NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.E.L.-G and B.E.C., JR

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APPROVAL OF THE APPELLATE DIVISION
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internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4452-19

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

M.E.L.-G.,

Defendant,

and

B.E.C., JR.,

Defendant-Appellant.
___________________________

IN THE MATTER OF THE
GUARDIANSHIP OF
R.S.C. and L.W.C., minors.
___________________________

Submitted December 13, 2021 – Decided December 22, 2021

Before Judges Fasciale and Sumners.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0108-20.

Joseph E. Krakora, Public Defender, attorney for
appellant (Anastasia P. Winslow, Designated Counsel,
on the brief).

Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Sara M. Gregory, Deputy Attorney
General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Louise M. Cho, Assistant
Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant B.E.C., Jr. (the father) appeals from a July 22, 2020 order

terminating his parental rights to R.S.C. (Rachelle), born in 2011, and L.W.C.

(Liam), born in 2012.1 The father, who did not physically attend the Family

Guardianship (FG) trial,2 argues that the Division of Child Protection and

1
These are fictitious names. See R. 1:38-3(d)(13).
2
The father participated in the trial telephonically as he was incarcerated in
Arizona. The judge found his testimony was "honest and sincere" and that he
was straightforward about the significance of his substance abuse addiction,
incarceration and history of homelessness, periodic lack of communication with
the Division, failure to comply with the Division's services, and failure to seek
visitation with the children or make inquiry about the children's general welfare.
A-4452-19
2
Permanency (Division) failed to prove by clear and convincing evidence each

prong of the statutory best interests test under N.J.S.A. 30:4C-15.1(a). We

disagree with defendant's arguments and affirm.

We begin our discussion with the legal framework regarding the

termination of parental rights. Parents have a constitutionally protected right to

the care, custody, and control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). That

right is not absolute. N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527,

553 (2014). At times, a parent's interest must yield to the State's obligation to

protect children from harm. N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J.
382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate

these concerns, the Legislature created a test for determining when parental

rights must be terminated in a child's best interests. N.J.S.A. 30:4C-15.1(a)

requires the Division prove by clear and convincing evidence the following four

prongs:

(1) The child's safety, health, or development has been
or will continue to be endangered by the parental
relationship;

(2) The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to

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provide a safe and stable home for the child and the
delay of permanent placement will add to the harm; 3

(3) The [D]ivision has made reasonable efforts to
provide services to help the parent correct the
circumstances which led to the child's placement
outside the home and the [judge] has considered
alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more
harm than good.

The four prongs are not "discrete and separate," but "relate to and overlap with

one another to provide a comprehensive standard that identifies a child's best

interests." K.H.O., 161 N.J. at 348. "The considerations involved in

determinations of parental fitness are 'extremely fact sensitive' and require

particularized evidence that address the specific circumstances in the given

case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139

(1993)).

II.

We now turn to the father's argument that the judge erred in finding the

Division proved by clear and convincing evidence each of the four prongs under

3
We are aware that on July 2, 2021, the Legislature enacted L. 2021 c. 154,
deleting the last sentence of N.J.S.A. 30:4C-15.1(a)(2), which read "[s]uch harm
may include evidence that separating the child from his resource family parents
would cause serious and enduring emotional or psychological harm to the child."
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the best interests test. We conclude that there exists substantial credible

evidence to find that the Division satisfied the first prong under N.J.S.A. 30:4C-

15.1(a). We agree substantially with the decision rendered by the judge, and

add these remarks.

The first prong of the best interests test requires the Division demonstrate

that the "child's safety, health, or development has been or will continue to be

endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1); see also

K.H.O., 161 N.J. at 352 (applying the first prong). The Division must prove that

the child's health and development were threatened and will continue to be

affected by the parent-child relationship. K.H.O., 161 N.J. at 348. The concern

is not only with actual harm to the child, but also the risk of harm. In re

Guardianship of D.M.H., 161 N.J. 365, 383 (1999). The focus is not on a single

or isolated event, but rather on the effect "of harms arising from the parent-child

relationship over time on the child's health and development." K.H.O., 161 N.J.

at 348. However, the judge need not wait "until a child is actually irreparably

impaired by parental inattention or neglect" to find child endangerment.

D.M.H., 161 N.J. at 383. A parent's withdrawal of nurture and care for an

extended time is a harm that endangers the health of a child. Id. at 379. When

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5
children "languish in foster care" without a permanent home, their parents'

failure to provide a permanent home may itself constitute harm. Id. at 383.

The judge focused on the instability the children experienced since the

father last saw them in 2012 or 2013. The judge found that during the father's

absence, the children experienced medical neglect, housing instability, and

Rachelle's maternal grandmother's paramour sexually abused her. She

expressed concern about the father's long-term absence and found he "did little

to nothing to protect [his] children." The judge also found that "[h]e had not

seen the children for years since both the children were under three years old the

last time he saw them. This neglect included failure to even keep in touch with

the Division, failure to even inquire about the children, [and] failure to ask about

visiting them."

The judge noted that the father acknowledged "he hadn't seen the children

in approximately [seven] years or even talked to them" and "he was difficult to

contact." The judge found that the father

made minimal attempts to reach out to the Division to
follow-up on his children's status. He was offered
visitation by letter sent to the addresses he claimed to
reside at. But he simply didn't avail himself of these
opportunities. He did not bother to read the complaint
concerning his children, the complaint regarding the
fact finding. Nor did he contact the [c]ourt to find out
what the status of that case was.

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The judge further noted that

[w]hile his contact information and his phone number
and address may have frequently changed[,] the
Division's number was always accessible. In his
testimony he claimed he didn't have it, but that's hard
to accept when we do have information for the Division
. . . as it was called then, certainly, has a phone number
that is easy to find. His failure to make even minimal
efforts to keep the children in a safe protected
environment is clear. He simply wasn't available to the
children. He failed to protect them and care for them.

The judge found the Division established by clear and convincing

evidence that the father endangered the children's safety, health, and

development. His failure to provide even minimal parenting to his children

resulted in harm to them. The father did not provide paternal care or support for

the children. Indeed, even though he was allowed supervised visitation, the

father visited the children only sporadically and when they were very young. In

early 2020, he admitted he had not seen Rachelle since 2013 and could not recall

the last time he saw Liam.

The father was never able to maintain stable housing for himself, much

less for his children. While residing in New Jersey and Arizona, he repeatedly

moved from place-to-place living with relatives, girlfriends, out in the streets,

or in hotels. As the record shows, his homelessness was due mainly to his

A-4452-19
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substance use; thus, the Division could not assess whether the homes he resided

in were appropriate. Further, his lack of stable housing was for prolonged

periods.

The second prong of the best interests test requires the Division to present

clear and convincing evidence that "[t]he parent is . . . unable or unwilling to

provide a safe and stable home for the child and the delay of permanent

placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2). The inquiry for

the judge is whether the parent has cured and overcome the initial harm that

endangered the child, and the parent is able to continue the parental relationship

without recurrent harm to the child. K.H.O., 161 N.J. at 348. The Division must

show continued harm to the child because the parent is unable or unwilling to

overcome or remove the harm. N.J. Div. of Youth & Fam. Servs. v. L.J.D., 428 N.J. Super. 451, 483 (App. Div. 2012). The first and second prongs relate to

one another and "evidence that supports one informs and may support the other

as part of the comprehensive basis for determining the best interests of the

child." D.M.H., 161 N.J. at 379. "Parental unfitness may also be demonstrated

if the parent has failed to provide a 'safe and stable home for the child' and a

'delay in permanent placement' will further harm the child." K.H.O., 161 N.J.

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at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). "Keeping [a] child in limbo, hoping

for some long term unification plan, would be a misapplication of the law." N.J.

Div. of Youth & Fam. Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001).

The judge found the Division established by clear and convincing

evidence that the father is unwilling or unable to eliminate the harm posed to the

child. The judge found there was "no indication he'll be able to parent the

children in the foreseeable future." She based her finding on the father's history

of substance abuse addiction, domestic violence issues, multiple incarcerations,

mental health issues, and homelessness. The judge noted his "children simply

do not know him." She noted the experts expressed concerns "that delay of

permanency will cause the children harm." The father "has no home and no

ability to care for the children."

Although he acknowledged and was candid about his persistent substance

abuse, the father declined and was inconsistent in attending treatment while

under the supervision of the Division despite the services provided to help him

overcome his substance abuse issue, which led to homelessness and multiple

incarcerations throughout New Jersey and Arizona. The father had no plan to

have the children placed with him. Although he maintained a period of sobriety

in the past, his extensive history of relapses demonstrated his inability to remain

A-4452-19
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sober. His periods of sobriety only lasted a few months, with the longest being

about nine months. His unstable housing combined with drug use, mental health

issues, and voluntary withdrawal from his children's lives support the findings.

The third prong requires evidence that "[t]he [D]ivision has made

reasonable efforts to provide services to help the parent correct the

circumstances which led to the child's placement outside the home and the

[judge] has considered alternatives to termination of parental rights." N.J.S.A.

30:4C-15.1(a)(3). "Reasonable efforts may include consultation with the parent,

developing a plan for reunification, providing services essential to the

realization of the reunification plan, informing the family of the child's progress,

and facilitating visitation." N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J.
261, 281 (2007) (internal quotation marks omitted). However, "the [D]ivision

shall not be required to provide reasonable efforts to reunify the child with a

parent if a court of competent jurisdiction has determined that . . . [t]he rights of

the parent to another of the parent's children have been involuntarily

terminated." N.J.S.A. 30:4C-11.3(c).

The judge found the Division established by clear and convincing

evidence that the Division made many attempts over the years to locate the father

A-4452-19
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by contacting his mother and probation officers, and reaching out to him through

letters, phone calls, emails, and Facebook. The judge also found that he was

incarcerated multiple times, experienced homelessness, and changed his phone

number many times—making it difficult for the Division to locate him and

implement services and visitation. The judge noted, "[i]t's difficult to conceive

of what other services the Division could have offered [the father] through the

years given their constant efforts to locate him and get [a] response from him,

and his failure to get back to them or participate in and successfully finish most

of the services."

"The diligence of [the Division's] efforts on behalf of a parent is not

measured by their success." D.M.H., 161 N.J. at 393. The Division "must

encourage, foster and maintain the bond between the parent and child as a basis

for the reunification of the family." Id. at 390. Reasonable efforts to reunite the

family will depend on the circumstances of removal. N.J. Div. of Youth & Fam.

Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div. 2007). The efforts by the

Division to reunite the family should include, at a minimum:

(1) consultation and cooperation with the parent in
developing a plan for appropriate services;

(2) providing services that have been agreed upon, to
the family, in order to further the goal of family
reunification;

A-4452-19
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(3) informing the parent at appropriate intervals of the
child's progress, development, and health; and

(4) facilitating appropriate visitation.

[N.J.S.A. 30:4C-15.1(c).]

The father argues the Division did not make reasonable efforts to locate

him, provide him with services, and facilitate visitation. He cites four cases in

support of this assertion, but they do not support his position.

The father's reliance on N.J. Division of Child Protection & Permanency

v. A.S.K., 457 N.J. Super. 304 (App. Div. 2017) is misplaced. In A.S.K., the

Division failed to locate the defendant after filing a complaint for guardianship

of the defendant's son. Id. at 311. The Division did not locate the defendant

until eleven months after the filing. Ibid. The Division acknowledged that, in

its search efforts for the defendant, there were some deviations from its normal

procedure, but the defendant was ultimately located. N.J. Div. of Child Prot. &

Permanency v. A.S.K, 236 N.J. 429, 430 (2019). The Supreme Court

"perceive[d] no prejudice" in the delay of service "on a biological parent who is

not currently in the picture for a child under the [Division's] supervision." Ibid.

(internal quotation marks omitted). The Court determined that the Division's

current "processes would be enhanced by conducting a new search for a parent

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for each phase of litigation, regardless of the recency of the previous search, and

implementing procedures that retain a party's past contact information, with

effective dates, to promote the accuracy of such information." Ibid.

Here, defendant contends "for a significant span of the proceedings below

and lasting a period of nearly seven years (from early 2013 through 2019), [the

Division] made—in its own words—'minimal efforts to contact [defendant].'"

Unlike in A.S.K., where the issue was the Division's failure to run a new search

after it filed the guardianship complaint, the father was served but again chose

to make himself unavailable. The record shows that he did not respond to

multiple calls, emails, or letters from the Division and was aware the Division

was involved with the children when he relocated to Arizona. The Division

granted him supervised visitation while residing in New Jersey, but he often

failed to show up. After he was served with the guardianship complaint, he did

not stay in contact with the Division, obtain suitable housing, or develop a plan

for how he would care for his children.

N.J. Division of Youth & Family Services v. R.G., 217 N.J. 527 (2014) is

distinguishable as well. Six months after the child's birth, the defendant was

arrested and sentenced to a five-year prison term. Id. at 536. The defendant

remained incarcerated during the Division's attempts to reunify the family and

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during the guardianship trial. Id. at 536-37. The Court concluded the Division

failed to show the defendant's incarceration caused harm to the child because

the defendant parented the child prior to his incarceration, remained a part of

the child's life, and communicated with the child while incarcerated. Id. at 559-

62.

The Court further held that "incarceration alone—without particularized

evidence of how a parent's incarceration affects each prong of the best-interests-

of-the-child standard—is an insufficient basis for terminating parental rights."

Id. at 556. "[I]ncarceration is a relevant factor in resolving termination of

parental rights cases," but "it is by no means settled or obvious that incarceration

is so inimical to the parental relationship as to justify its termination as a matter

of law." Id. at 555 (quoting In re Adoption of Children by L.A.S., 134 N.J. at
137-38). The Court found that the Division visited the parent once in prison,

called him once, completed two psychological evaluations but did not complete

a bonding evaluation, did not provide him with his daughter's letters, did not

facilitate telephone calls with his children, and never compared the programs he

participated in prison to the Division's programs. Id. at 562-63.

Here, the Division's inability to provide the father services was not a result

of its unreasonableness or his incarceration. Unlike the defendant in R.G., the

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father has never lived with his children and has never cared for or supported

them. Other than the occasional interactions with the children during the few

supervised visitations he chose to attend seven years before trial, he never made

any effort to communicate with or contact his children, either during or between

his periods of incarceration. Also, even when the father resided in New Jersey,

he failed to arrange for visits or to show up for scheduled visits arranged by the

Division.

When he relocated to Arizona and was aware the Division was still

involved with his children, he failed to inform the Division of his move or

inquire about his children's status. The father did not contact, communicate

with, or write to the children during defendant's periods of incarceration over

the years. Even though he believed he could not contact them due to a Final

Restraining Order (FRO), the FRO and court orders did not prohibit contact.

Further, the record does not show whether he knew anything about his children's

lives, such as names of their doctors or the schools they attended. Instead, the

credible evidence in the record supports the judge's finding that the children

"simply do not know him."

In New Jersey and Arizona, the Division attempted to locate the father

through police searches, litigation searches, Human Services Police, letters to

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known addresses, Facebook, emails, and phone calls to relatives and his

probation officers. When the Division could locate him, he was referred for

services including psychological evaluations, substance abuse evaluations,

anger management classes, domestic violence counseling, and supervised

visitation. Aside from completing one series of anger management classes, he

was non-compliant with services. Additionally, defendant admitted he did not

make himself available to the Division and that he was homeless for prolonged

periods.

The father contends the Division failed to investigate potential paternal

relative placements, specifically his aunt and uncle in Little Egg Harbor and

relatives in Ohio. The father does not argue the children should have been

placed with another relative. The judge concluded that the Division considered

alternatives to termination of parental rights. She noted the children's placement

with the maternal uncle "did not work out" and other relatives did not offer a

workable placement.

As part of its analysis of the third prong, the judge must consider

alternatives to the termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3).

The Division must "initiate a search for relatives . . . who may be willing and

able to provide the care and support required by the child." N.J.S.A. 30:4C- -

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12.1(a). When the Division has identified a willing and able relative, it "shall

complete an assessment of each interested relative's . . . ability to provide the

care and support, including placement, required by the child." Ibid.

Generally, a child's placement in the care of a relative or friend who is

willing and able to accept the child is preferred. In re E.M.B., 348 N.J. Super.
31, 34 (App. Div. 2002) (noting the Division's "policy to place children with

relatives when possible"). However, N.J.S.A. 30:4C-12.1(b) grants the Division

the authority to "rule out" relatives or friends whom the agency determines are

unable or unwilling to assume care for the child or with respect to whom

placement would not be in the child's best interest. See N.J. Div. of Youth and

Fam. Servs. v. J.S., 433 N.J. Super. 69, 85 (App. Div. 2013) (upholding the

Division's rule-out authority based on a person's unwillingness or inability to

care for the child, as well the child's best interests). In those circumstances, the

Division "shall not be required to re-evaluate the relative." N.J.S.A. 30:4C-

12.1(b).

There is substantial evidence in the record to show the Division

considered available alternatives to termination of parental rights. The Division

investigated placement with relatives from the children's mother, M.E.L.-B.,

(Megan)'s and the father's families. The record is unclear on whether Megan's

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relatives were ruled out due to no response or housing concerns. The father's

mother was ruled out due to ongoing mental health concerns, ongoing substance

abuse issues, and financial inability to provide care for the children. The

children were initially placed with the maternal uncle, but then he requested the

children be removed. The Division also investigated Megan's half-sister S.B.

(Sonia).

Defendant argues that only two rule-out letters were provided in the record

and that the Division failed to investigate his relatives in Little Egg Harbor and

Ohio. His argument is misplaced. There is no suggestion in the record that

these relatives were interested in caring for the children, let alone that they were

able to provide a safe and stable placement. Under N.J.S.A. 30:4C-12.1(a), the

Division is only obliged to assess "each interested relative's ability to provide

the care and support." As to these relatives, there is no basis to conclude they

were interested in being considered as placements; therefore, the Division had

no obligation to investigate them further.

The judge found that Sonia credibly testified as to her desire to adopt the

children. The judge determined that she understood the differences between

Kinship Legal Guardianship (KLG) and adoption and, ultimately, she decided

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to adopt because she loved the children, did not want to enable Megan, and

wanted to ensure the children's safety from the father.

KLG serves as a potential alternative to the termination of parental rights.

N.J. Div. of Child Prot. & Permanency v. M.M., 459 N.J. Super. 246, 259 (App.

Div. 2019). KLG "was enacted because 'the Legislature recognized that an

increasing number of children who cannot safely reside with their parents are in

the care of a relative or a family friend who does not wish to adopt the child or

children.'" Ibid. (quoting N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J.
210, 222-23 (2010)); N.J.S.A. 3B:12A-1(c). The relative caregiver must be

informed about the pros and cons of KLG, as required under the Kinship Legal

Guardianship Notification Act. Id. at 261. If a trial judge approves KLG as an

alternative to termination, the birth parent retains the right to consent to his or

her child's adoption, name change, can have visits with the child, and remains

obligated to pay child support. Id. at 260 (citing N.J.S.A. 3B:12A-4(a)(2)-(5)).

However, "when the permanency provided by adoption is available, kinship

legal guardianship cannot be used as a defense to termination of parental rights."

N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 513 (2004).

Accordingly, a caregiver's consent regarding adoption needs to be informed,

"unconditional, unambiguous, and unqualified." M.M., 459 N.J. Super. at 264.

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The father's contentions that Sonia "repeatedly testified her first choice

was KLG," and that she "repeatedly . . . felt pressured by [Division] caseworkers

to select adoption," misrepresents the record. At first, Sonia considered KLG

because she wanted to give her "sister the opportunity to prove herself ."

However, she ultimately preferred adoption because she wanted to ensure the

children's safety from the father. Unlike in M.M., she was fully committed to

adoption and understood that, under KLG, the judge could order visitation for

Megan and the father, and under adoption she would control visitation.

The fourth prong of the best interests test requires a determination that the

termination of parental rights "will not do more harm than good." N.J.S.A.

30:4C-15.1(a)(4). The judge must ask whether "after considering and balancing

the two relationships, the child will suffer a greater harm from the termination

of ties with [his or] her natural parents than from the permanent disruption of

[his or] her relationship with [his or] her foster parents." K.H.O, 161 N.J. at
355. This prong "cannot require a showing that no harm will befall the child as

a result of the severing of biological ties." Ibid. "The overriding consideration

under this prong remains the child's need for permanency and stability." L.J.D.,

428 N.J. Super. at 491-92. "Ultimately, a child has a right to live in a stable,

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nurturing environment and to have the psychological security that his most

deeply formed attachments will not be shattered." N.J. Div. of Youth & Fam.

Servs. v. F.M., 211 N.J. 420, 453 (2012). "A child cannot be held prisoner of

the rights of others, even those of his or her parents. Children have their own

rights, including the right to a permanent, safe and stable placement." N.J. Div.

of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004).

The judge found the Division established by clear and convincing

evidence that terminating the father's parental rights would not do more harm

than good. She relied upon experts Dr. Gerard Figurelli's and Dr. Elizabeth

Smith's testimony regarding the children's need for permanency, how the

children were suffering from lack of permanency, and that delaying

"permanency would cause serious and enduring harm." The judge noted the

experts opined "that termination of parental rights would not cause more harm

than good, but will instead free these children from limbo. The limbo is itself

causing them harm." The judge also found that the children expressed their

desire to be with Sonia and that the children "clearly need permanency."

Figurelli's and Smith's testimony supports the conclusion that the fourth

prong was satisfied, and that termination will not do more harm than good. Both

experts opined the children were suffering from a lack of permanency, the

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children were on their way to irreparable harm, and that termination would free

the children from limbo. Sonia's testimony established that termination is likely

to result in the countervailing benefit of adoption, and a permanent and stable

home.

The children had no bond with the father. He admitted that he had been

absent from their lives for seven years and chose not to be involved in their lives.

He could not recall the last time he saw Liam. Thus, although the law recognizes

that some harm to a child inevitably results from the termination of a parental

relationship, where a parent is estranged from the child, that harm cannot be

considered significant, particularly when balanced against the certain good of a

stable placement and the likelihood of adoption.

The father's arguments "that the children had spent little time in foster

care, had not bonded with their foster parents, and [the Division] did not even

engage an expert to opine on the nature and extent of the children's relationship

with the foster parents at the time of trial" is misplaced. The Division's plan

was adoption by Sonia rather than continued placement with the resource

parents. The judge had sufficient evidence based on her testimony and the

testimony from the experts to conclude that placement with and adoption by

Sonia would greatly benefit the children. The father argues the Division did not

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conduct a bonding evaluation with him. But he conceded that if a bonding

evaluation was conducted between him and the children, it would have been

"unnatural" because the children did not know him.

To the extent we have not addressed any other argument, we conclude that

they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.

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