu recommended that the mother abstain from
    alcohol and drugs; that she complete a psychological examination; that she participate in
    3
    family and relationship counseling and in drug and alcohol counseling; and that she
    participate in individual counseling with a mental health professional and with a licensed
    addiction counselor. The mother did not follow through with all of the recommendations.
    She began individual counseling with Sally Hand several months later but made no
    appointments for months after that.
    ¶9     The mother underwent a psychological evaluation in August, 2007, with Dr. Ned
    Tranel. His report concluded that the mother has a narcissistic personality disorder, a naïve
    and detached approach to parenting responsibilities, a tendency to become involved with
    dysfunctional men, and a strong possibility of substance abuse. Tranel determined that the
    mother’s relationships with dysfunctional men were self destructive and sabotaged her
    relationships with her children. At the same time, he found that she exaggerates the true
    facts by insisting that everything is fine.
    ¶10    The evidence clearly illustrated how the mother’s relationships with men given to
    physical and verbal abuse and substance use jeopardized the safety of her children. The
    mother had an ongoing relationship with one man whose own children were taken from him
    based upon his neglect and substance abuse. She maintained that relationship until six weeks
    before the termination hearing. She had a relationship with C.J.’s father, which ended only
    after he pointed a gun at a babysitter and the three children in a dispute over a car.
    ¶11    Tranel recommended that the mother complete parenting classes, vocational
    assistance, individual counseling, participation in a self-help group to deal with her
    personality disorder and that she participate in a 12-step type program to deal with the effects
    of drugs in her life. The mother completed only the parenting class and some counseling.
    4
    ¶12    The mother did not maintain consistent employment or utilization of public
    assistance, and did not seek vocational training, as required by the plan. She did not
    participate in any self-help groups. She failed to maintain contact with her social worker
    Carol Julien, and failed to maintain a permanent residence or to provide notice of her address
    so that her living conditions could be assessed. She failed to have the men she lived with
    provide information for background checks as required by the plan. Julien testified that the
    mother was not able to meet the needs of the children and had not changed. Julien’s opinion
    was that the children needed to “get on with their lives” with a permanent home.
    ¶13    Marilyn Riley was a counselor for the children C.M.C. and C.C. She reported that
    they suffered severe anxiety from trauma while with the mother and that they continued to
    suffer from post-traumatic stress disorder. C.M.C. reported that one of the mother’s men had
    hit him, and that he had seen the mother and boyfriend fighting. Riley found that at age 4
    C.M.C. was acting as a caretaker for his younger sister who has cerebral palsy. Riley found
    that both children had responded remarkably well to living with the mother’s parents in an
    atmosphere of predictability, love and protection that should be continued.
    ¶14    George Marleau is the mother’s step-father and had cared for C.C. and C.M.C. for
    almost a year, along with the maternal grandmother. He testified to the chaotic conditions
    with the mother and children when they periodically lived with the parents. He observed that
    she gave the children little structure and consistency as to things like daily schedules, meals
    and bed times. He observed that she took the children with her when she went out at night
    and would live with the parents for days and then disappear for days. He testified that after
    the children were left in his custody the mother would sometimes call on the phone, loud and
    5
    drunk, wanting to talk to the children. He testified that when the children first arrived at
    their house they were unruly but that they now have manners and are healthy. He believed
    that it was in the best interests of the children to stay in stable foster placement and to be
    adopted.
    ¶15    The mother’s brother Joshua testified about the year he was in Montana between
    deployments with the Marine Corps. He lived with the parents while they had custody of the
    children. He worked at the Hub Bar and testified that he saw his sister there two or three
    times a month and that he saw her drinking. He also saw her “out” on the town during times
    she said she was working.
    ¶16    Kira Poulson was the guardian ad litem for the children. She expressed concern about
    the mother’s lack of commitment and her failure to take all necessary steps to have the
    children returned to her. She recommended that the mother’s parental rights be terminated.
    ¶17    The District Court concluded that the mother had failed to complete her treatment
    plan after having a year to do so, and that the plan had not been successful. She had not
    maintained steady employment or place of residence. She did not refrain from alcohol or
    bars. She did not get the individual counseling that had been indicated by Tranel and Furu.
    Judge Salvagni found that the mother’s explanation for discontinuing individual counseling
    was not credible and was not successful because she chose to continue living with the man
    whose own children were removed from him. Accordingly, he ordered termination of her
    parental rights and this appeal followed.
    STANDARD OF REVIEW
    6
    ¶18    A court may order the termination of parental rights upon a finding supported by clear
    and convincing evidence that the child is a youth in need of care. Section 41-3-609(1),
    MCA. The court must find that the parent’s conduct is unlikely to change in a reasonable
    time, considering a list of factors the primary one of which is the “physical, mental, and
    emotional conditions and needs of the child.” Section 41-3-609(3), MCA; In the Matter of
    C.J.K., 
    2005 MT 67
    , ¶ 14, 
    326 Mont. 289
    , 
    109 P.3d 232
    .
    ¶19    This Court reviews a district court’s order on termination of parental rights for an
    abuse of discretion. In the Matter of J.V., 
    2003 MT 68
    , ¶ 7, 
    314 Mont. 487
    , 
    67 P.3d 242
    . A
    court acts arbitrarily when it acts without employment of conscientious judgment or in
    excess of the bounds of reason resulting in substantial injustice. Matter of C.J.K., ¶ 13.
    Findings of fact are reviewed under the clearly erroneous standard, and conclusions of law
    are reviewed to determine whether they are correct. Matter of C.J.K., ¶ 13.
    ¶20    This Court exercises plenary review of whether a parent was denied effective
    assistance of counsel in termination proceedings. In the Matter of A.S., 
    2004 MT 62
    , ¶ 9,
    
    320 Mont. 268
    , 
    87 P.3d 408
    .
    DISCUSSION
    ¶21    Whether the District Court erred in concluding that the State met the statutory criteria
    for terminating the mother’s parental rights.
    ¶22    The mother contends that the State failed to present clear and convincing evidence
    that the statutory criteria for termination of parental rights were met, and that the District
    Court failed to make adequate findings.
    7
    ¶23    A natural parent’s right to the care and custody of his or her child is a fundamental
    liberty interest which must be protected by fundamentally fair proceedings. Matter of A.S., ¶
    12. The court may terminate the parent-child legal relationship upon clear and convincing
    evidence that:
    (f) the child is an adjudicated youth in need of care and both of the
    following exist:
    (i) an appropriate treatment plan that has been approved by the court
    has not been complied with by the parents or has not been successful; and
    (ii) the conduct or condition of the parents rendering them unfit is
    unlikely to change within a reasonable time.
    Section 41-3-609(1)(f), MCA. Clear and convincing evidence is
    simply a requirement that a preponderance of the evidence be definite, clear,
    and convincing, or that a particular issue must be established by a
    preponderance of the evidence or by a clear preponderance of proof. This
    requirement does not call for unanswerable or conclusive evidence. The
    quality of proof, to be clear and convincing, is somewhere between the rule in
    ordinary civil cases and the requirement of criminal procedure—that is, it must
    be more than a mere preponderance but not beyond a reasonable doubt.
    In the Matter of E.K., 
    2001 MT 279
    , ¶ 32, 
    307 Mont. 328
    , 
    37 P.3d 690
    . The district court
    must give “primary consideration to the physical, mental and emotional conditions and needs
    of the child.” Section 41-3-609(3), MCA. The child’s health and safety are of paramount
    concern. Section 41-3-101(4), MCA. The best interests of the child and the need for
    permanent placement in a loving and stable home take priority over parental rights. In the
    Matter of A.T., 
    2006 MT 35
    , ¶ 20, 
    331 Mont. 155
    , 
    130 P.3d 1249
    .
    ¶24    The children here were adjudicated to be youths in need of care, and the mother
    stipulated to that determination. There is sufficient clear and convincing evidence that the
    mother did not complete the treatment plan, and that it was not successful. The State’s
    8
    witnesses who had worked directly with the mother testified that while she completed some
    of the required steps of the treatment plan, she never followed through with most of them.
    The testimony showed that the mother’s compliance with the plan was tardy, half-hearted
    and sporadic. She did not comply with some of the most crucial steps of the plan such as
    individual counseling, steady employment, a permanent residence, and disclosure of her
    male companions. She continued to use alcohol and to go to bars.
    ¶25      The District Court’s conclusion that the mother’s conduct was not likely to change
    was likewise demonstrated by clear and convincing evidence. That determination requires a
    predictive assessment based upon past and present conduct of the parent. In the Matter of
    M.T., 
    2002 MT 174
    , ¶ 34, 
    310 Mont. 506
    , 
    51 P.3d 1141
    . In the present case the District
    Court had conducted several proceedings involving the mother in the year prior to the
    August, 2008 hearing on termination of parental rights. For example, at the May 3, 2007
    dispositional hearing the mother agreed to the treatment plan and it was then adopted by the
    court.    Judge Salvagni emphasized to the mother the need for her to follow every
    requirement of the plan and especially to maintain required contact with her social worker.
    He explained that termination of her parental rights could occur unless she followed the plan
    and all its requirements. He told her that she would have to be able to show that she was
    “changing the way that you’ve been handling things so that these children are kept safe and
    kept healthy.” He cautioned her “to put your children at the top of your priority list.”
    ¶26      Several months later, on August 3, 2007, the mother was again before the court about
    the treatment plan. The State reported that she had made only “minimal progress” and had
    not been truthful about her employment status. The court emphasized to the mother again
    9
    the importance of compliance and the dire consequences that could follow if she failed to do
    so. Another hearing occurred on November 2, 2007, on the State’s application to extend
    temporary legal custody of the children and to extend the mother’s time for compliance with
    the treatment plan for another six months. The mother appeared and agreed that she needed
    more time to work on the requirements of the plan. At the next hearing on February 22,
    2008, the mother still had questions about what she was required to do under the plan, and
    the court answered them. She had not done anything with regard to counseling or self-help
    group participation to address the critical issues of co-dependency and her practice of
    selecting dysfunctional partners. Judge Salvagni warned her that “you don’t have very much
    time left.”
    ¶27    Despite these repeated warnings in open court and repeated attempts by her social
    worker and other professionals who tried to work with her, the mother had still not
    completed the requirements of the treatment plan after passage of a year.                 More
    fundamentally, she had not changed her destructive—as to the children—habits of living
    with violent, substance-abusing men, failing to maintain employment, and failing to take
    personal responsibility for the serious situation that she was in regarding her children. The
    long-standing efforts by the District Court and others to get the mother to put the “children at
    the top of [her] priority list” had not been successful. She never demonstrated that she was
    committed to making reunion with her children the most important goal of her life, and this
    was evident in her lack of compliance with the plan.
    ¶28    The likelihood that she was not going to change in a reasonable time was also
    demonstrated by her testimony at the termination hearing. She continued to blame others,
    10
    such as her parents, for her problems. She testified that her own brother was lying when he
    testified that he had seen her out in a bar on a number of occasions. She attempted to
    minimize the testimony of her social worker and others about her lack of serious progress
    with the treatment plan. She gave the same type of excuses for non-compliance that she had
    given for the prior year.
    ¶29      The District Court’s thorough Findings of Fact and Conclusions of Law in this matter
    demonstrate, contrary to the mother’s contention on appeal, that Judge Salvagni was fully
    cognizant of the detailed requirements of Montana law that applied to the many proceedings
    he conducted concerning these children and their mother. There is no substantial showing
    that he misapprehended his role or the requirements of the law at any point. We find no
    error.
    ¶30      Whether the mother was denied effective assistance of counsel. Montana law,
    recognizing the important and fundamental interests involved, provides that a parent in a
    termination of rights proceeding is entitled to the effective assistance of counsel. Matter of
    A.S., ¶¶ 12, 20. This Court has adopted “benchmark, although nonexclusive, criteria” for
    evaluating effectiveness of counsel in termination proceedings. The first factor requires
    consideration of counsel’s experience and training representing parents in termination
    proceedings, and the second is the quality of advocacy demonstrated at the hearing. Matter
    of A.S., ¶ 26. Even if counsel’s performance is found to be ineffective under these criteria,
    the parent must have suffered prejudice as a result. Matter of A.S., ¶ 31.
    ¶31      The mother contends that her first attorney, who represented her in proceedings prior
    to the termination hearing, and her second attorney who represented her at the termination
    11
    hearing, both provided her with ineffective assistance. The mother has provided no
    argument of any kind as to the attorneys’ experience and training. We cannot evaluate this
    factor without even an argument as to how it may apply in the case, and decline to speculate.
    ¶32    We will nonetheless address those arguments that the mother has made. She contends
    that her first attorney was ineffective for failing to object to the District Court’s application
    of the wrong evidentiary standard in finding that the children were abused and neglected.
    The District Court stated, in a hearing, that there was “probable cause” that the children were
    abused and neglected, not that they were shown to be abused and neglected by a
    preponderance of the evidence. There was no evidentiary hearing on whether the children
    were abused and neglected because the mother stipulated that they were abused and
    neglected. Therefore, even assuming that counsel should have objected to the District
    Court’s reference to an improper standard, there is no showing that the mother was
    prejudiced or that she would have changed her stipulation if the District Court had cited a
    different standard. We do not find that this event demonstrates any material prejudice to the
    mother and does not demonstrate ineffective assistance of counsel.
    ¶33    The mother next contends that her attorney did not object to the “appropriateness of
    the treatment plan.” The argument is that there were no statements in the treatment plan
    explaining why the State “believed” that various parts of the plan were applicable to her and
    that those statements were required by § 41-3-443, MCA. The mother specifically agreed to
    the treatment plan. She and her attorney attended the hearing held to consider adoption of
    the plan and heard explanations and warnings from the District Court about its provisions
    and requirements. The mother asked questions about specific provisions of the plan and the
    12
    District Court answered her questions. There is no requirement in § 41-3-443, MCA, that the
    State explain on the face of the treatment plan why it “believes” that each portion of the plan
    applies and should be implemented. Section 41-3-443(2)(a), MCA, requires a treatment plan
    to identify the “problems or conditions that resulted in the abuse or neglect.” The plan here
    plainly did so, setting out the mother’s problem areas and what she had to do to address
    them. The mother made no claim below that she did not understand the plan or what it
    required of her. When she had questions about the plan, she asked those questions at the
    several hearings that were conducted over the year prior to the termination hearing. There is
    no showing that any failure to explain the State’s beliefs in the treatment plan impaired in
    any substantial way the mother’s lack of compliance and lack of success. It was her failure
    to comply that led to termination. We find that this event does not demonstrate any material
    prejudice to the mother and does not demonstrate ineffective assistance of counsel.
    ¶34    The mother contends that her attorney in the termination hearing was ineffective for
    failing to recognize that the District Court had the authority to deny the State’s termination
    petition and to continue the temporary legal custody situation of the children. The transcript
    of the two-day termination hearing shows that the mother’s attorney actively pursued her
    interests, making appropriate objections, vigorously cross-examining witnesses, and making
    extended closing argument.
    ¶35    Even if we assume that counsel should have clarified the District Court’s authority on
    the record, the transcripts of the several hearings in the year prior to the termination hearing,
    the termination hearing itself, and the written decision more than adequately demonstrate
    that Judge Salvagni was well aware of the factual and legal situation. He clearly appreciated,
    13
    because he remarked on it a number of times, that if the State petitioned for termination of
    parental rights, he had to make a decision to grant or to deny that petition. If he denied the
    petition, then he would have had to decide what to do next, keeping in mind the paramount
    factor of the best interests of the children. The mother has not made any showing that this
    event materially prejudiced her and it does not demonstrate ineffective assistance of counsel.
    ¶36    Last, the mother argues that her attorney at the termination hearing was ineffective for
    failing to call the mother’s counselor, Sally Hand, as a witness. Hand was initially listed as a
    witness for the mother but was not called by either side at the termination hearing. Hand saw
    the mother for individual counseling for several sessions in the year prior to the termination
    hearing. The mother discontinued her visits to Hand for reasons the District Court found to
    be not credible, and then scheduled a last-minute session just prior to the termination
    hearing. The mother contends that Hand could have countered the testimony of the State’s
    witnesses. Hand’s testimony as shown in the affidavit appended to the mother’s brief, at
    most would have provided only limited assistance to the District Court in making the
    decision.
    ¶37    Hand’s affidavit, attached to the mother’s brief on appeal, is an out-of-record
    document essentially stating Hand’s disagreement with the District Court’s decision to
    terminate parental rights. The averments and opinions in the affidavit are not part of the
    District Court record. They have not been subject to cross-examination or to evidentiary
    objections. Moreover, the Hand affidavit does not address the issues of counsel’s training
    and experience or the quality of advocacy as required by Matter of A.S., nor does it
    demonstrate that the mother incurred prejudice because Hand did not testify. Parties on
    14
    appeal are bound by the record and may not present additional matters in briefs or
    appendices. State v. MacKinnon, 
    1998 MT 78
    , ¶ 15, 
    288 Mont. 329
    , 
    957 P.2d 23
    .
    ¶38    The face of the hearing record demonstrates that the mother’s trial attorney provided
    her with vigorous and competent representation. Here there is no showing or argument
    concerning trial counsel’s training and experience, and there was facially competent
    representation appearing on the trial record. There has therefore been no threshold showing
    that the mother was denied effective assistance of counsel.
    ¶39    For the reasons stated above, we affirm the District Court.
    /S/ MIKE McGRATH
    We concur:
    /S/ JAMES C. NELSON
    /S/ JOHN WARNER
    /S/ BRIAN MORRIS
    Justice Jim Rice, concurring.
    ¶40    I concur with the results reached by the Court, but offer some additional thoughts
    regarding Issue 2, the ineffective assistance of counsel claim. I believe appellate counsel has
    offered one of the more skillful IAC arguments we have seen in a parental rights case since
    this Court held that parents were entitled to make such claims in In the Matter of A.S.
    Appellate counsel has closely reviewed the performance of trial counsel and identified
    15
    several potential errors. The Court concludes that no prejudice could have arisen from
    counsel’s action, essentially deciding the case under the “second prong” of the IAC standard,
    In the Matter of A.S., ¶ 21. This is an appropriate disposition. However, the Appellant
    makes points about her trial counsel’s performance and the proper remedy which I find to be
    noteworthy.
    ¶41    Appellant explains that her trial counsel filed a “Notice of Expert Witness” indicating
    that Appellant’s former counselor, Sally Jo Hand (Hand), would be called to testify, but then
    failed to call her as a witness. To illustrate the potential impact of trial counsel’s alleged
    error in failing to call Hand, Appellant has submitted with her appellate briefing an affidavit
    from Hand which she describes as an “offer of proof” about Hand’s testimony. Based on
    Hand’s affidavit, Appellant argues that Hand would have testified that Appellant was
    diligently working on and making significant progress in her personal development,
    parenting skills and relationships, that Appellant was consistent in keeping her appointments,
    that she was highly engaged, accepting recommendations and implementing them, and that
    in breaking off her relationship with her boyfriend, she had shown progress in her decision
    making. Hand would have further testified that termination of Appellant’s parental rights
    was likely to detrimentally affect the children.
    ¶42    The State criticizes Appellant’s submission of the affidavit and offer of proof, arguing
    that it should not be “a means by which appellate counsel can interject extra-record evidence
    on appeal, including, as here, hearsay. An appeal is necessarily confined to the record
    below.” (Citation omitted.) This underscores a practical dilemma faced by an appellant’s
    16
    counsel: How can trial counsel’s failure to introduce evidence supportive of the client’s
    position be demonstrated on appeal?
    ¶43    As Appellant explains in her reply brief, she is not, as the State contends, attempting
    to add additional evidence to the record. Rather, she has made the “offer of proof” to
    establish a basis for the remedy she seeks here: a remand for a limited evidentiary hearing
    regarding her counsel’s performance. As authority, she has cited both our holding in In re
    K.G.F., 
    2001 MT 140
    , ¶ 93, 
    306 Mont. 1
    , 
    29 P.3d 485
     (“[T]he record before this Court,
    particularly any evidence of the critical pre-hearing investigation, is insufficient.
    Accordingly, this matter is reversed and remanded for a fact finding hearing . . . .”), and
    People in Interest of C.H., 
    166 P.3d 288
    , 291 (Colo. App. 2007), which concluded that the
    mother’s appellate offer of proof had made a prima facie showing of ineffective assistance of
    counsel and remanded the case for an evidentiary hearing. The Colorado Court noted the
    problem we face here, that “[t]he chief problem is that the record may not contain sufficient
    information to enable the appellate court to resolve the parent’s contentions.” People in
    Interest of C.H., 166 P.3d at 291.
    ¶44    I believe Appellant has made a viable “first prong” claim and offered a viable remedy,
    a remand for a limited evidentiary hearing. However, given my agreement with the Court’s
    conclusion that the lack of prejudice in this case cannot be overcome by additional analysis
    of trial counsel’s performance, I concur in affirming the District Court.
    /S/ JIM RICE
    17
    Justice James C. Nelson joining in the concurring Opinion of Justice Jim Rice.
    /S/ JAMES C. NELSON
    18