[Cite as In re B/K Children, 2020-Ohio-1095.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
IN RE: B/K CHILDREN. : APPEAL NO. C-190681 TRIAL NO. F16-1937X
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 25, 2020
Christopher P. Kapsal, for Appellant Mother,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Jonathan Halvonik, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,
ProKids, Inc., and Paul Hunt, Attorney for Guardian ad Litem Morgan Zak. OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} Mother appeals the juvenile court’s judgment granting the Hamilton
County Department of Job and Family Services’s (“HCJFS”) motion for permanent
custody of her two young children, P.B. and L.K. This case is on appeal for the second
time. We previously reversed the juvenile court’s April 2019 judgment adopting the
magistrate’s decision granting the motion for permanent custody. In re: B/K Children,
1st Dist. Hamilton No. C-190269, 2019-Ohio-5503. We set it aside because the record
did not reflect that the juvenile court had considered all the statutory best-interest
factors when resolving HCJFS’s motion. On remand, the juvenile court issued a new
decision, journalized on November 15, 2019, also adopting the magistrate’s decision
granting permanent custody to HCJFS, but reflecting that the court had considered all
the statutory best-interest factors in arriving at that determination.
{¶2} Mother now appeals from the November 2019 judgment, raising two
assignments of error. First, she argues the juvenile court failed to specifically overrule
her objections to the magistrate’s decision, as required by Juv.R. 40. Second, she
contends the decision to grant permanent custody to the agency and terminate her
parental rights was not supported by clear and convincing evidence and was against the
weight of the evidence.
{¶3} We conclude that the juvenile court’s judgment complies with the
requirements of Juv.R. 40. Further, we conclude that the evidence supports the juvenile
court’s decision to grant the agency’s motion for permanent custody. Notwithstanding
progress made by mother in remedying some of the conditions that led to the children’s
removal, the evidence shows she repeatedly failed to remedy the safety risk posed by
domestic violence and will not be able to protect the children within a reasonable time or
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ever. The evidence also shows that a grant of permanent custody best serves the needs
of the children. Because the errors assigned are not demonstrated in the record, we
affirm.
Background Facts and Procedure
{¶4} This case began in August 2016, when four-month-old P.B. lived with
mother, then 16 years old, in the home of maternal grandmother. Mother and maternal
grandmother engaged in an altercation to which the police responded. Maternal
grandmother refused to allow mother back in the home due to her “out of control
behaviors,” leaving mother and P.B. homeless. P.B.’s father, P.E., had previously
abandoned him. The agency was granted emergency and interim custody and then
temporary custody after P.B. was adjudicated dependent.
{¶5} Mother, who was subsequently diagnosed with depressive bipolar
disorder, made progress with her case-plan goals, which included learning to control her
anger and receiving mental-health treatment. The agency remained concerned about
mother’s ability to protect P.B., because she had been in a mutually violent, romantic
relationship with a man named D.K. In the spring of 2017, the agency supported
remanding custody of P.B. to mother with orders of protective supervision. The agency
was supportive of reunification in part because maternal grandmother had allowed
mother back into her home and D.K. was incarcerated. Further, both mother and
maternal grandmother agreed to a safety plan to protect the child from domestic
violence once D.K. was released from prison. Mother regained custody of P.B. in April
2017 with the requested orders of protective supervision.
{¶6} Despite mother’s contrary representations to the agency, she did not end
her romantic relationship with D.K., who was released from incarceration before mother
gave to birth to D.K.’s child L.K. in August 2017. Mother and D.K. argued in the hospital
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room shortly after L.K.’s birth and mother called 911. Mother did not report the incident
to the agency’s ongoing caseworker, but hospital staff did. When the caseworker
questioned mother about the incident, mother initially denied that it had occurred.
Mother did eventually accurately report the incident to her caseworker, and also told the
caseworker about a subsequent incident when D.K. had kicked his way into her home
and broke items.
{¶7} In late September 2017, while the caseworker and the children’s Court
Appointed Special Advocate (“CASA”) were at mother’s home for a visit, D.K. appeared
at the front door, upset at mother because he could not locate his car. Mother acted
surprised to see him and told her caseworker and the CASA that she had had no contact
with D.K. for weeks. Mother later admitted to her caseworker that D.K. had spent the
previous night in the home. The caseworker told mother not to have contact with D.K.,
and mother agreed. The caseworker also warned D.K. that the children would be
removed if he had violent contact with mother.
{¶8} On October 1, 2017, D.K. broke into the home of mother and the
maternal grandmother and assaulted mother. The children were removed from the
home and adjudicated dependent and abused. The adjudication was due in part to
stipulations from mother that D.K. had punched her several times in the presence of the
children, she and D.K. had a history of domestic violence, and she maintained a
relationship with D.K. despite his past threats to harm her.
{¶9} In November 2017, per agreement of mother, the court placed the
children in the temporary custody of the agency with a goal of reunification with mother.
Mother completed an updated diagnostic assessment in January 2018. Her case plan
involved individual therapy, case-management services, medication, and regular
visitation, including attending the medical appointments for the children, and following
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through on the safety plan to protect the children from domestic violence. D.K.’s case-
plan goals were to complete a diagnostic assessment and follow recommendations,
complete parenting education, and complete a domestic-violence assessment, none of
which he participated in.
{¶10} In April 2018, D.K. once again attacked mother in her home. Mother
called the police but gave a false identity and never contacted HCJFS. The agency
caseworker noticed a police report involving mother’s address and asked mother about
the incident. Mother initially denied knowing anything about the assault and claimed
the police had written down the wrong address. Mother later revealed to the caseworker
that D.K. had assaulted her at her home, but claimed she did not know how he had
learned her address. Mother assisted with his prosecution, which led to his
incarceration, but only after HCJFS’s involvement.
{¶11} Although mother eventually assisted with D.K.’s prosecution, the
caseworker’s investigation led her to believe that mother was continuing to mislead the
agency about her relationship with D.K. Further, the agency concluded that mother’s
continued dishonesty, immaturity, and lack of insight into how domestic violence
affected the children, despite the provision of services to remedy the condition that she
protect the children from exposure to domestic violence, required termination of her
parental rights.
{¶12} HCJFS moved for permanent custody of the children in July 2018. At
the time, 26-month-old P.B. had been in the agency’s custody for over 13 months of a
continuous 22-month period. Eleven-month-old L.K. had been in agency custody for all
but two months of her life, residing together with P.B. in foster homes. The children’s
guardian ad litem (“GAL”) supported the agency’s motion for permanent custody.
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{¶13} In January 2019, a magistrate proceeded on the permanent-custody
motion. She heard testimony from employees of HCJFS, including the ongoing
caseworker from September 2016 to December 2018, the CASA for the children who had
continuously served since her appointment in September 2016, mother, maternal
grandmother, and D.K. D.K. was incarcerated and his testimony was presented by video
streaming.
{¶14} The caseworker testified to the history of the case, including mother’s
struggle to end her violent relationship with D.K. and her deceptive representations and
acts that protected him and not the children. She found mother’s plan to protect the
children from domestic violence incredible because mother had repeatedly lied in the
past and unequivocally wanted D.K. involved in L.K.’s life upon his release from prison.
{¶15} The caseworker further testified that mother had a “hot and cold” and
sometimes violent relationship with maternal grandmother, but that relationship had
improved when mother moved out of maternal grandmother’s home and into her own
apartment. According to the caseworker, mother’s progress also included obtaining
stable employment, which had appeared to end mother’s involvement in shoplifting.
Further, the caseworker reported that mother was mostly compliant with her mental-
health and case-management services, but that she still lacked insight into how the
violence between her and maternal grandmother and D.K. had affected the children’s
development and growth.
{¶16} Finally, the caseworker informed the court that mother’s visitation was
consistent, but had occurred at the supervised level, and that, based on her interactions
with the family, mother did not have a reliable support network. The caseworker
concluded that mother’s positive progress in some areas did not offset the domestic-
violence issues that were preventing the return of the children to mother’s care.
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{¶17} The CASA appointed to protect the children provided the court with
insight into the needs of the children. This included P.B.’s extensive medical issues that
required multiple surgeries to remove hemangioma and insert ear tubes, and ongoing
therapy for his speech and developmental delays. The CASA testified that mother did
not take P.B. to many of his medical appointments at Children’s Hospital after custody
had been remanded to her in April 2017 and was inconsistent in attending his more
recent appointments. Further, she reported that when mother did attend P.B’s medical
appointments along with the foster parent, she never observed mother implement the
recommended protocol to help P.B. with his significant speech delay.
{¶18} Notwithstanding P.B.’s issues and the turmoil caused when P.B. was
remanded back to mother in 2017, the CASA said P.B. was progressing while in foster
care. Ultimately, based on her personal involvement with the children and mother
during the course of two and one half years, she did not believe mother would follow
through with the consistent therapy, care, and protection that the children were
receiving and needed.
{¶19} Mother was 19 years old at the time she presented her own testimony
opposing the motion for permanent custody. She acknowledged that she and D.K. had
been mutually violent, and stated that she was deceptive with the agency because she
believed if she did not lie she would lose her kids. Mother asserted that she had matured
and no longer wanted to be in a relationship with D.K., imprisoned since April 2018 and
set to be released in April 2019. Mother indicated, however, without qualification, that
she wanted D.K. to have a relationship with L.K. and would facilitate that relationship
when he was released from prison, notwithstanding his history of domestic violence.
{¶20} The plan mother announced to allow her to support the children also
connected her to D.K., as she intended to ask D.K.’s mother to care for the children while
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she worked her third-shift job. She recognized that maternal grandmother’s significant
employment responsibilities prevented her from even providing transportation
assistance. Nonetheless, she indicated these grandmothers would be her support
network when the children were remanded to her.
{¶21} Mother testified that she had anger-control and depression issues and
had taken the medication prescribed for her mental-health diagnosis, except when
pregnant with L.K. While she indicated that she had been mostly compliant with the
requirement that she attend individual therapy, she rejected the idea that she needed
ongoing support to avoid domestic violence in the future.
{¶22} Mother’s claim that she had finally ended her romantic relationship
with D.K. was corroborated by both maternal grandmother’s and D.K.’s testimony.
Maternal grandmother supported reunification with mother and indicated that mother
had made positive changes since 2016, resulting in a “slightly better” “attitude” and an
improvement in their relationship. D.K. supported reunification with mother, too. He
testified that he does not intend to continue a relationship with mother, but does intend
to have a relationship with L.K. upon his release from prison. Further, he expressed his
opinion that domestic violence had not been an issue between him and mother,
explaining that
[W]e fought a few a couple of times, but I don’t feel like I have an issue as
to beating on [mother], no. I don’t have the issue to where I can just
come in the house and just beat on [mother] for no reason. So, I don’t
feel like I have an issue. * * * But I have done it before, though.
{¶23} Although mother requested an extension of temporary custody, to allow
more time to prove that she was no longer in a relationship with D.K. and that she would
carry out the safety plan to protect the children, the magistrate issued a decision
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granting the agency’s motion for permanent custody of the children. The magistrate’s
disposition was guided in part by her finding that “[mother’s] assertion that she has a
plan to keep the children and herself safe is not credible. She had the same plan before
and did not follow through.”
{¶24} Mother objected to the magistrate’s decision. In April 2019, the trial
court overruled mother’s objections, adopted the magistrate’s decision, and entered a
judgment granting permanent custody to HCJFS. The juvenile court entered a second
judgment granting permanent custody to HCJFS in November 2019, after this court’s
reversal of the April 2019 judgment and remand of the case with instructions.
The Appeal
{¶25} Juv.R. 40(D)(4)(d) requires the trial court when acting on a magistrate’s
decision to rule on the objections before entering a final judgment. In her first
assignment of error, mother contends the juvenile court failed to comply with this rule
when it issued the November 2019 entry. This court does not agree.
{¶26} Mother objected to the magistrate’s decision on grounds that the grant of
permanent custody to HCJFS was not in “the children’s best interest and [was] against
the weight of the evidence.” In its November 2019 decision, the juvenile court initially
recounted how, in its prior judgment, it had “den[ied] Mother’s objections” to the
magistrate’s decision and adopted the magistrate’s findings of fact and conclusions of
law “after conducting an independent review following the filing of objections.” The
court then stated that
in conducting an independent review of the record [on remand], this
Court has reviewed and considered all transcripts, filings, exhibits, and
arguments submitted to the Court. Based on an independent review of
the record, the Court finds that the findings of fact and conclusions of law
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contained in the Magistrate’s Decision dated January 15, 2019, are
supported by clear and convincing evidence, and are incorporated by
reference herein as fully set forth herein. The Court further supplements
the Magistrate’s Decision with the findings and conclusions discussed
below.
{¶27} Although it is preferable that the court use words such as “sustained,”
“denied,” “overruled,” or the like, when disposing of objections, the language used by the
court in its November 2019 decision leaves no question that it properly considered
mother’s objections, found them meritless, and overruled them. Because the juvenile
court did rule on her objections as required by Juv.R. 40(D)(4)(d), we overrule the first
assignment of error.1
{¶28} In her second assignment of error, mother challenges the sufficiency and
weight of the evidence supporting the juvenile court’s judgment.
{¶29} R.C. 2151.414 governs the findings the juvenile court had to make before
granting permanent custody of these children to HCJFS. Under R.C. 2151.414(B), the
juvenile court may grant a motion for permanent custody if the court determines, by
clear and convincing evidence, that permanent custody is in the best interest of the child
and that one of the five conditions set forth in R.C. 2151.414(B)(1) applies. Clear and
convincing evidence “is evidence sufficient to ‘produce in the mind of the trier of fact[ ] a
firm belief or conviction as to the facts sought to be established.’ ” In re W.W., 1st Dist.
Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46, quoting In re K.H., 119
Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 42.
1 Mother also alleges as error the trial court’s failure to “specifically adopt, modify or reject the magistrate’s decision.” We consider this claim as abandoned because mother presents no argument in support of this claim, which is refuted by her own recitation of the facts.
10 OHIO FIRST DISTRICT COURT OF APPEALS
{¶30} Here, the juvenile court found that the grant of permanent custody was
in the best interest of the children. Additionally, with respect to P.B., it found applicable
the “cannot or should not” condition of R.C. 2151.414(B)(1)(a) and the “12 of 22”
condition of R.C. 2151.414(B)(1)(d). With respect to L.K., it found only the “cannot or
should not” condition applied. Mother challenges only the “cannot or should not” and
best-interest determinations.
Cannot or Should Not Be Place with Mother
{¶31} The juvenile court’s finding that the children cannot be placed with
either parent within a reasonable time or should not be placed with either parent
requires clear and convincing evidence that at least one of the conditions listed under
R.C. 2151.414(E) was present as to each parent.2 Of relevance, the juvenile court found
the evidence supported a finding under R.C. 2151.414(E)(1) that mother had failed
continuously and repeatedly to substantially remedy the conditions causing the child to
be placed outside the home, notwithstanding reasonable case planning and diligent
efforts by the agency to assist mother.
{¶32} Here, the foremost obstacle for the reunification of the children with
mother was her failure to address the domestic-violence scenario. Mother contends that
notwithstanding her history of failing to protect the children, the evidence showed it was
more likely that she would protect the children in the future. She relies on the
undisputed testimony showing her completion of several of her case-plan goals, such as
obtaining stable housing, and her ultimate cooperation in the criminal prosecution of
D.K. for domestic violence. Additionally, she directs us to the testimony she presented
2 The juvenile court’s “cannot or should not” finding was superfluous with respect to P.B. for purposes of satisfying one of the conditions of R.C. 2151.414(B)(1)(a)-(e), because P.B.’s custodial history satisfied the “12 of 22” condition of R.C. 2151.414(B)(1)(d). But the juvenile court properly used its “cannot or should not” finding when evaluating P.B.’s best interest.
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showing that she had matured and had finally ended her romantic relationship with
D.K. Thus, she claims the court lacked clear and convincing evidence to support a
determination that she had failed to remedy the conditions that led to removal. We
disagree.
{¶33} As the juvenile court pointed out in its decision, the evidence showed
that mother’s repeated dishonesty aggravated her repeated failure to protect the
children. This repeated dishonesty protected D.K. and put her children at risk of physical
and emotional harm and losing mother’s care. Notably, mother did not fully cooperate
in D.K.’s 2018 prosecution until the agency persistently pursued the issue. Further,
mother unequivocally acknowledged that she would allow D.K. to be a part of L.K.’s life
upon his release from prison. Yet D.K. had not taken part in case-plan services and
testified he did not believe that he and mother had a violent relationship because he did
not “beat on [mother] for no reason.” Relatedly, mother acknowledged the pervasive
domestic violence in her life, but failed to appreciate her need for ongoing support
directed to this issue.
{¶34} Ultimately, the threat of harm to the children is not speculative but is
grounded in the facts and leaves these children unprotected in the future. See In re
W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, at ¶ 103. The
juvenile court was able to observe the witnesses, and we have no reason to reject the
presumption that the court’s finding with respect to mother’s credibility was correct in
light of the evidence, including unequivocal evidence of mother’s pervasive dishonesty
and her lack of insight into domestic violence. See In re A.B., 1st Dist. Hamilton Nos. C-
150307 and C-150310, 2015-Ohio-3247, ¶ 16.
{¶35} Based on these facts, which demonstrate mother’s failure to remedy the
unsafe conditions that led to the children’s removal, we conclude that the juvenile
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court’s “cannot not or should not” determination is supported by clear and convincing
evidence and is not against the weight of the evidence.
Best Interest
{¶36} The safety risk to the children is the primary reason, but not the only
reason, that their best interest would not be served by returning them to mother. In
assessing the best interest of a child for purpose of a permanent-custody determination,
a juvenile court must consider all relevant factors, including (a) the child’s interaction
with parents, siblings, relatives, foster caregivers and out-of-home providers, and any
other person who may significantly affect the child; (b) the child’s wishes, as expressed
directly by the child or through the child’s GAL; (c) the child’s custodial history,
including whether the child has been in the temporary custody of one or more public
children services agencies for 12 or more months of a consecutive 22-month period; (d)
the child’s need for a legally secure permanent placement and whether that type of
placement can be achieved without a grant of permanent custody to the agency; and (e)
whether any of the factors in divisions (E)(7) to (11) of [R.C. 2151.414] apply in relation
to the parents and child. R.C. 2151.414(D)(1)(a)-(e).
{¶37} The juvenile court discussed each of the best-interest factors with respect
to each child in its November 2019 decision. With respect to the children’s interaction
with significant others and the resulting bonding, the court found no bonding between
the children and their fathers, who had not been a part of their lives. The court found
that the children had bonded with the foster family they had been placed with until
December 2018, when the children were placed with a new family, but discounted the
significance of that bond. The court was unsure whether the children had a bond with
mother, from whom they had lived apart for most of their short lives. Finally, the court
noted that mother appeared bonded to the children. The court, however, had concerns
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that mother did not appreciate or understand the high level of care necessary to manage
P.B.’s medical conditions because she had been inconsistent at times with attending his
medical appointments.
{¶38} In considering the wishes of the children, the court noted that the GAL
for the very young children had submitted a report recommending an award of
permanent custody to HCJFS. The court also summarized the custodial history of each
child, reiterating that at the time the agency had filed for permanent custody in July
2018, P.B. was 22 months old and had been in agency custody for 13 months of the
preceding consecutive 20 months, having lived the majority of his life in agency custody.
L.K. had lived all but the first two months of her life in agency care.
{¶39} Finally, the court found that the children needed a legally secure
placement and that that type of placement could not be achieved without a grant of
permanent custody to the agency. The court reiterated that the “very young children”
“who have spent the majority of their lives in custody of HCJFS” cannot and should not
be placed with any of the parents, including mother, who had repeatedly failed to
demonstrate her ability to address the domestic-violence scenario. The court then
explained:
This is not a case where it is simply the existence of [D.K.] that is
preventing the children from returning to [m]other’s care. Rather,
[D.K.’s] violent behavior is compounded by the safety risk posed to the
children by [m]other’s own violent behavior, dishonesty, and continued
unwillingness to protect the children from [D.K.].
{¶40} The court further expounded on the significant medical needs of each
child and the mother’s lack of a suitable network to help her manage the children’s
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conditions. After weighing all the best-interest factors, the court determined that an
award of permanent custody best served the children’s needs.
{¶41} Mother argues the juvenile court’s findings under several of the statutory
best-interest factors are not supported by sufficient evidence. For instance, she suggests
there is no evidence to support the court’s concern that she may not understand or
appreciate the level of care needed to manage the children’s conditions. But the
children’s CASA testified to this concern, stating that mother failed to take P.B. to his
appointments when she had custody of him and was inconsistent in attending his more
recent appointments, a fact mother confirmed. Further, mother testified that she was
not aware of some of L.K.’s medical issues such as posttraumatic stress disorder.
{¶42} Mother additionally argues that the court erred by considering the bond
between the children and their foster family because the children had been placed with a
new foster family just prior to the trial. Mother, however, misinterprets the court’s
discussion of this issue. The court explained that it considered the bond between the
children and their former foster family only to the extent that it shows the children’s
“ability to bond to substitute caregivers.”
{¶43} Next, mother argues the juvenile court should not have considered the
GAL’s recommendation of permanent custody as part of the R.C. 2151.414(D)(1)(b)
analysis, even though the children were too young to express their wishes. We disagree.
{¶44} A GAL is appointed to “to assist a court in its determination of a child’s
best interest,” Sup.R. 48(B)(1), and is required “to protect the interest of the child,” R.C.
2151.281(B). To carry out her duties, the GAL in this case was required to ascertain the
children’s wishes, see Sup.R. 48(D)(13)(c), and to promptly notify the court if those
wishes conflicted with the GAL’s conclusion as to the best interest of the children. See
Sup.R. 48(D)(8).
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{¶45} The juvenile court properly considers the GAL’s recommendation on the
permanent-custody motion as part of the R.C. 2151.414(D)(1)(b) analysis where the
children are too young to express their wishes. See In re Schaefer, 111 Ohio St.3d 498,
2006-Ohio-5513, 857 N.E.2d 532, ¶ 60, applying the identically worded former R.C.
2151.414(D)(2); In re X.M.W., 1st Dist. Hamilton Nos. C-190568 and C-190595, 2020-
Ohio-449, ¶ 16; In re J.R., 1st Dist. Hamilton No. C-190342, 2019-Ohio-3500, ¶ 32.
Accordingly, we reject mother’s argument that the juvenile court improperly considered
the GAL’s position when fulfilling its statutory duty to consider the children’s wishes
under R.C. 2151.414(D)(1)(b).
{¶46} Next mother contends the juvenile court failed to give adequate weight
to her demonstrated bond with the children and the progress she made when the
children were out of her care. She cites this evidence as strong proof that she will protect
the children in the future and that an award of permanent custody to the agency is not in
their best interest.
{¶47} We commend mother for her love and efforts. But we are not persuaded
that the juvenile court erred when finding that the children’s best interest was served by
a termination of her parental rights. As we have previously stated, the threat of harm to
the children is grounded in the facts and is not speculative. Moreover, a parent’s
fundamental interest in raising a child “is not absolute.” In re D.A., 113 Ohio St.3d 88,
2007-Ohio-1105, 862 N.E.2d 829, ¶ 11. Once a custody case reaches the dispositional
stage, “the best interest of the child controls,” not the parent’s interest. Id. Here, both
children have lived the majority of their lives in HCJFS custody because mother failed to
timely remedy the conditions that led to their removal. Further, mother’s lack of insight
into the issue of domestic violence in her life is alarming and her own violent tendencies
16 OHIO FIRST DISTRICT COURT OF APPEALS
cannot be overlooked. These very young children need a stable and secure placement
now. Mother cannot provide this (nor can either father), but adoption can.
{¶48} The trial court’s best-interest determination is supported by clear and
convincing evidence and is not against the manifest weight of the evidence.
{¶49} Consequently, we overrule the second assignment of error because the
juvenile court’s “cannot or should not” and best-interest determinations are supported
by sufficient evidence and are not against the weight of the evidence.
Conclusion
{¶50} For the foregoing reasons, we affirm the juvenile court’s judgment
granting HCJFS’s motion for permanent custody of P.B. and L.K. and terminating the
Judgment affirmed.
MOCK, P.J., and BERGERON, J., concur.
Please note: The court has recorded its own entry this date.