Opinion
1182 MDA 2023 J-A27044-23
01-10-2024
IN RE: J.M., MINOR CHILD APPEAL OF: C.W., MOTHER
Benjamin D. Kohler, Esq. Prothonotary
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered August 2, 2023 In the Court of Common Pleas of Lycoming County Orphans' Court at No(s): 2022-6826
Benjamin D. Kohler, Esq. Prothonotary
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E. [*]
MEMORANDUM
STEVENS, P.J.E.
Appellant, C.W. ("Mother"), appeals from the order entered in the Court of Common Pleas of Lycoming County Orphans' Court, which involuntarily terminated her parental rights to her minor child, J.M., pursuant to section 2511 of the Adoption Act. After a careful review, we affirm the orphans' court's order.
23 Pa.C.S. §§ 2101 2938.
The relevant facts as developed by the orphans' court are as follows:
[J.M.] was born on April 1, 2015. He is the child of [C.W.], date of birth September 7, 1972, and [R.M.], date of birth August 28, 1977. Mother and Father were not married at the time of the Child's birth.
Mother has a prior history with Schuykill County Children & Youth Services. The Child was in placement from August 3, 2017, until February 26, 2018, and again from July 16, 2018 until June
22, 2020. The Child was placed in the resource home of Julie Kramer both times. On July 30, 2021, Lycoming County Children & Youth Services received a CPS report that Mother and the Child were walking to the store when Mother overdosed and collapsed on the sidewalk. The police later found illegal drugs and paraphernalia in Mother's home, and Mother was charged with endangering the welfare of a child. Mother denied drug use, insisting instead that she had a seizure, but agreed to voluntarily place the Child in the Agency's custody on July 30, 2021. The Child was placed in the same resource home he was in during his two prior placements in Schuylkill County. Mother was not charged criminally for the incident but the report was indicated for abuse.
A Dependency hearing was held on August 20, 2021. Mother attended in person and Father was unable to be located. All parties in attendance agreed that the Child was dependent, and the [c]ourt adjudicated him as such and legal and physical custody of the Child was transferred to the Agency, with the Child to remain in the Kinship Care resource home. Mother was drug tested prior to the hearing and was clean of all illegal substances. The [c]ourt Ordered that the Agency continue to perform random drug screens on Mother. The Family Court Hearing Officer observed Mother and the Child to be very bonded to one another and both exhibited a great deal of affection for one another.
A permanency review hearing was held on December 1, 2021. Father was found to have no compliance with the permanency plan in that he did not have any contact with the Agency or the Child during the review period. The [c]ourt noted that Mother had minimal compliance with the permanency plan, in that she was inconsistent with Outreach Services and had poor attendance at visits. Mother did report that she attended NA meetings and counseling at Crossroads. Mother had made minimal progress toward alleviating the circumstances which necessitated placement as she did secure employment and housing and was working, albeit inconsistently, with Outreach Services but only attended one appointment at Crossroads. Mother attended only 40% of her visits with the Child and was required to call in advance to confirm her attendance as the Child had to travel 2 hours each way for the visits. The [c]ourt directed that Mother have one phone call per week with the Child Following the hearing, the Court reaffirmed dependency and the Child remained in the legal and physical custody of the Agency with continued placement in the foster care home.
A permanency review hearing was held on March 25, 2022. The [c]ourt found that there had been no compliance with the
permanency plan by Father, in that he had no communication with the Agency. Mother was found to have minimal compliance with the permanency plan, in that she was inconsistent in her engagement with Outreach services, and Mother only attended 50% of her visits with the Child. Mother reported that she was looking for employment, and that she might be evicted from her residence during this review period. Mother was also inconsistent in her attendance at Crossroads Counseling. Father was found to have made no progress towards alleviating the circumstances which necessitated the original placement, and Mother was found to have made minimal progress toward alleviating the circumstances which necessitated the original placement. At the hearing, Mother tested positive for amphetamines, benzodiazipines [sic], and opiates, but negative for suboxone, which should have been in her system. The amphetamines and benzodiazipines [sic] were consistent with prescribed medication, but Mother had no explanation for the presence of opiates. Following the hearing, the [c]ourt reaffirmed dependency and legal and physical custody of the Child remained with the Agency for continued placement in the current foster home.
A permanency review hearing was held on June 29, 2022. The [c]ourt found Father to have no compliance with the permanency plan, in that he had no contact with the Agency. Mother was found to have minimal compliance with the permanency plan, in that she was still inconsistent with her participation in Outreach Services and attended only 50% of her visits with the Child. Mother was discharged from Crossroads Counseling due to non-compliance and was still looking for stable employment. Mother was incarcerated at the time of the review hearing for contempt of a Domestic Relations order, which was related to support owed to the Agency. The [c]ourt noted that this incarceration disrupted Mother's progress toward reunification with the Child. Father made no progress and Mother made minimal progress toward alleviating the circumstances which necessitated the original placement. Following the hearing, the [c]ourt reaffirmed dependency and legal and physical custody of the Child remained with the Agency for continued placement in the current foster home. However, the Court noted its frustration with the Agency's delay in discussing with Mother potential resources and individuals to support her during or after reunification with the Child. The [c]ourt directed the Agency to pursue all potential support individuals identified by Mother, and to contact both Schuykill County Children & Youth and the child welfare office in
New Jersey where Father was believed to reside and request their assistance in locating Father.
On August 17, 2022, Mother filed a Motion to Modify Visitation, as she had no driver's license and was often unable to secure private transportation to Reading, Pennsylvania, every other week for her scheduled visit with the Child. Mother requested that the Child be brought to Williamsport every week or that visits alternate weekly between in-person visits in Williamsport and video visits. A hearing was held on August 29, 2022, after which Mother's motion was granted, and visits that were previously scheduled to occur every other week in Reading, Pennsylvania, were to take place via video conference.
A permanency review hearing was held on October 14, 2022. Father had no compliance with the permanency plan, in that he had no contact with the Child or the Agency. Mother had minimal compliance with the permanency plan, in that she continued to be inconsistent with Outreach Services and was no longer participating in any drug or alcohol treatment, although she reported attending Diakon but had not signed a release for the Agency to confirm. Mother was evicted from her residence and was living at Wise Options. She was employed. Mother attended only 67% of her visits with the Child. Father made no progress and Mother made only minimal progress toward alleviating the circumstances which necessitated the original placement. As the [c]ourt set a hearing date for the Agency's Petition for Involuntary Termination of Prental [sic] Rights, Mother was made aware that her opportunity to have the Child returned to her care was dwindling. She was instructed that she needed to secure stable housing, utilize Outreach Services and consistently attend each visit with the Child. Following the hearing, the [c]ourt reaffirmed dependency and legal and physical custody of the Child remained with the Agency for continued placement in his current foster home.
A permanency review hearing was held on March 2, 2023. During this review period, Father was located and was incarcerated at SCI-Huntingdon. Father had no compliance with the permanency plan, in that he had no contact with the Agency but did write one letter to the Child. Mother had minimal compliance with the permanency plan, in that she was employed. She remained inconsistent with Outreach Services and only attended 60% of her visits with the Child. Mother was residing at Oxford House, which would not be able to accommodate the Child. Father and Mother were found to have made no progress toward alleviating the circumstances which necessitated the original
placement. Following the hearing, the [c]ourt reaffirmed dependency and legal and physical custody of the Child remained with the Agency for continued placement in his current foster home.Tr. Ct. Op. 2-6.
Appellee, Lycoming County Children & Youth Services (hereinafter "the Agency") had filed a petition for involuntary termination of parental rights of Mother and Father as to the child on August 31, 2022. Two hearings were held on the Agency's petition, one on February 21, 2023, and one on June 26, 2023. At the first termination hearing, the court entered an order holding the record open until a bonding assessment could be completed between Mother and the child. On June 26, 2023, the termination of parental rights hearing occurred after the opportunity for a bonding assessment. John Pietrovito, Esquire, a solicitor on behalf of the Agency, and the child's guardian ad litem, Angela Campana, Esquire, were present. Counsel for the child, Jennifer Ayers, Esquire, participated by telephone. Mother attended in person and was represented by counsel, Jeana Longo, Esquire, and Father, who is incarcerated, appeared via Polycom and was represented by counsel, Bryan Fitzcharles, Esquire.
At the first termination hearing on February 21, 2023, the child's foster mother testified that she provides him a safe and stable place to live, and cares for the child regarding food, baths, clean laundry, new clothes, medical appointments, and prescriptions. N.T., 2/21/23, at 6-7. She stated that the child does well academically and when he has behavioral issues at school, she addresses it. Id. at 9.
Anabelle Marie Miller, case manager for the Agency, testified to each time the child was removed from Mother's care and placed in the foster home due to Mother's drug use, inappropriate discipline, and incarceration. N.T., 2/21/23, at 19-22. She stated that in her observation of the child at the foster home, "there's definitely a difference" in the child's behavior; he enjoys being there, loves the other foster children, reads books, has his own room and toys, acts calmer, and respects personal boundaries, N.T., 2/21/23, at 24-25. At the visits with Mother, particularly when she is late, the child is "wild," touches things he shouldn't touch, crawls on the floor, and acts like a baby in a manner that Mother cannot control. Id. at 26.
Joseph Weber, community outreach supervisor for the Agency, testified that Mother's cooperation and compliance with outreach services has been irregular. N.T., 2/21/23, at 37. Mother attended meetings only once a month until August 2022, and failed to meet with the caseworker at all until December 2022. Id. at 38. The Agency sent a letter to Mother encouraging her to be more active with the service, but Mother's visits did not become more regular. Id. at 39.
Claudia Perry, visitation caseworker for the Agency, testified that Mother was affectionate with the child and would bring crafts or food. N.T., 2/21/23, at 51. However, Mother only attended 65 percent of in-person visits and 35 percent of video visits. Id. at 52. Mother occasionally discussed adult situations with the child during the visits, including her employment and housing situation. Id. at 53. The child was wild and hyper at visits with Mother, and Mother needed to work on her ability to control or discipline him. Id. at 54. Mother was often late to meetings causing the child to be upset. Id. at 57.
Heather Wood, supervisor for the Agency, testified that she was concerned with Mother's visitation attendance. N.T., 2/21/23, at 68. She stated that the Agency made the decision to start off with supervised visits due to Mother's drug and alcohol use, and while the goal is generally to decrease the level of supervision needed at visits, Mother has not made enough progress on her family service plan or improved her attendance enough for the Agency to decrease its level of supervision. N.T., 2/21/23, at 71. Ms. Wood testified that regarding visitation, Mother was at the same level of progress in February 2023 as she was in August 2021. Id. at 72.
Mother testified that she was employed at the time and attends AA and NA meetings and is in treatment court. She stated that she lives in a recovery house which requires her to submit to urine tests or breathalyzers and to maintain employment. N.T., 2/21/23, at 105. She stated it would be detrimental to separate the child from her and she loves their visits. Id. at 111. When asked why Mother misses so many visits she said she is forgetful and sometimes it is because of work. Id. at 112. She cannot drive because after getting a DUI, she does not have a license, so in-person visits posed a transportation challenge for Mother. Id. at 116. Mother said that she is working to the best of her ability on treatment court, counseling, and employment. N.T., 2/21/23, at 121.
At the termination hearing, on June 26, 2023, Dr. Denise Feger was recognized as an expert in bonding assessments. N.T., 6/26/23, at 6. She testified that she conducted two evaluations-one of the child and Mother and one of the child and his foster mother. N.T., 6/26/23, at 7. She testified that there was a "significant gap" in the process of the child and Mother being able to reside together in the near future. N.T., 6/26/23, at 10. Mother exhibited a desire to care for her son and gain stability and there is an apparent bond between them. N.T., 6/26/23, at 11, 13. However, the relationship is unpredictable and anxiety-inducing for the child, and after this many years it is uncommon for there to be three failed reunification attempts. N.T., 6/26/23, at 11-12. When Dr. Feger conducted the evaluation at the foster home, she found that the child was calm and cooperative, unlike when he is at the visitation center. N.T., 6/26/23, at 15-16. He has a sense of security at the foster home and follows his foster mother's directions. N.T., 6/26/23, at 15. The foster mother and the child have a reciprocal parent-child relationship. Id. Dr. Feger estimated it would be another twelve months of the process before reunification could be attempted again, which would negatively impact the child's long-term success and relationships. N.T., 6/26/23, at 19.
The visitation caseworker, Tammy Reeder, testified that Mother and the child have fun together and are attentive to one another. However, sometimes the child is "a handful," hyper, and does not follow directions. N.T., 6/26/23, at 22. Mother struggles to control or quiet the child, and the caseworker described it at "supervising a visit between playmates." N.T., 6/26/23, at 24. During the prior two video calls between the child and Mother, the child was distracted, would not engage with Mother, and asked to end the call after only ten minutes. N.T., 6/26/23, at 26.
Ryan Snyder, a supervisor at the Agency, testified that Mother had been most recently incarcerated only three weeks prior to the hearing. N.T., 6/26/23, at 29. Mother had relapsed and admitted to possessing false urine. Id. Mother had also been laid off from her job a month prior. Id. Father briefly testified seeking to inform the court that he acknowledges that neither he nor Mother can properly care for the child. N.T., 6/26/23, at 35. He stated that he loves his son, and that the stable foster home is the best thing for the child. N.T., 6/26/23, at 34.
At the conclusion of the hearing, the orphans' court entered its order involuntarily terminating Mother's and Father's parental rights under subsections 2511(a)(1), (2), (5), (8), and (b) as to the child. Mother filed a timely counseled notice of appeal, as well as a contemporaneous concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925.
On Appeal, Mother raises the following issue: "Whether the trial court erred in terminating Mother's parental rights because the best interests of the child are not served be [sic] termination and because Mother did not demonstrate a settled purpose to relinquish parental claim to her son." Appellant's Br. at 7.
We note that guardian ad litem for J.M. notified this Court that she relies on the trial court's opinion and will not file a brief with this Court. Appellee, Lycoming Children & Youth Services, filed a brief.
Our standard of review is well-settled:
In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence presented as well as the [orphans'] court's factual findings and legal conclusions. However, our standard of review is narrow: we will reverse the [orphans'] court's order only if we conclude that the [orphans'] court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The [orphans'] judge's decision is entitled to the same deference as a jury verdict.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). Further, we have stated:
Where the hearing court's findings are supported by competent evidence of record, we must affirm the hearing court even though the record could support an opposite result. We are bound by the findings of the [orphans'] court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. The [orphans'] court is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence. Though we are not bound by the
[orphans'] court's inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the [orphans'] court's sustainable findings.In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).
Mother argues that it would not be in the child's best interest to terminate Mother's rights because they love each other and are bonded to one another. Appellant's Br. at 13. She further argues that she has not evidenced a settled purpose of relinquishing parental claim to the child or refused to perform parental duties because she makes her best effort to pass her drug screenings, find housing, and attend visitation. Appellant's Br. at 12.
Instantly, the orphans' court terminated Mother's parental rights pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and (b). In order to affirm the termination of parental rights, this Court need only agree with the orphans' court's findings under any one enumerated subsection of 2511(a), as well as 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). After review, we conclude that the record supports termination under subsection 2511(a)(5), as well as 2511(b).
Pursuant to subsection 2511(a)(5), parental rights may be terminated, after the filing of a petition, when:
[t]he child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or
placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.23 Pa.C.S. § 2511(a)(5).
We have construed this subsection to include three elements. Termination "under Section 2511(a)(5) requires that: (1) the child has been removed from parental care for at least six months; (2) the conditions which led to removal and placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child." In re Z.P., 994 A.2d 1108, 1118 (Pa. Super. 2010) (citation omitted).
The statute permitting the termination of parental rights outlines certain irreducible minimum requirements of care that parents must provide for their children, and a parent who cannot or will not meet the requirements within a reasonable time following intervention by the state may properly be considered unfit and have his parental rights terminated.Id. (citation omitted).
The orphans' court relevantly indicated the following in its opinion:
The Child was placed in the legal and physical custody of the Agency on July 30, 2021, and has been in Agency's custody ever since. After each permanency review hearing, the Court found Father had no compliance with the child permanency plan, and made no progress toward alleviating the conditions which led to the Child's placement. Father continues to be incarcerated and is unavailable to be a resource for the Child now or in the near future. While Father testified during the first day of the termination of parental rights hearing that he hoped the Child could be a motivator for Mother to address her issues, he admitted on the second day that the best interest of the Child would be served by remaining with the foster parent as neither he nor mother could properly care for him.
Mother was never found to be more than minimally compliant with the child permanency plan, and never made more
than minimal progress toward alleviating the conditions which led to the Child's removal. In addition to her housing and employment instability, Mother has continued to struggle with substance abuse since the Child's initial placement in 2017 and for the duration of the time the Child has been in the legal and physical custody of Lycoming County's Agency. Mother's participating in drug and alcohol counseling has always been inconsistent, and she was discharged from multiple counseling services for her non-compliance. In fact, it was not until Mother was accepted onto Treatment Court after being charged with 2 DUIs in three months and was faced with the threat of incarceration that she began to make any progress with her treatment. Eventually, however, Mother relapsed and was re-incarcerated. Mother has failed to take any responsibility for the situation that the Child is in, and has never shown a commitment to putting in the work necessary to address the issues which have led to his being removed from her care for more than half his life.
For nearly two years during this placement, and in total for more than half of his life, the Child had both his physical and intangible needs met by his foster parent. His foster parent is willing to offer him permanency. The Child's permanency can not and should not continue to be delayed while Mother refuses to take the steps necessary to treat her substance abuse issues and maintain stable employment and housing so that she can be reunified with the Child. As Mother has not satisfactory alleviated the conditions which led to the removal or placement of the Child, and Father is unable to be a resource for the Child, it is clear to this Court that termination of both Mother's and Father's parental rights would best serve the needs and welfare of the Child.Tr. Ct. Op. at 16-18.
We find no abuse of discretion or error of law. The record demonstrates that Mother has failed to make progress towards reunification, causing the child anxiety and instability. The condition which led to the child's removals was Mother's substance abuse issues, and concerns initially ranged from Mother's poor attendance at visitation to lack of initiative in her treatment. Those conditions have not been alleviated; during the reunification process,
Mother relapsed, was reincarcerated, and continued to miss and be late for visits. This is supported by three relevant portions of testimony. Joseph Weber testified that even after sending Mother a letter to engage with outreach services, she failed to do so. Second, Heather Wood testified that regarding visitation, Mother was at the same level of progress in February 2023 as she was in August 2021, eighteen months earlier. Finally, Dr. Feger estimated it would be another twelve months of the process before reunification could be attempted again, which would negatively impact the child's long-term success and relationships. This evidence directly supports the statutory language that "the parent cannot or will not remedy those conditions within a reasonable period of time, [and] the services or assistance reasonably available to the parent are not likely to remedy the conditions." 23 Pa.C.S. § 2511(a)(5).
Mother seems unable to take responsibility for her conduct and acknowledge that she needed assistance in improving her ability to parent. The child has been removed from Mother for approximately four years, more than half of his life, and it would be unreasonable and not in the child's best interest to make a fourth attempt at reunification which the expert testified would take another twelve months, during which Mother's progress may remain stagnant as it has for eighteen months. Because of Mother's continued course of conduct, her failure to comply with the permanency plan, and her inability or unwillingness to remedy the situation, we conclude the Agency has met its burden of proof under subsection (a)(5). Accordingly, we conclude the orphans' court did not abuse its discretion in terminating Mother's parental rights to the children pursuant to 23 Pa.C.S. § 2511(a)(5).
Turning to subsection 2511(b), the orphans' court concluded termination would best serve the children's "developmental, physical and emotional needs and welfare," and, thus, termination was in the children's best interests. Tr. Ct. Op. at 22; See 23 Pa.C.S. § 2511(b) ("The court in terminating the rights of a parent shall give primary consideration to the developmental, physical[,] and emotional needs and welfare of the child.").
Specifically, in its opinion, the orphans' court relevantly indicated the following:
When a child is removed from the home and placed in foster care, the scheduled visits become extremely important as they serve to allow the parent to maintain the parent/child bond as the parent works towards reunification. Mother's attendance at visits was poor, and as of the initial hearing on the Petition for Involuntary Termination of Parental Rights, Mother had attended only 65% of her in person visits and 35% of her video visits. Mother's inconsistency resulted in negative behaviors from the Child, especially when Mother does not attend. Dr. Feger's report indicated that "[g]enerally, aside from inappropriate content being discussed, poor boundaries, and challenges in her understanding the needed interventions for her son, the presentation with Mother and the Child is one where she does appear to care about her son, and desire to be a resource for him but balancing her own emotional needs and his are quite difficult for her." (Ex. 32). Dr. Feger's report and testimony indicated that it is undeniable that the Child loves his Mother and has a bond with her, albeit, this bond is one built in fear, anxiety, worry, and parentification. (Id.). The attachment can best be classified as an "insecure, disorganized attachment." Dr. Feger opined that this attachment style develops over time when the primary caregiver is unable to offer consistency in their role as a parent, therefore rendering a child insecure in their belief about how that person will care for them in the future. (Id.).
While there is some bond between Mother and the Child in that the Child appears excited to see Mother at the time of visits, the visitation caseworker testified that it appeared to be a friendship-type situation, and their interaction was akin to supervising a visit between playmates. Additionally, Dr. Feger testified that the Child is very clear that he loves Mother and wishes things were different but he finds safety and security in his foster mother. "The existence of some bond with Mother does not necessarily defeat termination of her parental rights." In re K.Z.S., 946 A.2d, 753, 764 (Pa.Super. 2008). "The question becomes whether the bond between the Child and Mother is the one worth saving or whether it could be sacrificed without irreparable harm to the Child." Id. (emphasis added).
The Child has been in the same foster home for more than half his life and, most recently, since July of 2021. This is the third failed attempt at reunification with Mother. The foster mother has provided everything the Child needs and this has naturally established a bond and attachment between the Child the foster Mother. The Child is clearly bonded with the resource mother, who has provided for his physical and emotional needs for more than half his life. The Child identifies the foster mother's residence as his own, and he views the foster mother as his primary caregiver. Most importantly, she is ready, able, and willing to offer him permanency. The Child's permanency cannot and should not be delayed, and the Court finds that, although he may experience a painful loss in the case of Mother, terminating Mother's and Father's rights would not cause irreparable harm to the Child. This Court further finds that permanency in the form of adoption by the person who has consistently met his needs is in the best interest of the Child.Tr. Ct. Op. at 19-21 (underlining of citations omitted).
We find no abuse of discretion. The record, in particular the testimony of the caseworker, Tammy Reeder, and the expert, Dr. Feger, supports the orphans' court's determination. See In re A.R.M.F., 837 A.2d 1231 (Pa. Super. 2003) (holding the court properly terminated parental rights where decision was based, in part, on social worker's and caseworker's testimony children did not share significant bond with biological parents and were well bonded with foster parents). Moreover, the child's guardian ad litem advanced the sentiment that the child's bond with Mother was not a healthy bond. N.T., 2/21/23, at 159-60.
After our independent review, we conclude that the evidence presented supports the orphans' court's order involuntarily terminating Mother's parental rights pursuant to subsections 2511(a)(5) and (b). See In re Z.P., 994 A.2d 1108, 1115 (Pa. Super. 2010) (absent abuse of discretion, error of law, or insufficient evidentiary support for the lower court's decision, decree in termination of parental rights proceeding must stand). Thus, we affirm the orphans' court's order.
Order affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.