Jamie Long v. Arkansas Department of Human Services
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Jamie LONG v. ARKANSAS DEPARTMENT OF HUMAN
SERVICES
CA05306
__ S. W.3d ___
Court of Appeals of Arkansas
Opinion delivered June 28, 2006
PARENT & CHILD – TERMINATION OF PARENTAL RIGHTS – TERMINATION REVERSED.– Given
the extraordinary progress appellant had made in fulfilling the requirements of the court, the
overwhelming evidence of the very strong bond between mother and children, and the
testimony from the therapist of appellant's daughter that the child would “regress,” the trial
court was clearly erroneous in finding that appellant’s continued contact with her children
would be detrimental; accordingly, the best interest of the children dictates that the appellate
court reverse the termination of appellant’s parental rights and reinstate reunification services
with a goal of returning the children to appellant’s custody.
Appeal from Pulaski Circuit Court; Joyce Williams Warren, Judge; reversed and remanded.
DeeNita D. Moak, for appellant.
Gray Allen Turner, Office of Chief Counsel, for appellee.
JOSEPHINE LINKER HART, Judge. Jamie Long appeals from an order of the Pulaski
County Circuit Court terminating her parental rights to her daughter K.L. and son M.S. On
appeal, she argues that the trial court erred in finding sufficient evidence to terminate her
parental rights. We reverse and remand.
On February 27, 2003, Arkansas Department of Human Services (DHS) took Long’s
children into custody after she was arrested on drug charges relating to her use of
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methamphetamine. At the time, K.L., and M.S., were five and two years old, respectively.
On April 25, 2003, the children were adjudicated dependentneglected.
Initially, Long was not compliant with the requirements of the case plan. At the first
review hearing, the trial court found that Long had not complied with its orders and the case
plan services in that she had not submitted to the courtordered psychological evaluation,
failed to complete parenting classes, no longer attended NA/AA meetings at Celebrate
Recovery, arrived late for visitation with her children and, contrary to the direction of DHS,
brought people to the visits. The trial court did note, however, that Long did have a drug
andalcohol assessment, “some visitation,” and “some random drug screens.” At an October
30, 2003, review hearing, the trial court found that Long still had not completed parenting
classes and had not visited the children since September 8, 2003. The trial court ordered
Long to continue to submit to random drug screens, visit the children “regularly,” and
“continue intensive outpatient substance abuse treatment.” It also imposed a requirement
that Long “have a stable home and employment and demonstrate that she can properly
provide for her kids.”
In its February 26, 2004, permanencyplanning order, the trial court found that Long
had complied with the court orders and case plan, and it continued to order reunification
services. Additionally, the court awarded Long weekend visitation.
On March 19, 2004, the trial court entered an emergency ex parte order modifying
the visitation to twice weekly at the DHS offices. The visitation was changed on March 16,
2004, after the foster mother, Mrs. Cherry, informed DHS that the children had not been
returned on time from the weekend visit. This order remained in place even though Long
informed DHS that the late return was caused by her hospitalization due to complications
with her pregnancy.
At the next permanencyplanning hearing, held on May 20, 2004, the trial court
rejected DHS’s recommendation that reunification remain the goal and sua sponte ordered
a termination hearing. In that order, the trial judge stated: “I understand she’s pregnant. I
am concerned about the fact that she’s pregnant and having some problems. I’m not
unsympathetic to that, but mom does not seem to have understood the priorities that she
should have on this case.” She further noted that Long had not provided the drug treatment
signin sheets that she had been directed to submit. Nonetheless, the trial judge ordered
reunification services to continue.
At the September 15, 2004, termination hearing, Dr. Paul Deyoub, a psychologist,
testified that he administered a psychological evaluation to Long. He stated that Long
admitted to using methamphetamine “four or five times,” marijuana, “some alcohol,” and
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pain medication. Long told him that she was currently living with a man from Mexico named
Mario, whom she planned to marry when her DHS case was over. He noted that she had
Mario’s name tattooed on both sides of her neck, but he opined that it was consistent with her
personality in that it reflected impulsiveness and poor decision making. Dr. Deyoub further
opined that Long’s involvement with Mario also reflected poor judgment in that he was a “big
priority for her.” According to Dr. Deyoub, Long’s testing revealed some degree of
personality disorders, with traits of Borderline, Histrionic, and Dependent disorders indicated.
Long’s I.Q. was 88. He noted that Long had an unstable life, having been abandoned by her
parents to a group home for six years “for no apparent reason” after her parents divorced.
Later, Long tried to live with her mother when she was fifteen, received inpatient treatment
at Rivendell and Turning Point, and had, since age seventeen, tried to make “it as best she can
with relationships” that failed but had produced two children. He opined that her prognosis
for reunification was “very guarded and poor . . . although not impossible.” Dr. Deyoub noted
a trend of past dependence on males in relationships and stated that “Mario is an unknown.
I have no idea what this individual is all about. So that’s just one more factor that I don’t
know about, but that the Court has to see who is this person.”
Jan Kucala, a licensed counselor, certified play therapist, and program manager for the
Centers for Youth and Families in Jacksonville testified that she counseled K.L., beginning
on January 13, 2004. She stated that the child had “a lot of anxiety and worry about family
matters and concern about what was going to happen to her, what was happening to her
mother.” Ms. Kucala stated that Long had made progress, that she was much more aware of
K.L.’s feelings, that she was “very open” about mistakes that she had made, and that she
showed “a lot of insight” into how her separation from her children has damaged her
relationship with them and what she would need to do to repair that relationship. Ms. Kucala
noted as well that, at times, there was confusion as to who K.L.’s case worker was and noted
that there were several appointments for which DHS had failed to bring the child. She
reported that being out of the home was “very stressful” on K.L., that K.L. felt “punished”
because she was in foster care, and that there was a “very strong bond” between K.L. and her
mother.
Further, Ms. Kucala opined that if Long’s rights were terminated, “regression will
probably occur on [K.L.’s] part,” and while she declined to offer an opinion regarding
termination because her agency did not encourage them to make this type of judgment, she
did state that she thought that “the family had been making progress,” and K.L. had not been
prepared “in any way” for termination of her mother’s parental rights. Regarding Mario, Ms.
Kucala stated that his involvement had been limited, but she was aware that Long and Mario
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had an agreement that Long would be able to stay home with the children while Mario
supported the family, and Mario affirmed that commitment. Nonetheless, she stated that she
did not think that it would be prudent to put the children “totally in their mom’s home today,”
but noted that the “kids are very bonded to her” and she did not believe that the reunification
process “would be a longterm thing.” She recommended that the trial court order
unsupervised visitation.
Long testified that she currently lived in a onebedroom apartment, but she had signed
a transfer with the management company and paid fees to allow her to move into a larger
apartment that would accommodate the return of her children. She stated that Mario’s take
home pay was four to five hundred dollars per week. She admitted to testing positive for
opiates the previous August, but attributed it to the Tylenol 3 that she had been prescribed.
She admitted that she moved to Georgia for three or four months in 2003, but when she found
that transferring her case there would be a “long process,” she returned to Arkansas. She
stated that she moved there because Mario was able to make more money. Nonetheless, while
she was away, she claimed that she called her children regularly.
Regarding her substanceabuse problems, Long claimed that she was not “addicted in
any way to any controlled substance” when she had her assessment because she had just been
in jail for twoandahalf months. Since getting out, she went to Celebrate Recovery for drug
meetings, AA meetings every day for a month “to keep busy doing things on the positive
level,” and UAMS Adult Psychiatry for individual counseling. She also claimed to have
attended Narcotics Anonymous at Saline Memorial Hospital. Long admitted that she was
slow to provide the documentation of her attendance at the various therapy sessions, but
claimed that no one told her that her documentation was inadequate. Long noted that she had
been assigned to take five drug screens since May of that year, and while she missed one, all
except the August 9, 2004, screening when she was taking Tylenol 3 as prescribed, had been
negative.
Long noted that the caseworkers had changed quite a bit during the pendency of her
case. She recalled that Angela Haynes, Carolyn Williams, Bonnie Twillie, and Tamika Floyd
had all been assigned her case at various times, and she stated that confusion as to who was
handling the case had affected her visitation. She recounted having difficulty finding out who
her caseworker was at several key times.
Long stated that she had a longterm relationship with Mario Cirilo and that they
planned to marry once she got her kids back home. She claimed that she was working very
hard to get her children back. Nonetheless, she admitted that Mario was “a priority,” and she
disputed that it was bad judgment to try to have a baby while her children were in DHS
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custody. Long stated that the reason she had failed to get her children back to the foster
parent’s home on time after her last weekend visit was that she was hospitalized. She claimed
that she provided DHS caseworker Carolyn Williams with “some proof” she had been in the
hospital, but admitted it was “the wrong one.” Long also conceded that she had not provided
documentation to DHS proving that she had been employed at McDonald’s.
Tamika Floyd, one of the four caseworkers that had worked with Long’s children,
testified that Long was aware of the requirement that she receive drug treatment and that she
provide proof that she was getting drug treatment; that she submit to random drug testing
showing that she was “clean;” that she maintain steady employment and stable housing; and
that she attend NA meetings and provide DHS with the proof of attendance. Floyd stated that
Long tested positive in August for opiates and positive for propoxyphene on May 18. Floyd
stated that Long also missed one drug screen, claiming “she forgot.” Floyd claimed that she
“never saw any proof [Long] completed drug treatment.” Floyd admitted that Long gave her
signin sheets for NA meetings in August, July, and May, and told her that the signin sheets
for June were at her sister’s house. However, Floyd claimed that she was only able to
“confirm” attendance at two meetings in July and that she had no proof that Long attended
individual counseling. Floyd further admitted that she received a letter from Long’s father
verifying that he paid Long to take care of her grandmother, but never received “pay stubs.”
Floyd stated that Long “began to comply” with the case plan requirements, but noted
that some elements still needed work, including the requirement that she maintain a stable
home environmentFloyd stated Long’s onebedroom apartment was not large enough to
accommodate her children. She further stated that the NA signin sheets are “somewhat
questionable.” Regarding the services that DHS provided to Long, Floyd listed “a drug and
alcohol assessment, counseling services with [K.L.], psychological assessment, and random
drug screens.” She also claimed that transportation services were “offered” along with
visitation with the children, “services” for M.S. at Pediatric Specialty Care, foster care, and
medical and dental services. Floyd stated that she believed that Long knew her case worker,
but admitted that there was considerable shuffling of the case among several workers in the
office. Regarding individual counseling, Floyd stated that Long had told a previous case
worker, Williams, that Long was receiving counseling at UAMS and “there’s no notation that
the counseling was deficient and more counseling was needed.” Floyd also stated that she
visited Long’s current onebedroom apartment, and she saw that there was “food in the
refrigerator, the lights were on, and it was clean,” and “fully furnished.”
In its termination order, the trial judge found that “there is a potential that these
juveniles would be harmed by continuing contact with the mother.” It further noted that there
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was “great potential for emotional harm to these juveniles if they had continued contact with
a mother who has not placed them first and foremost in her priorities so that she can be there
for them all day, every day, and provide for all their needs.” Additionally, the trial judge
found that Long “has not demonstrated that she can remain drug free, have stability in housing
and employment, and make appropriate decisions that do not negatively affect [the children’s]
well being.” She noted deficiencies in the documentation that Long was ordered to provide.
On appeal, Long argues that the trial court erred in finding that there was sufficient
evidence to terminate her parental rights. She contends that she “substantially complied” with
the orders of the trial court and corrected the problems that caused the removal of her
children. Long notes that she was ordered to submit to ten drug screens, and she never tested
positive for methamphetamine, the use of which caused her children to be taken into custody.
She further notes that she completed parenting classes, attended visitation, participated in a
psychological evaluation, completed a drug and alcohol assessment, attended outpatient drug
counseling at Celebrate Recovery, attended individual counseling at UAMS, and obtained a
place to live and an adequate means of support. Long asserts that she met the three objectives
required of her at the permanencyplanning hearing: visit her children, continue in therapy
with her daughter, and attend AA or NA meetings once a week and provide documentation
of those meetings to the caseworker.
The grounds for termination of parental rights must be proven by clear and convincing
evidence. M.T. v. Arkansas Dep't of Human Servs., 58 Ark. App. 302, 305, 952 S.W.2d 177,
179 (1997). When the burden of proving a disputed fact is by clear and convincing evidence,
the question on appeal is whether the trial court's finding that the disputed fact was proved
by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity
of the trial court to judge the credibility of the witnesses. Id. A finding is clearly erroneous
when, although there is evidence to support it, the reviewing court on the entire evidence is
left with a definite and firm conviction that a mistake has been made. Dinkins v. Arkansas
Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). This court reviews termination
of parental rights cases de novo. Id.
It is clear that Long substantially complied with the requirements imposed upon her
by the court. As the trial judge recites in her order, Long was required to do “three main
things: attend AA or NA meetings once per week and provide documentation to the
caseworker every month; make her priority to visit the juveniles without fail; and continue in
therapy with [K.L.] so that she could learn how to help [K.L.] alleviate her anxiety and better
parent [K.L.] with her issues.” With the exception of providing documentation, Long fulfilled
all of these requirements. Given the extraordinary progress Long has made in fulfilling the
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requirements of the court, the overwhelming evidence of the very strong bond between mother
and children, and the testimony from K.L.’s therapist that the child would “regress,” we hold
that the trial court was clearly erroneous in finding that Long’s continued contact with her
children would be detrimental. Accordingly, the best interest of the children dictates that we
reverse the termination of Long’s parental rights and reinstate reunification services with a
goal of returning the children to Long’s custody.
Reversed and remanded.
ROAF, VAUGHT, and GLADWIN, JJ., agree.
CRABTREE and GLOVER, JJ., dissent.
TERRY CRABTREE, Judge, dissenting. The trial court in this case terminated appellant’s parental
rights nineteen months after the children had been removed from her care. There was evidence
presented at the termination hearing that appellant had yet to comply with the most basic requirement
of the case plan, which was to satisfy the court that she had come to terms with and had overcome her
recognized drug problem. There was also evidence that she had yet to achieve the level of stability
necessary for the children’s return to her care, in that she had not maintained stable employment nor
had she obtained suitable housing. The stability of her home was also complicated because of
uncertainties arising from her relationship with her current boyfriend. Because I am not left with the
definite and firm conviction that the trial court was mistaken in its judgment, I would affirm the
termination decision.
On February 28, 2003, the children were taken into emergency custody after appellant was
arrested on charges of possession of methamphetamine, possession of drug paraphernalia, and two
counts of endangering the welfare of a child. Appellant failed to appear at the review hearing held the
following July. In its ruling from that hearing, the trial court found that appellant was not in
compliance with the case plan in that she had missed three appointments for a psychological
evaluation; she had not completed parenting classes; and she was not attending AA/NA meetings as
required. At the subsequent review hearing in October, it was disclosed that appellant had moved to
Georgia. Again, it was found that appellant was not in compliance with the case plan, and the trial
court warned appellant that the permanencyplanning hearing was upcoming and urged appellant to
bring herself into compliance. At this juncture, eight precious months had passed since the children
had been taken from her home, but appellant had not yet begun to engage in the process of facilitating
their return home.
The permanencyplanning hearing was held in February 2004. At this hearing it was shown
that appellant was beginning to make progress toward the goal of reunification. In late December
2003, she had returned to Arkansas from her threemonth sojourn in Georgia; she had completed
parenting classes; she had regularly visited with the children; and a drug screen taken in January came
back negative, as did a drug screen conducted the day of the hearing. Appellant was living with her
sister and had a job interview at McDonald’s. Appellant, however, had not completed outpatient drug
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treatment, nor had she been attending AA/NA meetings. Though the children had been out of the home
for one year and could not be returned home, the trial court continued the goal of reunification because
of the measurable progress appellant had made, giving her three more months to bring herself into
compliance. Appellant was also granted unsupervised weekend visitation. However, this visitation
was suspended after a month when appellant failed to return the children on time. Appellant offered
the explanation that she had been hospitalized and was thus not able to return the children on time, but
appellant never provided the court with documentation of her stay in the hospital, despite her
representation that she possessed such documentation.
At the permanencyplanning review hearing held in May 2004, after the threemonth grace
period, it was disclosed that appellant was still not attending AA/NA meetings. As before, appellant
had provided no documentation that she was receiving outpatient drug treatment. She had inexcusably
missed one drug screening. Since the last hearing, she had only attended three visitation sessions with
the children. It was said that appellant had not maintained regular contact with the department.
Further, it was disclosed that her criminal charges remained outstanding. Based on this evidence, the
trial court decided to change the goal from reunification to termination, noting in particular that the
children had been taken into protective custody over drug usage and that appellant had not complied
with the case plan in that area. Even though appellant excused her lack of visitation on the basis that
her caseworker had changed and that it had not been made clear to her when her visits were to occur,
the trial court was not required to accept that any such confusion extended over an entire threemonth
period. Although the majority is critical of the trial court’s “sua sponte” decision not to accept the
department’s recommendation to continue the goal of reunification, it was the trial court’s prerogative
to change the goal to termination, despite that recommendation. Ark. Code Ann. § 927338(c) (Supp.
2005). The decision rests with the trial court, not the department.
At the conclusion of this review hearing, the trial court offered appellant words of
encouragement, advising her that changing the goal to termination was not the “death knell” and that
there was still time to bring herself into compliance. Unfortunately, the testimony presented at the
termination hearing, held some three months later, revealed that appellant did not take advantage of the
additional time. There was testimony that she tested positive on May 19 for propoxyphen, also known
as Darvon, that she had missed a drug screening in July, and that she had tested positive for opiates in
August. She did not present satisfactory proof verifying her attendance at NA meetings. She provided
one unsigned signin sheet for May, none for June, four unsigned sheets in July, and four unsigned
sheets in August. Her attendance at only two meetings in July could be confirmed. Other than her own
word, she provided no documentation that she had participated in or completed outpatient drug
counseling. It should be noted that appellant represented throughout the proceedings, and to Ms.
Kucala, K.L.’s counselor, that she had been receiving treatment on her own at UAMS.
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1
Jim Pfeiffer, a licensed professional counselor and certified drugabuse therapist, testified that
he performed a drug and alcohol assessment on appellant in May of 2003, while appellant was
incarcerated on the drug charges. In the interview, appellant told him that she used drugs and that she
drank alcohol sparingly, even though she admitted to having a DWI a year and a half ago. She said that
she had smoked marijuana one time and that she had used methamphetamine four or five times, but that
her drug of choice was hydrocodone. Appellant reported that she had been using this drug for five
years on an average of four to five pills a day, twenty to thirty pills per month. Pfeiffer said that
appellant did not believe that she needed treatment because she had experienced no cravings since her
incarceration. Appellant stated that she traded methamphetamine for hydrocodone, but Pfeiffer said
that she did not consider trading as dealing in drugs.
Dr. Paul Deyoub, a forensic psychologist, conducted an evaluation of appellant in September
of 2003. He diagnosed appellant with a mixed personality disorder with Borderline, Histrionic, and
Dependent traits. He said that this disorder was characterized by substance abuse, instability, and
unstable and abusive relationships. Noting that appellant had been in and out of court on hotcheck
and contempt charges, as well as her more recent drug arrest, he said that trouble with the law also
typified her personality disorder. Dr. Deyoub stated that appellant had no insight into her substance
abuse problem and that she tended to minimize it. He felt that she was at risk for continued drug use
and regarded her prognosis for reunification as being guarded and poor, although not impossible. Dr.
Deyoub said that one could not believe appellant’s promises of improvement and that one would have
to see evidence of improvement before the children could be returned. He testified that appellant must
demonstrate to her caseworker that:
she is drug free, living in a home, working, supporting herself, not using
drugs and doing her therapy. All of that would have to happen before.
At the time I did this, and in cases like this which I do a lot of these,
you’re looking at six months to a year and she would be able to verify
those steps. Because individuals like her and specifically [appellant]
would have a high likelihood of recurrence or positive drug screens and
so forth and all of that would be a set back. You would have to see it
before you could place the kids back with her and put two young
children with her if she’s still using drugs or if she’s still living an
unstable life. People like [appellant] with a diagnosis and with her IQ
are capable of doing this. That’s not the problem. The problem is
1
When the record was being prepared, the court reporter discovered that her equipment
had malfunctioned and that Pfeiffer’s testimony had not been recorded. The trial judge’s clerk
prepared a summary of his testimony from the judge’s notes. By entry of an agreed order, the
summary was accepted by the parties and the court as a fair representation of his testimony.
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doing it.
Jan Kucala did testify that appellant had made progress since the last hearing, that the children
were very bonded to her, and that K.L. would probably regress if appellant’s rights were terminated.
However, Ms. Kucala also stressed K.L.’s overriding need for stability, which was a need that
appellant could not presently fulfill. She testified that achieving stability was going to be a “great
difficulty” because there were still a lot of unknowns in the relationship between appellant and her
boyfriend. She could not recommend that the children return home, only that a trial period of
unsupervised but closely monitored visits in the home begin. She was not able to predict how long it
would take before appellant became stable enough for the children to return home, saying only that
she did not think it would be a “longterm thing.”
There was further testimony at the hearing that, although appellant had been asked, she had
never provided pay stubs to verify her fourmonth employment at McDonald’s. Appellant claimed that
she was presently working for her father caring for her aged grandmother. There was testimony that
her caseworker could not verify appellant’s claim that she was moving into a larger apartment.
An overview of this case reveals that appellant waited ten months to begin working toward the
goal of reunification, that she maintained partial compliance for five months, and that she made no
meaningful progress and in fact regressed in the final months of the proceedings. At the termination
hearing, the trial court was entitled to accept Dr. Deyoub’s testimony outlining the necessity for
documented proof, not appellant’s word, that she was meeting the goals of the case plan of living a
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stable and drugfree life, and of maintaining employment and suitable housing. The trial court could
find based on the evidence at the hearing that appellant had not successfully dealt with her drug
problem, which was the reason that the children were removed from the home. Appellant could not
verify that she had attended drug counseling or NA meetings on a regular basis. Just prior to the
termination hearing, she had failed two drug tests and had failed to attend one drug screening.
Although appellant testified that she had tested positive for opiates because of prescribed medication,
appellant did not offer any verification of this prescription, and the trial court was not obliged to believe
her testimony. There was also testimony at the hearing that called into question whether or not
appellant was or even had been gainfully employed. Appellant failed to provide proof of employment,
and the trial court was not required to believe her testimony that she was currently employed by her
father. There was testimony giving the trial court reason to doubt that appellant had made arrangements
for an apartment that could accommodate the children. Moreover, after nineteen months, appellant had
not achieved the level of personal stability necessary for the children to return home. According to Ms.
Kucala, there was much work yet to be done, and she could not say when appellant would be ready for
the children to return home on a permanent basis. Although Ms. Kucala expressed the opinion that
K.L. would regress if appellant’s rights were terminated, the trial court was entitled to accord whatever
weight to that testimony as it saw fit, and could properly focus on the overall best interest of the child
in the context of all the evidence under consideration.
It is always a sad day anytime a trial judge makes the tough and unenviable decision that the
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best interest of children demands the termination of parental rights. On appellate review, we are to give
a high degree of deference to the trial court, as it is in a far superior position to observe the parties
before it. Trout v. Ark. Dep’t of Human Services, 359 Ark. 283, ___ S.W.3d ___ (2004). With that
degree of deference in mind, I am not willing to say that the trial court’s decision is clearly erroneous.
In this case, the seasoned trial judge had the best opportunity to observe appellant, as well as the other
witnesses, and to make an informed assessment of the situation gathered over the course of nineteen
months. The trial judge took the case under advisement in order to render a careful and thoughtful
decision. It is my opinion that we should not secondguess the judgment of the trial court when there
is an abundance of evidence to support its decision. I would affirm, and I am authorized to state that
Judge Glover joins in this dissent.
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HART, J. 2
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