KO.01-533 fNTHE SCPKEME C:O11R'T OF TL1E 

### STATEOF h/lO'.:TANA

.,.~ , .,- $> ,_ , ,.. .'~ t> . ',.a,# M.W. AND L.W. Youths in Xeed of Care

APPEAL FROM: District Court of thc Eig\i~eenil~ Judicial District, In and for the County of Gallatin, The l-lonorahleMike Salvagni, Judgc presiding.

For Appellant (Father): Jennifer Wendt Rordy, The Angel Lam i 

### ~rm, Bozernan, Montana For Kespondenl: Hon. Mike McGratli, Attorney General; Micheal S. Wellenstein, Assistant Attolney General, Helena, Montana Marty Larilben, Gallatin County Attorney: Gary Balaz, Deputy County Attorney, Bozernan, Montana

Submitted 011 Briefs: I>ecemhcr20. 200! Decided June 13. 2002 Filed:

### JusticeTerry X. 

### 'i'riesveiler delivered the C!pinion oftheCout-t. 1 P.W., 

### the fathel-of34.W. 

### and L-iV.; 

### appcais fiom ci~c Findings oEFact, Conclusions of Law and Order issued by the 1)istrict Court Lbrthe Eighteenth .ludicial District in Gallatin County9 which awarded long-term custody of M.W. to the 1)e~artmcnt of Public Health and Human Sewices (DPHHS). We affirm the order of the District Court. 72 The sole issue on appeal is whether 

### P.W. was denied fundamentally fair procedures in the proceedings by which the District Court awarded long-term custody of M.W. 

### to DPHHS. FACTUAL AND PROCEDURAL BACKGROUND 413 

### P.W. is the natural fatherof

### M.W. and L.W. 

### M.W. mJasborn on September 30, 19886. 

### L.W. was born on April 16, 1984. P.W.is divorced frointhe children's natural mother, 

### R.B., who had not seen her children for the nine years prior to these proceedings, and does not appeal kom the District Court's order. The children have resided solely with 

### P.W. 714 DPHHS removedM.W.and 

### L.W. from P.W.'s careon July 19,1999,and placedthem inprotective custody. OnJuly 23, IC)'f9,DPHHS filed apetition fortemporarylegal custody pursuant to 

### $3 41-3-401 and -406. MC'A (1999), based on DPHHS' involvement with the children beginning 

### in May of 1995. 'I'he District Court ordered 

### M.W. and L..kV. 

### to remain in protective custody pending a hearing set for August 6, 1999. At that hearing, both P.W. 

### and R.B. agreed to grant DPft1-IStemporary custody,based on their inability to care for the children's special needs. The District Court declared 

### M.W. and 

### L.W. to be youths in 

### need of care and granted DPHHS temporary legal custod~ of the cl~~ldren for slr months

### 715 On February 4, 

### 2000, DPiiitiS 

### filed a pelition for extensio~i of its 

### temporary legal ciistod~ 

### which was set to 

### expire on Febru~ry 6,2000. 

### Neither 

### P.iV. nor R.B.

### objected, and the guardian ad liten? supported the extension. On February 17, 2000> the District Court grantcd the extension thr 

### another six months. 

### ?I6 On September 1,2000,DPI-1HS filed apetition forlong-termcustody, andrequested: (1) 

### that a pernlanency hearing be held; (2) that following that hearing, the District Court grant DPHHS long-term custody of M.W.

### and L.W.; and (3)

### that long-ten custody become the permanency plan for the children. DPHHS explained that the children were not ready to return to their parents' care based on the severity of their ongoing psychological and enlotional problems. 011 

### Septcmbcr 12; 2000, the District Court ordered temporary legal custody to continue "from A~~gust 17, 2000, uiltil the hearing on the [long-term custody] petition." Thehearing was originally set forNovember 14,2000,but was reschedttled by the District 

### Court for December 4,2000, because of a scheduling conflict. '17 At the start of the December 4, 2000, hearing, DPHHS moved for a continuance, based on its previous belief that the parents were going to agree to the long-term custody petition. Based on that belief, DPHHS did not subpoena the children's therapists as witncsses. The basis forDPHFIS' petition for long-tenn custody was not the parents' refusal

orfailure to complywith theirtreatmentplans,but thatpursuant to 

## 941-3-412(6)(c)(ij, kICA 

### (I90C)), 

### the cl~ildren had cmotiona! or mental handicaps soseverethat the children could not function in 

### a hmily setting. Therefore, testimony from the children'stherapists would have been neccssary to determine the extent of the children's emotional or mental handicaps.

### "8 

### P.W. objected to the conllnrrance as highly prejudicial. The District Court denied 

### DPHIIS' motion for a continuance, stating: [Tlhe Department and the County Attorney's office has had adequate and sufficient time to be prepared for the hearing today, There's not been 

### a pennaneneyplan hearing within the twelve monthsrequired by law ifwehave to do that. So we're going to proceed. If the Court were to continue this, the Co~trt could not hear this case in December, and I'm not certain if the Court could hear it in January so we're proceeding. DPHHS, therefore, presented its case w~th one ~c~tncss, theState soc~al worker asstgned to the casc. Thesocial worker testified that 

### P.W. had completed h~s parenting plan,yet believed that neither parent mas capable of providing for the needs of the children. Following the social worker's testimony, the DPHHS attorney stated, 

### "1 don'thave furtherquestionsfor Ms. Bennett at this time." 

### P.W., in turn, moved to dismiss the petition based on DPHHS' failure to meet its burden ofproof. DPHHS argued that it had not rested its case and that given the nature ofthehearing, the guardian ad litem shouldbe perm~tted totest~fy before any decision \vas made. Furthermore, DPkI-lf IS argued that the guard~an's testimonq could be rehed upon to satisfy its burden ofproof. 9 The District Court denied P.W.'s motion to dismiss and the guardian was allowed to test~fy. Theguard~an testified that shehad not had any contact with the children directly, nor had she spoken directly wtheither ofthe ch~ldren's prlmary therapists. Howe\er, based on her contact with P.W., P.W.'s therapist, 

### R.B.by telephone, "the guardian program," theprior guardian. and the soclal worker, she recotnmc~idcd that DPHHS be awarded long-term custody ofboth childrcn.

### :;I U 

### P.W, raiscd a hearsay 

### objection because oftheguardian's lack 

### of direct contact with 

### any professional who could 

### prove 

### the children's rnerrtai or-emotional handicaps. 

### The Court c\ crr~llcd the objectroo, siatrng. Sectior1.11-3-303(3)

### says that "lnformatjon contained 

### in a report filed by the guardian ad litem ortestimony regarding areport filedby the guardian adlitem is not hearsay when it is used to form the basis of the guardian ad liten?'s opinion as to thc best interests of the child." 

### 71 1 In response: 

### P.W. challenged the constitutionalityof

## 3 41-3-303(3),

### MCA (1099),as

a kiolation ofhis nght to confront the expert wttnesses on mhom the guardlan had based her opinions. Gtven the significance of the legal issue, the District Court admitted that the constitutional issue would habe to be resolbed before a final dccis~on could be madc. In the rnterim, the Drstrict Cout-t heard the guardian's testiinony subject to 

### P.W 's objcctton, and reserved its ruhng on the objectron pending further 

### briefing. The guardian's attorney also called P.W. as a mitncss. He testified that although h~s children continued to have sebere mental and emotiorral problems, he would be able to obtain the prot'essional help required to assist his children. 

## 712 During 

### F'. W.'s case-in-chief, P.IV.'s therapist testified that P.

### W. was capable ofcaring for M.W. in a family setting pursuant to 

### a reunificatiolt plan which she and 

### P.W. had debeloped atthe social worker's suggestion. 

### At the coticlusion of test~mony, 

### P 

### IV. renewed his motion to disn~iss. In ruling on the motion, the District Court eorrsidercd the ramifications of its ciccision. The following exchange occurred: P.W.'s Counsel: If you recall ayear and 

### a half agowhen w-efirst came, hc 

### [P.W.] was willing to submit

-he's always wanted their

### [DPLIII-XS]help and their services. i-ie realizes this isn't a nornlal fanlily where the kids go off to school, come home, eat dinner type of situation. 

### But as rhe Court observed and he strongly kels, they have not gotten better in ayear and ahalfof total loss ofhis control 

### sohe wants at least some of the control hack. Cout-t: I understand that but it's either the Department or no P.W.'s Counsel: Based on the fact they didn't present the necessarq testimony, yes. Court: KO,no, let's set that aside. 

### If the Court dismisses the petition, the Department 

### [DPHHS]isoutofit: they're out of it. P.W.'s Counsel: They [P.W.] can provide services without the Court intenention. Court: \$'ell, but there's noth~ng that says that they mould. P.W.'s Counsel: True. Court: ?I hey're [DPHHS] out of it for all pract~eal purposes, legal putposes; they're out ofrt. .And 

### I'm not hearinghrm say that he vvants tltem out of it. 

### P.W.'s Counsel: Your Honor, he uould~i't be saying that to tell you the truth. 'The District Court denied P.W.'s renewed motion to dismiss. 'The District Court granted fYW. \isitation rights to M.W. in thc form of one telephone call per week and one in-person visit every montlt :/I 

### 3 The parties briefedthe constitutional issue and onJanriary26,2001, the District Court issued 

### a Memorandum and Order sustaining P.W.'s objection to the use 

### of the hearsay testimony by the guardian. It held that:

### ['i'jl~e ianguttgcufS4I 

### -3-303(3), 

### which allowsthehearsay preseni2ition 

### by the guardian ad litcm of 

### what would otherwise be considered expert testimon)!; violates 

### Articie 11, Seeti011 24, of the Montana Constitution as that section is 

### applied to the objectionable evidence before the Court, in that it is 

### a funda~nentally unfiir violation ofaparent's right to confrontation. Based 

### on that determination, the District Court ordered: Considering that this issue is an issue of first impression and with the intent to determine the best interests oftheyouth on the merits of this matter, the Depal-tment shall be given another opportunity to present its case to the Court. '114 

### A secondhearingmas held on February 28.2001. At that hearing, both 

### P.W. and 

### R.B. agreed that DPIIHS should have long-term custody of L.W. With respect to M.W., P.W. objected to giving DPHHS another opportunity to present its casc whcn it had Fdldtled to sustarn its burden of proof at the December 4, 

### 2000, hear~ng.

### Ihe Distrtet Court denled P.W.'s objection. DPtIHSthen calledM.W-.Is former andpresent therapiststo testlfy, as well as the group home manager of the facility where M.W-. 

### was then residing. On March 28, 200 1, the District Court entered its Findings of Fact, Conclusions of Law and Order, and granted long-term custody of M.

### W. and 

### L.W. to DPMHS. The District Courtconcluded that M.U7."cannot function in a family setting residing with his father." The District Court allowed P.W. continued visitation. 

## '/

15 On May 24, 2001. 

### P.W. appealed the Dlstrict Court's Find~ngs of Fact, Concl~lsions of La~v and Order of Match 28, 2001. and that portlon of the Memorandun1 and Order entered January 20,2001.uliere the Distrlct Court ailo~cd DPHHS "another opportun~ik to present its casc."

### SIANl),AR.D OF REVIEW 

## 71 16 WC review i.adistrictcourt's conclusions oflaw to dcterminc whether tliey arc correct. i\4cirteu of

### D.li (19941, 

### 26.1 Vlont. 521, 525. 872 P.2d 803, 805. This Court has recognized that "a natural parent's right to rare and c~~stody of a child 

### is a funda~~~cntal liberty interest, which must be protected by furtdanrentally fair proccdures." 

### Matter ofli.H. (19881, 217 Mont. 

### 90, 103, 703 P.2d 846, 

### 848. "17 Furthemlore, whet1determining custody, the district court is "bound to give primary considcration to the physical, mental, and emotional conditions and needs of the children." ~bfatter 

### 0fC.M.(1997), 281 Mont. 183, 187,932P.2d 

### 1063, 1066. The best interests of the child are paramount 

### in child custody cases arid must take prcccdence over parcntal rights. 

### C.,\f,, 281 Mont. at 187,032 P.2d at 1066; 

### Mcirter ofH.iV. (1990), 245 Mont. 51I, 517-IS? 802 P.2d 1244, 1248. DISCUSSION 

## 2 18 The sole issue on appeal is whether 

### P.UT. was denied fundamentally fair procedures in the proceedings by which the District Court awarded long-tern1 custody of 

### M.W. to 

### DPIIHS. 0 To begin, we should note that although P.CV. originally challenged DPI1HS'pctition forloftg-tern1 custody with rcspect toboth M.U



### .and 

### L.W., mc Interpretthts appeal asrelated

ttl~iy 

### to 

### M.LV. At the February 28.2001, 

### hearing, 

### P W. conccdcd that 

### DPJ-JHS should hale long-term custody of l..llr Furthermore, at the concluston of P.W.'s br~cf filed for thrs appcal. P 

### W. requests th~s Court to "rcberse the distr~ct court's grant of long term custody ofM.W.to the Oepartrncnt 

### of 13ublicHealth and fluman Services," Accordingly, we

### will !!mil



### our review to kf.W 

### #2O P.Lt', alleges that lie aas denled filndamentally fa11 procedures III ti\e areas. 

### Specifically, P 

### tl: contends tliat, (1) the D~stnct Court failed to hold a permanency plan hearing uithln the statutory deadline, 

### (2)DPHHSfailed to submit a statutorily-requiredprehearing report to the District Court; (3) DPHHS failed to develop a plan with any elements ofpernlanc~icy; (4) DPI-LIIStried to terminate P.W.'s parental rtgllts without 

### satisfying the requisite statutoryerttenaand burden ofproof;and 

### (5) the D~striet Courtenoneouslygranted DPHHS a second chance to prove its ease. We will address each claim in turn. 2 P.W. first eolitends that tlie District Court Failed to hold a permanency plan hearing within the statutory deadline. Section 41-3-412(1), MCA 

### (1999),providedin pertinent part: 

### A permanency plan hearing must be held by the court no later than 12 months after the initial court finding that the childhas been subjected to abuse or neglect or 12 months after the child's first 

### 60 days of removal from the home, whichever comes first; unless thc proceeding has bcen dismissed, the child was not removed from the home, or the child has been returned to the child's parent or guardian. On July 19, 1999,

### M.L\i. mas removed from the home ofP.W. On July 23,1999,the District Court found probable cause to belleve that .V.\V. had been abused or neglected or Lcas in dangerofbelngabused or neglected. Tliercfore,by law,theperinanencj plan hearingsl~ould have occurred prior to July 23,2000. On September 1, 20001 IIPf~iEIS petitioned the District Court to schedule a permanency plan hearing, and award long-term custody.' The D~str~ct 

### ' However, P.W.did not file a motion to disniissbased on DPHHS' failure to timcly file the petition for long-tcnn custody. In Appellant's hricl; P.Lt'. concedes, "P.W. did not raise

### C:ou~-rset a Ilearing datc for November 

### 14> 200O7 

### and subsequentiyrcscheduied that hearing for Dcceinbcr 

### 4; 2000. 'Ihereforc. it 

### is undisputed that rhc permanency plan hearing in 

### rllis

case occurred after the statutory deadline. 

### 722 P.W. now contends that the District Court's failure to hold 

### a timelypermanencyplan hearing deprived him of 

### a fundamentally fair procedure. f-lo\vever,before making that argument tothis Court. itwas necessarythat he make the same argument tothe District Court

as well as advise the District Court of the appropriate remedy. 

### P.W. failed to do so. 7\23 Priorto the hearing, in his Proposed Findings ofFact,Conclusions of Law, and Order filed on December 1, 

### 2000, 

### P.LV.statcd in a proposed conclusion of Ian: Section41-3-4 12(1),MCA, requires theCourltoconducta permanency plan hearing no later than 12 months after its initial finding that a child is abused or neglected, or 14months after a child has been removed, whieltever comes first. Neither of these deadlines was met in this case. However, 

### P.W. dtd not suggest to the Dlstrict Court that it was without authority to proceed for that reason and did not request dismissal ofthe petition. Objections primarily servetwo purposes: (1) to give the district court an opportunity to correct the problem and (2) to preserve the issue for appeal. 

### State v.

### Bird, 2001 MT 2,7 54, 

### 308 Mont. 75,

## Ti 54, 43 P.3d 260,E 54. P.W.'s proposed conclusion merely brought the problem to the District Court's attention. It made no suggestion holv to correct the problem. Therefore: the proposed conelt~sion of law did not, by itsel6 constitute a proper objection.

the Department's untimeliness in filing the petition as grounds to dismissthe proceeding in the court below, and is not now asking this Court to do so on that basis." I042-4 1 nest contends that 

### he 

### uasdenled 

### a tundamentally Ta~r 

### procedure =11cn 

### IIPHHS tBllcd to subrnrt 

### the statutoniy-rcqu~red prc-hear~ng rcporr 

### at least thrce days prior to the p:rn:"'ancncy plan hearmg. Sect~on 41

### -3-412(2), klCA 

### (1999), pro\ lded: 

### (2jAt least 

### 3daysprior to the

### permanencyplan hearing,thedepartment and the guardian ad litem shall each sublitit a report regarding the child to the court for review. The report must contain the: (a) efforts and progress demonstrated by the child's parent or guardian to complete a treatment plan; (b) extent to which the parent or guardian cooperated and used the services provided; (c) status of the child. including tlie child's mental, physical, and psychological health; and (d) plan for permanency for the child, including specific times for achieving the plan. 

### 725 It 

### is undisputed that DPL-IIIS failed to submit the required pre-hearing rcport. ttone\er, l~ke the D~strict Court's fallure to hold a ttmely permanency plan hearmg. P.W. failed toproperly object to UPHIIS' course ofconduct eitheratthe hearing orin a prehearing motlon. At the heartng, the Dlstrict Court qncstloned DPHHS about the absence of the report:Court: You're pctitioning the Court to develop a permanency plan, however, there was no permanency plan and now I'm talking about this case. Where is the report regarding the child for the Court to review with respect to a permanency plan? Where is the report, The statute requires the Lkpartment to do that. DPHHS: Yes, it does Court: 1C'hereis that? DPHHS: One has not been done Court: It should have been done at least three days before today.

### DPIIHS: Ycc. Thatagain issomething that i shouldhave reminded rl-rem to do because I read the same statute. Desprte the fact that the 

### C'ot!r& ra~siid the issue and 

### LlI'HIiS acknumledged ~ts error, 

### P.\V fiiilcd to state an objection 

### at that time and demonstrate 

### or ever1 

### allcgc resulting prejudice. 

### *26 As with the timeliness of the hearing, 

### P.W. did raise the issue as a proposed conclusion 

### oflaw in his Proposed Findings ofFact, ConclusionsofLaw, and Order. stating: Sectioi141-3-412(2),MCA, requiresboth the Department and the guardian 

### ad litem to each submit a report to the Court at least 

### 3 days before the hearing. The Department and guardian both failed to do so. However, once again, no speciticrelief was requested and, as before, we conclude that thc proposed conclusion was an insufficient objectionby which topreserve this issue for appeal. 

### 'j27 The third alleged denial of a funda~nentally fair procedure was DPHHS' Failure to develop a plan with any elements ofper~llanency that would enable 

### M.W. to move toward a settled placement. 

### P.W. complains of the frequency with which M.W. was transferred between treatment facilities and the inability of 

### IlPHFiS to "stick to a plan of actioi~." DPHHS,on the otherhand, contendsthatM.W.'s niovemetllbetweentreatment facilitieswas first and foremost in response to his best interests and to treat his severe emotional and behavioral needs. In addition, DPIII-1Snotes that it is sometinles difficult to place children due to waiting lists that exist at various treatment facilities. 

### 1/28 We cortclude there was substantial evidence that M.LV. has reasonably progressed toward a settled placement. 

### M.LV. was initially placed at Billings Deaconess Clinic. On August 

### 16, 1999,ltc was admitted into Cltildren's Comprehensive Service (CCS) in Butte,Montarra. Dr. Jeffrey CVatson. a licensedprotessionai counscior at 

### C'CS, testified that 

### M.W. had improvcd duringhis stay at 

### CCS and was now less aggressive. 

### On December 

### 22,2000, hI.LV. was rnoved to Skyview Group Home in Missoula, Montana. Bret Gilleo, M.W.'s Skyvieu therapist, testified of

### b1.W.'~ progress. stating, "[Illis behaviors arc not as severe as they were when lie first came in and he's only bee11 thcre a little over two months and staff have been ableto redircct hirn a little better. They're findingsome ofthe cause for [M.W.'s] problcrns and some ofthe things that work well 

### with him to helphim redirect." When asked to give an estimate as to how much longer 

### M.W. would need specialized care, Gilleo estimated that it would take from a year to a year and a half at a minimum. Finally, the Citizcn'sReview Board, a citizenboard ofthcEightecnth Judicial District, foundthatM.W.'s placement at Skyview was the "safest,most appropriate and least restrictive" placement and that "progress has been madetoward achievingpermancney." Giventhe substantialevidence in tlic record and our recognition that it often takes multiple facilities and a hit of trial-anderror to find the appropriate treatment facility, we agree that 

### M.W. has madc reasonable progress toward a settled placement. 

### '129 P.W.next contendsthat because 

### [>PI-IHS repeatedlydisallowed contact between 

### P.

### W, and 

### Lf.W., it attempted to terminate 

### P.LV.'s parental rights without adequate grounds and without meeting the necessary burden ofproof. From June until Septeniber 

### 2000, DPHHS worked toward reunification of

### M.W. and P.W., and trrgcd libcral visitation. 

### P.W. and his ihcrapist, with the social worker's approval and input, developed a plan for M.W.'s return home. Howcver, after 

### L)PHftS filed the petitio~l for long-te~m custody on September 

### 1.

### 2000, 

### DPtiHS refused to perinit contact between P.W. 

### and M.W., 

### based on 

### the recn~ninendations of "tl, W.'s 

### CC'Strcatmcnt team which observedmarked progress in 

### Rl.LV.'s therapy when he had no contact with P.\Y. and regression follobvi~ig contact. 4130 

### Whether therc was anymerit to DPHHS' actionsM-ith respect to

### terminating visitation followi~ig September 1,2000. 

### however, is moot based on the District Court's reinstatement of visitation at the December 4, 2000, 

### hearing. Where this Court can no longer grant effective relief, the issue is moot. Slirzmrock ~Vtotors, Ittc. 

### v.

### Ford 

### Motor Co., 1999 

### MT 2 1, 

## ri 10,203 

### Mont. 188, 

## !/ 19, 974 

### P.2d 1150, 10, 

### Accordingly, we move to the next issue. *I31 P.U7.

### claims that he was denied a fundamentally fair procedure when the District Court allowed DPtiEiS a second opportunity at the Fcbruary 28,2001, 

### hearing to prove that M.W. had severe mental and emotional handicaps which required long-tenn custody with DPtIHS. 

### P.W. contends that DPHHS soughtto repeatedly litigate the issue, "until it could get its act together sufficiently to supportits allegations." Because DPHHS failed to present any evidence that supported long-term custody at the first hearing and failed to meet its burden, P.W. contends that the petition should have been dismissed. 732 

### We

### disagree. Atthe December4,2000, 

### hearing, P.W.objectedtothe constitutionality of

## S 41-3-303(3), 

### MCA, based on its violation ofhis right to 

### confront certain experts whose 

### statements were influential 

### in forming the basis ibr the guardian's recornmcndations regarding the children. The District Court reservcd ruling on f'.\V.'s 

### objection until afterthe parties briefed the issue,but allowed the guardian to testify in the interim. Subsequently,the

### District Court sustained P.W.'s objection: and i~eld 

### that the guardian's report and icsiirilony violated P.lV.'s 

### right to confrontation. 

### The District Court then held: Considering that this is an issue of first impression and with the intent to detcmine the best 

### intercs& of the youths orr the 

### merits of this 

### matter, the Llepartment shall be given another opportunity to present its caseto the Court. second hearing was then set for February 28.2001 

### 733 AttheFebruary 28,2001,hearing, 

### P.W. v 

### aspro\ idedthe opportrrn~ty to confront and cross-examine kf.W.'stherapists. We agrec with the District Court that a dismissal of the petition after the December 3,

### 2000, hearing, and after the District Court sustained P.W.'s 

### objection, would have required that the Court overlook the best interests ofthe child. While fundamentally fair procedures are guaranteed, a district court has a corresponding duty to consider the best ~nterests ofthe ch~ld. Substantla1 evidence ill

### thc record extstcd to shou that 

### M.W. 

### continued to sufferboth emotionallyand mentally. P.W. h~mself admlttedthat he alone \vas not capable ofdealingwith his children's needs. Furthermore, aside fromthe fact that substantixevidence was offered directly which had previously been offered indirectly but then excluded, prejudice to P.W. has not been demonstrated. Since it mas P.W. who objected to the form of the evidence as first offered and since it was originally offered in a form authorized by statute, we conclude that k1.W.'~ best interests were paramount. $94 

### For the forego~ng reasons, %%c affirm thejudgment 

### ofthe Distrlct CourtWe Concur: