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New Jersey Division of Youth and Family Services v. H.B.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 11, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
H.B., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF J.N.L.B., A MINOR.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
R.M.D., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF J.N.L.B. AND K.S.T., MINORS.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.T., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF K.S.T., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. FG-13-64-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 5, 2008

Before Judges Wefing, Parker and R. B. Coleman.

In each of these three consolidated cases, a biological parent appeals from an order terminating parental rights. In Docket No. A-4061-06T4, R.M.D. is the biological mother of J.N.L.B. (J) and K.S.T. (K); in Docket No. A-4059-06T4, H.B. is the biological father of J; and in Docket No. A-5201-06T4, K.T. is the biological father of K. Each defendant challenges the sufficiency of the evidence supporting termination of their parental rights under N.J.S.A. 30:4C-15.1(a). H.B. and K.T., the fathers of both children also argue that the evidence does not support a finding that they abandoned their children under N.J.S.A. 30:4C-15(d). R.M.D., the children's mother, argues that the Division of Youth and Family Services's (DYFS) decision to seek termination of parental rights undermines the purpose of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, because it punishes her as a victim of domestic violence. After considering all of the parties' arguments, we affirm the order terminating parental rights in each case.

R.M.D. has been involved with DYFS since she gave birth to her first child on September 25, 1999, when she was fifteen. In February 2000, the infant was placed in the custody of a family friend because the child was at risk and R.M.D. was unable to meet the child's needs. The family friend later adopted the child after R.M.D. surrendered her parental rights.

In 2000, R.M.D. began a relationship with K.T. and became pregnant. During her pregnancy, DYFS worked with R.M.D. and placed her in the PATH Program for Homeless Women. PATH provides support services to individuals with serious mental illnesses or substance abuse disorders who are homeless or at risk of becoming homeless. In March 2001, R.M.D. gave birth to K while residing in the PATH program. Although no father was listed on the child's birth certificate, R.M.D. identified K.T. as the biological father of K, and a paternity test two years later confirmed that K.T. was the child's father.

Due to R.M.D.'s past history, DYFS opened a case for care and supervision of K, but did not initially seek custody of the child. In July 2001, DYFS arranged a psychological evaluation for R.M.D. with Dr. Chester Sigafoos, a clinical psychologist, who found that she suffered from several psychological disorders and was at the borderline level of intellectual functioning. Dr. Sigafoos also found that R.M.D. did not demonstrate an understanding of her disorders or their impact upon her ability to parent her child. He recommended therapy and parenting skills training.

In December 2001, after allegations that R.M.D. was fighting in the PATH program, the facility terminated her participation. She then entered the Union Industrial Home for Children with K, where she remained for approximately one year prior to moving in with her maternal grandmother.

Between August 2002 and April 2003, R.M.D. moved in and out of her grandmother's house a number of times. By April 2003, R.M.D. and K had once again moved back with the grandmother and the DYFS caseworker notified R.M.D. that the case would be closed. R.M.D. objected to DYFS closing the case because she had enrolled in parenting classes and was scheduled to attend counseling sessions. Nevertheless, DYFS closed the case in April 2003, terminating those services.

In June 2004, R.M.D. gave birth to J, whose father was identified as H.B. On July 24, 2004, DYFS reopened the case when it received a referral from the Jersey Shore University Medical Trauma Unit that six-week-old J was being admitted to the hospital with head trauma and bleeding in the brain. The referral reported that R.M.D. gave several inconsistent explanations as to how the infant's injuries occurred. R.M.D. initially explained to the police and doctors that K had injured J. She alleged that J was sleeping on the bed when she left the room to go to the bathroom, K picked up J and accidentally dropped J, causing him to hit his head on the furniture.

Dr. Steven Kairys, of the Dorothy Hersh Child Protection Center, diagnosed J with a skull fracture, bleeding in the brain and anemia, for which the infant received a blood transfusion. A CT scan also revealed that the infant had suffered an injury to his ribs. R.M.D. claimed that the rib injury came from the infant swing, but the treating physician stated that the injury could not have come from the swing.

On July 27, 2004, R.M.D. called the DYFS caseworker to ask that K be given a psychological evaluation because she wanted to ensure that he did not injure the infant again. The caseworker informed her that J would not be going home with her when he was released from the hospital. R.M.D. went to the DYFS office to discuss the incident with her caseworker. During discussion, R.M.D. changed her story and admitted that J's injuries resulted when H.B. hit her while she was holding the infant and "mistakenly" struck the infant on the head. R.M.D. further admitted that she did not take J to the hospital that evening because she was afraid of H.B.

R.M.D. claimed that there had been several instances of domestic violence between her and H.B. and on one occasion, H.B. hit K in the face, splitting his lip. R.M.D. also admitted that she had several abusive relationships in the past. She indicated that H.B. had been drunk when he hit her and J and that he was abusing drugs daily. She signed a fifteen-day consent for temporary placement of both children in foster care after the incident.

H.B. agreed to meet the caseworker on July 29 to discuss the incident, but he failed to appear and the caseworker was unable to locate him.

On July 30, 2004, K.T. met with the caseworker to discuss K's placement. He claimed to have joint custody of K but could not produce any documents to support that claim. K.T. stated that he was on probation for aggravated assault, weapons violations and CDS possession and that the sentencing judge had ordered him to undergo drug rehabilitation, but he had not done so.

On August 2, 2004, the DYFS caseworker learned that H.B. had an outstanding warrant for his arrest for domestic violence and for endangering the welfare of a child. On August 3, 2004, R.M.D. reported to the caseworker that H.B. had physically threatened her and that she was seeking a restraining order. When the caseworker spoke with H.B., he admitted hitting the child but claimed it was an "accident" and blamed the injury on R.M.D. because she attempted to use the infant as a "shield" during their fight.

On August 12, 2004, DYFS filed a complaint pursuant to N.J.S.A. 9:6-8.21, seeking custody of both children. R.M.D. appeared at the September 2, 2004 hearing and H.B. was transported to the family court from the Monmouth County correctional facility. K.T. failed to appear. The trial court granted DYFS temporary custody of both children and ordered all three defendants to undergo psychological and substance abuse evaluations.

On December 2, 2004, H.B. waived his right to a fact-finding hearing under N.J.S.A. 9:6-8.44, and stipulated that he and R.M.D. had a domestic dispute during which J was physically injured. R.M.D. was not present at that hearing and the court entered a default against her. The trial court rendered a finding of abuse and neglect as to H.B. On January 18, 2005, R.M.D. appeared for a proof hearing and the default was vacated. She then entered into a stipulation similar to H.B.'s and the court rendered a finding of abuse and neglect as to her, as well.

On May 2, 2005, H.B. pled guilty to third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, for injuring J. At a review hearing on May 5, 2005, K.T. was transported from Middlesex County corrections facility but R.M.D. and H.B. failed to appear. The trial court entered a contempt order against H.B. and directed him to pay $100 within thirty days or a bench warrant would be issued. All three defendants were ordered to participate in evaluations. On July 28, 2005, a permanency plan for both children was entered. Neither of the fathers appeared.

On October 17, 2005, DYFS filed three guardianship complaints and orders to show cause were entered. On November 17, 2005, the return date of the orders to show cause, the court dismissed the Title 9 case and proceeded with the Title 30 case. Neither of the fathers appeared.

When the trial began on May 16, 2006, R.M.D. was living with her fourth child, a five-month-old infant, and her twenty-year-old sister. Both fathers were transported from correctional facilities for the trial. Despite the fact that H.B. had previously pled guilty to the third degree criminal charge of endangering J, during the termination trial, he denied committing the offense. The trial court found H.B.'s testimony lacking in credibility, based upon the evidence in the criminal case.

K.T. testified that he had a lengthy criminal history and had been incarcerated numerous times on various criminal charges, including CDS, weapons, aggravated assault and robbery charges. K.T. expected to be in prison until at least December 2009. He acknowledged that he had last seen his son, K, approximately a year ago.

The DYFS caseworkers testified as to their continuing supervision of the family and their attempts to provide services and assistance to R.M.D. Nevertheless, R.M.D. did not attend parenting classes, she remained on welfare and made no effort to find work or obtain a G.E.D. In May 2005, after R.M.D. failed to appear for a scheduled court date, the caseworker visited her home. When R.M.D. answered the door, "her eyes were glassy and red." The caseworker smelled marijuana and when he asked who was getting high, R.M.D. pointed to her boyfriend who admitted he had been smoking marijuana. R.M.D. was then pregnant with the boyfriend's child, her fifth, and the caseworker wanted her to have a substance abuse evaluation.

The evidence at trial indicated that both J and K have special needs. J has speech delays and was referred for early intervention. K has a short attention span, is developmentally delayed and may have ADHD. The evidence at trial indicated that both K and J had adjusted well to their placement in foster homes and the foster parents were willing to adopt them. J's behavioral and learning problems were being addressed by the foster parents. K was working with a development therapist for his developmental delays.

Dr. Sigafoos testified that he first evaluated R.M.D. in 2001 when she was sixteen and had two children. R.M.D. informed him that she was physically abused by her father until age eleven and had been molested by her maternal grandfather. Dr. Sigafoos found R.M.D. to have an IQ of 84, which is borderline intellectual functioning. Her Bender Gestaldt Psychopathology score was 66.5; anything over 37 is considered abnormal.

Dr. Sigafoos indicated that R.M.D. had a learned helplessness condition that typically occurs "when a person who has been abused lacks the capacity to control her environment." As a result, the abused person lacks assertiveness and "will repetitively then go to partners that will dominate her" which could create a risk factor for a child.

Dr. Sigafoos reevaluated R.M.D. in November 2005 and concluded that she was not competent to parent her children. He testified that R.M.D. exhibited a dependent personality disorder, obsessive compulsive personality traits, paranoid personality traits and narcissistic features. He recommended that R.M.D. receive skills training and psychotherapeutic intervention and that she engage in decision making programs.

Dr. Sigafoos considered the partners R.M.D. chooses "the most significant risk factor . . . toward the children."

In March 2006, Dr. Sigafoos conducted bonding evaluations between R.M.D. and the two children and K and his foster parents. No bonding evaluation was done with J and his foster parents because he had only recently been moved to a new foster home. In the bonding evaluation, Dr. Sigafoos found that R.M.D. was attentive to the children and demonstrated an authoritative parenting style. He described R.M.D.'s parenting style as follows:

[R.M.D.] used an authoritative parenting style, which balances out love and control in a healthy management of the child. This style of parenting allows for the development of responsibility, respect, good self-esteem and self-control in the child.

Nevertheless, Dr. Sigafoos noted that this was an "isolated" incident and he questioned whether she would be able to sustain this level of interaction with the children over the long term.

As to K's bonding with his foster parents, Dr. Sigafoos noted that K had been with his foster parents since September 2004 and called his foster mother "mommy." With respect to removing K from his foster parents, Dr. Sigafoos wrote:

[K] is attached to the current caregivers but it does not appear that he will suffer serious and enduring harm if not allowed to have a continued relationship with the clients. This is more because of his resilience and capacity to endure. On the other hand, this child will need to have a continued relationship with his foster parents that needs to be respected. [Emphasis added.]

At trial, however, Dr. Sigafoos testified that he had made a mistake in that initial assessment. At trial, he testified that K will suffer enduring harm if removed from his foster parents because he has been with them since 2004.

Alexander Iofin, M.D., a Board Certified Psychiatrist, evaluated R.M.D. in April 2006. Dr. Iofin testified that R.M.D. had learning difficulties, as a result of which she had a limited understanding of the severity of her problems and would have difficulty functioning as a custodial parent. In Dr. Iofin's opinion, the abuse R.M.D. suffered as a child contributed to the neglect of her own children. He stated that R.M.D. was reluctant to receive help and follow through with recommended services and that if she continued to refuse services, she would not be able to care for her children adequately.

Dr. David Bogacki, a psychologist, testified on behalf of R.M.D. He evaluated R.M.D. in August 2006 and reviewed the DYFS files and Dr. Sigafoos' reports. Dr. Bogacki indicated that "none of the things that I've mentioned from the other two clinicians nor myself would be of severity that would be disabling or be impairing, most specifically with respect to being able to parent a child."

Dr. Bogacki agreed that if R.M.D. exposed the children to domestic violence on multiple occasions, she exposed the children to a risk of harm. With respect to R.M.D.'s failure to obtain employment or job training, he considered it "perfectly fine for her to be able to raise the three children . . . with the assistance from the federal and state government." Dr. Bogacki was unconcerned that R.M.D. lied to the court, indicating that "[p]eople lie when the alternative is intolerable . . . . People lie all the time." Although Dr. Bogacki did not condone lying, he felt that it did not impact on R.M.D.'s capacity to parent the children. He conducted his own bonding evaluation between R.M.D. and the two children and concluded that K "shows insecure emotional attachment" to R.M.D. and J shows evidence of the same "to a lesser degree." Nevertheless, Dr. Bogacki opined that terminating R.M.D.'s parental rights would cause enduring harm to K. Although he did not undertake a bonding evaluation of the children with their foster parents, Dr. Bogacki testified that if the children had bonded to their foster parents, they would suffer a grief reaction if they are removed.

The trial court rendered a lengthy, detailed and well-considered written opinion setting forth its findings of facts and analysis of the four prongs for termination of parental rights articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1988) and codified in N.J.S.A. 30:4C-15. The court found that DYFS had demonstrated clear and convincing evidence that the parental rights of each parent should be terminated.

In her appeal, R.M.D. argues:

POINT ONE

THE DIVISION'S DECISION TO PROCEED TO TERMINATION OF PARENTAL RIGHTS AS ITS CASE GOAL INSTEAD OF FAMILY REUNIFICATION VIOLATED ITS PARENS PATRIAE DUTIES BECAUSE THE DECISION UNDERMINED THE PURPOSES OF THE DOMESTIC VIOLENCE PROTECTION ACT BY PUNISHING A VICTIM OF DOMESTIC VIOLENCE

POINT TWO

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THE "BEST INTERESTS" TEST BY CLEAR AND CONVINCING EVIDENCE

(A)

UNDER THE FIRST PRONG, THE "INADEQUATE" PARENTAL ABILITY EXHIBITED BY THE DEFENDANT DID NOT JUSTIFY THE TERMINATION OF HER PARENTAL RIGHTS

(B)

UNDER THE SECOND PRONG, THE DEFENDANT CAN BECOME FIT IN TIME TO MEET THE NEEDS OF [K] AND [J]

(C)

THE DIVISION FAILED TO MAKE "REASONABLE EFFORTS" UNDER THE THIRD PRONG BECAUSE IT FAILED TO CREATE A CASE PLAN THAT WAS DESIGNED TO "ACCOMMODATE" THE DEFENDANT'S AGE, EMOTIONAL IMMATURITY, AND LEARNING DISABILITIES, AS A VICTIM OF DOMESTIC VIOLENCE

(D)

TERMINATION OF THE DEFENDANT'S PARENTAL RIGHTS WOULD DO MORE HARM THAN GOOD UNDER THE FOURTH PRONG BECAUSE IT SEVERED THE SIBLING RELATIONSHIP BETWEEN [K] AND [J] AND THEIR RELATIONSHIPS WITH THEIR BIOLOGICAL FAMILY

In his appeal, H.B. argues:

POINT ONE

THE DIVISION FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE HB'S PARENTAL RIGHTS IN ORDER TO PROTECT HIS CHILD'S BEST INTERESTS

A. The Division Failed to Establish by Clear and Convincing Evidence that HB Is Unwilling and Unable to Eliminate Harm to JB

B. The Division Failed to Demonstrate by Clear and Convincing Evidence that It Made Reasonable Efforts to Help HB Remedy the Circumstances that Led to JB's Placement Outside the Home or Any Effort to Reunify HB and JB

C. The Division Failed to Demonstrate by Clear and Convincing Evidence that Termination of HB's Parental Rights Will Not Do More Harm Than Good to JB

POINT TWO

THERE WAS NOT SUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT HB ABANDONED HIS CHILD

In his appeal, K.T. argues:

POINT ONE

THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S PARENTAL RIGHTS SHOULD BE TERMINATED AS THE STATE FAILED TO PROVE, BY THE REQUIRED CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF THE PARENTAL RIGHTS WAS APPROPRIATE

POINT TWO

THE TRIAL COURT ERRED IN RULING THAT THE STATE HAD PROVED THAT THE DEFENDANT ABANDONED HIS CHILD

Our scope of review of a judgment terminating parental rights is limited to a determination of whether the trial court's factual findings were supported by "adequate, substantial and credible evidence" in the record. In re Guardianship of M.A.M., 189 N.J. 261, 278-79 (2007); In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993).

We have carefully reviewed the extensive record in this case and we are satisfied that there is more than adequate substantial and credible evidence in the record to support the trial court's findings and termination of each defendant's parental rights. R. 2:11-3(e)(1)(A). We affirm substantially for the reasons set forth by Judge Michael A. Guadagno in his thoughtful and thorough written decision dated January 30, 2007. Nevertheless, we add the following comments with respect to specific arguments raised by each of the defendants.

R.M.D. argues that, as a victim of domestic violence, she is statutorily protected from an action to terminate her parental rights. We are not persuaded by her argument. The State has a parens patriae responsibility to protect the welfare of children. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "Because that power involves the State acting in place of parents, it is limited to situations in which the State has demonstrated that the child's parent or custodian is unfit, or the child has been neglected or harmed." Ibid. (Internal citations omitted). A key inquiry in terminating parental rights is whether the biological parent can cease causing harm to the child. Ibid.

In adopting the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, the Legislature found a "positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence." N.J.S.A. 2C:25-18. The emotional harm to a child who has witnessed domestic violence cannot be presumed but must be demonstrated by evidence in the record. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 28 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).

Here, DYFS initially filed a complaint based on the injuries sustained by J during the domestic dispute between R.M.D. and H.B. in July 2004. H.B. claimed that R.M.D. used the six-week-old infant as a "shield." R.M.D. testified that she did not get immediate attention for the infant because she was afraid of H.B. She admitted that she continued to lie to the doctors, the police and DYFS even after she had been informed that J's skull had been fractured. Although she testified that she was "scared of [H.B.]" and "he was stalking [her] at the hospital," she continued to live with him after the July 2004 incident. Moreover, R.M.D. was aware of H.B.'s violent behavior prior to July 2004 because H.B. hit or verbally abused her on at least three earlier occasions -- but she continued to live with him. On three separate occasions, R.M.D. filed domestic violence complaints and sought restraining orders against H.B. She dismissed one of the complaints and did not pursue final orders in the other two.

While the Prevention of Domestic Violence Act is intended to protect victims of domestic violence, a victim who is unwilling or unable to protect her children from a spouse or partner's violence cannot use the Act as a shield against termination of parental rights. The record before us provides clear and convincing evidence that R.M.D. has "not cured the initial cause of harm and will continue to cause serious and lasting harm to the child" if her parental rights are not terminated. J.C., supra, 129 N.J. at 10.

Each father argues that there was insufficient evidence at trial to justify a finding that each had abandoned his child. The trial court found that both H.B. and K.T. failed to maintain relationships with their children and proposed no plans to care for their children in the future. The court concluded that their non-participation in reunification and visitation for extended periods of time amounted to a failure to provide for the minimal needs of their children.

Pursuant to N.J.S.A. 30:4C-15(d), abandonment may be established if the parent has "engaged in a course of conduct that 'evidences a settled purpose to forego all parental duties and relinquish all parental claims to the child.'" In re Guardianship of D.M.H., 161 N.J. 365, 376 (1999) (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 135 (1993)). Abandonment "'entails volitional and purposeful conduct that equates with a willful giving up of parental rights and duties.'" Id. at 376-77 (quoting J.C., supra, 129 N.J. at 17).

Consequently, "abandonment may not be based on parent conduct that is only uncertain, ambivalent or equivocal in fulfilling parental duties." Id. at 377.

Incarceration may be considered in the decision to terminate parental rights on the basis of abandonment, but may not serve as the sole basis for termination. L.A.S., supra, 134 N.J. at 137. The court must consider other factors. Ibid.

An incarcerated parent may be considered to have abandoned a child, depending on the nature of the contact between parent and child before and after incarceration, the efforts made by the parent to maintain contact with the child following imprisonment, and the attempts during incarceration to undertake as much responsibility for the child's welfare as possible. [Id. at 138.]

Here, both H.B. and K.T. admitted that they failed to maintain a relationship with the children while the children were in foster care.

K.T. testified that he had last seen his son approximately one year before the trial. After K was placed in foster care, K.T. stated that he visited the child between ten and twelve times over three years. He explained that his contact with the child was limited because he had outstanding warrants that he "had to take care of." He further testified that he denied paternity until the child was two years old when a paternity test indicated the child was his. He stated that he denied paternity because he was "being self-centered," and he wanted to do [his] own thing" by going with other women, "staying out late, and partying."

K.T. showed little interest in his son's welfare. The last time he saw R.M.D., he did not ask about K because he did not want to speak to R.M.D. Although K.T. claimed that he was "on the verge" of taking parenting classes, he never completed the other programs he was required to take and has been in and out of jail since 1999.

At the time of trial, H.B. had only seen his child on two occasions since the child was placed in foster care in July 2004. H.B. disagrees with the court's conclusion that he showed "total indifference toward the caseworker's efforts." Although H.B. contacted DYFS on a few occasions, he has made no effort to support his son or to establish a relationship with him. In fact, a DYFS caseworker testified that H.B. contacted him on one occasion only to argue with the caseworker and he did not inquire about the child. When H.B. contacted DYFS, he was informed of the programs he was required to complete but he failed to do so. H.B. spent a significant amount of time incarcerated for several domestic violence incidents involving R.M.D., one of which was the July 2004 incident in which J's skull was fractured. When he was released in 2005, H.B. again attacked R.M.D. in the child's presence and was re-incarcerated until 2006.

At trial, H.B. expressed a desire to care for the child, but he has not established a relationship with the child, has not provided a plan, nor has he entered into the child's life. J is almost three years old and has been in foster care since he was two months old. H.B. finally began the services recommended by DYFS shortly before the trial began, although the child had been in placement for two years by then. In short, H.B.'s effort was too little, too late.

We are satisfied that the trial court's finding that H.B. and K.T. abandoned their sons was more than adequately supported by the substantial, credible evidence in the record.

Affirmed.

20080611

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