25CA2256 Peo in Interest of ERP 06-11-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA2256 Delta County District Court No. 23JV30005 Honorable J. Steven Patrick, Judge
The People of the State of Colorado,
Appellee,
In the Interest of E.R.P. and R.P., Children,
and Concerning O.R.K. and J.J.P.,
Appellants.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE GOMEZ Grove and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 11, 2026
John Baier, County Attorney, Jodie L. Behrmann, Assistant County Attorney, Delta, Colorado, for Appellee
Robert G. Tweedell, Guardian Ad Litem
Just Law Group, LLC, John F. Poor, Denver, Colorado, for Appellant O.R.K.
The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant J.J.P. ¶1 In this dependency or neglect proceeding, J.J.P. (father) and
O.R.K. (mother) appeal the judgment terminating their parent-child
legal relationships with E.R.P. and R.P. (the children). We affirm.
I. Background
¶2 In February 2023, the Delta County Department of Human
Services (the Department) received a referral reporting concerns
about mother’s substance use. A caseworker met with mother, who
admitted that she used methamphetamine while caring for the
children, and observed father to be highly intoxicated. As a result,
the Department filed a petition in dependency and neglect.
¶3 Following the parents’ no-fault admissions, the juvenile court
adjudicated the children dependent and neglected. The court then
adopted treatment plans for the parents requiring them to
(1) cooperate with the Department; (2) complete substance abuse
and mental health evaluations and follow all recommendations;
(3) maintain sobriety; (4) submit to drug testing as requested by the
Department; (5) demonstrate the ability to provide for the children’s
financial, physical, and mental health, as well as their
developmental needs; and (6) maintain a safe, stable, and suitable
residence for the children. Nearly two years later, the Department
1 moved to terminate the parents’ legal relationships with the
children. In November 2025, following a two-day hearing, the
juvenile court granted the motion and terminated father’s and
mother’s parental rights.
II. Termination Criteria and Standard of Review
¶4 A juvenile court may terminate parental rights if it finds, by
clear and convincing evidence, that (1) the children were
adjudicated dependent or neglected; (2) the parent has not complied
with an appropriate, court-approved treatment plan or the plan has
not been successful; (3) the parent is unfit; and (4) the parent’s
conduct or condition is unlikely to change within a reasonable time.
§ 19-3-604(1)(c), C.R.S. 2025.
¶5 Where, as here, the children are under the age of six at the
time the petition is filed, the court must also consider the expedited
permanency planning (EPP) provisions, which require the court to
place the children in a permanent home as expeditiously as
possible. §§ 19-1-102(1.6), 19-1-123, 19-3-702(5)(c), C.R.S. 2025.
¶6 Whether the juvenile court properly terminated parental rights
is a mixed question of fact and law. People in Interest of A.M. v.
T.M., 2021 CO 14, ¶ 15; see also People in Interest of A.S.L., 2022
2 COA 146, ¶ 8 (applying the same standard of review to a
determination of whether a department of human services satisfied
its obligation to make reasonable efforts). We review the court’s
factual findings for clear error, but we review de novo its legal
conclusions based on those facts. People in Interest of S.R.N.J-S.,
2020 COA 12, ¶ 10. The credibility of witnesses; the sufficiency,
probative value, and weight of the evidence; and the inferences and
conclusions drawn from the evidence are all matters within the
discretion of the juvenile court. A.M., ¶ 15.
III. Father’s Contentions
A. Adequacy of Findings
¶7 Father contends that the juvenile court’s findings were
inadequate to support the termination judgment because the court
didn’t expressly find that (1) he was unfit; (2) his conduct or
condition was unlikely to change within a reasonable time; and
3 (3) termination was in the children’s best interests. We discern no
reversible error.1
1. Preservation
¶8 The Department and the children’s guardian ad litem (GAL)
urge us not to address this issue because father didn’t move for
post-trial relief to preserve it. But an appellant is not required to
file a post-trial motion with the juvenile court, and failing to do so
doesn’t preclude the appellant from raising an issue on appeal. See
C.R.C.P. 59(b). Moreover, a party need not object to a court’s
findings to preserve a challenge to those findings. See In re
Marriage of Crouch, 2021 COA 3, ¶ 17; C.R.C.P. 52. Accordingly, we
consider father’s assertion of error regarding the adequacy of the
juvenile court’s findings.
2. Applicable Law
¶9 The findings supporting a termination judgment are adequate
if they conform to the criteria in section 19-3-604. People in Interest
1 To the extent that father asserts the juvenile court’s findings were
insufficient to support the termination of mother’s parental rights, we reject the assertion because father lacks standing to challenge the termination of mother’s parental rights. See People in Interest of J.M.B., 60 P.3d 790, 792 (Colo. App. 2002) (one parent doesn’t have standing to raise issues regarding another parent’s rights).
4 of A.G.-G., 899 P.2d 319, 323 (Colo. App. 1995). The findings must
“adequately address and resolve each specific requirement for
termination.” People in Interest of M.C.C., 641 P.2d 306, 308 (Colo.
App. 1982). We will set aside a judgment for inadequate findings
only when the findings don’t conform to the statutory criteria and
don’t allow us to determine the basis for the court’s judgment. See
People in Interest of J.M.B., 60 P.3d 790, 794 (Colo. App. 2002).
¶ 10 “When an order is ambiguous, the reviewing court is charged
with the task of determining what the trial court intended in issuing
the order. In so doing, the court may refer to the entire record and
to the circumstances surrounding the order.” People in Interest of
D.C-M.S., 111 P.3d 559, 562 (Colo. App. 2005).
3. Analysis
¶ 11 We agree with father that the juvenile court’s findings
regarding the section 19-3-604(1)(c) termination criteria could have
been more detailed. But the court’s findings sufficiently allow us to
determine the basis for its termination judgment.
a. Fitness
¶ 12 The juvenile court found that father didn’t meet his treatment
plan objectives, and that, despite the Department’s reasonable
5 efforts, his treatment plan was unsuccessful. See § 19-3-604(2)(h)
(when determining a parent’s fitness, a juvenile court must consider
“[r]easonable efforts by child-caring agencies which have been
unable to rehabilitate the parent”). Consequently, the court
determined that father couldn’t provide a safe, stable, or substance-
free home for the children. See People in Interest of S.K., 2019 COA
36, ¶ 74 (an “unfit parent” is “one whose conduct or condition
renders [them] unable or unwilling to . . . provide nurturing and
safe parenting sufficiently adequate to meet the child[ren]’s
physical, emotional, and mental health needs”) (citations omitted).
¶ 13 These findings adequately signify the juvenile court’s
determination that father was unfit, and the record provides ample
support for the findings. The caseworker described father’s “clear
documented pattern of use, sobriety and relapse,” including his
tendency to stop engaging in services “when he is confident in his
sobriety” before eventually relapsing. Indeed, father hadn’t
demonstrated sobriety outside of a jail setting in the year preceding
the termination hearing. The caseworker testified that, although
father had shown “short stints of sobriety,” he hadn’t shown “long-
term sobriety” sufficient to demonstrate that the safety concerns
6 had been mitigated. Therefore, the caseworker opined that it
wouldn’t be safe to return the children to father’s care.
b. Fitness Within a Reasonable Time
¶ 14 The court also found that father had a history of substance
abuse, which resulted in the termination of his legal relationship
with his older children, and that he “failed to . . . demonstrate[] any
meaningful progress with [his] treatment plan[]” during the two-
and-a-half years this case was open. See id. at ¶ 75 (“In
determining whether a parent can become fit within a reasonable
time, the court may consider whether the parent made any changes
during the dependency and neglect proceeding, the parent’s social
history, and the chronic or long-term nature of the parent’s conduct
or condition.”); see also People in Interest of S.Z.S., 2022 COA 133,
¶ 24 (“Where a parent has made little to no progress on a treatment
plan, the juvenile court need not give the parent additional time to
comply.”). And the court observed that the children had spent
“more than 80% of their young lives” outside their parents’ care and
that expedited permanency planning was both “required” and “in
their best interests.”
7 ¶ 15 The court thus impliedly found that father could not become
fit within a reasonable time; and, again, the record provides ample
support for this finding. See D.C-M.S., 111 P.3d at 562; see also
A.S.L., ¶ 15 (finding no reversible error despite the absence of
express findings regarding reasonable efforts). The children had
been in out-of-home placement for the majority of their lives and
experienced seven placement changes during the case, including a
trial return home to father shortly before one of his relapses. Thus,
the caseworker emphasized the children’s need for stability.
Similarly, the children’s maternal grandmother, their placement at
the time of the termination hearing, believed the children needed
stability and structure, in part because of E.R.P.’s dysregulation
stemming from father’s inconsistent presence in his life. Ultimately,
the caseworker opined that it was not in the children’s best
interests to continue to work toward reunification with the parents.
See People in Interest of A.N-B., 2019 COA 46, ¶ 34 (a reasonable
time “must be determined by considering the physical, mental, and
emotional conditions and needs of the child”) (citation omitted).
8 c. Best Interests
¶ 16 Although the court didn’t expressly find that termination was
in the children’s best interests, it found that adoption was in their
best interests. By logical extension, we can discern that the
juvenile court found that termination was in the children’s best
interests. See J.M.B., 60 P.3d at 794; see also § 19-5-203(1), C.R.S.
2025 (termination of the parent-child legal relationship is a
prerequisite to adoption).
d. Due Process
¶ 17 To the extent that father asserts his due process rights were
violated by the lack of express findings, we disagree. Generally,
“due process requires the state to provide fundamentally fair
procedures to a parent facing termination,” which include (1) notice
of the hearing; (2) advice of counsel; and (3) the opportunity to be
heard and defend. People in Interest of R.J.B., 2021 COA 4, ¶ 27.
And the record shows that father received these three things.
Father doesn’t provide, and we aren’t aware of, any authority
supporting his implied assertion that inadequate findings violated
his procedural due process rights.
9 4. Conclusion
¶ 18 In sum, the juvenile court’s findings sufficiently conform to the
statutory criteria, are amply supported by the record, and allow us
to determine the basis for the court’s order of termination. See
J.M.B., 60 P.3d at 794. We therefore discern no basis for reversal.
B. Appropriate Treatment Plan
¶ 19 Father next asserts that the juvenile court erred by finding
that his treatment plan was appropriate. We disagree.
¶ 20 The Department and GAL contend that father didn’t preserve
this issue because he didn’t raise any objection to, or request any
modification of, his treatment plan during the pendency of the case.
However, we need not determine whether father adequately
preserved his argument, or was required to, because even if we
assume he did, we discern no basis for reversal. See L & R Expl.
Venture v. Grynberg, 271 P.3d 530, 536 (Colo. App. 2011) (declining
to resolve an issue where it wouldn’t change the outcome).
¶ 21 Except in some limited circumstances not applicable here, a
juvenile court must adopt an appropriate treatment plan for a
10 parent following a dispositional hearing. § 19-3-508(1)(e)(I), C.R.S.
2025; People in Interest of Z.P.S., 2016 COA 20, ¶ 15. A treatment
plan seeks to preserve the parent-child legal relationship by
assisting the parent in overcoming the problems that required
intervention with the family. People in Interest of L.M., 2018 COA
57M, ¶ 25. Therefore, an appropriate treatment plan is one that is
approved by the court, relates to the children’s needs, and provides
treatment objectives that are reasonably calculated to render the
parent fit to provide adequate parenting to the children within a
reasonable time. § 19-1-103(12), C.R.S. 2025; People in Interest of
K.B., 2016 COA 21, ¶ 13.
¶ 22 We measure the appropriateness of a treatment plan by its
likelihood of success in reuniting the family, which we assess in
light of the facts existing at the time the juvenile court approved the
plan. People in Interest of B.C., 122 P.3d 1067, 1071 (Colo. App.
2005). The court may modify a treatment plan when new
information or changed circumstances render a previously approved
treatment plan no longer appropriate. Z.P.S., ¶¶ 26-27. The fact
that a treatment plan is not ultimately successful doesn’t mean that
11 it was inappropriate when the court approved it. People in Interest
of M.M., 726 P.2d 1108, 1121 (Colo. 1986).
¶ 23 A juvenile court has discretion to formulate a treatment plan
that relates to the children’s needs and is reasonably calculated to
render the parent fit within a reasonable time. People in Interest of
M.W., 2022 COA 72, ¶ 32.
¶ 24 Recall that father’s treatment plan addressed five main areas:
communication, substance abuse, mental health, ability to meet the
children’s needs, and stability. Father asserts that because his
treatment plan wasn’t amended following his changed
circumstances — specifically, his relapse and later incarceration —
it was inappropriate and “incapable of success.”
¶ 25 Yet father hasn’t asserted that any of the five main objectives
of his treatment plan were unnecessary. Instead, he asserts that
the treatment plan should’ve been amended to address (1) “his need
for structure or the addition of medications to assist him in
remaining sober”; (2) the services available during his incarceration;
and (3) his relapse. But his treatment plan addressed his
substance use in detail by requiring him to complete a substance
12 abuse assessment, successfully participate in any recommended
inpatient or outpatient programs, attend all required substance
abuse counseling, identify triggers of his relapse, and implement
learned coping skills as an alternative to substance use. The
caseworker testified that she didn’t believe father’s treatment plan
needed to be amended following his relapse and incarceration,
because the overall objectives remained the same. Indeed, father
hasn’t identified any specific objectives, action steps, or services
that could have been added to his treatment plan to address his
concerns. See M.M., 726 P.2d at 1121.
¶ 26 Father also asserts that because he was incarcerated for two
extended periods during the pendency of the case, section 19-3-
508(1)(e)(III) required the caseworker to amend his treatment plan
to detail the services available to him during his incarceration. It’s
true that if a parent becomes “continuously incarcerated” for more
than thirty-five days after the adoption of a treatment plan, the
caseworker must “provide information that details the services and
treatment available to [the] parent at the facility or jail where the
parent is incarcerated or the caseworker’s efforts to obtain the
information at the next scheduled court hearing.” § 19-3-
13 508(1)(e)(III). It’s also true that the caseworker didn’t report the
services available to father at the hearing following father’s
incarceration. But father fails to articulate any prejudice from the
lack of such a report. The record reflects that father was aware of,
and participated in, a variety of services during his incarceration,
including weekly therapy sessions, weekly alcoholics anonymous
meetings, psychiatric appointments, medication-assisted treatment,
and daily communication with the children. Father hasn’t
established that, had his treatment plan been amended, or had the
caseworker reported the services available to him during a court
hearing, any additional treatment or services would have become
available to him that would’ve altered the outcome of this case.
¶ 27 For these reasons, we discern no error in the juvenile court’s
determination that father’s treatment plan was appropriate.
C. Reasonable Efforts
¶ 28 Father also contends that the juvenile court erred by
concluding that the Department made reasonable efforts to
rehabilitate him and reunify him with the children. We disagree.
14 1. Applicable Law
¶ 29 Before a juvenile court may terminate parental rights under
section 19-3-604(1)(c), the department must make reasonable
efforts to rehabilitate the parent and reunite the family. §§ 19-1-
103(114), 19-3-100.5(1), 19-3-208, 19-3-604(2)(h), C.R.S. 2025.
Reasonable efforts means the “exercise of diligence and care” for
children who are in out-of-home placement. § 19-1-103(114).
¶ 30 Appropriate services provided in accordance with section 19-3-
208 satisfy the reasonable efforts standard. § 19-1-103(114).
Among the services required under section 19-3-208 are screenings,
assessments, and individual case plans for the provision of services;
home-based family and crisis counseling; information and referral
services to available public and private assistance resources; family
time services; placement services; and, depending on available
funding, drug and alcohol treatment services. § 19-3-208(2)(b), (d).
¶ 31 In assessing a department’s efforts, the juvenile court should
consider whether the services provided were appropriate to support
the parent’s treatment plan, People in Interest of S.N-V., 300 P.3d
911, 915 (Colo. App. 2011), by “considering the totality of the
circumstances and accounting for all services and resources
15 provided to a parent to ensure the completion of the entire
treatment plan,” People in Interest of My.K.M. v. V.K.L., 2022 CO 35,
¶ 33.
2. Analysis
¶ 32 The juvenile court concluded that the Department made
reasonable efforts to rehabilitate father, including providing him
with a life skills coach and individual counseling. But the court
found that father didn’t take advantage of the services provided and
didn’t reasonably comply with his treatment plan.
¶ 33 The record supports these findings. The caseworker met with
father in person during his incarceration; helped him create a
support plan; ensured that he received family time; and placed
referrals for life skills, drug testing, and substance abuse treatment.
The caseworker testified that she was unaware of any other service
in the county that had not already been provided to father.
¶ 34 Nevertheless, father asserts that the Department didn’t make
reasonable efforts because it failed to provide him with family time
or refer him to services during his incarceration. But the record
reflects that father communicated with the children almost daily via
phone and had two video visits during his incarceration. To be
16 sure, the Department didn’t assist father with the cost of the phone
calls with the children, which were paid for by his sister. But father
doesn’t direct us to any authority requiring the Department to pay
for a service when the cost is covered by other financial means.
Moreover, father was only incarcerated for a total of about nine
months during the two-and-a-half-year-long case. And when he
wasn’t incarcerated, he had “extensive” family time with the
children. See My.K.M., ¶ 33.
¶ 35 We are also unpersuaded by father’s argument that the
Department failed to provide him with services during his
incarceration. As discussed above, father engaged in numerous
services during his incarceration, including substance abuse and
mental health treatment. Father doesn’t identify what further
services the Department should have provided during his
incarceration to aid in the completion of his treatment plan or the
reunification of the family.
¶ 36 Considering all of the services and resources provided to father
over the course of the case, we are unpersuaded by his contention
that the Department failed to make reasonable efforts to rehabilitate
him or to reunify the family. See id.
17 IV. Mother’s Contentions
A. Americans With Disabilities Act
¶ 37 Mother contends that the juvenile court erred by determining
that her treatment plan was appropriate and that the Department
made reasonable efforts to rehabilitate her because the Department
failed to provide reasonable accommodations for her disabilities.
We disagree.
1. Applicable Law
¶ 38 The Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§§ 12101-12213, requires the juvenile court and the department of
human services to account for and, if possible, make reasonable
accommodations for a parent’s disability when devising a treatment
plan and providing rehabilitative services. S.K., ¶ 34. But the ADA
doesn’t restrict the juvenile court’s authority to terminate parental
rights if a parent isn’t able to meet children’s needs, even if that
inability is due to a disability. People in Interest of C.Z., 2015 COA
87, ¶ 17. Rather, the ADA requires that when the juvenile court is
assessing whether a parent’s treatment plan was appropriate and
whether reasonable efforts were made to rehabilitate the parent, the
18 court must consider whether reasonable accommodations were
provided to the parent. S.K., ¶ 34.
¶ 39 Whether a parent is a qualified individual with a disability
under the ADA requires a case-by-case determination. Id. at ¶ 21.
Before a department can be required to provide reasonable
accommodations under the ADA, it must know that the individual
has a qualifying disability, either because that disability is obvious
or because someone has informed the department of the disability.
Id. at ¶ 22. Thus, while a department must provide appropriate
screening and assessments of a parent, the parent is responsible for
disclosing information regarding their disability. Id. at ¶ 21. And a
parent should also identify any modifications that they believe are
necessary to accommodate their disability. Id.
¶ 40 Mother’s contentions that the Department failed to include a
formal evaluation for attention deficit hyperactivity disorder (ADHD)
in her treatment plan and to arrange for such an evaluation are
belied by the record. Mother’s treatment plan required her to
“complete a substance abuse and mental health evaluation” and
“follow all recommendations.” Part of the reason the Department
19 included this action step was to ensure that mother received
treatment after she asserted that she used substances to self-
medicate for ADHD. While mother completed the initial mental
health evaluation, she didn’t complete the separate psychiatric
evaluation — recommended by the initial evaluation — despite the
caseworker’s efforts to refer her to an evaluator. See People in
Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011) (it is “the
parent’s responsibility to use [the] services [provided] to obtain the
assistance” they need).
¶ 41 We are similarly unpersuaded by mother’s argument that the
Department failed to provide reasonable accommodations for her
ADHD, including appointment reminders, calendar assistance, and
“respite when her symptoms became severe.” The record reflects
that mother attended therapy but refused prescription medication
for ADHD because “it did not give her the relief that she was
seeking” and she preferred to continue to use methamphetamine.
The caseworker also referred mother to a life skills worker to work,
in part, on her time management. But, after two sessions, mother
declined further life skills services.
20 ¶ 42 We also reject mother’s contention that the Department failed
to consider the impact her genetic condition may have had on her
ability to comply with her treatment plan. During the case, mother
was diagnosed with pseudohypoparathyroidism. As a result,
mother testified that she had high parathyroid hormone levels and
“two short fourth metacarpals.” But mother didn’t demonstrate
that the condition “substantially limit[ed] one or more major life
activities,” and, thus, that it qualified as a disability under the ADA.
See 42 U.S.C. § 12102(1)(A) (defining a “disability” under the ADA
as “a physical or mental impairment that substantially limits one or
more major life activities”).
¶ 43 Above all, throughout the course of this case, mother never
asserted that she had a qualifying disability under the ADA. Nor
did she identify or request any treatment plan modifications or
reasonable accommodations from either the Department or the
juvenile court. See S.K., ¶ 21. Indeed, even on appeal, mother
doesn’t articulate what kind of accommodations would have allowed
her to meet the terms of her treatment plan.
¶ 44 For these reasons, we discern no error in the juvenile court’s
determinations that mother’s treatment plan was appropriate and
21 that the Department made reasonable efforts to rehabilitate her and
reunite her with the children.
B. Ineffective Assistance of Counsel
¶ 45 Mother also contends that she received ineffective assistance
of counsel because her counsel failed to provide formal notice of her
disabilities and request treatment plan modifications and
accommodations for those disabilities. We disagree.
¶ 46 A parent who is unable to pay for counsel has a statutory right
to appointed counsel in dependency and neglect proceedings.
§ 19-3-202(1), C.R.S. 2025. A parent’s statutory right to counsel
includes the right to effective assistance of counsel. See A.R. v.
D.R., 2020 CO 10, ¶ 47.
¶ 47 In evaluating a claim of ineffective assistance of counsel in a
termination proceeding, we apply the same test we use when
evaluating an ineffective assistance of counsel claim in a criminal
case. Id. at ¶¶ 48, 60 (citing Strickland v. Washington, 466 U.S. 668
(1984)). Under this test, the parent must establish that
(1) counsel’s performance was outside the wide range of
professionally competent assistance and (2) the parent was
22 prejudiced by counsel’s deficient performance — that is, there is a
reasonable probability that but for counsel’s unprofessional errors,
the outcome of the proceeding would have been different. Id. “If
the parent fails to establish either prong of this test, the claim fails.”
People in Interest of C.B., 2019 COA 168, ¶ 26.
¶ 48 Under this approach, an appellate court generally must
remand for an evidentiary hearing if the parent’s allegations are
sufficiently specific to constitute a prima facie showing of ineffective
assistance of counsel. A.R., ¶ 63. However, if the parent’s
allegations lack sufficient specificity, we may summarily deny the
ineffective assistance of counsel claim. Id.
¶ 49 Even if we assume, without deciding, that counsel’s
performance fell below the range of professionally competent
assistance, mother hasn’t shown that she was prejudiced by the
alleged error. Her assertions don’t specifically show that, but for
her counsel’s failure to raise the ADA or to request treatment plan
modifications or accommodations, the result of the termination
hearing would have been different.
23 ¶ 50 For example, mother contends that if her counsel had
provided formal notice of her qualifying disabilities and requested
accommodations early in the case, “there is a reasonable probability
that [she] would have obtained medically appropriate treatment for
her disabilities, which in turn would have enabled [her] to address
the remaining child protection concerns (e.g., residential instability
and the lack of regular employment) that led to the Department’s
involvement with the family.” But, as we’ve discussed, mother had
access to, and declined, medically appropriate treatment for ADHD.
And mother doesn’t explain how her treatment plan could’ve been
designed differently, identify reasonable accommodations that she
needed but wasn’t provided, or argue how those accommodations
would’ve rendered her a fit parent in a reasonable time.
¶ 51 In short, mother’s allegations lack specificity to demonstrate
prejudice and, thus, she hasn’t made a prima facie showing of
ineffective assistance of counsel. Consequently, her ineffective
assistance claim must fail. See C.B., ¶ 26.
V. Disposition
¶ 52 The judgment is affirmed.
JUDGE GROVE and JUDGE MOULTRIE concur.