Filed 8/27/18 In re C.R. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Kimberlee A. Lagotta, Judge. Affirmed.

Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.

T.F. appeals the juvenile court's jurisdictional and dispositional orders removing her minor son, C.R., from her care. Both T.F. and C.R. suffer from osteogenesis imperfecta, a genetic bone disorder commonly known as brittle bone disease. T.F. asserts that the juvenile court's judgment must be reversed because insufficient evidence supported the court's findings that she failed to provide adequate medical care to C.R. and that, as a result, C.R. was at risk of suffering physical harm in her care. T.F. also asserts insufficient evidence supported the court's finding that C.R. was at risk of physical harm if returned to her care. We reject these challenges and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

T.F. has a significant history of involvement with the San Diego Health and Human Services Agency (Agency). In 2008, T.F.'s two older daughters were taken into protective custody after the Agency received reports that the oldest was missing school and that her stepfather was using drugs and exhibiting strange and threatening behavior. T.F. ultimately reunified with her younger daughter, D.F., in 2010, but her older daughter remained under the juvenile court's jurisdiction until she reached age 18 in 2017.

At his birth in early 2014, C.R. and T.F. tested positive for amphetamines and methamphetamines. T.F. admitted using methamphetamines while she was pregnant, including the day before she gave birth, and reported that she had not had any prenatal care during the pregnancy. The Agency filed petitions on behalf of C.R. and D.F. as a result of T.F.'s drug use. On the Agency's recommendation, the juvenile court allowed the minors to remain in T.F.'s care on a conditional basis. T.F. actively participated in a drug treatment program and developed a support system, and the juvenile court terminated its jurisdiction over both minors in September 2014.

One year later, in September 2015, the Agency received a referral alleging physical abuse of D.F. by T.F. T.F. evaded the social worker assigned to investigate the case and the Agency closed the referral as inconclusive. Then, in June 2017, the Agency received a referral that T.F. was neglecting C.R. The report alleged that C.R. was not receiving infusions that helped strengthen his bones and that T.F. was not taking C.R. to any doctor visits for his condition. Around that timeframe, T.F. was working on obtaining approval for social security benefits for C.R., and she was not able to provide documentation for his medical visits.

The Agency's social worker assigned to investigate the referral visited the family's home three times in late June and July to speak with T.F. The social worker was accompanied by a public health nurse. T.F. and C.R. were home on the third attempt on July 12, 2017, but T.F. refused to come out to meet the officials. The social worker and nurse did observe three-and-a-half-year-old C.R. and reported he was small and that he was able to walk and run, but that he had an abnormal gait. They also reported that C.R. was missing four top teeth, was dirty, and covered in bug bites, but that C.R. was interactive and happily played with toys. After the failed attempt to speak with T.F., the social worker sent T.F. a letter asking her to call to schedule an appointment to discuss C.R.

T.F. took C.R. for an examination by a doctor on July 18, 2017 to confirm his diagnosis of osteogenesis imperfecta in order to continue C.R.'s social security payments. In his report to the Department of Social Services, the doctor noted that C.R. was 32 inches tall and weighed 25 pounds. The report also indicated that C.R. was not currently standing or walking, even though he had been at the age of two, possibly because of pain and that he had a 20-degree valgus deformity of his right elbow.

Thereafter, the social worker investigating the referral confirmed that in June 2015 T.F. had discontinued infusion treatments recommended by C.R.'s doctors and had failed to take C.R. to the various specialists that were involved in his care, including an orthopedist, a geneticist, and an endocrinologist. The social worker also found that on June 29, 2016 C.R.'s pediatrician had diagnosed him with difficulty gaining weight and failure to thrive and referred C.R. to physical and occupational therapy. However, T.F. did not follow through with the referrals. C.R. was last seen by his pediatrician on September 20, 2016.

On August 23, 2017, the Agency received another referral about C.R.'s lack of medical treatment. The Agency's social worker made three unannounced visits to the family home thereafter, but a lock had been installed on the gate at the property preventing the social worker from reaching the front door. The social worker left her business card and a letter requesting T.F. to contact her on the car in the home's driveway. The social worker also attempted to call T.F. at several phone numbers and mailed letters to the home twice in September. The second letter outlined the efforts the Agency had made to reach T.F., the Agency's concerns about C.R.'s lack of medical care, and provided the phone number for the endocrinology department that had treated C.R. after his initial diagnosis.

The Agency also obtained an opinion from a child abuse expert physician at the Chadwick Center for Children and Families at Rady's Children's Hospital (Chadwick Center), which provides prevention strategies and treatment for victims of domestic violence and abuse. The expert, Dr. Nicole Ayson, reviewed C.R.'s medical history and notes from the Agency and public health nurse involved in C.R.'s case. Dr. Ayson noted that C.R. suffered from the most severe form of osteogenesis imperfecta and opined that given the severity of C.R.'s condition, T.F.'s failure to follow through with his medical care constituted medical neglect. Dr. Ayson stated that it was "imperative that [C.R.] re-establishes care with [his] medical specialties," including medication infusions while he was growing and regular visits with his endocrinologist and orthopedist, and that C.R. "is at risk to suffer from bone pain and severe deformities, which will make for a poor quality of life for this child." She opined that without additional care, it will be "difficult for [C.R.] to communicate, learn, and build healthy relationships."

On October 10, 2017, the social worker spoke with C.R.'s maternal grandmother (grandmother), who agreed to bring C.R. to the Chadwick Center with T.F. T.F. then contacted the Chadwick Center and canceled the appointment. She told the Chadwick Center representative that her family did not have a social worker and she did not know why the appointment had been made. The representative offered to provide T.F. with the social worker's contact information, but T.F. declined. Dr. Ayson also spoke with C.R.'s endocrinologist, who was concerned for C.R. The endocrinologist scheduled an appointment for C.R. for late October and his staff left a voicemail for T.F. with the appointment information.

On October 12, 2017, the Agency requested and obtained a search warrant from the juvenile court in order to have C.R. evaluated by a doctor. The warrant was executed on October 13, 2017 and C.R. was taken to the Chadwick Center. T.F. refused to accompany C.R. to the hospital. He was evaluated by Dr. Suzanne P. Starling. Dr. Starling reported that C.R. complained of pain in his left arm and refused to use the arm. The grandmother came to the hospital and told Dr. Starling that C.R. fell frequently. She said that she and T.F. wrapped C.R.'s left arm in an elastic bandage daily, but the grandmother did not know why they wrapped the arm. She also reported that C.R. had been complaining about his arm for several days, but they had not sought any medical treatment. The grandmother reported she cared for C.R. regularly and often for months at a time when T.F.'s disability prevented her from doing so.

Like Dr. Ayson, Dr. Starling concluded that T.F.'s failure to obtain medical care for C.R. or follow up with the various specialists involved in his treatment over the prior two years constituted medical neglect. Dr. Starling also reviewed the report of the physician who evaluated C.R. in July and noted that C.R.'s weight had dropped from 25 pounds to 20 pounds 13 ounces at the time of her evaluation. Dr. Starling opined that the weight loss of 17% of C.R.'s body weight was an immediate medical concern and was evidence of nutritional neglect. She stated that the lack of sufficient medical care and drastic weight loss placed C.R. at "continued high risk for bone pain, fractures, developmental delay and overall failure to thrive." Dr. Starling opined that C.R. should not be returned to his parents' care. He was taken into protective custody by the Agency that day and placed at Polinsky Children's Center (PCC).

The Agency filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1)[1] on October 16, 2017. The petition recounted Dr. Starling's report and alleged that T.F. failed to provide C.R. with necessary medical treatment. T.F. did not appear at the detention hearing the next day. Grandmother and C.R.'s maternal aunt, L.H., were present for the hearing. The juvenile court made a prima facie finding that C.R. was a child described by section 300, subdivision (b)(1) and ordered C.R. detained out of T.F.'s care because of significant risk to his health. The court found there were no reasonable means to protect C.R. without removal and that the Agency had made reasonable efforts to prevent removal. The court ordered liberal supervised visitation and immediate reunification services for T.F., including crisis intervention, case management, counseling, and transportation.

C.R. spent the first few days of his detention at PCC, where he was attended to on a one-on-one basis by a staff member. The family's social worker reported that C.R. appeared to be happy, was excited to play, and was able to walk and run, though he fell easily. The social worker interviewed T.F. in person on October 19, 2017 and October 23, 2017 at grandmother's home. T.F. was recently released from the hospital and was recovering from a fractured spine. T.F. told the worker she did not know that there was a risk C.R. could be removed from her care, and that she only received the letter that the Agency's social worker had left on her car and no other communication from the Agency. T.F. later acknowledged the Agency's attempts to reach her, but said she avoided the social workers because of her history with the Agency. T.F. believed she was providing sufficient medical care for C.R., though she felt that she and C.R. both needed additional resources. T.F. complained her home was not compliant with the Americans with Disabilities Act and that it was difficult for her to care for C.R. because of her own disability. T.F. agreed to be drug tested if she could be provided with transportation. T.F. also supported the Agency's recommendation to place C.R. with L.H.

With respect to C.R.'s medical care, T.F. told the social worker that she stopped bringing C.R. for infusions because the procedure was not FDA approved and once she stopped taking him for the infusions he began to thrive physically, walking, talking, and running. She also said that a physician told her that C.R. did not need physical or occupational therapy at his young age and that C.R. would "tell us when he's ready" for more therapy. She explained that the doctor who examined C.R. for purposes of social security payments in July did not ask C.R. to walk or stand, did not weigh C.R., and that the deformity the physician noted in his report was a normal part of C.R.'s medical condition. T.F. acknowledged she had failed to make follow up appointments with a geneticist as recommended and stated that she did not follow up with C.R.'s endocrinologist because of lapses in medical insurance.

Before the jurisdictional hearing, the agency placed C.R. with L.H. and began the process of setting appointments with the various specialists involved in C.R.'s care and scheduling a development screening. In its report for the jurisdiction and disposition hearing set for November 7, 2017, the social worker provided an itemized list of C.R.'s upcoming appointments, which included visits with seven different providers and an evaluation with the Regional Center to determine his eligibility for Early Head Start and other developmental services. C.R. visited his endocrinologist on October 23, 2017, and the doctor noted C.R.'s short stature, leg length discrepancy, nutritional deficiency, and low bone density. The endocrinologist recommended C.R. resume infusion therapy to decrease his risk of fractures and improve bone density.

The initial jurisdiction and disposition hearing was continued at T.F.'s request because her retained counsel was not available. At the continued hearing, T.F. requested and was appointed counsel, which resulted in another continuance for the new attorney to review the case file. T.F.'s appointed counsel also indicated T.F. would likely contest jurisdiction. The court set a settlement conference for January 8, 2018, and a contested hearing for January 24, 2018. At the settlement conference, the parties were hopeful that a settlement would be reached and agreed to unsupervised visitation for T.F. and another postponement of the hearing.

The hearing was postponed several more times, and was eventually set for March 23, 2018. In the interim, T.F.'s visitation progressed to regular overnight visits with C.R. at L.H.'s home. T.F. also participated in C.R.'s care with support from L.H., including help with scheduling medical appointments and transportation to appointments. T.F. scheduled her own medical appointments, but had yet to initiate counseling that was recommended by the Agency because she was overwhelmed by C.R.'s and her own physical medical needs. In its final report before the contested hearing, the Agency outlined the high level of medical care and developmental services C.R. had begun receiving in L.H.'s care. The Agency also reported medical challenges T.F. faced with her own health, including chronic pain related to her osteogenesis imperfecta, and noted that T.F. required significant support from her family to meet her own needs. T.F., who was living with her mother and D.F., was also working on finding suitable housing of her own. In its report, the Agency recommended that C.R. remain in L.H.'s care with increased visitation as appropriate and continued support services.
At the contested hearing, the court accepted the Agency's reports into evidence and heard the testimony of the family's social worker, T.F., and L.H. During her closing argument, the Agency's counsel outlined the risk to C.R. of placing him in T.F.'s care. Counsel also stated that the Agency was comfortable permitting T.F. to reside in L.H.'s home given the unique circumstances of the case. C.R.'s counsel stated her position that there were no protective issues and asked the court to dismiss the petition. C.R.'s counsel asserted that L.H.'s testimony that she would come forward to the Agency if T.F. neglected C.R.'s medical care again was credible. She also argued that the records of C.R.'s weight and the diagnosis of failure to thrive were inaccurate. T.F.'s counsel also asked the court to dismiss the petition and argued that T.F.'s care had not been neglectful because C.R. was seen by a pediatrician in 2016.

After closing arguments, the court found true by clear and convincing evidence the allegation in the petition that C.R. was a child described by section 300, subdivision (b)(1). The court noted that for an average, healthy child, annual medical visits would be sufficient. However, because C.R. is a vulnerable and medically fragile child, T.F.'s failure to follow up with his care was negligent. The court also stated the record showed clearly that C.R.'s medical condition required regular follow up with several specialists, and that such care was critical for C.R.'s health and development at his young age. The court ordered C.R. removed from T.F.'s custody under section 361, subdivision (c)(1) and to remain in his placement with L.H. The court also adopted the Agency's recommendation to allow T.F. to reside with L.H. and gave the Agency discretion to allow a 60-day trial visit with the concurrence of minor's counsel. The court also set an interim hearing for 90 days to reevaluate its placement decision.

DISCUSSION

On appeal, T.F. contends insufficient evidence supported the juvenile court's jurisdictional and dispositional findings. Specifically, she argues there was no evidence that she failed to provide C.R. with adequate medical care or that her own physical disability placed C.R. at risk of harm. T.F. also argues that even if sufficient evidence supported the jurisdictional finding, by the time of the jurisdictional and dispositional hearing there was not substantial evidence showing a danger to C.R. if he were returned to her care.

I

In reviewing the sufficiency of the evidence on appeal, we consider the entire record to determine whether substantial evidence supports the juvenile court's findings. Evidence is "substantial" if it is reasonable, credible, and of solid value. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) We do not pass on the credibility of witnesses, resolve conflicts in the evidence, or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 (Casey D.).) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

Juvenile dependency proceedings are intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) "The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child." (In re R.V. (2012) 208 Cal.App.4th 837, 843.) The focus of section 300 is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)

Under section 300, subdivision (b)(1), a minor comes within the jurisdiction of the juvenile court if "the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse."

Further, the statute provides, in relevant part, that "[w]henever it is alleged that a child comes within the jurisdiction of the court on the basis of the parent's or guardian's willful failure to provide adequate medical treatment . . . the court shall give deference to the parent's or guardian's medical treatment, nontreatment, or spiritual treatment . . . , and shall not assume jurisdiction unless necessary to protect the child from suffering serious physical harm or illness. In making its determination, the court shall consider (1) the nature of the treatment proposed by the parent or guardian, (2) the risks to the child posed by the course of treatment or nontreatment proposed by the parent or guardian, (3) the risk, if any, of the course of treatment being proposed by the petitioning agency, and (4) the likely success of the courses of treatment or nontreatment proposed by the parent or guardian and agency." (§ 300, subd. (b)(1).)

Although "the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm" (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, italics omitted), the court may nevertheless consider past events when determining whether a child presently needs the juvenile court's protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135 (Diamond H.); In re Troy D. (1989) 215 Cal.App.3d 889, 899-900.) "A parent's past conduct is a good predictor of future behavior." (In re T.V. (2013) 217 Cal.App.4th 126, 133 (T.V.).) "Facts supporting allegations that a child is one described by section 300 are cumulative." (In re Hadley B. (2007) 148 Cal.App.4th 1041, 1050.) Thus, the court "must consider all the circumstances affecting the child, wherever they occur." (Id. at p. 1048.)

After the juvenile court makes a true finding at the jurisdictional phase of a dependency case, the court must then consider whether a minor should be declared a dependent and whether he or she would be at substantial risk of harm if not removed from the parent's care. (§§ 358, subd. (a), 360, 361; see In re Austin P. (2004) 118 Cal.App.4th 1124, 1129.) Section 361, subdivision (c)(1) provides for removal where there is clear and convincing evidence "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from" his or her parents' custody.

Section 361 also requires the juvenile court to determine "whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . ." (§ 361, subd. (d).) "The adequacy of reunification plans and the reasonableness of [the welfare agency's] efforts are judged according to the circumstances of each case." (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) The juvenile court has broad discretion in crafting a disposition pursuant to a child's best interests. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus . . . is on averting harm to the child." (Diamond H., supra, 82 Cal.App.4th at p. 1136.)

II

T.F. first argues the record is "devoid of evidence" to support the court's finding that she had failed to provide C.R. with adequate medical care or that her own physical disability placed C.R. at risk of harm. T.F. contends the record shows only that she was at times overwhelmed with the job of caring for C.R. and her own health, and that her failure to take C.R. to see specialists "at most showed she did not have an ideal level of care for" C.R. She also points to C.R.'s happy demeanor as evidence that he was not at risk of harm in her care, and asserts that because C.R.'s pediatrician made no referrals to specialists, there was no medical need for such care.

T.F.'s assertions, however, are contradicted by the record. Prior to the Agency's intervention in October 2017, C.R. was last seen by his pediatrician in September 2016, and had been diagnosed with failure to thrive approximately three months earlier. T.F. took no steps thereafter to treat C.R.'s diagnosis. When C.R. was taken into protective custody on October 13, 2017, C.R. was again diagnosed with failure to thrive and both of C.R.'s elbows were dislocated, a condition the public health nurse involved in the Agency's investigation described as very painful. Significantly, the Chadwick Center's expert in child abuse and medical neglect, Dr. Starling, concluded that C.R.'s failure to have medical care in the year preceding this dependency, combined with the significant weight loss in the few months leading up to the dependency and the bone abnormalities she observed in her examination were diagnostic of medical neglect. These facts sufficiently supported the court's jurisdictional finding that C.R. was a child described by section 300, subdivision (b)(1) and that he was at risk of suffering further physical harm if T.F. continued to neglect his medical care.[2]

T.F. also points to the fact that her testimony refuted Dr. Starling's assessment that C.R. was failing to thrive because T.F. stated that C.R. was never taken out of his car seat to be weighed during the assessment in July 2017 to determine his continued eligibility for social security disability payments. However, it is not this court's role to revisit the credibility determinations made by the juvenile court. (Casey D., supra, 70 Cal.App.4th at pp. 52-53.) It was well within the court's discretion to discredit T.F.'s testimony about the visit, and credit the reports of Dr. Ayson, Dr. Starling, and the physician who assessed C.R. in July.

Similarly, T.F. argues that, because the infusions recommended by C.R.'s endocrinologist were clinical trials and not yet approved by the FDA, her failure to continue the treatment was not evidence of neglect. However, T.F. testified that she stopped taking C.R. for the infusions because of scheduling challenges, not because she believed the treatments were not medically necessary or important for C.R. Further, the endocrinologist recommended the treatments while C.R. was growing. This evidence showed only that T.F. disagreed with the doctor's recommendation. It did not negate the evidence showing C.R.'s medical team thought the treatments were imperative for his health even though it was a clinical trial.[3]

III

T.F. next asserts that the dispositional order must be reversed because there was no evidence of danger to C.R. if he were returned to her care. She states that by the March 23, 2018 hearing, she "had been consistently and proactively taking [C.R.] to all of his medical and dental appointments" and other less drastic disposition options were available.

The record, however, contains sufficient evidence to support the court's finding that there continued to be a substantial danger to C.R.'s physical health and safety if he were returned to T.F.'s care, and that there were no more reasonable means to prevent his removal. As discussed, the evidence before the court showed that T.F. had not provided adequate medical care to C.R. in the time since he was returned to her custody after his initial dependency. Specifically, C.R. was diagnosed as failing to thrive in June 2016 and T.F. had not ensured he received follow-up treatment for that diagnosis, or followed the recommendations of his medical providers with respect to C.R.'s osteogenesis imperfecta. Further, T.F. had purposefully evaded the Agency for several months, resulting in the need for a protective custody warrant to have C.R. evaluated by the Chadwick Center. Only upon this evaluation and being taken into protective custody, did T.F. begin to assist the Agency and L.H. with obtaining necessary medical care for C.R. These facts sufficiently supported the juvenile court's determination that removal was necessary to protect the minor.

Further, while T.F. had taken an active role in meeting C.R.'s needs once he was taken into protective custody, the evidence of T.F.'s past conduct and her own diminished health at the time of the disposition hearing, was sufficient evidence that the custody arrangement recommended by the Agency and ordered by the juvenile court was within the court's broad discretion. The evidence showed that T.F. was significantly relying on L.H. to provide care for C.R., including scheduling of and transportation to his medical appointments, navigating insurance for his care, and even providing food for C.R. This evidence supported the court's dispositional order, which allowed unlimited visitation for T.F. in L.H.'s home and discretion for the Agency to begin a 60-day trial visit. Further, the court set a special hearing for 90 days to reassess the arrangement.

On appeal, T.F. asserts that less drastic alternatives were available to ensure C.R.'s safety in her care, such as unannounced visits by the Agency and allowing T.F. to reside with L.H. T.F., however, had only provided medical care for C.R. with significant involvement by L.H. and at the time of the hearing continued to deny she had provided inadequate care before the Agency's involvement. These facts supported the court's dispositional finding. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 ["denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision"].) Further, T.F.'s past inability to provide adequate care for C.R. was evidence that she might revert to the same situation if C.R. were returned to her care too soon. (See T.V., supra, 217 Cal.App.4th at p. 133 ["A parent's past conduct is a good predictor of future behavior."].)

In addition, although at the hearing T.F. indicated a willingness to move into L.H.'s home, she previously told the family's social worker that she wanted to live independently in order to keep her Section 8 housing status. Given this inconsistency, the court's dispositional order discrediting T.F.'s assertion she would move in with L.H. was reasonable. (See In re Mickel O. (2011) 197 Cal.App.4th 586, 621 [" 'issues of fact and credibility are questions for the trier of fact' "].) In sum, the evidence was sufficient to support both the court's finding that there were no reasonable means to protect C.R. without removal and its compromise dispositional order keeping C.R. in L.H.'s care but allowing unlimited overnight visitation and discretion to the Agency to begin a 60-day trial visit.[4]

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

GUERRERO, J.