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Division of Youth and Family Services v. S.J.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 17, 2009

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
S.J., DEFENDANT-APPELLANT, IN THE MATTER OF THE GUARDIANSHIP OF J.H., MINOR-RESPONDENT.
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
C.H., DEFENDANT-APPELLANT, IN THE MATTER OF THE GUARDIANSHIP OF J.H., MINOR-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FG-16-46-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 21, 2009

Before Judges Winkelstein and Fuentes.

This is a consolidated appeal from a trial court order terminating the parental rights of defendants S.J., the mother, and C.H., the father, to their daughter, J.H. We affirm substantially for the reasons expressed by Judge Sabbath.

I.

S.J. is twenty years old, and C.H. is twenty-five. J.H. is three. From July 2005 through March 2006, defendants and J.H. lived with A.B. and W.B., J.H.'s godparents. In March 2006, S.J. and J.H. moved into the home of E.J., S.J.'s mother.

In June 2006, E.J. reported to Division of Youth and Family Services (DYFS) that S.J. would leave J.H. with friends and not return; the friends would bring J.H. back to E.J.'s home. E.J. also reported that she believed that S.J. was using drugs or alcohol. When the caseworker arrived at E.J.'s home, J.H. was present, but S.J. was not. J.H. wore clean clothes, her hair was neatly combed, and she appeared to be "a happy little girl."

S.J. arrived as the caseworker was leaving. She told the caseworker that she was there to pick up her daughter and their belongings because she did not get along with her mother and no longer wished to live with her. She would be staying with her sister, her sister's fiancé, and two friends in an apartment. S.J.'s speech was slurred and her eyes were bloodshot.

In the apartment in which S.J. planned to live with J.H., the caseworker observed empty and half-full alcohol containers but very little food and no milk. S.J. planned for J.H. to sleep with her on a pull-out couch or with S.J.'s sister and her fiancé in their bed. When the caseworker told S.J. that the apartment was not appropriate housing for J.H., S.J. agreed that J.H. would stay with E.J. that night, that S.J. would go to the local DYFS office the following day to try to find housing for her and J.H., and that she would submit to a substance abuse evaluation and abide by the resulting recommendations.

The following day, S.J. stated that she began smoking marijuana and drinking alcohol when she was sixteen years old. She admitted that she last smoked marijuana a week before and drank alcohol the night before. The DYFS supervisor informed her that J.H. could not live with her at her current residence and asked if there was anyone with whom S.J. would like J.H. to stay while she sought adequate housing. DYFS could not place J.H. with E.J. because E.J. had physically abused S.J. in 2003. DYFS offered to place S.J. and J.H. in a shelter, but S.J. refused the offer.

S.J. suggested A.B. and W.B. as foster parents. A.B. and W.B. agreed, and after completing its investigation of them, on June 20, 2006, DYFS removed J.H. from her mother's custody and placed J.H. with A.B. and W.B. On that date, S.J. agreed to submit to a substance abuse evaluation and comply with its recommendations; visit J.H.; and attend parenting skills classes, a psychological evaluation, domestic violence counseling, individual therapy and GED classes. DYFS referred S.J. for a substance abuse evaluation scheduled for July 12, 2006, which she failed to attend.

The court granted custody of J.H. to DYFS for continued placement with A.B. and W.B. S.J. and C.H. were provided with weekly supervised visits with J.H. at either the local DYFS office or Family Interventions Services (FIS).

Meanwhile, C.H. was arrested for violating a domestic violence restraining order that S.J had obtained. After his release from jail, DYFS informed him and S.J. that they must complete substance abuse evaluations and comply with the resulting recommendations; complete domestic violence counseling and psychological evaluations; attend parenting classes; acquire stable housing; and obtain their GEDs. S.J. was also to complete anger management classes. DYFS would provide them with bus cards so they could attend the services. They each agreed to refrain from drug use.

Following completion of a substance abuse assessment, DYFS referred S.J. to the Passaic County Women's Center for domestic violence counseling, but she did not attend any of the five scheduled intake appointments between August 9, 2006 and May 30, 2007. The court subsequently ordered defendants to submit to random urine screens, but did not require them to complete services until after a fact-finding hearing. S.J. nevertheless consented to a psychological evaluation and a substance abuse evaluation, but C.H. did not consent to any services.

DYFS referred S.J. to Dr. Margaret Doherty De Long, Psy.D., for a psychological evaluation. S.J. did not attend an August 2006 or a rescheduled September 2006 evaluation. On August 28, 2006, S.J. completed an intake assessment for substance abuse treatment at Eva's Village. She did not, however, report for the start of treatment, and she did not appear for a subsequent intake appointment at Barnert Hospital for parenting skills classes. In September, October and November, 2006, S.J. missed several scheduled visits with J.H.

Following a fact-finding hearing on October 30, 2006, where the court found that S.J. neglected J.H. by failing to provide her with adequate shelter and by refusing DYFS's offer for placement in a shelter, S.J. submitted to a psychological evaluation with Dr. Donna LoBiondo, Ph.D. S.J. arrived late with "a faint smell of alcohol" on her breath. Dr. LoBiondo noted, however, that S.J. did not appear to be intoxicated.

S.J. "presented as a resistant evaluation subject with angry affect, who denied any wrong doing regarding her child." She acknowledged that the judge told her to comply with DYFS's conditions, and expressed that she would do "whatever it takes to get [her] baby back." Dr. LoBiondo stated that S.J.'s "chronic anger management difficulties as both observed and reported suggest long-standing mood and impulse control deficits" but noted "no evidence of psychosis or thought disorder."

Dr. LoBiondo did not recommend reunification at that time. She was concerned about S.J.'s "problematic drinking habits [which were] in need of treatment;" her deficient parenting attitudes and behaviors reflective of "emotional immaturity and neediness;" and her then current engagement to a man*fn1 who was incarcerated and had a record of drug-related offenses, which was indicative of her "ongoing poor judgment in partner choice" that could endanger J.H.

The doctor found that S.J. was "unskilled and functionally illiterate, with no work history, suggesting an unstable financial future and limited opportunities for residential stability for her and her child." She also found that "despite a history of suicidal thoughts, chronic anger, and a reportedly abusive childhood raised by alcoholics, [S.J.] ha[d] no history of counseling or psychotherapy to address whatever scars from these experiences may be affecting her current situation." Dr. LoBiondo recommended a substance abuse evaluation and treatment; random urine screens, parenting skills training; domestic violence counseling; individual psychotherapy; anger management training; and vocational skills training. She concluded that S.J.'s prognosis was "guarded," but "may improve" with participation in the recommended services.

In January 2007, after DYFS referred her to the Passaic County Women's Center, S.J. did not appear for domestic violence counseling, and she also missed four scheduled visits with J.H. The next month, S.J. missed another visitation appointment. As a result, FIS temporarily terminated her visitation for non-attendance.

DYFS referred S.J. to Options Counseling Center, where she was scheduled to begin parenting skills classes and anger management classes, but she failed to attend. DYFS also referred her to Options for substance abuse treatment, psychological counseling, anger management classes and parenting skills classes. In March 2007, she twice tested positive for illegal drugs. The court subsequently ordered her to begin substance abuse treatment, individual counseling, parenting skills classes, anger management classes, domestic violence counseling, and submit to random drug screens.

In June 2007, S.J. began receiving services and attended GED classes at Options. The Passaic County Women's Center scheduled her for two appointments for domestic violence counseling, neither of which she attended. S.J. tested positive for marijuana in June 2007, and twice in July. In August 2007, Options discharged her due to poor attendance and participation.

She did not complete her parenting class, and she failed to meet with a doctor for a psychiatric evaluation.

On two occasions in December 2007, S.J. tested positive for illegal drugs. In January 2008, she consented to treatment from the Substance Abuse Initiative, which referred her back to Options. She continued to test positive, and Options again discharged her.

On January 4, 2008, S.J. missed an appointment for a bonding evaluation and an appointment for an updated psychological evaluation, but later in the month she attended a bonding evaluation conducted by Dr. LoBiondo. Dr. LoBiondo observed that J.H. was "very enthusiastic" to see her mother, whom she called "mommy." J.H. asked S.J. when she could come home. They hugged and kissed.

Nevertheless, Dr. LoBiondo was concerned that S.J.'s and J.H.'s interactions "seemed to regress over time." S.J. "started to kind of bite on the child's ear. . . not in an aggressive way. . . [but] later the child modeled . . . what seemed to be a more aggressive tone to the interaction as the child interpreted it. Because at one point the child slapped her mother." The doctor believed that interaction with S.J. raised J.H.'s level of regression because it triggered crying spells and another attempt to slap S.J.

When S.J. began to play with a ball, J.H. demanded that she give it to her; as S.J. continued to play with the ball, J.H. "appeared frustrated and threw a tantrum, lying on the floor, kicking, crying." S.J. later trimmed J.H.'s nails by biting them, to which J.H. expressed "heightened anxiety" that S.J. was going to bite her hand. S.J. used her own fingernail to clean J.H.'s nose. Dr. LoBiondo concluded that these actions failed to teach J.H. appropriate behavior.

Dr. LoBiondo testified that J.H.'s emotional reactions were more unpredictable with S.J. than with her foster parents. Though the doctor recognized that there was "definitely an attachment" between J.H. and S.J., she found the bond was more of an "ambivalent attachment" than the bond between J.H. and her foster parents. She determined that S.J.'s behavior undermined the existing attachment. Though she opined that separating J.H. from her foster parents "could be damaging," she did not offer an opinion as to what harm the child would experience if her mother's parental rights were terminated, as she did not have the opportunity to conduct an updated psychological evaluation of S.J.

On July 25, 2006, C.H. said that he wished to receive treatment for drug abuse. He did not, however, consent to participate in services, and a supervised visitation referral form indicates that he was "very antagonistic and [was] refusing services." He questioned his paternity of J.H. After a paternity test indicated that he was J.H.'s biological father, the court ordered him to complete a psychological evaluation and parenting skills training, and to submit to random urine screenings. The court also ordered weekly supervised visitation with J.H.

DYFS referred C.H. to parenting skills classes and for a psychological evaluation with Dr. LoBiondo, which he failed to attend. The court accordingly ordered C.H. to submit to a substance abuse evaluation and to attend a psychological evaluation with Dr. LoBiondo. When a counselor began a substance abuse evaluation, C.H. refused to submit a urine sample, admitting that it would be "dirty" from his drug use. He did not attend the scheduled psychological evaluation with Dr. LoBiondo. In May 2007, C.H. again failed to provide a urine sample. He was incarcerated on June 28, 2007, after being convicted of assaulting S.J.

Between December 2006 and June 2007, C.H. missed four visits with J.H. and was late for at least three. He had no visitation with J.H. while he was incarcerated.

On January 8, 2008, C.H. submitted to a psychological evaluation by Dr. Robert Kanen, Psy.D. C.H. informed Dr. Kanen that he had been using marijuana since he was fourteen years old but that he had not used it since March 2007. He also stated that he had not consumed alcohol for two weeks prior to the evaluation. He told Dr. Kanen that he had juvenile arrests for possession of a controlled dangerous substance (CDS) with the intent to distribute; shoplifting; and for a violation of probation. As an adult, he had been convicted of assault; and he committed an act of domestic violence against S.J. He was on probation at the time of his evaluation. Besides working at a staffing company for one month, C.H. had no history of employment. He admitted to Dr. Kanen that he sold drugs and he had used drugs to get him through the day.

Dr. Kanen concluded that C.H. "has been deeply involved in a drug lifestyle." He found that C.H. has a low tolerance for frustration and is "overly sensitive, misperceives the intentions of others and is quick to react to misperceived slights to his self-esteem." Though he found that C.H. did not have cognitive problems that would preclude him from being an adequate parent or from gaining employment, Dr. Kanen determined that C.H. has "severe parenting deficits due to a severe personality disorder that includes impulsivity, poor judgment, failure to honor family and social obligations, an unstable lifestyle, marijuana abuse, alcohol abuse, temper control problems, and a lack of insight into these problems." He concluded that entrusting J.H. to C.H.'s care "would expose the child to an unnecessary risk of harm" because C.H. was "at great risk for ongoing substance abuse, antisocial behavior in which he violates the rights of others, and an unstable lifestyle." C.H., however, expressed to Dr. Kanen that he did not have any weaknesses as a parent.

Dr. Kanen testified that C.H.'s prognosis for change was poor. Even if C.H. completed the services he recommended, Dr. Kanen did not "think [C.H.'s] prognosis would change that much. These are really well-ingrained traits." Dr. Kanen recommended that C.H. seek and maintain employment; complete parenting skills classes; attend domestic violence counseling; and honor the terms of his probation.

Dr. LoBiondo testified as to her bonding evaluation of J.H. with her foster parents, A.B. and W.B. In the presence of foster mother, A.B., J.H. "was very stable." The doctor observed a significant and positive bond between J.H. and A.B. and had no concerns about their reactions to each other. Dr. LoBiondo's observations of J.H. and W.B. were very similar to those of J.H. and A.B.

DYFS's plan was for A.B. and W.B. to adopt J.H. A.B. had permitted defendants to visit with J.H. since J.H. was removed from S.J.'s custody, and A.B. testified that she would continue to allow defendants to visit J.H. after their parental rights were terminated.

At trial, S.J. testified that she drank alcohol both the night before she testified and the night before her psychological evaluation. She nevertheless claimed that she did not have a problem with drugs or alcohol. She asserted that she did not understand why DYFS had removed J.H. from her custody. She explained that she was living with her stepmother and that she had a big bed in which she and J.H. could sleep together. Her only employment history consisted of three weeks' employment at Marshall's. She had applied for Social Security disability because she was disabled as a result of asthma.

C.H. admitted that prior to J.H.'s removal from S.J.'s custody, he had asked A.B. to file for custody of J.H. because he was worried that S.J. was unable to adequately care for the child. As a condition of his probation, which began two weeks before trial, C.H. began attending anger management classes and receiving substance abuse treatment. He testified that he had not used marijuana since March 2007, and he was, at the time of trial, employed as maintenance detail at White Castle, where he worked part time.

II.

On April 16, 2008, the court terminated defendants' parental rights to J.H. The court found that J.H.'s health and safety were endangered by S.J.'s drug and alcohol abuse, her inability to provide adequate housing, and her continued unemployment. The court found that S.J. was unwilling to address the harm, as evidenced by her denial that she had committed any wrong-doing regarding J.H.; her resistance to participation in services provided by DYFS; and her engagement to a man with "a drug record." The court held that DYFS made reasonable efforts to provide services to S.J., but she failed to participate in those services. Finally, the court found that terminating S.J.'s parental rights would not cause more harm than good.

With respect to C.H., the court found that his domestic violence, drug problems, and unemployment, endangered J.H. The court stated: "[C.H.'s] conduct throughout these proceedings attests to the conclusion that he will continue to perpetrate a drug lifestyle that will continuously put himself and those around him at great risk." The court observed that C.H. was aware of the services offered by DYFS, but he did not sufficiently address any of his deficiencies that caused J.H.'s placement with foster parents. The court found that DYFS's efforts to obtain services for C.H. were reasonable under the circumstances. Finally, the court did not find that termination would cause more harm than good because Dr. Kanen reported that placing J.H. with C.H. would put her at risk of harm.

III.

On appeal, we determine whether the trial court's decision to terminate parental rights was based on clear and convincing evidence supported by the record. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). A trial court's factual findings "should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citation omitted). Thus, this court defers to the trial court's factual findings if they are supported by substantial, credible evidence. Ibid.

Parents have a fundamental constitutional right to enjoy a relationship with and raise their children. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). This constitutional protection is "tempered by the State's parens patriae responsibility to protect the welfare of children." In re J.N.H., supra, 172 N.J. at 471. A delicate balance is achieved through application of the "best interests of the child" standard. In re K.H.O., supra, 161 N.J. at 347. Termination of parental rights on the grounds of the "best interests of the child" is warranted where the state proves each of the following elements by clear and convincing evidence:

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

(3) The division 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 court has considered alternatives to termination of parental rights; and

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

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

These elements are to be viewed as a whole in determining the child's best interests. In re K.H.O., supra, 161 N.J. at 348. Here, the best interests of J.H. are fostered by the trial court's decision.

We begin with whether the State has demonstrated by clear and convincing evidence that defendants have caused J.H. harm. "Harm, in [the context of a termination proceeding], involves the endangerment of the child's health and development resulting from the parental relationship. Ibid. Delay in permanency and stability also constitutes harm to a child. In re Guardianship of S.C., 246 N.J. Super. 414, 425 (App. Div.), certif. denied, 126 N.J. 334 (1991).

S.J. had a history of leaving J.H. with friends and not returning within a reasonable time to pick her up. The home in which S.J. intended to live with J.H. contained empty and half-full alcohol containers but little food and no milk. S.J. proposed that J.H. would sleep with S.J.'s sister and her sister's fiancé in their bed or with S.J. on a pull-out couch. S.J. refused DYFS's offer to place her and J.H. in a shelter. These living arrangements endangered the child's health and development.

S.J. admitted that she began using marijuana and alcohol when she was sixteen years old. She tested positive for illegal drugs on multiple drug screenings and drank alcohol both the night before trial and before her psychological evaluation. Dr. LoBiondo found that S.J. had "problematic drinking habits [that were] in need of treatment;" deficient parenting attitudes and behaviors reflective of "emotional immaturity and neediness;" and S.J. was engaged to a man who was incarcerated at the time and had a record of drug-related offenses, which was indicative of her "ongoing poor judgment in partner choice" that could endanger J.H. The doctor also found that S.J. was "unskilled and functionally illiterate, with no work history, suggesting an unstable financial future and limited opportunities for residential stability for her and her child;" and "despite a history of suicidal thoughts, chronic anger, and a reportedly abusive childhood raised by alcoholics, [S.J.] ha[d] no history of counseling or psychotherapy to address whatever scars from these experiences may be affecting her current situation." These facts and the doctor's opinions support the court's finding that S.J. put J.H.'s safety, health, or development at risk.

C.H. also put J.H. at risk of harm. C.H. began using marijuana at age fourteen; he has sold drugs; and he has no history of maintaining regular employment. He participated in criminal activity, not just as a juvenile, but as an adult. He failed to submit to urine tests, and admitted on one occasion that it would be "dirty" because he had used drugs.

Under the second prong of the statute, the State "must show . . . that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm." In re K.H.O., supra, 161 N.J. at 348. This prong is focused on parental unfitness, ibid., which may be evidenced by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child. [Id. at 353.]

The record supports the court's finding that this prong of the test has also been satisfied. S.J. did not comply with DYFS's or with Dr. LoBiondo's recommendations. She continued to use drugs after J.H.'s removal, testing positive for drugs on at least nine occasions between March 2007 and January 2008. Despite this, S.J. testified that she does not have a problem with drugs or alcohol. S.J. remains unemployed and has no source of income beyond welfare. She has not complied with DYFS's attempts to provide her with services.

DYFS informed C.H. what he and S.J. needed to do to reunify with J.H., but he refused to participate in services. He continued to use drugs. Dr. Kanen testified that C.H. "has serious parenting deficits that would make it difficult for him to raise [J.H.]." He concluded that entrusting J.H. to C.H.'s care "would expose the child to an unnecessary risk of harm" because C.H. was "at great risk for ongoing substance abuse, antisocial behavior in which he violates the rights of others, and an unstable lifestyle."

Thus, the record contains sufficient, credible evidence to support the court's finding that the second prong was satisfied as to both defendants.

The third prong requires that DYFS make reasonable efforts to provide services to foster reunification. N.J.S.A. 30:4C-15.1(a)(3). "[R]easonable efforts means attempts by an agency authorized by [DYFS] to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." N.J.S.A. 30:4C-15.1(c). When parents refuse to complete therapy or other services, efforts to reunite the family may no longer be reasonable. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986).

DYFS referred S.J. for substance abuse treatment, parenting skills classes, anger management classes, a GED course, psychological counseling, and domestic violence counseling, and she was subject to random urine screens. S.J. was provided with weekly supervised visits with J.H.

S.J. does not dispute that DYFS provided her with the opportunity to participate in many services. Instead, she argues that DYFS failed to provide her with the most significant services, individual therapy and vocational training. The record does not support her argument. Dr. LoBiondo did not opine that individual psychotherapy and vocational training were more important than her other recommendations; nor did she or any expert indicate that they constituted a necessary foundation without which the other services would be unsuccessful. Without such testimony, S.J.'s arguments are simply speculative.

S.J. repeatedly failed to attend the services that DYFS provided. DYFS met its obligation to make reasonable efforts to make services available to help S.J. correct the circumstances that led to J.H.'s placement outside the home. Her noncompliance also demonstrates that she has been unwilling to address the harm that she poses to J.H.

As for C.H., because he was the non-custodial parent, the services that DYFS offered to him were reasonable under the circumstances. See In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999) ("[I]t is reasonable for [DYFS] to continue to focus its efforts of family reunification on [the] custodial parent, so long as [DYFS] does not ignore or exclude the non-custodial parent."). Though DYFS made services available to him, he refused to participate. When, on March 26, 2007, the court ordered that he complete a psychological evaluation and parenting skills training and that he submit to random urine screenings, he initially refused to submit a urine sample, and he failed to attend parenting skills classes and a psychological evaluation with Dr. LoBiondo. In fact, he missed multiple appointments for psychological evaluations. It was not until three months prior to trial that he submitted to a psychological evaluation. Thus, the trial court had sufficient credible evidence to find that DYFS satisfied the third prong with regard to C.H.

To satisfy the forth prong, "the State should offer testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents." N.J. Div. of Family Servs. v. M.M., 189 N.J. 261, 281 (2007). The focus under this prong is permanency for the child: "If one thing is clear, it is that the child deeply needs association with a nurturing adult. Since it seems generally agreed that permanence in itself is an important part of that nurture, a court must carefully weigh that aspect of the child's life." In re A.W., supra, 103 N.J. at 610.

The trial court had sufficient, credible evidence to support a finding that termination of S.J.'s and C.H.'s parental rights would not cause more harm than good. Dr. LoBiondo testified that J.H. had a "definite secure and significant attachment" to A.B. and W.B. The attachment J.H. had with S.J. was more of an "ambivalent attachment," and their relationship was more like that between peers than between parent and child. The doctor was concerned about the potential harm that S.J.'s unemployability, immaturity and drug and alcohol abuse would have on J.H. Consequently, she did not recommend reunification.

Dr. Kanen testified that placing J.H. in C.H.'s care would "expose [J.H.] to an unnecessary risk of harm," particularly because of C.H.'s substance abuse and violation of others' rights. He found that C.H. would not be able to parent J.H. The trial court appropriately gave substantial weight to the testimony of the experts. Their testimony, along with defendants' failure to remedy the issues that required removal in the first place, are sufficient evidence to support the court's finding that prong four is satisfied.

Affirmed.


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