Filed 5/20/21 In re D.L. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re D. L., a Person Coming 

Under the Juvenile Court Law.

 B307147

 (Los Angeles County

Super. Ct. Nos. 19CCJP03178,

19CCJP03178A)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

PATRICIA F.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of 

Los Angeles County, Brett Bianco, Judge. Affirmed

Leslie A. Barry, under appointment by the Court of Appeal, 

for Defendant and Appellant.
2

Office of the County Counsel, Rodrigo A. Castro-Silva, 

County Counsel, Jessica S. Mitchell, Deputy County Counsel, for 

Plaintiff and Respondent.

INTRODUCTION

Appellant Patricia F. (mother) challenges a juvenile court 

order awarding sole legal custody to child D.’s father upon 

termination of juvenile court jurisdiction. The juvenile court case 

was initiated after mother and newborn M. tested positive for 

amphetamine and methamphetamine at the time of M.’s birth in 

April 2019. The juvenile court exercised jurisdiction pursuant to

Welfare and Institutions Code section 3001 over M., three-yearold P., and seven-year-old D. on the basis of mother’s drug abuse 

and mother’s history of domestic violence with her boyfriend, M. 

and P.’s father. The court found that D.’s father, who shared 

custody of D., was non-offending.

The court did not detain the children from mother, and 

mother initially complied with the case plan, which included drug 

testing and a drug abuse treatment program. However, on April 

29, 2020, the Los Angeles County Department of Children and 

Family Services (DCFS) filed a petition under section 387 after 

mother stopped drug testing and participating in services. The 

children were detained, D. was placed with father, and the court 

sustained the section 387 petition. Mother did not resume 

services under the case plan, and when the court terminated 

jurisdiction over D. in August 2020, it awarded sole physical and 

sole legal custody to father, with monitored visitation for mother. 

1All further statutory references are to the Welfare and 

Institutions Code.
3

Mother now challenges only the court’s award of legal custody. 

We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Detention

D. and his half-siblings came to the attention of DCFS in 

April 2019, when M. tested positive for amphetamine and 

methamphetamine at birth. At the time, D. was seven years old 

and lived part-time with mother in her parents’ (maternal 

grandparents’) home. Also living in the home were D.’s threeyear-old half-sister P.; P. and M.’s father, Joseph; a maternal 

aunt; and maternal great-grandfather. Mother and father shared 

custody of D., so D. lived with father several days per week. 

A children’s social worker (CSW) visited mother’s home on 

April 26, 2019, and found the home clean and well-furnished. 

Mother denied any domestic violence between her and Joseph, 

but Joseph admitted that he had been charged for a domestic 

violence incident involving mother in 2014. The maternal aunt 

living in the home told the CSW that she was in the process of 

getting a restraining order against Joseph. Mother said that if 

maternal aunt got a restraining order, mother would remain in 

the home and Joseph would move out. The CSW observed the 

children, who appeared clean, well-fed, and appropriately 

dressed. 

Mother said she did not use drugs “that much,” but the 

CSW noted that mother had sores and scabs suggesting regular 

methamphetamine use. Mother agreed to submit to drug tests 

and enroll in an outpatient drug treatment program. Joseph 

declined to submit to drug tests. Father told the CSW that he 

suspected mother was on drugs, but he could not prove it. 
4

DCFS did not immediately detain the children. The CSW 

visited the home again on May 8, 2019. Mother had not yet 

enrolled in the outpatient drug program, but she had tested 

negative twice. Later that day, mother initiated the process to be 

assessed for the outpatient drug treatment program. DCFS 

noted that mother was “very cooperative” and had “a strong 

support system in the home of the maternal grandparents and 

aunt.” DCFS stated in the detention report that it wanted to 

“pursue the least restrictive route for this family in filing a 

petition with the Court for Court ordered Family Maintenance 

services.” DCFS recommended that the children be detained in 

maternal grandparents’ home, with monitored visitation for 

mother and Joseph. 

On May 20, 2019, DCFS filed a juvenile dependency 

petition under section 300, subdivision (b)(1). Count b-1 alleged 

that M. tested positive at birth for amphetamine and 

methamphetamine, and that “mother’s substance abuse and 

[Joseph’s] failure to protect [M.] endangers the child’s physical 

health and safety.” Count b-2 alleged that mother “has a history 

of substance abuse and is a current user of amphetamine and 

methamphetamine which renders the mother incapable of 

providing [M., P., and D.] with regular care and supervision.” 

Count b-2 further alleged that Joseph “knew or reasonably 

should have known that the mother was abusing illicit drugs and 

[Joseph] failed to protect” the children. Count b-3 alleged that 

Joseph was a user of marijuana, which rendered him incapable of 

caring for P. and M. 

On May 21, 2019, DCFS filed a last-minute information 

stating that Joseph had voluntarily moved out of maternal 

grandparents’ home. When Joseph went to maternal 
5

grandparents’ house to see the children, he and mother got into a 

verbal altercation. Joseph picked up three-year-old P., put her in 

the back seat of his car without a car seat, and attempted to drive 

away. Mother tried to stop him by pulling the keys from the 

ignition, but Joseph drove away, dragging mother about 10 feet 

before she fell to the ground. The family called 911, and law 

enforcement told mother that Joseph would be arrested for 

domestic violence. Mother also said she would seek a restraining 

order against Joseph. 

At the detention hearing on May 21, 2019, the court noted 

that father was non-offending. The court found that there were 

“reasonable services available to prevent detention,” and ordered 

D. released to mother and father. The court also released P. and 

M. to mother, detained P. and M. from Joseph, and entered a nocontact order for D. and Joseph. The court warned mother that if 

she tested positive for drugs, the children would be detained from 

her. The court ordered DCFS to work with mother and father to 

work out a schedule for D.’s custody. 

B. Jurisdiction and disposition

On July 1, 2019, DCFS filed an amended petition under 

section 300, subdivision (b)(1). The first two counts remained the 

same. Count b-3 relating to P. and M. was revised to allege that 

Joseph had a substance abuse history and that he was a current 

user of marijuana and methamphetamine. DCFS also added 

count b-4, alleging that mother and Joseph had a history of 

domestic violence, including a 2014 incident in which Joseph was 

arrested for domestic violence, an incident in which Joseph 

punched mother in the face when she was pregnant with P., and 

the recent incident in which Joseph drove away with P. in the 

car. Count b-4 alleged that Joseph’s violent conduct and mother’s 
6

failure to protect the children, including allowing Joseph access 

to the children, placed the children at risk of harm. 

A jurisdiction/disposition report dated July 23, 2019 stated 

that D. was living with mother and doing well. D. told the DCFS 

investigator that he had not witnessed mother or Joseph doing 

drugs or fighting, but he said that mother and Joseph sometimes 

argue. D. was in second grade and doing well in school. P. and 

M. also appeared to be doing well. 

Mother admitted to “smoking meth” the day before she 

gave birth to M., and to using methamphetamine throughout the 

pregnancy. Mother said that she did not use methamphetamine 

while watching the children, because maternal grandparents 

cared for the children while she was using. Mother enrolled in an 

outpatient drug treatment program in June 2019, and she had 

several negative drug tests and one no-show. Mother also 

admitted the domestic violence history with Joseph, but stated 

that D. did not witness the altercations. Mother also stated that 

the incident involving Joseph driving away with P. in the car

“wasn’t something big,” and the report of the incident was 

exaggerated. Mother admitted that she had been arrested for

prostitution when she was 18 years old, after she and Joseph had 

“come up with a plan to make more money by prostituting.” 

Mother and Joseph were still together and intended to continue 

their relationship. 

Mother stated that she and father met in high school, and 

mother got pregnant with D. shortly thereafter. Mother and 

father separated when D. was about one year old, and they had 

co-parented D. since then with no issues. 

Joseph denied the allegations, said he knew nothing about 

mother’s drug use, and stated that he uses marijuana. Regarding 
7

the domestic violence incident involving P., Joseph said that 

mother assaulted him when he took P. for a visit. Joseph stated 

that he and mother have a good relationship as long as maternal 

family does not “get involved.” Joseph told the DCFS

investigator that he was not interested in participating in 

services. 

In a last-minute information, DCFS included information 

from an interview with father. Father worked full time for a gas 

distribution company, and typically had D. in his care from 

Friday night to Monday morning. Father said he wanted full 

custody of D., because he felt D. would be safer in his care. 

Father had suspected in the past that mother was using drugs 

and he tried to get a sole custody order, but the court denied his 

request because he did not have sufficient proof. D. told father

that mother and Joseph were visiting with each other outside 

maternal grandparents’ house, where D. could see them through 

the window. Father stated that he did not want Joseph to have 

access to D., because father believed Joseph was a drug user, and 

because of Joseph’s past aggressive behavior. 

DCFS found the family to present a high risk of future 

abuse or neglect. DCFS recommended that D. remain released to 

mother and father, and that mother be provided with family 

maintenance services. 

At the adjudication and disposition hearing on August 20, 

2019, mother pled no contest to the first amended petition, as 

further amended by interlineation. Count b-2, as sustained,

stated that mother has an unresolved history of substance abuse 

and is a recent user of amphetamine and methamphetamine, and 

that mother’s drug abuse placed the children at risk of harm. 

Count b-4, regarding mother and Joseph’s history of domestic 
8

violence, was sustained without further amendment. The court 

dismissed counts b-1 and b-3. The court found father to be nonoffending. The court therefore found D. to be a person described 

by section 300, subdivision (b)(1), and placed him in the home of 

parents under DCFS supervision. As to P. and M., the court 

released the children to mother and provided visitation for 

Joseph, acknowledging that Joseph no longer lived in the 

maternal family’s home. 

A status review report dated February 18, 2020 stated that 

father and mother continued to share custody of D. Father and 

mother had stipulated to a 50-50 custody arrangement, and D. 

told the social worker that he enjoyed spending time at both 

homes. The status review report stated that father and mother 

“communicate regularly and work together to ensure [D.] is 

getting the care and support that he needs.” D. was doing well in 

school, but his attendance record showed “excessive tardiness and 

unverified absences.” D. was in therapy for anxiety, and was 

making progress toward his treatment goals. 

Mother was in partial compliance with her case plan. She 

consistently attended parenting classes, she was participating in 

an outpatient drug treatment program, and she told the CSW 

that she was confident in her sobriety. Mother was employed and 

taking classes online. However, the status review report noted 

that mother missed a drug test on December 24, 2019, and had “7 

declined drug tests during mother’s drug program (although 

mother has completed the drug program).” DCFS found that 

mother was in partial compliance with court orders regarding 

drug treatment and testing, and in compliance with the other 

aspects of the court’s orders. The CSW had to contact mother on

maternal grandmother’s phone, because mother’s phone had been 
9

disconnected. Joseph was staying with his parents, did not have 

a working phone number, and refused to make himself available 

to the CSW. DCFS found that the risk of abuse or neglect 

remained high, and recommended that family maintenance 

services be continued. 

A last-minute information stated that Joseph had been 

arrested on February 2, 2020 for possession of a substance that 

appeared to be methamphetamine. DCFS requested that family 

reunification services be terminated for Joseph. At the review 

hearing on February 18, 2020, the court held that continued 

jurisdiction was warranted, and ordered the parents to continue 

participating in all previously ordered services. 

C. Section 387 petition

On April 29, 2020, DCFS filed a petition under section 387 

alleging that mother failed to drug test eight times from 

February 18 to April 20, 2020, and that she was discharged from 

her domestic violence prevention program on March 1, 2020 due 

to lack of attendance. The petition also stated that although 

Joseph’s visits with P. and M. were required to be monitored, 

mother and Joseph were together with the children without an 

approved monitor. 

A detention report filed April 29, 2020 stated that on April 

27, D. was detained from mother and placed with father. In 

March 2020, DCFS received a report that mother was in 

possession of drug paraphernalia. Mother denied that she was 

using drugs again, but the CSW observed that mother had not 

been drug testing and she had marks on her face suggesting drug 

use. The maternal aunt reported to the CSW that she learned 

that mother had been fired from her job. On April 14, 2020, 

mother took the children from maternal grandparents’ home and 
10

left with Joseph because she was angry at maternal 

grandparents. Mother still did not have a phone; maternal 

grandparents reported that Joseph broke mother’s phone. After 

mother took the children from maternal grandparents’ home, 

maternal grandparents went to Joseph’s parents’ home to look for 

mother and the children; while maternal grandparents were 

there, Joseph threatened to kill them. Maternal grandparents 

called police, but they did not do anything. The CSW confirmed 

reports that mother stayed at a hotel on the night of April 15, but 

it was unclear whether mother had the children with her at the 

time. 

When the CSW spoke with mother the following day, 

mother explained that she stayed at a hotel to avoid telling 

maternal grandparents that she lost her job. Mother said she did 

not know why she lost her job. Regarding maternal grandparents 

going to Joseph’s house, the detention report stated, “Mother 

states [Joseph] threaten[ed] to kill [maternal grandparents] 

because she thinks [maternal grandmother] grabbed him or 

touched him. The children were asleep during the interaction. 

The mother failed to demonstrate insight into the safety and risk 

factors this could pose to the children’s well-being.” The report 

noted that mother “appears very fixated on maintaining the 

relationship” with Joseph. Mother told the CSW she did not 

know she was supposed to be drug testing. DCFS stated that 

mother’s “continued possible use[ ] of controlled substances and 

her inability to end contact” with Joseph posed a risk to the 

children. It also noted that although mother had completed part 

of her drug treatment program, she failed to complete the aftercare drug program, and “[i]t does not appear that mother’s 
11

progress partial compliance [sic] can resolve the current safety 

concerns.” 

At a hearing on the section 387 petition on May 4, 2020, the 

court noted that mother admitted most of the allegations in the 

petition, and held that detaining the children was appropriate. 

The court ordered that mother’s visitation be monitored. 

D. Termination of jurisdiction

A jurisdiction/disposition report dated August 3, 2020 

stated that D. remained living with father. Father reported that 

D.’s anxiety had decreased and he was doing well. Mother had 

had not drug tested in May or June, and there was no later 

information about drug tests in the record; mother said she was 

not using drugs. In July 2020, mother again told the social 

worker that she did not know that she was supposed to continue 

drug testing, and blamed the former social worker for not doing 

her job. Mother told the CSW, “I have shown that I can test 

negative and do my services. Now, I have no resources 

whatsoever from that social worker. I was kicked out during a 

pandemic and had nowhere to go and tested positive for 

Coronavirus. I did not have a place to go and sometimes I stay 

with Joseph; this is very stressful and I have no help 

whatsoever.” Joseph had been arrested in May 2020 for felon in 

possession of a firearm and possession of a controlled substance. 

DCFS recommended that the section 387 petition be 

sustained. It further stated, “At this time DCFS does not have 

any concerns for [father] and the child, [D.],” and recommended 

that jurisdiction be terminated with a family law order giving 

father sole physical and sole legal custody, and providing mother 

with monitored visitation. 
12

A status review report dated August 17, 2020 stated that 

D. remained with father and was doing “very well.” Father 

maintained a relationship with maternal grandparents, who were 

caring for P. and M., and the children had sibling visits. The 

report noted that “during this review period, the mother’s 

relationships with her family members has become increasingly 

fraught, as drug paraphernalia belonging to the mother was 

found in the home and the mother resumed her romantic 

relationship with [Joseph]. The mother also lost her 

employment.” Mother had not resumed drug testing or any other 

programs, and DCFS noted that although mother “could 

articulate things she was learning in classes, she is unable to 

apply this to her own situation.” DCFS again asked that the 

section 387 petition be sustained. 

At the adjudication hearing on August 3, 2020, the court 

sustained the section 387 petition, and found that the previous 

disposition had been ineffective in ensuring the protection of the 

children. Counsel for DCFS and the children requested that the 

court terminate jurisdiction over D., with physical and legal 

custody to father and monitored visitation for mother. Mother’s 

counsel opposed the termination of jurisdiction, stating that 

mother wanted further opportunities to reunify with D. Mother 

asked for joint legal custody if the court were inclined to 

terminate jurisdiction, asserting that there was “no indication 

that mother would be unable or would make it difficult to make a 

decision for the child’s well-being.” Father’s counsel asked the 

court to terminate jurisdiction with sole physical and sole legal

custody to father, stating, “It would be impossible for [father] to 

work with the mother on this case regarding legal issues such as 

educational, medical decisions. He would not be able to make it 
13

work based on her history and lack of compliance in the case 

plan.” 

The court terminated jurisdiction over D. It ordered 

physical and legal custody to father, with monitored visitation for 

mother. The court requested that a family law order be prepared, 

and stated, “The rider should reflect those components of 

mother’s case plan which she needs to complete before she may 

have unmonitored visitation” with D. The court’s exit order, filed 

August 7, 2020, awarded father “sole legal custody, sole physical 

custody, with monitored visitation for the mother, 3 times a week 

for 3 hours each visit.” Mother timely appealed. 

DISCUSSION

On appeal, mother challenges only the court’s award of sole 

legal custody to father. DCFS asserts that the custody order was 

appropriate. “When the juvenile court terminates its jurisdiction 

over a dependent child, section 362.4 authorizes it to make 

custody and visitation orders that will be transferred to an 

existing family court file and remain in effect until modified or 

terminated by the superior court.” (In re Roger S. (1992) 4 

Cal.App.4th 25, 30.) We review a “juvenile court’s decision to 

terminate dependency jurisdiction and to issue a custody (or 

‘exit’) order pursuant to section 362.4 for abuse of discretion.”

(Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) 

Legal custody involves “the right and the responsibility to 

make the decisions relating to the health, education, and welfare 

of a child.” (Fam. Code, § 3006.) “When making a custody 

determination in any dependency case, the court’s focus and 

primary consideration must always be the best interests of the 

child.” (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.) 

Thus, “the court's power under section 362.4 require[s] it to make 
14

an informed decision concerning the best interests of the child.” 

(In re John W. (1996) 41 Cal.App.4th 961, 972.)

Mother asserts that “DCFS did not present any evidence to 

support its recommendation that Father be granted sole custody.” 

She also argues that father “never reported that he had difficulty 

communicating with Mother or that they were unable to work 

together to make decisions about” D. DCFS asserts that the trial 

court did not abuse its discretion, because the evidence showed 

that mother failed to comply with her court-ordered case plan 

and D. was thriving in father’s care. 

We find no abuse of discretion. The evidence supports a 

finding that the best interests of D. were served by placing legal 

custody with father, the non-offending parent who was providing 

D. a safe and stable home. DCFS’s reports throughout the case 

stated that D. was thriving in father’s care. By contrast, 

mother’s actions were not conducive to the well-being of the 

children. She used drugs while pregnant with M. and 

maintained a relationship with Joseph despite their violent 

history, which included a physical altercation involving P. while 

the case was pending. Although the children were not initially 

detained from mother, her continued failure to comply with courtordered programs led to their detention a year after the case was 

initiated. Toward the end of the case, mother was not employed, 

she did not have a phone, all three children had been removed 

from her care, and it was unclear where she was living. Mother 

remained in a relationship with Joseph, who was arrested twice 

on drug possession charges (plus a weapons charge) while the 

case was pending. When asked about her failure to complete 

court-ordered programs, mother blamed the social worker and 

other factors instead of taking responsibility for the issues that 
15

led to the juvenile court’s exercise of jurisdiction. The juvenile 

court held that mother’s visitation with the children should be 

monitored, a finding that mother does not challenge. The 

evidence supported the court’s finding that it would be in D.’s 

best interest to place legal custody with father, who 

demonstrated consistency and stability in providing for D.’s 

needs.

Mother contends this case is dissimilar to In re Jennifer R.

(1993) 14 Cal.App.4th 704 (Jennifer R.), in which the mother, 

Shannon, challenged the lower court’s award of legal custody over 

the child, Jennifer, to the father. The Court of Appeal affirmed 

the custody order, noting that Shannon “did not follow through 

on drug rehabilitation referrals and failed to drug test while 

assuring her therapist she was drug free and had completed 

rehabilitation. She was irregular in her visitation with Jennifer 

and angry about restrictions upon the conduct of those visits. 

There were reports of Shannon acting inappropriately with 

Jennifer during visitation. Shannon had an extensive history of 

serious mental illness. [¶] The report by her own expert showed 

she had significant emotional disturbances and developmental 

and learning disabilities. Dr. Schramm’s report indicated 

Shannon's ability to anticipate the consequences of her behavior 

and her ability to form general concepts when faced with new 

leaning situations was impaired. He also reported Shannon 

withdrew from and did not get along with others and further 

reported she may be impulsive, maladjusted, and emotionally 

unstable. While Dr. Schramm recommended increased and 

unsupervised visitation, his report viewed as a whole does not 

support Shannon's claim she is capable of sharing legal custody 

but rather supports the court's determination such participation 
16

would not be in Jennifer's best interests. Shannon’s inability 

throughout these proceedings to care for herself and her children, 

her failure to make progress in overcoming the problems leading 

to Jennifer’s removal, her inconsistency and inappropriateness in 

visitation, as well as Dr. Schramm’s report amply support the 

court's decision Shannon’s participation in making important 

decisions relating to Jennifer's welfare would not be in the child’s 

best interests.” (Id. at p. 713.)

Mother asserts that this case is distinguishable. Although 

mother admits that she “stopped complying with her service 

plan,” she argues that the facts here were not as severe as those 

in Jennifer R., and the evidence showed that she was appropriate 

in her visits with D. We agree that the facts in Jennifer R. are 

distinguishable, but there are also many similarities: mother 

failed to comply with her case plan, she failed to drug test while 

insisting that she was not abusing drugs, and she failed to show 

insight into the issues leading to juvenile court jurisdiction 

despite having her children removed from her care. Moreover, 

nothing in Jennifer R. suggests that it delineates the limits upon 

which a court may find that legal custody with one parent is in 

the child’s best interests. 

Mother argues that the evidence showed that placing sole 

legal custody with father was against D.’s best interests, because 

for most of D.’s life mother and father had worked together to 

ensure D.’s needs were met. Mother points to portions of the 

record noting that mother and father had successfully coparented D. before the juvenile court case began. She argues 

that there was no evidence showing that mother’s issues 

“prevented her from being able to work with Father to make . . . 

necessary decisions about [D.’s] upbringing.” 
17

The court’s focus, however, was D.’s best interest—not 

mother’s ability to work with father. The court was not required 

to rely on the parents’ history of co-parenting in determining D.’s 

best interests. Moreover, the evidence showed that the parents’

history was not without difficulty. Father told a social worker 

that he suspected mother was abusing drugs as early as 2017, 

before the juvenile court case began and while mother and father 

were co-parenting D., but father was unable to get a family court 

custody order due to lack of proof. While the juvenile court case 

was pending, mother did not have a phone and the record 

indicates that the social workers had difficulty contacting 

mother. Mother violated court orders regarding having the 

children with Joseph and she failed to comply with her case plan, 

even after the children had been removed from her care. It was 

reasonable for the court to conclude that it was in D.’s best 

interest to have father alone make important educational and 

medical decisions for D.

Mother also asserts that D. told social workers he liked 

having both mother and father involved in his life. Indeed, the 

record makes clear that D. was well-bonded with mother, his 

siblings, and mother’s other family members. However, 

“although a child’s wishes may be evidence of what is in his best 

interest, they cannot be dispositive.” (In re Jacob P. (2007) 157 

Cal.App.4th 819, 832.) The evidence supports the court’s finding 

here, and we cannot substitute a different decision for that of the 

juvenile court. (See, e.g., In re Stephanie M. (1994) 7 Cal.4th 295, 

318-319 [“‘The appropriate test for abuse of discretion is whether 

the trial court exceeded the bounds of reason. When two or more 

inferences can reasonably be deduced from the facts, the 
18

reviewing court has no authority to substitute its decision for 

that of the trial court.’”].) 

We therefore find that the trial court’s award of sole legal 

custody to father was not an abuse of discretion. Nothing in this 

opinion forecloses any future finding that joint legal custody 

would be in D.’s best interests, should circumstances warrant.

DISPOSITION

The juvenile court’s custody order is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J.

CURREY, J.