[Cite as In re M.Z., 2012-Ohio-3194.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
IN RE: M.Z. C.A. Nos. 11CA010104 M.Z. 11CA010105 S.Z. 11CA010106 I.Z. 11CA010107 11CA010109 11CA010110 11CA010111 11CA010112
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nos. 09JC27477 09JC27478 09JC27664 09JC27665
DECISION AND JOURNAL ENTRY
Dated: July 16, 2012
CARR, Judge.
{¶1} Appellants, Lori M. (“Mother”) and Miguel Z. (“Father”), separately appeal from
a judgment of the Lorain County Court of Common Pleas, Juvenile Division, that terminated
their parental rights to their four minor children and placed the children in the permanent custody
of Lorain County Children Services Board (“LCCS”). This Court affirms.
I.
{¶2} Mother and Father are the parents of Mi.Z., born July 15, 2004; S.Z. and I.Z., twin
girls, born October 13, 2006; and Ma.Z., born March 28, 2008. At the time of the permanent
custody hearing, the children were seven, four, and three years of age. 2
{¶3} LCCS became involved with the family in July 2009 when Mother requested
assistance with their finances and an inability to provide for the needs of the children. The
household utilities were being shut off and the family was facing eviction. In addition, Father
was arrested on an outstanding warrant. Father had a criminal record that included one
conviction for domestic violence, two convictions for endangering children, and six drug-related
convictions, all since 2005. The LCCS intake worker helped Mother arrange for a temporary
placement of the children under a safety plan. The children were first placed at a local shelter
and then with relatives. Mi.Z. and Ma.Z. were placed with a paternal aunt in Ohio, and the twins
were placed with a maternal uncle in Pennsylvania.
{¶4} Within two months, the agency filed complaints in juvenile court. On November
20, 2009, the court adjudicated all four children to be neglected and dependent. At disposition,
the court ordered Mi.Z. and Ma.Z. into the temporary custody of the agency and the agency
placed them in a foster home. At the same time, the court ordered I.Z. and S.Z. into the
temporary custody of relatives. The court adopted a case plan which required both parents to
address concerns of domestic violence, substance abuse, mental health, and housing. Father was
additionally required to engage in counseling and anger management. Eventually, the twins
were moved from one relative placement to another and then to a foster home.
{¶5} Over the course of the next year, the parents made some progress on their case
plans and the court agreed to place all four children in the temporary custody of Mother with
protective supervision in the agency. Mi.Z. and MaZ. were placed with Mother on October 19,
2010 and the twins were placed with her on November 1, 2010. That arrangement lasted less
than two months. On December 12, 2010, a domestic violence incident occurred between
Mother and Father in the presence of the children. Mother reported injuries to her head and 3
wrist. Father was arrested and the children entered emergency temporary custody. Mother faced
eviction from her home once again. Mother was not permitted to stay at the local shelter because
she had previously brought Father there in violation of the rules. Realizing that she lacked the
means to provide for her children, Mother asked the agency to return them to their foster homes
while she went to Pennsylvania to stay with relatives. New case plans were developed, but there
was little evidence of further progress by the parents. In the ensuing six months, Father attended
five visits with his children and Mother attended none. She communicated with her young
children only by telephone.
{¶6} On April 4, 2011, the agency moved for permanent custody of the children,
alleging that they had been the temporary custody of the agency for 12 or more months of a
consecutive 22-month period and that permanent custody was in the best interest of the children.
Following a hearing, the trial court granted the agency’s motion. Mother and Father separately
appealed and each assigned two errors for review. The assignments of error are combined where
the issues align.
II.
Father’s Assignment of Error Number One
The trial court erred and abused its discretion in terminating [Father’s] parental rights by granting permanent custody of [the children] to Lorain County Children Services when the trial court’s judgment was against the manifest weight of the evidence.
Mother’s Assignment of Error Number One
The Judgment Entry filed in this matter is against the manifest weight of the evidence to award permanent custody of the child to the State of Ohio.
First Prong of the Permanent Custody Test 4
{¶7} Father claims that the trial court erred in finding that the first prong of the
permanent custody test was satisfied by R.C. 2151.414(B)(1)(d), the 12-of-22 provision, because
the children had been in the temporary custody of the agency only two months since the
attempted reunification with Mother and before the motion for permanent custody was filed.
The record demonstrates that Mother was awarded the temporary custody of her children along
with an additional order of protective supervision in the agency in the fall of 2010. She retained
that status for less than two months. The children were removed when there was a domestic
violence incident between the parents and in the presence of the children. Father nevertheless
asserts that the return to Mother’s care meant that the trial court found all of the parents’
problems had been resolved and the measuring of 12-of-22 months should begin anew from that
point.
{¶8} Before a juvenile court may terminate parental rights and award to a proper
moving agency permanent custody of a child, it must find clear and convincing evidence of both
prongs of the permanent custody test that: (1) the child is abandoned, orphaned, has been in the
temporary custody of the agency for at least 12 months of the prior 22 months, or that the child
cannot be placed with either parent within a reasonable time or should not be placed with either
parent, based on an analysis under R.C. 2151.414(E); and (2) the grant of permanent custody to
the agency is in the best interest of the child, based on an analysis under R.C. 2151.414(D). See
R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 99 (1996).
{¶9} Father’s argument is without merit for several reasons. First, Father has not cited
any authority that supports his position that a brief – and failed – reunification effort re-starts the
12-of-22 time period. He cites only In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, which
established that children must be in the temporary custody of an agency for 12 months before an 5
agency may file a motion for permanent custody on R.C. 2151.414(B)(1)(d) grounds, and that
the time that passes after the motion for permanent custody is filed may not be included. In re
C.W. does not, however, require that the counting of temporary custody time must begin anew
after a brief reunification effort in the midst of an on-going case.
{¶10} Second, R.C. 2151.414(B)(1)(d) anticipates that the applicable period of 12
months of temporary custody may accrue in portions. The statute calls for the accumulation of
12 months of temporary custody over the span of the 22 months directly prior to the filing of the
motion for permanent custody. See In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, at
syllabus; R.C. 2151.414(B)(1)(d). There is nothing that prohibits a court from looking back to
the period of time that passed prior to the date the children were temporarily returned to a
parent’s care. In the Matter of M.K., 12th Dist. No. CA2011-07-003, 2012-Ohio-36, ¶ 63, citing
In re S.R., 10th Dist. Nos. 05AP-1356, 05AP-1366, 05AP-1367, 05AP-1373, 2006-Ohio-4983, ¶
23. Compare In re N.G., 9th Dist. No. 12CA010143, 2012-Ohio-2825, ¶ 10, citing In re R.H.,
9th Dist. No. 24537, 2009-Ohio-1868, ¶ 3, (agency may file a new complaint after a permanent
disposition of legal custody).
{¶11} Third, the statutory scheme set forth in R.C. Chapter 2151 provides that a juvenile
court may modify a dispositional order of temporary custody “at any time” and the court may
proceed as in the original dispositional hearing. R.C. 2151.353(E)(2). Such modifications are
generally guided by the best interest of the child. See, e.g., R.C. 2151.415(F); R.C. 2151.417(B).
The added restriction of protective supervision entitles the court to still more control regarding
parental involvement. See R.C. 2151.353(C). The trial court was entitled to modify the
disposition upon a determination of the best interests of the children and within the strictures of
the ongoing case. 6
{¶12} Fourth, there is no reasonable basis on which to conclude that placement of the
children with Mother in the fall of 2011 meant the trial court had concluded that the parents’
problems had been entirely resolved and that the agency was obligated to initiate a new case at
that point. Generally, such an order implies only that a parent has made some progress and is
being given an opportunity to attempt to regain full custody of the children. In this case, the
magistrate congratulated the parents on doing a great job on their case plan, but also emphasized
that “the agency is continuing to hold protective supervision” because “there is more to do on the
case plan.” Mother did not have full legal custody of the children and the trial court did not grant
any type of custody to Father.
{¶13} Therefore, the trial court was not barred, as Father contends, from considering the
time prior to the two-month reunification effort towards the application of R.C.
2151.414(B)(1)(d). Beyond this, “[i]t is not the obligation of this Court to construct an argument
for an appellant.” In re C.R., 9th Dist. Nos. 25211, 25223, and 25225, 2010-Ohio-2737, ¶ 43.
“Indeed, it is improper for an appellate court to construct legal arguments to support a party’s
position.” Stanley Miller Constr. Co. v. Ohio School Facilities Comm., 192 Ohio App.3d 676,
2011-Ohio-909, ¶ 8. Father’s argument is overruled.
{¶14} For her part, Mother concedes satisfaction of R.C. 2151.414(B)(1)(d). Given this
concession, Mother’s cursory claim that her children could be reunited with her within a
reasonable time is irrelevant. See R.C. 2151.414(B)(1)(a)-(d). So, too, is Mother’s argument
that the agency filed its motion for permanent custody “prematurely” with five months remaining
until the “sunset” date. Accordingly, these arguments are overruled as moot.
Reasonable efforts 7
{¶15} Father contends that the trial court erred, under R.C. 2151.419, in granting
permanent custody of the children to the agency because LCCS had failed to use reasonable
efforts to reunify the family. Mother makes a similar assertion. Both arguments are without
merit.
{¶16} R.C. 2151.419 requires a trial court to determine that the children services agency
made reasonable efforts to prevent removal, to eliminate the continued removal, or to make it
possible for the children to return home, but it does not require the court to make such a
determination at the time it grants permanent custody to the agency unless reasonable efforts had
not been established earlier in the proceeding. See In re C.F., 113 Ohio St.3d 73, 2007-Ohio-
1104, ¶ 41-43; In re K.H., 9th Dist. No. 22765, 2005-Ohio-6323, ¶ 9-10. Neither Father nor
Mother has argued that the agency failed to make the necessary reasonable efforts determinations
in any of the earlier hearings. Consequently, neither Father nor Mother has demonstrated that
the trial court erred in failing to make a finding of reasonable efforts at the time it granted
permanent custody of the children to the agency. Father’s argument is overruled. Mother’s
argument is overruled.
Case Plan
{¶17} Father claims that his case plan did not demonstrate reasonable efforts to prevent
the removal of the children or to remedy the continued removal of the children from the home.
Father’s case plan focused on domestic violence, substance abuse, mental health, counseling and
anger management, and the agency offered services to Father in those areas. After Father
completed several portions of his case plan, he nevertheless engaged in physical violence against
Mother in the presence of his children. The fact that a parent does not successfully resolve all of
the problems that caused children to initially be removed from the home does not inevitably 8
mean that the agency failed to make reasonable efforts to safely reunite a family. An agency
may make reasonable efforts to prevent the removal or continued removal of children from a
home and yet the parents may not be able to be successful in achieving reunification with their
children.
{¶18} More significantly, however, Father did not object to the substance of his case
plan or to the agency’s efforts towards implementation of the case plan at any point during the
course of the proceedings. Consequently, Father has failed to preserve any error in this regard.
Father’s argument is overruled.
{¶19} For her part, Mother argues that the agency failed to demonstrate that she was not
in substantial compliance with her case plan. This Court has repeatedly emphasized that
substantial compliance with a case plan, in and of itself, does not prove that a grant of permanent
custody to an agency is erroneous. See, e.g., In re Watkins v. Harris, 9th Dist. No. 17068, 1995
WL 513118 (Aug. 30, 1995). Moreover, while evidence of case plan compliance is usually
relevant to the trial court’s best interest determination, it is not dispositive of it. See, e.g., In re
A.A., 9th Dist. No. 22196, 2004-Ohio-5955, ¶ 9; In re Atkins, 9th Dist. No. 19037, 1998 WL
801893, *6 (Nov. 18, 1998). Rather, the termination of parental rights is governed by R.C.
2151.414 and the proper focus of an evidentiary challenge is on the specific factors listed in that
statute. Mother’s argument is overruled.
Second Prong of the Permanent Custody Test
{¶20} The trial court found that the first prong of the permanent custody test had been
satisfied because the children had been in the temporary custody of LCCS for more than 12
months at the time the agency filed its permanent custody motion. As discussed above, Father
unsuccessfully disputed the finding, and Mother has conceded it. Therefore, we turn next to the 9
question of whether a grant of permanent custody is in the children’s best interests, a matter
challenged by both parents.
{¶21} When determining whether a grant of permanent custody is in a child’s best
interest, the juvenile court must consider all the relevant factors, including those enumerated in
R.C. 2151.414(D): the interaction and interrelationships of the child, the wishes of the child, the
custodial history of the child, and the child’s need for permanence in his life. See In re R.G., 9th
Dist. Nos. 24834 & 24850, 2009-Ohio-6284, ¶ 11. “Although the trial court is not precluded
from considering other relevant factors, the statute explicitly requires the court to consider all of
the enumerated factors.” In re Smith, 9th Dist. No. 20711, 2002 WL 5178, *2 (Jan. 2, 2002).
See also In re Palladino, 11th Dist. No. 2002-G-2445, 2002-Ohio-5606, ¶ 24.
{¶22} The parents argue that the trial court finding that permanent custody is in the best
interests of the children is against the manifest weight of the evidence. When evaluating whether
a judgment is against the manifest weight of the evidence in a permanent custody case, this Court
reviews the entire record and
weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the [judgment].
State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d
172, 175 (1983). Accordingly, before reversing a judgment as being against the manifest weight
of the evidence in this context, the court must determine whether the trier of fact, in resolving
evidentiary conflicts and making credibility determinations, clearly lost its way and created a
manifest miscarriage of justice. See In re M.C., 9th Dist. No. 24797, 2009-Ohio-5544, ¶ 8 and ¶
17. 10
{¶23} The parents contend that they had a strong and loving relationship with the
children. The caseworker confirmed that the children shared a bond with both parents and that
the parents interacted appropriately and lovingly with their children during visits. However, the
record also establishes that, after Father’s release from prison in February 2011, his visits
became much less frequent. Father was incarcerated on a parole violation at the beginning of
this case and was arrested for domestic violence against Mother at the end of it. Prior to this
case, Father had six drug-related convictions as well as two convictions for child endangering
and one conviction for domestic violence. There is minimal evidence regarding the children’s
continuing and positive relationship with extended family members.
{¶24} Father made good progress on his case plan while incarcerated at the
Lorain/Medina Community Based Correctional Facility. The program director of that institution
testified that, based on Father’s class performance, his prognosis for success was very positive.
At the same time, the program director stated that he could not be certain that Father would not
revert to some of his earlier behaviors. In April 2010, Father testified at an interim hearing that
his coursework changed him and he had come to value his freedom and his family. He stated
that he believed drugs were a trigger to his violence. He spoke about maintaining sobriety and
following his anger control plan. Six months later, the children were reunited with the parents.
Nevertheless, two months after that, Father was involved in domestic violence with Mother once
again and the children were again removed from the home.
{¶25} For her part, Mother was not able to consistently provide a safe and stable home
for her children. She was slow to get started on her case plan. She faced eviction twice. There
is no evidence that she was ever consistently employed or able to support her children. Although
she interacted well with her children and no doubt loved them, she was not able to provide a 11
stable home for them. Despite Father’s history, Mother continued her relationship with him for
over 13 years. The caseworker testified that Mother had made four police reports for domestic
violence in the six years prior to this case, and yet she did not prosecute any of them. In an early
report from the guardian ad litem, Mother was said to have left the children alone in order to go
to the jail to see Father. The case opened with Mother seeking help from LCCS because she and
Father were unable to provide for their children. After the failed reunification effort, Mother
again admitted that she was unable to provide for the children and asked the caseworker to return
them to their foster families. For the last seven months of this proceeding, Mother did not
personally visit her children, but kept in touch with them by telephone. According to the
caseworker, Mother said she did not plan on returning to Father, but the caseworker stated that
she had been told that before by Mother. Mother testified on her own behalf that she would
never be with Father again, but believed that if she could not have custody of the children, Father
would be a good parent to them. The caseworker testified that, based on the parents’ history of
domestic violence and their pattern of reuniting, he was concerned that Mother would get back
together with Father or with someone else that would place her and the children at similar risk.
The guardian ad litem believed that Mother has largely been controlled by Father and has not
accepted responsibility for her own actions. According to the guardian ad litem, the parents have
not been able to put the interests of their children ahead of their own.
{¶26} At the time of their removal, all four children exhibited some concerning
behaviors and began working with therapists. All four children suffered from nightmares. Three
were diagnosed with post-traumatic stress disorder and the youngest had an adjustment disorder.
Mi.Z. had a fear of being left alone and suffered from anxiety. Ma.Z. exhibited fearfulness and
aggressive behaviors. The twins each had sleep problems, had aggressive behaviors, and 12
exhibited some hoarding behaviors. One of the twins, S.Z., suffered from frequent temper
tantrums, and the other, I.Z., had stress-induced seizures. Although Father was never said to
have physically harmed his children, all four children were present during Father’s domestic
violence incident with Mother in December 2010. The guardian ad litem expressed concern for
the safety of the children if they were returned to the parents. The children have all made
progress while in foster care. Their foster homes have provided the structure and nurturing that
they reportedly need.
{¶27} The second best interest factor requires the trial court to consider “[t]he wishes of
the child, as expressed directly by the child or through the child’s guardian ad litem[.]” R.C.
2151.414(D)(1)(b). Although the trial court has the discretion to decide whether this evidence
will be presented through the child’s own testimony or that of the guardian ad litem, the statute
explicitly requires the trial court to consider the child’s wishes as part of its best interest
determination. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 55-56.
{¶28} Father asserts that the trial court committed reversible error by making the best
interest determination without having any evidence about the children’s wishes. A review of the
record reveals that the guardian ad litem was unchallenged in reporting that the children were too
young to express their wishes. At the same time, she indicated that Mi.Z., the oldest child, told
her that Father hit Mother and the siblings, that he was afraid for his family, and that he felt a
need to protect his younger siblings. Mi.Z. also told the guardian that he believed Father would
be in jail longer if he told her certain things. In addition, the record reflects that Ma.Z., the
youngest child, told her teacher that Father hit Mother and that that was “not nice.” The
caseworker testified that both Mi.Z. and Ma.Z. told him that they felt safe in their foster home.
Upon this record, the guardian ad litem recommended an order of permanent custody. This 13
evidence is to be weighed by the trial court in conjunction with the evidence on the other best
interest factors, with no one factor being given greater weight or heightened importance. In re
N.G., 9th Dist. No. 12CA010143, 2012-Ohio-2825, ¶ 27 (finding failure to ascertain child’s
wishes will not constitute reversible error if there is substantial evidence on remaining best
interest factors). Father’s argument is overruled.
{¶29} The custodial history of the children reveals that they lived with either Mother or
Father prior to the initiation of this case. That means that the oldest child resided in the home for
five years, the twins for two and one-half years, and the youngest child for 15 months. The
children have been out of the home for extensive periods of time since the initial removal.
During the two years in which this case has been pending, the children resided with their parents
for only two months. Otherwise, they have resided with relatives or foster families. The three
youngest children lived outside of the family home nearly as long as or longer than they lived in
it.
{¶30} The caseworker testified that the children had been in foster care a long time and
needed permanency in their lives. He did not believe that either parent could provide a legally
secure permanent placement. Mother was unable or unwilling to protect her children from
continued violence. Father was not able to control his violent behavior even after attending a
domestic violence class. The children observed violence between their parents in their home.
They suffer from numerous health and behavioral problems. The family faced eviction twice.
Relatives who were once willing to assist with the children are no longer willing or able to do so;
there are no other relatives who can provide a home for them. The children have made progress
while living with their foster families, and those families are willing to adopt them if permanent
custody is granted. The two foster families have independently arranged joint visits so that the 14
children can maintain their relationships, and the foster mothers testified that they would
continue to facilitate contact between the children.
{¶31} The record does not reflect that the trial court clearly lost its way and created such
a manifest miscarriage of justice that the judgement must be reversed and a new trial ordered.
Father’s assignment of error is overruled. Mother’s assignment of error is overruled.
Father’s Assignment of Error Number Two
The trial court erred to [Father’s] prejudice for failing to appoint an attorney to represent the children in this case, and for failing to hold a hearing to investigate the need for independent counsel.
{¶32} Father argues that the trial court erred in failing to appoint an attorney to represent
the children in this case or to conduct an investigation into whether the minor children were
entitled to independent counsel in the permanent custody hearing. Father concedes that he did
not raise this issue at any point in the trial court and that he has raised it for the first time on
appeal. This Court has repeatedly stated “where no request was made in the trial court for
counsel to be appointed for the children, the issue will not be addressed for the first time on
appeal.” In re T.E., 9th Dist. No. 22835, 2006-Ohio-254, ¶ 6, quoting In re K.H., 9th Dist No.
22765, 2005-Ohio-6323, ¶ 41, citing In re B.B., 9th Dist. No. 21447, 2003-Ohio-3314, ¶ 7.
Other appellate districts have similarly held that the issue must be preserved for appellate review
by bringing the issue to the attention of the trial court. E.g., In re Graham, 4th Dist. No.
01CA57, 2002-Ohio-4411, ¶ 31-33; In re Brittany T., 6th Dist. No. L-01-1369, 2001 WL
1636402, *6 (Dec. 21, 2001).
{¶33} Father claims that waiver does not always apply in such cases and cites In re
Emery, 4th Dist. No. 02CA40, 2003-Ohio-2206, ¶ 17, in support of his position. That case fails
to support Father’s position, however, as the mother in Emery did, in fact, preserve the issue by 15
bringing it to the attention of the trial court. Id. at ¶ 12. The appellate court specifically found
that the mother did not waive the issue of her children’s right to counsel. Id. at ¶ 20.
{¶34} Father also claims that the trial court committed plain error by failing to appoint
counsel for the children. This Court has previously explained that a parent who is appealing the
termination of his own parental rights has standing to raise the issue of his children’s right to
counsel only insofar as it impacts his own parental rights. In re T.E., 2006-Ohio-254, ¶ 8. In this
case, Father has not demonstrated that the children’s lack of counsel affected the outcome of the
case in any way. Consequently, Father’s argument is overruled.
Mother’s Assignment of Error Number Two
The trial court erred to [Mother’s] prejudice for considering the guardian ad litem’s testimony and report after the guardian admitted to complying [sic] with Sup. R. 48.
{¶35} Mother claims that the guardian ad litem failed to comply with the responsibilities
of a guardian ad litem as set forth in Sup.R. 48 and, therefore, her testimony was given undue
weight by the trial court. The guardian ad litem filed reports with the trial court, and her
testimony was subject to cross-examination by all parties. The trial judge, as trier of fact, was
entitled to believe or disbelieve the guardian’s testimony and to consider it in the context of all
the evidence before the court. Mother has failed to point to any portion of the judgment entry
that demonstrates that the trial judge erroneously relied on the testimony or the report of the
guardian ad litem. Nor does she point to any particular finding that is unreasonable or otherwise
unsupported by the evidence because of improper reliance on the testimony of the guardian ad
litem. Mother has not, therefore, established prejudice. Any error in this regard is harmless, and
the assignment of error is overruled. 16
III.
{¶36} Mother’s two assignments of error are overruled. Father’s two assignments of
error are overruled. The judgment of the Lorain County Court of Common Pleas, Juvenile
Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
DONNA J. CARR FOR THE COURT
WHITMORE, P. J. CONCURS.
BELFANCE, J. CONCURS IN JUDGMENT ONLY. 17
APPEARANCES:
THOMAS MCGUIRE, Attorney at Law, for Appellant.
ROBERT CABRERA, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellee.