IN RE: C.A. (2021)

MEMORANDUM DECISION

[1] H.A. (“Mother”)¹ and J.A. (“Father”) are the parents of C.A., S.A., and K.A. (together, “Children”). The Indiana Department of Child Services (“DCS”) removed Children from Parents’ care and initiated a child in need of services case (“CHINS”). Father appeals from the juvenile court's order finding Children to be CHINS and raises two issues for our review. He argues that the juvenile court erred in determining that Children are CHINS because the evidence presented was insufficient to support such a determination, and he argues that the juvenile court's dispositional order was an abuse of discretion because several of the requirements were not rationally related to the behavior or circumstances revealed by the evidence. Finding that the juvenile court did not err, we affirm.

Facts and Procedural History

[2] Mother and Father are the parents of C.A., born April 2, 2020; S.A., born May 8, 2011; and K.A., born September 29, 2008. Ex. Vol. at 3, 12. Parents have a history with DCS extending back to 2001. Both Mother and Father have a substantiated assessment for neglect from 2001. Id. at 14. They had seven additional assessments, with only the 2001 assessment and the April 2020 assessment having been substantiated. Id. In August 2019, the State charged Mother with a Level 6 felony possession of methamphetamine. Id. at 5.

[3] On April 3, 2020, DCS received an allegation that C.A. was a victim of neglect because C.A. tested positive, via a urine test, for amphetamine and methamphetamine at or about the time of his birth. Id. at 3; Tr. at 81. C.A. was also discovered to have methamphetamine and amphetamines in his umbilical cord blood. Tr. at 82. Mother had tested positive for methamphetamine, amphetamine, and THC upon her admission to the hospital. Id. at 81–82. When DCS spoke with Mother, she reported that she lived with her mother but would not provide DCS with an accurate address. Ex. Vol. at 4. Mother admitted to using methamphetamine in August 2019 but denied any recent use of methamphetamine although she continued to use marijuana, and she stated that she believed “someone may have laced a joint she smoked” with methamphetamine. Id.

[4] DCS spoke with Father, and he reported that S.A. and K.A. lived with him. Id. at 5; Tr. at 82. At that time, Father had unstable housing and had moved from his grandmother's home to stay with a family friend with the older children during the assessment period but would not provide an address. Ex. Vol. at 4; Tr. at 82. He stated at that point he was unable to care for C.A. because he was crammed into limited space, and he was working a lot at the time. Tr. at 82.

[5] On April 8, 2020, Mother again tested positive for methamphetamine, and on the same date, DCS removed C.A. and placed him in foster care. Id.; Appellant's App. Vol. II at 195. After C.A. was removed, DCS wanted to hold a team meeting to explain to Parents DCS's concerns and to develop a plan for parent involvement so C.A. could be returned to Parents’ care. Tr. at 83. Parents did not want to attend the team meeting, but eventually a meeting was held on May 19, 2020. Id. During the meeting, Father became upset and walked out of the meeting because he did not understand why C.A. had been removed from his and Mother's care and was still in foster care. Id. at 83, 88. Shortly after, Mother also walked out of the meeting. Id.

[6] On June 11, 2020, DCS and Parents agreed to complete, and the juvenile court approved, an informal adjustment agreement. Appellant's App. Vol. II at 195. Because Mother had five negative drug screens, DCS agreed that C.A. could be returned to Parents’ care, and the juvenile court ordered his return to their care. Id.; Tr. 89. Under the terms of the informal adjustment, Mother and Father agreed and were ordered to, among other things, contact the family case manager (“FCM”) weekly; notify the FCM of any changes of address; allow the FCM and service providers to make announced or unannounced visits to the home; maintain suitable housing and a legal and stable source of income; ensure Children attend school; ensure Mother refrained from using drugs or alcohol; ensure Mother would complete a substance abuse assessment; follow all recommendations from the assessments; and submit to random drug screens. Tr. at 91; Ex. Vol. at 22–24. In addition, Mother and Father agreed to participate in a homebased service program. Ex. Vol. at 24.

[7] During this period of informal adjustment, Mother did not complete her substance abuse assessment, neither Parent completed their parenting assessment or the homebased case management, and Mother did not show up for requested drug screens. Tr. at 90–91. In July 2020, Mother reported to DCS that her doctor had quarantined her for COVID-19 symptoms and provided a doctor's note. Id. at 92. When DCS contacted the doctor's office to confirm the excuse, the doctor's staff denied having written the excuse or having even seen Mother recently. Id.

[8] In July 2020, DCS discovered Mother, Father, and C.A. living in a hotel, and not with any of the grandparents, as Parents had said they would when they signed the informal adjustment. Id. at 126. DCS also discovered C.A. was born with an enlarged kidney and needed a kidney scan as well as regular pediatric “well-baby” care. Id. at 127, 131. Mother and Father had missed medical appointments for C.A. with both his regular pediatrician and the specialist who was addressing the issue of C.A.’s enlarged kidney. Id. at 127, 128. Father said he would get the appointments rescheduled but never did. Id. at 127–28, 132. The homebased case manager had difficulty meeting with Mother and Father while they were living in the hotel, and DCS and other service providers were not allowed entry by Parents to do a walk-through of the hotel room. Id. at 128.

[9] On September 25, 2020, DCS received a report alleging K.A. to be a victim of educational neglect due to missing excessive days of school. Appellant's App. Vol. II at 195. On November 4, 2020, DCS received a report that alleged S.A. also to be a victim of educational neglect. Id. DCS investigated and found that K.A. and S.A. were sharing one Chromebook for e-learning purposes. Appellant's App. Vol. III at 184. As of October 16, 2020, K. A. had missed forty-seven days of school. Appellant's App. Vol. II at 230. As of November 5, 2020, S.A. had missed fifty-five days of school and was failing all but one of her classes. Appellant's App. Vol. III at 184. Neither child knew their teacher's name. Appellant's App. Vol. II at 230; Appellant's App. Vol. III at 184.

[10] On November 4, 2020, DCS filed a petition alleging that C.A. was CHINS. Appellant's App. Vol. II at 19–21. On November 18, 2020, DCS filed petitions alleging that both K.A. and S.A. were CHINS. Appellant's App. Vol. II at 229–31; Appellant's App. Vol. III at 183–85. The petitions alleged that K.A. and S.A. were victims of educational neglect. Id. C.A. continued to suffer medical neglect and had begun to show developmental delays, but DCS was afraid Parents would not allow C.A.’s physical therapist to enter the home. Tr. at 131–32. At the time the petitions were filed, Children remained in the care of Parents. Appellant's App. Vol. II at 20, 230; Appellant's App. Vol. III at 184.

[11] However, on November 17, 2020, the juvenile court ordered the removal of Children from Parents’ care. Appellant's App. Vol. II at 214–16. After Children were removed, DCS coordinated getting the medical appointments scheduled. Tr. at 130, 132, 146–47. Once placed in foster care, one of the Children attended eight different necessary medical appointments that had been neglected. Id. at 148.

[12] On December 10, 2020, DCS attempted to have another team meeting to discuss the goals and plan for reunification that DCS and the juvenile court had for Parents. Id. at 97–98. At that virtual meeting, Mother and Father were verbally aggressive and focused only on arguing about the reasons for Children's removal. Id. Parents hung up during the meeting. Id.

[13] DCS rescheduled the meeting for December 18, 2020, and everyone again met to attempt to reach the same goals of planning for what services were needed before Children could return home. Id. Although told by DCS that she needed to continue to submit drug screens, Mother refused to do so or to complete any services related to drug use because “she was currently not using.” Id. at 99. Parents again became verbally aggressive and unwilling to discuss anything except the reasons for removal. Id. Parents refused to sign the paperwork that would allow them to visit Children, which listed the visitation policy and rules such as that they would arrive on time, that they would not be under the influence of drugs or alcohol, and that they would follow the visitation guidelines. Id. at 99–101. Instead of having visitation through the service provider, Father insisted on contact with Children through the foster parent, which the foster parent agreed to, but Father never called. Id. at 100.

[14] On January 28, February 4, and March 18, 2021, the juvenile court heard evidence on the CHINS petitions. Appellant's App. Vol. II at 86; Tr. at 79, 121, 166. On February 4, 2021, the juvenile court heard evidence about whether to continue Children's placement outside of the home before the conclusion of the CHINS factfinding. Tr. at 124. DCS testified it was not safe to return Children to Mother and Father's care because of their failure to take Children to necessary medical appointments, inability to ensure Children attended their virtual school sessions, and concern that Mother was still using methamphetamine. Id. at 137–38. DCS stated that Parents had agreed to participate in services through the informal adjustment but had never cooperated. Id. at 137. During the informal adjustment, Mother refused to submit to drug screens and failed to complete a substance abuse assessment. Id. at 134–35. After hearing argument, the juvenile court ordered Children returned to Parents’ care. Appellant's App. Vol. II at 82.

[15] On March 18, 2021, the third day of factfinding, Mother and Father had taken Children and moved to live in a hotel in Louisville, Kentucky, and they did not have dependable transportation. Tr. at 173–74. Children had been returned to their care but continued to miss school. Id. at 174, 175. When the transportation for school arrived, S.A. and K.A. sometimes were not ready for the bus, and Mother told the schools that the family was in the process of moving, and she would update the schools with a new address. Id. at 174–75. Parents had failed to take C.A. to an appointment for his kidney issue on February 25, 2021; they also failed to take S.A. to a medical appointment for a kidney procedure on March 18, 2021, because they did not have a working vehicle. Id. at 176, 181, 207. Parents refused to participate in homebased case management and had not signed the related paperwork. Id. at 176. When confronted by DCS about signing the paperwork, Father told the case manager that he did not think that Parents would benefit from homebased services. Id.

[16] At the March 18 hearing, Father explained he had moved the family to Kentucky to get away from the “atmosphere” in Indiana, and he paid $3,100 a month for the family to live in the hotel in Kentucky. Id. at 204, 211–12. The only family car had broken down, but Father did not have money to fix it. Id. at 204. At the time of the hearing, Children were participating in e-learning and had only attended in-person schooling for three days after they were returned to Parents’ care before the car broke down. Id. at 205–06. When asked if he knew what Children's medical appointments were for, Father claimed to have no idea why child S.A. or C.A. had the appointments but agreed he and Mother had not taken Children to them. Id. at 208.

[17] At the conclusion of evidence on March 18, 2021, the juvenile court made a statement explaining why it was going to adjudicate Children as CHINS under Indiana Code section 31-34-1-1 and concluding that: Parents were not complying with the terms of the informal adjustment as to Children's educational needs; Children's medical needs were being neglected because Parents were not following through with Children's medical appointments for true medical issues; and Parents’ testimony that they could afford to live in a place that costs $3,100 a month but did not have enough money to fix their car or to obtain a car to transport Children to school was troubling. Id. at 219–21.

[18] On April 11, 2021, the juvenile court issued its written findings and conclusions and found Children CHINS as alleged in the petitions and adjudicated Children to be CHINS as defined by Indiana Code section 31-34-1-1. Appellant's App. Vol. II at 86. In support that conclusion, the juvenile court made the following findings:

1) The children's educational needs are not being met, and there is a serious, unexplainable discrepancy between Respondent Parent's testimony and grade and attendance records submitted into the evidentiary record;

2) Two of the children's medical needs are being neglected, as testimony showed that several medical appointments for the children were missed; and

3) Respondent parents have demonstrated a pattern of financial irresponsibility.

4) Because of the above, the Court finds that services are needed by the children and the reasons for DCS involvement are not likely to be resolved without the coercive intervention of the Court.

Id. at 87.

[19] At the time of the dispositional hearing held on April 8, 2021, Children remained in the home, and DCS did not ask that Children be removed from Parents’ care. Tr. at 224. DCS requested that the juvenile court order S.A. and K.A. to first receive a clinical evaluation and then counseling. Id. at 225. Mother and Father objected to being required to participate in any services because they did not agree that Children were CHINS. Id. at 226–27. Father specifically argued against requirements six (Parents would be required to enroll in any recommended program within thirty days and participate without delay or missed appointments), seventeen (Parents would ensure that Children participate in homebased counseling), and eighteen (Parents would be required to complete a parenting assessment and complete all recommendations) in the dispositional report and argued there was no nexus between the CHINS adjudication and those requirements. Id. at 227. The juvenile court deleted requirement six (to enroll in services promptly) but did not delete requirement seventeen or eighteen. Id. at 229–30. The juvenile court issued its dispositional order on April 13, 2021. Father now appeals.

Discussion and Decision

I. CHINS Adjudication

[20] A CHINS adjudication focuses on the needs and condition of the child and not the culpability of the parent. In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). The purpose of a CHINS adjudication is not to punish the parent but to provide proper services for the benefit of the child. Id. at 106. While we acknowledge a certain implication of parental fault in many CHINS adjudications, a CHINS adjudication is simply a determination that a child is in need of services. Id. at 105. Standing alone, a CHINS adjudication does not establish culpability on the part of a particular parent. Id.

[21] A CHINS proceeding is civil in nature, so DCS must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. Id. The CHINS petition here was filed pursuant to Indiana Code section 31-34-1-1, which states:

A child is a child in need of services if before the child becomes eighteen (18) years of age:

(1) the child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision:

(A) when the parent, guardian, or custodian is financially able to do so; or

(B) due to the failure, refusal, or inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so; and

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive intervention of the court.

Our Supreme Court has interpreted this statute to require “three basic elements: that the parent's actions or inactions have seriously endangered the child, that the child's needs are unmet, and (perhaps most critically) that those needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). “When determining whether a child is a CHINS under section 31-34-1-1, the juvenile court ‘should consider the family's condition not just when the case was filed, but also when it is heard.’ ” Ad.M. v. Ind. Dep't of Child Servs., 103 N.E.3d 709, 713 (Ind. Ct. App. 2018) (quoting In re S.D., 2 N.E.3d at 1290).

[22] In reviewing a trial court's determination that a child is in need of services, we neither reweigh the evidence nor judge the credibility of the witnesses. In re S.D., 2 N.E.3d at 1287 (citations omitted). Instead, “[w]e consider only the evidence that supports the trial court's decision and reasonable inferences drawn therefrom.” Id.

[23] Here, the trial court entered findings and conclusions sua sponte. “As to the issues covered by the findings, we apply the two-tiered standard of whether the evidence supports the findings, and whether the findings support the judgment.” Id. (citing Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997)). However, we review the remaining issues under the general judgment standard, under which a judgment will be affirmed if it can be sustained on any legal theory supported by the evidence. Id. (internal quotation marks omitted).

[24] Father argues that the juvenile court erred in its determination that Children are CHINS and asserts that the CHINS determination should be reversed because there was insufficient evidence that Children were seriously impaired or endangered. Father contends that the juvenile court did not find that Children were seriously impaired or endangered and that the record contains no evidence of such impairment or endangerment. He specifically maintains that, regarding the school absences of S.A. and K.A., no evidence was presented to show any serious impairment or endangerment as a result of the school absences. Father further claims that the record is completely silent as to whether the missed medical appointments seriously impaired or endangered C.A. or S.A.

[25] Because the juvenile court found that Children were CHINS “as defined by [Indiana Code section 31-34-1-1,]” it informed Parents that it had found Children's physical and mental condition was seriously impaired or seriously endangered. Under the general judgment standard of review, although the juvenile court did not make a specific finding of serious endangerment, the judgment can be affirmed if it can be sustained on any legal theory supported by the evidence. See in re S.D., 2 N.E.3d at 1287. Based on the evidence presented, we conclude that DCS proved by a preponderance of the evidence that Children are CHINS as defined under section 31-34-1-1.

[26] As to the neglect of the medical needs of C.A. and S.A., the evidence presented at the factfinding hearing showed that C.A. and S.A. were both born with enlarged kidneys and required ongoing medical attention and treatment. Tr. at 130, 131. In July of 2020, after Parents entered into the informal adjustment, DCS discovered C.A.’s kidney issue and that, at that time, he needed an ultrasound of his kidneys as well as regular pediatric “well-baby” care. Id. at 127, 131. Mother and Father had missed medical appointments for C.A. with both his regular pediatrician and the specialist who was addressing the kidney issue. Id. at 127, 128. Although Father said he would get the appointments rescheduled, he never did. Id. at 127–28, 132. At that time, DCS knew S.A. also had enlarged kidneys and still needed some of the same medical procedures and treatment C.A. required. Id. at 130.

[27] After Children were removed from Parents’ care on November 17, 2020, DCS coordinated getting the medical appointments scheduled. Id. at 130, 132, 146–47. Once placed in foster care, one of the Children attended eight different necessary medical appointments that had been neglected. Id. at 148. C.A. displayed developmental delays when placed in foster care, and after these delays were discovered, he received a referral to First Steps to address the issues. Id. After children S.A. and C.A. were returned to Parents’ care in February 2021, Parents again failed to take them to necessary medical appointments. Id. at 176. This continued neglect of Children's medical needs established that Parents were unwilling or unable to meet the medical needs of C.A. and S.A. and that such neglect seriously impaired or endangered Children.

[28] As to the neglect of Children's educational needs, the evidence presented at the factfinding hearing showed that after the informal adjustment had been entered into by Parents, K.A. and S.A. were victims of educational neglect. Appellant's App. Vol. II at 195. Both K.A. and S.A. were sharing one Chromebook for e-learning purposes even though they had each been given one by the school. Appellant's App. Vol. III at 184. As of October 16, 2020, K. A. had missed forty-seven days of school, and had completed no work for her school or been seen by school officials since August 10, 2020. Appellant's App. Vol. II at 230; Ex. Vol. at 28. As of November 5, 2020, S.A. had missed fifty-five days of school and was failing all but one of her classes. Appellant's App. Vol. III at 184. Neither child knew their teacher's name. Appellant's App. Vol. II at 230; Appellant's App. Vol. III at 184.

[29] After the juvenile court returned Children to Parents’ care in February 2021, S.A. and K.A. continued to miss school because they would not be ready for the bus, and Parents did not have reliable transportation to take them to school. Tr. at 174. Parents chose to move to Kentucky, which caused further problems with S.A. and K.A. attending school. Id. at 175. Due to these transportation issues, S.A. and K.A. began e-learning and were marked absent on several occasions for not logging in for instruction. Id. at 180. The evidence established that Mother and Father were either unable or unwilling to ensure S.A. and K.A. attended school, and such educational neglect seriously impaired or endangered Children.

[30] Additional evidence showed that, at the time C.A. was born, Mother tested positive for methamphetamine, amphetamine, and THC upon her admission to the hospital. Id. at 81–82. C.A. tested positive, via a urine test, for amphetamine and methamphetamine at or about the time of his birth, and he was later discovered to have the same substances in his umbilical cord blood. Ex. Vol. at 3; Tr. at 81, 82. When DCS spoke with Parents, they reported to both be living with family members but refused to provide addresses. Ex. Vol. at 4; Tr. at 82. Although Mother had several negative drug screens in the beginning, she subsequently refused to submit to drug screens after June 18, 2020. During the time of DCS's involvement with the family, both during the informal adjustment and the CHINS case, Parents did not cooperate with DCS or follow the requirements set out in the informal adjustment. They failed to take Children to necessary medical appointments and failed to ensure that Children attend school. When DCS held meetings to discuss a plan for reunification, Parents were combative and would either walk out of the meetings or hang up on the virtual meetings. Father testified that, at the time of the factfinding hearing, the family was residing in a hotel that they paid $3,100 a month to live in but that they were unable to get their car fixed to enable Parents to transport Children to school and medical appointments. We conclude that the evidence presented by DCS at the factfinding hearing supports the juvenile court's CHINS determination because Parents’ behavior of neglecting Children's medical and educational needs and pattern of financial irresponsibility, along with their refusal to work with DCS, demonstrated that Children's physical or mental condition was seriously impaired or seriously endangered by such actions.

II. Dispositional Order

[31] Father contends that the juvenile court abused its discretion by imposing requirements on him in the dispositional order that were unrelated to the behavior or circumstances revealed by the evidence. Following a CHINS determination and a dispositional hearing, the trial court issues a dispositional order that details the plan of care, treatment, or rehabilitation required to address the needs of the Child, which includes the entry of findings and conclusions. See Ind. Code §§ 31-34-19-1, 31-34-19-10. “Although the [trial] court has broad discretion in determining what programs and services in which a parent is required to participate, the requirements must relate to some behavior or circumstance that was revealed by the evidence.” In re A.C., 905 N.E.2d 456, 464 (Ind. Ct. App. 2009). This court has recognized that forcing unnecessary requirements on parents whose children have been determined to be CHINS can set them up for failure and can result in failed reunification of the family and even the termination of parental rights. Id. at 464-65.

[32] Specifically, Father contends that the following requirements of the dispositional order were an abuse of discretion because they were unrelated to the behavior or circumstances revealed by the evidence:

i. Maintain suitable, safe and stable housing with adequate bedding, functional utilities, adequate supplies of food and food preparation facilities. Keep the family residence in a manner that is structurally sound, sanitary, clean, free from clutter and safe for the child.

j. Secure and maintain a legal and stable source of income, which may include employment, public assistance, Social Security and/or child support payments that are adequate to support all the household members, including the child.

k. Assist in the formulation and implementation of a protection plan which protects the child from abuse or neglect from any person.

․

m. Obey the law.

․

o. Ensure that the children will become engaged in a home-based counseling program referred by the Family Case Manager. All members of the family are to actively participate to the extent recommended by the provider and DCS. The family will demonstrate positive changes in their lives as a result of the counseling.

Appellant's App. Vol. II at 90–91.

[33] Father has waived his challenges to the dispositional order's requirements i, j, k, and m on the grounds that they were an abuse of discretion because they were unrelated to the behavior or circumstances revealed by the evidence or because they were vague by failing to object to the imposition of the requirements on those bases at the dispositional hearing. At the dispositional hearing, Father, who was represented by counsel, stated that he joined in Mother's objection to all of the predispositional report's requirements because Parents did not agree with the determination that Children were CHINS and that he specifically objected to requirements six (Parents would be required to enroll in any recommended program within thirty days and participate without delay or missed appointments), seventeen (Parents would ensure that Children participate in homebased counseling), and eighteen (Parents would be required to complete a parenting assessment and complete all recommendations) in the dispositional report and argued there was no nexus between the CHINS adjudication and those requirements. Tr. at 227. Because Father did not object to requirements i, j, k, and m on the bases that he now asserts on appeal, he has waived his argument on appeal. It is axiomatic that an argument cannot be presented for the first time on appeal. Ind. Bureau of Motor Vehicles v. Gurtner, 27 N.E.3d 306, 311 (Ind. Ct. App. 2015). See also Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013) (“[A]ppellate review presupposes that a litigant's arguments have been raised and considered in the trial court.”); McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 194 (Ind. Ct. App. 2003) (“It is well established, however, that a party on appeal may waive a constitutional claim.”). Therefore, Father has waived his arguments concerning requirements i, j, k, and m in the dispositional order.

[34] Regarding requirement o, that Father ensure that Children become engaged in a homebased counseling program and that all family members actively participate as recommended, Father did raise an objection to the requirement with the assertion that there was no nexus between the CHINS adjudication and the requirement. We, therefore, reach the merits of his challenge to this requirement.

[35] Father argues that the record did not support that Children needed counseling of any kind. At the factfinding hearing, a member of DCS testified that she believed that as part of the CHINS case it was important to ensure that Children have safety, stability, and permanency and that help was needed to assist Children and Parents with schooling and organization. Tr. at 178. Further, there was testimony that Mother thought that S.A. specifically needed therapy and that DCS wanted to get an evaluation to determine what type of therapeutic needs Children had. Id. at 225. Requirement o was supported by the record.

[36] We, therefore, conclude that the juvenile court did not abuse its discretion in issuing its dispositional order nor as to any of the requirements it included.

[37] Affirmed.

FOOTNOTES

1.   Although Mother filed an appearance in this appeal, she did not file a separate brief, and the Appellant's Brief only reflects Father's arguments. However, since Mother was a party of record in the trial court, she is likewise a party on appeal. See Ind. Appellate Rule 17(A).

Molter, Judge.

Robb, J., and Riley, J., concur.