In re A.C. , 2021 Ohio 288 ( 2021 )

[Cite as In re A.C., 2021-Ohio-288.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: A.C. JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
Case No. 2020 CA 0053
O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Juvenile Division, Case
No. 2019 DEP 00218
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 2, 2021
APPEARANCES:
For Plaintiff-Appellee For Mother-Appellant
CHRISTOPHER ZUERCHER DARIN AVERY
GINA NENNIG 105 Sturges Avenue
TIFFANY BIRD Mansfield, Ohio 44903
Richland County Children Services
731 Scholl Road Guardian Ad Litem
Mansfield, Ohio 44907
JOHN DILTS
28 S. Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2020 CA 0053 2
Hoffman, J.
{¶1} Appellant Myriah Nikolaus (“Mother”) appeals the July 7, 2020 Judgment
Entry entered by the Richland County Court of Common Pleas, Juvenile Division, which
overruled her objection to the magistrate’s February 3, 2020 decision, finding her newborn
(“the Child”) to be dependent, and approved and adopted said decision as order of the
court. Appellee is Richland County Children Services (“RCCS”).
STATEMENT OF THE FACTS AND CASE
{¶2} Mother gave birth to the Child on October 31, 2019. Upon discharge from
the hospital, Mother returned to New Beginnings in Mansfield, Ohio, to continue in-patient
treatment for substance abuse. The Child required an extended hospital stay due to
breathing issues and was transferred to Nationwide Children’s Hospital. At the time of
the Child’s birth, the alleged father, Adam Chapman (“Father”), was receiving in-patient
treatment at Richland County Community Alternative Center in Mansfield, Ohio.
{¶3} The trial court placed the Child in the emergency shelter care custody of
RCCS upon his release from the hospital on November 12, 2019. On the same day,
RCCS filed a complaint, alleging the Child was dependent and/or abused. The complaint
asserted Mother was unable to provide for the basic needs of the Child due to her having
lost permanent custody of another child, her years long struggle with substance abuse
and addiction, her drug use during her pregnancy, her homelessness, and her economic
struggles.
{¶4} The magistrate conducted an adjudicatory/dispositional hearing on January
31, 2020. The following evidence was adduced at the hearing.
{¶5} Mother acknowledged she had abused illegal substances “off and on” for
most of a decade. Mother admitted she was actively using until September 21, 2019.
Richland County, Case No. 2020 CA 0053 3
During her pregnancy, Mother abused heroin and cocaine. She tested positive for
cocaine and amphetamines on June 14, 2019, and opiates on August 14, 2019. Mother
did not recall using amphetamines and surmised the amphetamine could have been in
either the heroin or cocaine she had used.
{¶6} Following a traffic stop in June, 2019, Mother was arrested and jailed on a
warrant for failure to appear. Mother was in jail for approximately 13 days when she was
permitted to leave to secure medical treatment and/or prenatal care. Mother was required
to return to jail following her treatment, however, rather than doing so, she absconded
with Father. Mother was arrested approximately three weeks later and charged with
escape. At another point, Mother was incarcerated on a probation violation for lying to
her probation office regarding Father’s whereabouts. In late September, 2019, Mother
was again arrested. She entered a residential drug treatment facility on October 22, 2019,
in lieu of serving additional jail time.
{¶7} Mother had not had stable housing or employment for over six years. She
planned to move in with Father when she completed her in-patient treatment program.
Father’s mother would fund their housing.
{¶8} Mother had lost permanent custody of two children, most recently, her
daughter in June, 2018, approximately 17 months prior to the Child’s birth. The daughter
had a positive toxicology screen at her birth and was immediately removed from Mother’s
care. After a year, Mother had failed to successfully complete her case plan, which
included drug counseling and rehabilitation, and obtaining and maintaining stable
housing, and permanent custody was granted to RCCS.
Richland County, Case No. 2020 CA 0053 4
{¶9} During the first 20 weeks of her pregnancy, Mother sought minimal prenatal
care, and never revealed her drug use to medical professionals. Mother’s prenatal care
became more consistent after she was incarcerated as the jail required her to see a
doctor. Mother stated the doctors she saw at that time were aware of her drug addiction.
{¶10} Angela Sams, the RCCS intake worker assigned to the family, testified the
Child’s meconium tested negative for controlled substances, indicating Mother’s drug use
did not enter or damage the Child’s system. As of the date of the hearing, the Child
exhibited no signs of withdrawal and was not suffering from neonatal abstinence
syndrome.
{¶11} Sams explained RCCS sought emergency shelter care for the Child rather
than placing him with Mother at New Beginnings because of the brevity of Mother’s
current attempt at sobriety and her history of removal of two other children due to
unresolved substance abuse issues. In addition, Mother was unable to meet the Child’s
basic needs. Neither Mother nor Father was employed and had no financial resources to
provide for the Child. Mother and Father failed to maintain stable housing in the past and
did not have housing secured for when they were released from their respective in-patient
programs.
{¶12} Jennifer Howe, Mother’s substance abuse counselor, testified Mother fully
engaged in her treatment. Mother participated in individual and group therapy. Mother
was regularly drug tested and all of her screens were negative. Mother had completed
all three phases of the program. Howe explained Mother will continue out-patient
treatment at New Beginnings, including individual and group therapy. Howe added
Mother had participated in parenting education at Richland Pregnancy Services. Mother
Richland County, Case No. 2020 CA 0053 5
pumped breast milk for the Child. Howe noted Mother would have access to support
services to assist her with obtaining basic needs for herself and the Child. Howe
expressed concerns about Mother living with Father as both individuals struggle with
substance abuse and had a history of abusing substances together. Howe added she
believed Mother knew where her healthy boundaries were.
{¶13} After hearing the testimony of all of the witnesses, the magistrate, on the
record, found the evidence was insufficient to establish the Child was abused, but found
clearing and convincing evidence to establish the Child was dependent. The magistrate
memorialized his findings of fact and conclusions of law via decision filed February 3,
2020. Mother filed objections to the magistrate’s decision. Via judgment entry filed July
7, 2020, the trial court overruled Mother’s objections to the magistrate’s decision, and
approved and adopted said decision as order of the court.
{¶14} It is from this judgment entry Mother appeals, raising the following
assignments of error:
I. THE TRIAL COURT ERRED IN MAKING CERTAIN FINDINGS OF
FACT THAT WERE CONTRARY TO THE MANIFEST WEIGHT OF THE
EVIDENCE.
II. THE COURT ERRED IN FINDING THE CHILD DEPENDENT
BASED ON MOTHER’S HISTORY OF SUBSTANCE ABUSE.
III. THE COURT ERRED IN FINDING THE CHILD DEPENDENT, AS
THE EVIDENCE DID NOT SHOW THE CHILD DEPENDENT ON ANY
LEGALLY RELEVANT DATE.
Richland County, Case No. 2020 CA 0053 6
IV. THE COURT ERRED IN BASING A FINDING OF
DEPENDENCY ON OTHER FACTORS INVOLVING THE MOTHER BUT
NOT HAVING AN ADVERSE EFFECT ON THE CHILD.
V. THE COURT ERRED IN BASING A FINDING OF DEPENDENCY
ON AN INCORRECT LEGAL STANDARD.
VI. THE COURT ERRED IN FINDING THAT “MOTHER SHOWED
NO SIGNS OF HAVING A PLAN OR EXECUTING A PLAN TO
ADEQUATELY TAKE CARE OF THE CHILD.”
VII. THE COURT ERRED IN FINDING THAT “ALL EVENTS THAT
EXISTED PRIOR TO [THE DATE OF THE FILING OF THE COMPLAINT]
ARE RELEVANT FOR PURPOSES OF DETERMINING WHETHER [A
DEPENDENCY] COMPLAINT HAS BEEN PROVEN.”
VIII. THE COURT ERRED IN FINDING REASONABLE EFFORTS
TO REUNIFY WITH MOTHER.
I
{¶15} In her first assignment of error, Mother challenges certain findings made by
the trial court as against the manifest weight of the evidence. Specifically, Mother
challenges the trial court’s findings she lacked stable housing and she received “minimal
prenatal care.” We disagree.
{¶16} When conducting a manifest-weight review, this Court “weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and
Richland County, Case No. 2020 CA 0053 7
created such a manifest miscarriage of justice that the [judgment] must be reversed and
a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶17} A review of the record reveals a few weeks before the Child’s birth and at
the time of the hearing, Mother was living at New Beginnings, a residential treatment
facility. Prior to that, Mother was in and out of jail, or absconding from law enforcement.
She had not had her own home in approximately six years. When she completed her
treatment program, Mother planned to live with Father, despite both having a history of
substance abuse. Mother indicated Father’s mother would be funding the residence.
Mother sought and obtained minimal prenatal care during the first 20 weeks of her
pregnancy with the Child. She did not disclose her drug use to the obstetrician, fearing
the doctor would report her to RCCS. Mother also did not disclose her history of high-risk
pregnancies. Only when she was incarcerated did Mother received routine prenatal care.
{¶18} Based upon the foregoing, we find the trial court’s findings Mother lacked
stable housing and received “minimal prenatal care” were not against the manifest weight
of the evidence.
{¶19} Mother's first assignment of error is overruled.
II, IV
{¶20} We elect to address Mother’s second and fourth assignments together. In
her second assignment of error, Mother asserts the trial court erred in finding the Child
dependent based upon Mother’s history of substance abuse. Specifically, Mother argues
her “history of drug abuse was only relevant insofar as ‘it [was] demonstrated to have an
adverse impact on the child sufficient to warrant state intervention’,” and RCCS failed to
present any evidence of such an impact. Brief of Appellant at 9. In her fourth assignment
Richland County, Case No. 2020 CA 0053 8
of error, Mother submits the trial court erred in finding the Child dependent based upon
her “entanglements with criminal law” and “instability in housing and income.” Mother
similarly argues such did not have demonstrable adverse effects on the Child.
{¶21} A trial court's adjudication of a child as dependent must be supported by
clear and convincing evidence. R.C. 2151.35(A)(1); Juv.R. 29(E)(4). Proof by clear and
convincing evidence requires that the evidence “ ‘produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.’ ” In re Adoption of
Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), quoting Cross v. Ledford, 161
Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Clear and
convincing evidence is a higher degree of proof than preponderance of the evidence, but
a lower degree than beyond a reasonable doubt. In re Alexander C., 164 Ohio App.3d
540, 2005-Ohio-6134, 843 N.E.2d 211, ¶ 37 (6th Dist.).
{¶22} When an appellate court reviews a trial court's adjudication to determine
whether the judgment is supported by clear and convincing evidence, the reviewing court
must determine whether the trial court had before it evidence sufficient to satisfy the
requisite degree of proof. Id. at ¶ 7. That is, we conduct a manifest-weight review to
determine whether the agency sustained its burden of producing clear and convincing
evidence of dependency as defined by R.C. 2151.04. In re C.T., 6th Dist. Sandusky No.
S-18-005, 2018-Ohio-3823, ¶ 53. An appellate court will not reverse a trial court's
adjudication where competent and credible evidence supports the findings of fact and
conclusions of law. In re Alexander C., supra at ¶ 7.
{¶23} As relevant here, a dependent child is a child “[w]hose condition or
environment is such as to warrant the state, in the interests of the child, in assuming the
Richland County, Case No. 2020 CA 0053 9
child's guardianship.” R.C. 2151.04(C). Generally speaking, courts apply R.C. 2151.04(C)
broadly to protect the health, safety, and welfare of children. In re L.H., 12th Dist. Warren
Nos. CA2018-09-106, CA2018-09-109, CA2018-09-110, and CA2018-09-111, 2019-
Ohio-2383, ¶ 41. “A finding of dependency under R.C. 2151.04 must be grounded on
whether the children are receiving proper care and support; the focus is on the condition
of the children.” In re A.B.C., 5th Dist. Stark No. 2011 CA 00073, 2011-Ohio-6570, ¶ 15.
As such, a dependency finding “requires no showing of fault, but focuses exclusively on
the child's situation * * *.” In re Riddle, 79 Ohio St.3d 259, 262, 680 N.E.2d 1227 (1997).
And although the focus of the trial court's analysis is on the child's present condition or
environment, “ ‘the law does not require the court to experiment with the child's welfare
to see if * * * [the child] will suffer great detriment or harm.’ ” (Brackets sic.) In re A.B.C.,
supra at ¶ 75, quoting In re Burchfield, 51 Ohio App.3d 148, 156, 555 N.E.2d 325 (4th
Dist.1988).
{¶24} We find the trial court's finding the Child was dependent is supported by
clear and convincing evidence. The evidence presented at the hearing, as set forth in our
Statement of the Case and Facts, supra, establishes the Child meets the definition of
“dependent child” under R.C. 2151.04(D). Mother had a decade’s long history of
substance abuse. Mother admitted she actively used heroin and cocaine during her
pregnancy. As of the date of the hearing, January 31, 2020, Mother had been clean for
only four months, three of which she was in a residential treatment program. She planned
to move in with Father, who also had a history of substance abuse. Mother and Father
had a history of abusing substances together. Mother had failed to maintain stable
housing and employment for the last six years. As the trial court noted, Mother “showed
Richland County, Case No. 2020 CA 0053 10
no signs of having a plan or executing a plan to adequately take care of” the Child. July
7, 2020 Judgment Entry at 3. “The state need not subject a child to a potentially
detrimental environment.” In re Reese, 12th Dist. Butler No. CA98–08–169, *4 (April 19,
1999).
{¶25} Mother’s second and fourth assignments of error are overruled.
III
{¶26} In her third assignment of error, Mother maintains the trial court erred in
finding the Child dependent as the evidence did not establish the Child was dependent
on any legally relevant date. Mother submits RCCS failed to present evidence of “ ‘the
condition or environment of the child’ on either November 12, 2019 [the date of the filing
of the complaint] or January 31, 2020, the date of the adjudicatory hearing.” Brief of
Appellant at 10. We disagree.
{¶27} R.C. 2151.23(A)(1) provides: “the determination as to whether a child is
dependent must be made as of the date alleged in the complaint, not as of the date of the
adjudicatory hearing.” However, in In re S.A., 2012–Ohio–3394, the Second District Court
of Appeals recognized a trial court can properly make a finding of dependence based
upon a prospective determination. Id. at ¶ 31. The court explained:
The underlying reasoning * * * appears to be that as a dependency
hearing focuses on the total environment, a court should look not only to the
child's present condition but also to the child's potential future environment.
* * * By focusing on the environment, which can be viewed and evaluated
with or without the child, the legislature has chosen to permit the state to
Richland County, Case No. 2020 CA 0053 11
intercede in familial affairs at [an] early stage. Id. at ¶ 31. (Internal citations
and quotations omitted.)
{¶28} Upon review of the record, we find there was ample evidence to establish
the Child was dependent as of the date alleged in the complaint and based upon a
prospective determination. Mother was living at New Beginnings, a residential treatment
facility, at the time of the adjudicatory hearing. She began her in-patient treatment on
October 22, 2019, shortly before the Child’s birth. Prior to that, Mother was in and out of
jail, or absconding from law enforcement. Mother actively used heroin and cocaine during
her pregnancy. As of the date of the hearing, Mother had been clean for only four months,
three of which she was in a residential treatment program. Mother had failed to maintain
stable housing and employment for the last six years. She planned to move in with
Father, who also had a history of substance abuse. Mother and Father had a history of
abusing substances together. Mother sought and obtained minimal prenatal care during
the first 20 weeks of her pregnancy with the Child and failed to disclose her drug use to
the obstetrician. Mother also did not disclose her history of high-risk pregnancies. Only
when she was incarcerated did Mother received routine prenatal care.
{¶29} Mother’s third assignment of error is overruled.
V
{¶30} In her fifth assignment of error, Mother suggests the trial court erred in
basing its finding of dependency on an incorrect standard.
{¶31} At the adjudicatory hearing the magistrate stated, “The standard for
dependency is whether it is in the best interest of the minor child that the State assume
Richland County, Case No. 2020 CA 0053 12
[the Child’s] guardianship in some way.” Transcript of January 31, 2020 Hearing at 108.
In his February 3, 2020 decision, the magistrate found “by clear and convincing evidence
and based upon the evidence presented that [the Child] is a dependent child as defined
in RC 2151.04(C), in that his condition or environment is such as to warrant the state, in
[the Child’s] best interests, in assuming his guardianship.” Id. at ¶ 5.
{¶32} Mother contends the above-referenced language illustrates the magistrate
prematurely considered the Child’s best interest which is the focus of the dispositional
stage, not the adjudicatory stage. The trial court, in addressing Mother’s objection to the
same, found:
The Magistrate did not adopt a best interests standard at the
adjudicatory phase. He simply found that at this procedural point it was in
the best interests to maintain the child in shelter care pending the
dispositional hearing and decision yet to come. July 7, 2020 Judgment
Entry at 5.
{¶33} We agree with the trial court. When the magistrate’s comments are read in
conjunction with the remainder of the magistrate's decision, it is evident the magistrate
abided by the correct standard in adjudicating RCCS's dependency claim. See, In re
Pieper (1991), 74 Ohio App.3d 714, 721, 600 N.E.2d 317 (1991); and In re Adkins (Feb.
22, 1988), Butler App. No. CA87–03–038, unreported, 1988 WL 21304. We find the trial
court correctly focused on the Child’s condition.
{¶34} Mother’s fifth assignment of error is overruled.
Richland County, Case No. 2020 CA 0053 13
VI
{¶35} In her sixth assignment of error, Mother argues the trial court erred in finding
she “showed no signs of having a plan or executing a plan to adequately take care of the
child.”
{¶36} Mother submits her testimony established she had obtained employment
and backup employment, had access to public assistance for food, and had independent
housing which she was moving into the day of the hearing. Mother also noted she had
demonstrated an ability to care for the Child while in the hospital, had engaged in
parenting instruction while in treatment, had arranged for continued out-patient care when
she completed her in-patient treatment, and was compliant with her probation.
{¶37} At the time RCCS filed the complaint on November 12, 2019, Mother had
been in and out of jail throughout the course of her pregnancy. In lieu of completing her
jail sentence, Mother entered an in-patient treatment program on October 22, 2019.
Mother gave birth to the Child on October 31, 2019. Mother was discharged and returned
to New Beginnings to complete her treatment program. The Child was transferred to
Nationwide Children’s Hospital due to breathing problem. Mother planned to have the
Child stay with her at the residential treatment facility. Mother was homeless and
unemployed at the time. Mother had not had stable housing or employment for at least
six years. She had a decade’s long struggle with substance abuse. According to Mother,
she and Father intended to live together when she completed her in-patient treatment
program. The residence would be funded by Father’s mother. Mother also explained she
would be “the next one” to fill a position at Burger King, but had not started her
employment there. Tr. at 24.
Richland County, Case No. 2020 CA 0053 14
{¶38} Nothing Mother did for the benefit of the Child was voluntary. She went into
treatment to avoid jail. She was homeless at that point. Mother did not seek employment
until shortly before the adjudicatory hearing, knowing such would be required of her.
Based upon the entire record in this matter, we find the trial court did not err in finding
Mother “showed no signs of having a plan or executing a plan to adequately take care of
the child.”
{¶39} Mother’s sixth assignment of error is overruled.
VII
{¶40} In her seventh assignment of error, Mother claims the trial court erred in
finding “all events that existed prior to [the date of the filing of the complaint] are relevant
for purposes of determining whether [a dependency] complaint has been proven.” We
disagree.
{¶41} Throughout her Brief to this Court, Mother takes issue with the trial court’s
failure to favorably view the progress she had made between October 22, 2019, when
she entered residential treatment, and January 31, 2020, the date of the adjudicatory
hearing. Herein, however, she suggests the trial court should only view the Child’s
condition or environment as of the date of the filing of the complaint without consideration
of the events which led to such filing. An allegation of dependency is not made in a
vacuum. In this case, Mother’s history of drug use and incarceration during her pregnancy
effected the condition or environment of the Child at his birth.
{¶42} To reiterate the evidence, Mother was in and out of jail, or absconding from
law enforcement throughout her pregnancy. She entered residential treatment to avoid
additional jail time. She abused drugs during her pregnancy. As of November 12, 2019,
Richland County, Case No. 2020 CA 0053 15
she had been clean for less than two months. She had a decade’s long history of drug
abuse. Mother had had unstable housing and employment for the last six years. All of
this is relevant to a determination of dependency.
{¶43} Mother’s seventh assignment of error is overruled.
VIII
{¶44} In her final assignment of error, Mother argues the trial court erred in finding
RCCS made reasonable efforts to reunify the Child with her.
{¶45} “In determining whether the agency made reasonable efforts [pursuant to
R.C. 2151.419(A)(1)] to prevent the removal of the child from the home, the issue is not
whether the agency could have done more, but whether it did enough to satisfy the
reasonableness standard under the statute.” In re Lewis, 4th Dist. No. 03CA12, 2003-
Ohio-5262, at ¶ 16. “ ‘Reasonable efforts’ does not mean all available efforts.” Id. A
“reasonable effort” is “* * * an honest, purposeful effort, free of malice and the design to
defraud or to seek an unconscionable advantage.” In re Weaver, 79 Ohio App.3d 59, 63,
606 N.E.2d 1011(12th Dist. 1992).
{¶46} Mother submits she “had suitable means to provide for the child at the
treatment facility. . .where she had resided since October 22, 2019. . ., and could thus
provide for the child upon leaving from the hospital on November 12, 2019,” and, although
RCCS was aware of this fact, the agency chose to place the Child in a foster home, the
most restrictive option. Brief of Appellant at 15. Mother adds RCCS “presum[ed] authority
to determine the child’s best interest prior to even a dependency finding.” Id.{¶47} Ohio Admin. Code 5101:2-42-05 provides, in pertinent part:
Richland County, Case No. 2020 CA 0053 16
(E) When the PCSA or PCPA has temporary custody of a child, it
shall select a substitute care setting that is consistent with the best interest
and special needs of the child and that meets the following criteria:
(1) Is considered the least restrictive, most family-like setting
available to meet the child's emotional and physical needs.
(2) Is in close proximity to the home from which the child was
removed or the home in which the child will be permanently placed.
(3) Is in close proximity to the school in which the child was enrolled
prior to placement.
(4) Is designed to enhance the likelihood of achieving permanency
plan goals.
(5) Is able to provide a safe environment for the child.
(F) The following allowable substitute care settings are listed in order
from least restrictive to most restrictive:
(1) With the parent in a substance use disorder (SUD) residential
facility.
**
(4) A foster home.
* *.
{¶48} Mother tries to conflate the best interest finding necessary to terminate
parental rights with an agency choosing a placement consistent with the child’s best
Richland County, Case No. 2020 CA 0053 17
interest. An agency may not make arbitrary decisions regarding the placement of a child,
but a placement must adequately meet the needs of the child.
{¶49} Mother had spent only nine day in the residential treatment facility prior to
the Child’s birth. Her housing had been unstable for years. Mother had been in and out
of jail, or absconding from the law in the months preceding the Child’s birth. Mother
entered the residential treatment facility as a means to avoid additional jail time. Upon
her discharge from the hospital after giving birth, there was no indication Mother could
consistently and safely meet the Child’s needs. She would be solely dependent upon the
treatment facility to provide everyday essentials for the Child.
{¶50} Under these circumstances, we find the record demonstrates RCCS
complied with Ohio Adm.Code 5101:2–42–05(E)(1) by selecting a substitute care setting
which “[was] considered the least restrictive, most family-like setting available to meet the
child's emotional and physical needs.” See, In re A.J., 148 Ohio St.3d 218, 2016-Ohio-
8196, 69 N.E.3d 733. We find the trial court did not err in finding RCCS made reasonable
efforts.
Richland County, Case No. 2020 CA 0053 18
{¶51} Mother’s eighth assignment of error is overruled.
{¶52} The judgment of the Richland County Court of Common Pleas, Juvenile
Division, is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, Earle, J. concur