Opinion
G055667
06-26-2018
In re LUCAS N. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. D.N., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16DP0287, DP16P0288 & DP0289) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary L. Moorhead, Judge. Affirmed. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
* * *
D.N. (mother) appeals from the juvenile court's November 2017 order terminating parental rights to her son Lucas (born December 2008), and twin daughters Lauren and Lynn (born March 2016). She asserts the juvenile court erred in failing to apply the "'benefit exception'" (Welf. & Inst. Code, § 366.26, subd. (c)(l)(B)(i)) to avoid termination of parental rights. Substantial evidence supports the court's finding a beneficial parental relationship did not exist, and the court did not abuse its discretion in determining the relationship did not constitute a "compelling reason" to prevent the termination of mother's parental rights. Accordingly, we affirm.
All further statutory references are to the Welfare and Institutions Code. --------
I
FACTUAL AND PROCEDURAL BACKGROUND
The facts and procedural history of the case through the January 2017 disposition hearing are discussed at length in our opinion following mother's appeal from the juvenile court's decision in the disposition hearing. (In re Lucas N. (Sept. 12, 2017, G054470 [nonpub. opn.].) We restate only those facts pertinent to this appeal. In March 2016, the Orange County Social Services Agency (SSA) filed a petition alleging the children had suffered, or were at substantial risk of suffering, serious physical harm, illness or neglect due to mother's mental illness. (§ 300, subd. (b), & (j) [siblings at substantial risk of abuse or neglect].) SSA subsequently filed an amended petition adding an allegation Lucas was suffering or at risk of suffering serious emotional damage evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward others as a result of mother's conduct. (§ 300, subd. (c).)
The children were placed with a maternal aunt and her husband. At the conclusion of the jurisdiction hearing in August 2016, the juvenile court sustained the amended petition, and ordered an Evidence Code section 730 psychological evaluation for mother. In September 2016, the juvenile court ordered mental health evaluations by two professionals to determine whether mother could benefit from reunification services (see § 361.5, subd. (b)(2)). The court advised mother if she refused to participate in the evaluations the court might presume she had a mental illness or personality disorder that prevented her from obtaining the benefits of reunification services. When mother refused to participate in the evaluations SSA recommended denying reunification services, and scheduling a section 366.26 hearing. The social worker explained it did not appear mother would benefit from services because she would not acknowledge her problems, and mother continued to refuse to participate in the psychological evaluations.
The social worker summarized mother's visits with the children at this time as generally appropriate with some concerns: "The mother appears patient and loving during the visits, for the most part. She is observed feeding her babies, changing them and playing with them. The mother attempts to interact with Lucas and seems very focused, and at times preoccupied, with teaching him Vietnamese and drawing during their visits. The mother seldom plays with [Lucas], which appears to frustrate him. The mother is not very physically affectionate with the child during the visits, but does encourage him to spend time with her talking. . . . Lucas has made statements to [] mother that he missed her, but [she] does not respon[d]. The child is affectionate towards the mother when he greets her and when he is saying good-bye. The children have no problem with transitioning from [] mother to the caregiver." Lucas continued to state he wanted to visit with mother, but wanted to live with the caregivers. The social worker stated mother displayed "a number of positive qualities during" visits, but she also became "easily agitated, paranoid and upset."
At the January 2017 disposition hearing, Dr. Ted Greenzang, a psychiatrist, testified mother "apparently manifested paranoid behavior," and her emotional state was "best characterized as a possible psychotic disorder not otherwise specified," "schizophrenia paranoid type," or "schizoaffective disorder." He described her propensity to neglect her children as "moderately high." Her history was "consistent with paranoid ideation and emotional lability which has a significant potential to interfere with her parenting capacity." He could not "conclude definitively that [mother] is incapable of benefitting from family reunification services," but her "unwillingness to date to avail herself of recommended services seriously compromises her ability to benefit from" services. He also recommended continued placement with the caregivers, and monitored visitation should continue, preferably at the residence of a family member "such that Lucas does not experience difficulties precipitated by being in a confined space for an extended period of time." Dr. Greenzang stated a psychiatrist should evaluate mother for the possible use of psychotropic medications, and she should engage in psychotherapy to address family issues, suspiciousness, and her need for treatment. He also recommended parenting classes and family therapy.
The court declared the children dependents and removed them from mother's physical custody. (See § 361, subds. (c)(1) [substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child if returned home and there are no reasonable means to protect the child's physical health without removal], (3) [child suffering severe emotional damage, and there are no reasonable means to protect child's emotional health without removal].) The court cited Dr. Greenzang's report and stated mother's mental health issues required removal for the children's protection. The court ordered reunification services, including mental health services, therapy and parenting classes as suggested by Dr. Greenzang, and set a six-month review for June 15, 2017.
Mother declined to respond to the social worker's e-mails to discuss the case plan. She refused to meet with the social worker until May 2017, and then only in the presence of her lawyer. She ultimately did not participate in any case plan services, including a psychiatric evaluation, counseling, or parenting classes.
Mother consistently visited the children with a monitor at SSA's offices for a total of eight hours a week. The social worker wrote "monitors frequently intervene to assist the mother and to ensure the safety of all three children. The mother's use of discipline has been documented as inappropriate during several monitored visits," and "mother continues to experience difficulty with setting appropriate limits and expectations for . . . Lucas. For example, twice on March 9, 2017, the mother instructed Lucas to sit quietly in a chair for 5 minutes, though the child was not in trouble and the mother did not explain the reason for this. The mother also ignores Lucas and places blame on him during visits. For example, on March 16, 2017, Lucas became upset that he could not watch something on the mother's laptop. . . . Lucas cried, 'You don't even love me, care for me, or anything like that. No one loves me. No one even cares for me.' The mother then ignored Lucas for approximately 16 minutes." The social worker expressed concern about "mother's ability to effectively, appropriately, and safely parent the children, . . . due to the fact that she has been consistently participating in visitation for more than 12 months and has not made progress in this area."
In July 2017, the court conducted a combined six- and 12-month review. The social worker testified mother did not participate in the case plan apart from regular visits. Mother struggled to manage the children's behaviors at the same time. Mother and Lucas had engaged in inappropriate conversations that caused Lucas to become upset.
Mother disagreed with the social worker's testimony, claiming everything she said was "false, inaccurate," and mother expressed the same view toward the monitors' reports, complaining they withheld "exculpatory" evidence. Mother also complained the social worker refused to document mother's concerns, and asserted "other parties" had "manipulated [Lucas's] mind" to bring up inappropriate topics, which distressed Lucas. Mother was aware the court ordered her to participate in case plan services, but she did not agree with the plan. She refused to meet with the social worker without her attorney "[b]ecause of the lies" the social worker put in her reports. She did not attend counseling because the social worker did not give her a reason for the counseling. She also acknowledged she did not participate in a psychiatric evaluation, and conceded she did not "have a good answer for that at this point." She did not want an evaluation to involve family members, explaining her siblings made "a lot of false accusations about" her. She denied any history of mental illness, and did not believe she caused "whatever emotional issues" Lucas had.
The court found mother failed to engage in case plan services, returning the children to mother would create a substantial risk of detriment to them, reasonable services were offered to mother, and there was not a substantial probability the children would be returned within six months. (§ 366.21, subd. (e).) The court stated "there is ample evidence that mother does have mental health issues that have placed her children at risk and continue to place her children at risk." The court also observed, "She's confrontational; I think she's delusional; she's definitely reclusive; she is paranoid; she's vexatious, and yet she refuses to even discuss any of those issues with any mental health therapist." The court terminated services noting "ongoing family reunification services just appears to be a waste of time and effort." The court agreed to fund a psychiatric or psychological evaluation if mother made a sincere request for one. The court set a section 366.26 hearing for November 2017.
The social worker's report for the section 366.26 hearing, stated the caregivers, the maternal aunt and her husband, were committed to adopting the children. Lucas enjoyed living in the caregivers' home, and although he was too young to understand the concept of adoption, he appeared to welcome the chance to live with the caregivers indefinitely. He also liked living with his sisters, and affectionately referred to them as "'my baby twins.'"
Mother consistently visited the children with a monitor at SSA's offices twice a week for a total of eight hours leading up to the November 2017 section 366.26 hearing. Generally, mother continued to struggle to manage her three children during the visits, but she was loving, and generally attentive and appropriate.
Mother testified at the section 366.26 hearing she had never missed a visit, and described the quality of visits as good overall, "with the exception of my son being manipulated to disrupt the visitation." When Lucas behaved inappropriately, she attempted to redirect him, and he listened to her, but "he would say that is not what the caregiver told me to do. That is not what the monitor says. It is counter-productive." She felt her authority was undermined and this prevented her on occasion from exercising a parental role.
Mother believed Lucas "[a]bsolutely" benefitted from his time with her. She recounted an incident in October 2016 when she thought "they were going to terminate . . . parental rights," and she told Lucas she would not "visit [him] for a while." The social worker wrote that Lucas was fine with that. But mother explained he "did not understand the concept," and that later he said "[y]ou know, I want to go with you. I don't want to be here anymore." She felt termination of parental rights would be detrimental: "They never wrote down that my son wakes up in the middle of the night. They don't write down that he wet his bed at caregiver's house." She asserted Lucas fell asleep before and during visits because he "wakes up in the middle of the night" and "stays up all night." She was the only person Lucas "knew until they took us apart. . . . he knows I am his mom, and I tuck him [in]to bed. He sees me when he wakes up, and he sees me when he goes to sleep. I am the only person he knew besides" her family.
The social worker, Brittany Anascavage, testified Lucas was generally adoptable, and specifically adoptable because the caregivers wished to adopt him. Lucas's previous therapist had not provided a diagnosis before she left the counseling agency, but stated the issues "Lucas has been dealing with would not . . . prevent [an alternative placement] if necessary."
The Orange County Child Abuse Center monitored visits. Visitation reports occasionally suggested Lucas, who would turn nine years old in December, was emotionally attached to mother. The social worker stated, "I know that they do say that they love each other during the visits; that Lucas is happy to see his mother and that he generally has fun during visits with her and his sisters." They greeted and ended visits with hugs, but the social worker was unaware of other physical affection expressed during visits. Mother occasionally acted in a parental role. She did "work with Lucas and in interacting with his sisters to try to make sure that those interactions are appropriate, and she also tried to keep all the kids in the area that they need to be in during visits." But often it was "more of Lucas and the twins playing together with mom not taking a parental role . . . during the majority of the time. And she does seem to put him in time out for things that are - something he doesn't understand for just going to sit for five minutes without there being a reason which does cause him distress." He had "been very upset with [] mother after those incidents." A majority of Lucas's visits with mother "had conflictual moments."
Lucas never asked about mother during his monthly conversations with the social worker. The social worker never saw Lucas seek out mother for "comfort or nurturing." When the social worker brought up mother, he stated visits with mother "are good." The social worker could not provide a "black [or] white answer" whether mother and Lucas had a positive relationship. Sometimes mother "needs [to] be redirected as reported by the monitors for not watching the twins closely enough or for putting Lucas in time outs for reasons that are not understood to him." The social worker believed Lucas "[p]ossibly" would benefit from continuing visits with mother.
The social worker testified the children had appropriate interactions with the caregivers, gave them hugs and affection, and were very comfortable in their presence. The social worker explained she did not recommend legal guardianship for Lucas because "Lucas and the twins do have a right to permanency, and they are all generally and specifically adoptable. They are in a [prospective] adoptive home willing and able to provide for all of their needs and hold them out as their own. And [the children] are doing really, really well in their care and are thriving."
The juvenile court found the children were likely to be adopted by the caregivers, and termination of parental rights would not be detrimental. The court noted mother consistently had visited the children, but the visits remained monitored due to concerns with mother's behavior. The court rejected mother's assertion Lucas had been manipulated by others to disrupt the visits. The court observed mother's mental health issues were at the "core of these dependency proceedings," but she "refused every single effort to participate and engage in these case plan services, and her conduct in this regard has not changed or improved." The court noted she had been declared a vexatious litigant in state court, and had initiated federal litigation against SSA, her physicians, her lawyers and others. Mother felt persecuted, isolated, and overwhelmingly frustrated by society: "In applying the very sad facts of this case regarding mother's mental health to the law, the court finds that mother failed to sustain her burden . . . . She no doubt loves her children dearly, but her love will not overcome the emotional and psychological damage she would likely continue to inflict on her children if they were to return to her care." The court urged mother to seek out "the mental health treatment she needs to make her happy and at peace with herself" and hopefully her family would "welcome her back into the fold."
II
DISCUSSION
A. Benefit Exception
After reunification services are terminated, the focus shifts to the needs of the child for permanency and stability. (In re Celine R. (2003) 31 Cal.4th 45, 52 (Celine R.).) The Legislature's first choice is adoption because it gives the child the best chance at a full emotional commitment from a responsible caretaker. (Id., at p. 53; see § 366.26, subd. (c)(1).) A statutory exception to the general rule requiring the court to choose adoption exists where "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
The exception applies if the parent shows the child would suffer detriment from termination of a strong parent-child bond. The relationship must promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The juvenile court must take into account variables such as the child's age, the portion of the child's life spent in the parent's custody, the positive or negative effect of interaction between parent and child, and the child's particular needs. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).) The benefit exception "does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (Ibid.) To the contrary, once the mandated period for reunification has passed, the parent bears the burden of proving that termination of parental rights will be detrimental to the child. (Id. at p. 1350; In re Angel B. (2002) 97 Cal.App.4th 454, 464, 466 (Angel B.) [to overcome preference for adoption parent must show severing the parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed].) We review the juvenile court's findings for substantial evidence and abuse of discretion. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [whether a beneficial parental relationship exists is reviewed for substantial evidence; we review for abuse of discretion the court's determination no "'compelling reason'" prevented the termination of parental rights].)
Mother contends her strong relationship with Lucas established a compelling reason to avoid the Legislative preference for adoption. She asserts she maintained through visits the loving bond she had established with Lucas from his birth to his removal in March 2016. She cites positive moments and physical intimacy documented during her visits with Lucas, arguing "[t]hese reports contradict the social worker who testified that she was not aware of much physical intimacy during visits beyond hugs." She notes the social worker agreed Lucas often appeared emotionally attached to his mother, told her he loved her, he was happy to meet her, and visits were fun. Mother also relies on the social worker's testimony there was "[p]ossibly" a benefit to Lucas from continued contact.
The question here is not whether Lucas and mother shared an emotional connection based on their years together and her regular visits, but whether he would suffer harm if the juvenile court terminated parental rights in favor of a positive, permanent relationship with the caregivers. Lucas suffered severe emotional trauma in mother's care before SSA intervened. Mother refused to comply with any aspect of the case plan, including a mental health evaluation, treatment and parenting classes, which precluded returning the children to her care within the statutory period allowed for reunification. While Lucas recognized D.N. as his mother rather than a "friendly visitor," and he enjoyed his visits with her, mother had not provided daily him care for 20 months, and the caregivers had assumed the primary parental role.
Mother argues Lucas's bond with mother was "central to [his] well being." She cites positive interactions occurring during visits, such as Lucas asking her permission to engage in various activities, his recognition of her authority over him, his sharing "new [and] exciting" things occurring in his life, and occasionally having his feelings hurt by her. She also states he "looked to [mother] to establish a framework for his place in the world and in his family." Lucas encouraged mother to visit at the aunt's and the grandparents' homes, expressed a wish mother would communicate with her family, and asked mother to come to his birthday and spend Christmas with the family.
Although many of these events occurred earlier in the case, there is no disagreement Lucas viewed mother as part of his family and "not as just a nice lady to play with." Even if he wished for mother to engage with the family, it did not necessarily establish he would be harmed emotionally by terminating her parental role.
The record reflects Lucas loved his mother and had an emotional attachment to her, but a majority of Lucas's visits with mother "had conflictual moments." Lucas often resisted doing what she wanted him to do, became upset or complained about being at visits, cried and whined, argued with or screamed at or threw things at mother, and did not listen to her redirection. Mother asserts "there is nothing in section 366.26, which requires parent-child interaction to be free of conflict - or meet some idealized view of what a parent-child relationship should be . . . ." But there was no evidence Lucas ever asked about mother when he was not with her. The social worker never observed Lucas to look to mother for "comfort or nurturing." He separated easily from her at the end of visits, and in February 2017, the social worker reported Lucas did not include mother among the people he felt were important in his life.
Mother argues any conflict she had with Lucas during visits did not cause him to suffer detriment, noting he had not been in therapy for several months at the time of the section 366.26 hearing. The record reflects Lucas was between therapists at the time of the section 366.26 hearing because his previous therapist had left her agency. The former therapist stated Lucas would require ongoing therapy for a lengthy period of time to address the emotional trauma he suffered while in mother's care. In any event, the question was not whether visits with mother were detrimental, but whether Lucas would suffer detriment if the court terminated mother's parental rights.
Relying on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), mother argues "every family has its own dynamic - which is often complicated - and not all loving relationships are manifested in an 'ideal' way." In S.B., the father had health problems that impeded his ability to provide full-time care for his daughter (S.B.), who was five at the time of the section 366.26 hearing. S.B. became upset when the visits with the father ended and wanted to leave with him. (Id. at p. 295.) Father and S.B. shared an affectionate relationship. S.B. initiated physical contact, running into her father's arms and getting him to pick her up. She whispered to her father, "'I love you.'" When he started to leave, she stated, "'I'll miss you,'" "gave him another hug," and stated, "'I wish I lived with you and Mommy and Nana.'" (Id. at p. 298.) The psychologist who conducted a bonding study believed termination of the parent-child relationship posed a risk of harm to S.B..
S.B. concluded no evidence supported the court's finding the father did not have a significant parental relationship with S.B., noting he had been the primary caregiver for three years and social workers observed him parenting S.B. in a patient and loving manner. He maintained consistent and regular visitation with S.B. and complied with "'every aspect'" of his case plan. (S.B., supra, 164 Cal.App.4th at p. 295.) S.B. displayed a strong attachment to her father. She was unhappy when visits ended and tried to leave with the father when the visits were over. He was sensitive to S.B.'s needs and put his daughter's needs and safety before his own. The court rejected the agency's position the continuing beneficial relationship exception does not apply unless the child has a "'primary attachment'" to the parent. (Id. at p. 299.) The court also noted the fact S.B. had a strong and positive relationship with her caregiving grandmother did not negate the harm S.B. would experience from the loss of the significant and positive emotional relationship she enjoyed with her father. (Id. at pp. 298-299; cf. In re C.F. (2011) 193 Cal.App.4th 549, 558-559 [S.B. must be confined to its extraordinary facts and does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives "some measure of benefit" from maintaining parental contact].)
Cases such as S.B. illustrate the compelling evidence necessary to demonstrate the child would suffer detriment from terminating the parental relationship, including expert testimony from therapists. Here, the evidence pales in comparison. Since detention in March 2016, mother's interaction with Lucas had been limited to monitored visitation because mother had done nothing to comply with the case plan. (In re Casey D. (1999) 70 Cal.App.4th 38 [noting difficulty of meeting burden of showing detriment when visitation does not advance beyond supervised visits].) There was no evidence Lucas showed concern over whether he would get to visit with mother. He had adjusted to his placement, showed affection toward his caregivers, and was thriving in their care.
Finally, mother faults some of the court's stated reasons for terminating parental rights. As noted, the court noted mother's mental health issues were at the "core of these dependency proceedings," but she "refused every single effort to participate and engage in these case plan services, and her conduct in this regard has not changed or improved." The court noted that while mother "no doubt loves her children dearly, [] her love will not overcome the emotional and psychological damage she would likely continue to inflict on her children if they were to return to her care."
Mother contends the juvenile court should not have considered her failure to meet reunification guidelines in determining whether the benefit exception applied. Specifically, she faults the court's reliance on of Dr. Greenzang's dispositional assessment that mother was prone to neglect her children because he had not met with mother or Lucas, and his conclusions were "based solely on [SSA's] negative reporting."
The juvenile court could take into account the direct psychological harm mother inflicted on the child that led to the dependency because it is a factor in evaluating the strength of the parent-child relationship. The court's reference to mother's mental health shows it viewed the relationship between mother and Lucas as fundamentally dysfunctional because she had not addressed her mental health issues, and accordingly their relationship was not sufficiently beneficial to outweigh the benefits Lucas would gain in a stable and permanent home with the caregivers. Mother elected not to meet with Dr. Greenzang, who was retained to determine whether mother might benefit from reunification services, or any other psychological evaluator at any point during the case. Her argument on the point fails.
Mother also complains the court "noted that because the relative[] caretakers would most likely allow maternal contact when [mother] 'came to her senses' termination would not harm Lucas." She notes "a parent should not be deprived of a legal relationship with his or her child on the basis of an unenforceable promise of future visitation by the child's prospective adoptive parent." (S.B., supra, 164 Cal.App.4th at p. 300.) The court simply observed if mother sought treatment, she might reconcile with her close-knit and supportive family. We do not interpret the court's statement as suggesting it relied on the prospect of future contact as mitigating detriment caused by termination of mother's parental rights.
The children were entitled to a permanent home where they could be safe and secure. As noted, adoption, not legal guardianship or long-term foster care, is the Legislature's preferred plan for an adoptable child unless terminating parental rights would be compellingly detrimental. (Jasmine D., supra, 78 Cal.App.4th at p. 1348; see In re Sade C. (1996) 13 Cal.4th 952, 988 [prolonged uncertainty whether child will remain in a home is detrimental to a child's sound development].) The record supports the court's finding mother failed to establish a compelling reason not to terminate parental rights. B. Sibling Set Adoptability
Mother asserts Lauren and Lynn were not adoptable because they were part of a sibling set with Lucas, who was not likely to be adopted. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 [adoptability focuses on whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor].) The question is whether a child is likely to be adopted within a reasonable time. (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) As previously discussed, the court did not err by failing to apply the benefit exception to Lucas, and there was no other impediment to Lucas's adoption. We need express no opinion whether Lucas's attachment to his sisters might have provided an impediment to adoption of any of the children. (See In re Elizabeth M (2018) 19 Cal.App.5th 768 [a child may be found adoptable even if a sibling is not]; In re I.I. (2008) 168 Cal.App.4th 857, 872 [sibling bond exception did not apply where children's best interests served by the permanency of adoption rather than keeping them together]; § 366.26, subd. (c)(l)(B)(v) [exception to termination of parental rights where there would be substantial interference with a child's sibling relationship outweighing the benefits of legal permanence through adoption].) Nothing in the record reflects these siblings were difficult to place. (§ 366.26, subd. (c)(3).)
III
DISPOSITION
The November 2017 order terminating parental rights is affirmed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.