April 27, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT,
F.A. AND O.F.A., DEFENDANTS-RESPONDENTS.
IN THE MATTER OF THE GUARDIANSHIP OF O.E.A., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-78-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 13, 2011
Before Judges Axelrad and J. N. Harris.
Plaintiff New Jersey Division of Youth and Family Services (the Division) appeals the July 6, 2010 final order of the Family Part dismissing its Title Thirty*fn1 complaint for guardianship, terminating the litigation, reopening the matter as a Title Nine*fn2 proceeding, and ordering the Division "to pursue a permanency plan of Kinship Legal Guardianship." This disposition resulted from the grant of the Law Guardian's motion to dismiss when the Division announced it had completed the presentation of evidence and rested its case. See R. 4:37-2(b). We conclude that the Division's proofs were sufficient to withstand a motion to dismiss. We reverse and remand for an entirely new trial, which shall be managed, tried, and resolved with all deliberate speed, but in no event later than November 30, 2011. This matter must receive a maximum priority on remand.
Because this matter was determined in the context of a motion to dismiss at the conclusion of the Division's case, we conduct a more searching review than if done at the close of the entire case, and accept the truth of the Division's evidence together with the legitimate inferences that can be drawn therefrom. Cameco, Inc. v. Gedicke, 157 N.J. 504, 509 (1999). Accordingly, our recitation of the facts is most favorable to the Division.
Floyd and Olivia are the biological father and mother of Evan,*fn3 who was born in 2004 in Maryland. The parents immigrated to the United States from Nigeria in 1997. Neither are citizens of the United States. Olivia voluntarily remains at a mental health facility in Maryland, where she has resided since May 2005. In addition to Evan, now six years of age, Floyd and Olivia have a nine-year-old daughter who resides with relatives in Nigeria. Evan is the only child involved in this appeal.
The family first came to the attention of the Division in October 2006, after New Jersey Transit Police reported observing Floyd and Evan (then two years of age) sleeping at Newark's Penn Station. Discovering that Floyd had very little money or food, and was unable to provide suitable housing for himself or his son at that time, the Division effected an emergency removal and filed a Title Nine complaint and order to show cause seeking custody of the infant.
On November 27, 2006, a Family Part judge (not the trial judge) conducted a fact-finding hearing at which he determined that Floyd had not abused or neglected Evan, but was unable to care for the child due to lack of housing and employment, and that Olivia was similarly incapable because she had previously been committed to a psychiatric hospital, in Maryland, following an assault on Floyd. Initially, she was deemed not competent to stand trial, but when competency was restored, she entered a plea of not criminally responsible by reason of insanity. Md. Code Ann., Pleas § 4-242(a) (2011).
The Family Part further ordered that the matter would proceed under a Title Thirty proceeding but that Evan could be returned to Floyd "upon determination by the Division that [Floyd] has suitable housing and employment." Because no relative resources had been identified at that time, Evan was placed in foster care.
At a compliance review proceeding in March 2007, the court ordered that Floyd's then two male roommates be contacted to ascertain whether they were willing to have the child placed in their home. When it was determined that neither roommate was prepared to comply with the assessment process, the Division referred Floyd to Tri-Cities Peoples Corporation (Tri-Cities) for assistance in locating suitable housing. Meanwhile, the Division began an assessment of Olivia's maternal aunt and her husband as possible relative resources. However, both were ruled out in July 2007 due to the uncle's prior criminal history.
Another compliance review proceeding was conducted on July 19, 2007, at which the court ordered the Division to assist Floyd "with securing information regarding obtaining a green card." Two months later, a different Family Part judge more emphatically ordered the Division "to assist [Floyd] in obtaining his green card." On September 10, 2007, a permanency order was entered, which indicated that the Division's permanency plan to return Evan to Floyd was "appropriate and acceptable." The order contemplated implementation of the permanency plan by March 5, 2008.
In March 6, June 12, and July 23, 2008 orders, the court continued all previous orders, but did not implement the permanency plan. On September 10, 2008, a third Family Part judge (the eventual trial judge) entered a permanency order that provided:
It is not and will not be safe to return the child[ren] home in the foreseeable future because mother is currently in a psychiatric institution. Father has not addressed the situation that led to the removal, including stable housing, stable employment, correct his immigration status, and comply with Division services.
After finding the Division's new permanency plan -- termination of Floyd's and Olivia's parental rights -- was "appropriate and acceptable," the judge ordered the Division to "file to terminate parental rights . . . no later than October 23, 2008."
While these court events were occurring, neither defendant's situation had changed. Although Floyd had relocated to a different apartment unit, it was determined to be ill-suited for Evan because it lacked a kitchen.*fn4 Olivia remained in Maryland, in part because she was "not clinically ready" to be discharged, and in part due to difficulty in finding alternative housing.
Meanwhile, Evan was placed in his current foster home in January 2008.*fn5 In a letter dated July 17, 2008, the foster mother, Ms. Thomas (a pseudonym), expressed a desire to permanently care for Evan, a willingness to provide him with continuing cultural support services, including sending him to a school with many Nigerian teachers, and taking him to a Nigerian doctor. She was also open to facilitating visits with Floyd, and, in fact, saw the son's relationship with his father as important to his development. During a visit on December 12, 2008, a Division caseworker observed Ms. Thomas's home to be "neat, clean, and organized." Evan was well groomed and enthusiastic for the caseworker's visit.
On October 29, 2008, the Division filed the Title Thirty guardianship complaint against Floyd and Olivia. In May 2009, the Family Part entered an amended permanency order approving the Division's plan of termination of parental rights followed by adoption. It determined that Floyd had been unable to find or maintain suitable housing for himself and his son, and that Olivia was absent from the child's life due to her psychiatric condition. It also found that the Division had made reasonable efforts to achieve reunification with Floyd including providing "parenting skills, weekly visits [with Evan], referral to immigration services and referral to psychological evaluation, and assessment of relatives for placement."
At a case management conference held on July 9, 2009, Olivia appeared by telephone, and with the assistance of an interpreter consented to the release of her medical records to the Division. She also agreed to appear in court for the scheduled trial (scheduled to begin on September 14, 2009), and to be assessed by the Division's expert, Dr. Mark Singer, Ph.D. However, the following week, the court dismissed the Division's complaint due to perceived issues surrounding Olivia's mental capacity to participate in the proceedings. An order terminating the litigation was entered on July 17, 2009.
In October 2009, the guardianship complaint was reinstated on the Division's motion pursuant to Rule 4:50, but the court then bifurcated Floyd's trial from Olivia's. On November 6, 2009, the court issued another permanency order, again validating the Division's plan of termination of parental rights followed by adoption.
Floyd's trial commenced on May 3, 2010. The matter remained bifurcated over the objection of the Division, but Olivia's attorney was present, as was she by telephone from Maryland.*fn6 Three witnesses testified for the Division: caseworker Kali Holland, Ms. Thomas, and Dr. Singer.
Holland testified that following the Division's initial investigation of abuse and neglect, the allegation of neglect was substantiated on the basis that Floyd was unable to provide stable housing for himself and his son. She confirmed that Floyd's long-held permanency plan for himself and Evan was to return to Nigeria with Olivia once she was released, but that Olivia harbored a contradictory plan, which was to pick up Evan and return to Maryland without Floyd. When Holland confronted Floyd about Olivia's conflicting plan for their son, Floyd expressed that he "feels like [Olivia's] mental illness causes that reaction in her." Holland testified that Floyd was not receptive to the possibility of parenting Evan without Olivia, and insisted upon having her in his and Evan's lives.
Holland further testified that while Floyd would be able to parent once he obtained "safe and stable housing," it was not recommended that Floyd co-parent with Olivia because parenting with her would be unsafe for Evan. Nevertheless, Floyd was adamant about including Olivia in the family unit, regardless of her mental status.
Ms. Thomas next testified concerning her commitment to adopting or serving as a kinship legal guardian (KLG)*fn7 for Evan. She confirmed her commitment to caring for Evan for the long-term, whether it be through adoption or KLG, and was supportive of Evan maintaining a relationship with his biological family.
The Division presented Dr. Singer as its last witness. Notwithstanding the bifurcation order, Dr. Singer was permitted to comment upon Olivia's psychological condition, which he had assessed, as part of the Division's case against Floyd. Dr. Singer had conducted a psychological evaluation and bonding analysis relating to Floyd in May and December 2009, and summarized his findings in written reports. At the time of the latter evaluation, Evan had been physically separated from his father's daily care for approximately three years.
Throughout the psychological evaluation of Floyd, he repeatedly expressed a desire to return to Nigeria with his wife and son. However, he was unable to describe with any specificity where they would live or how he would find employment. He acknowledged his wife's psychiatric condition, reporting that "she heard voices," but maintained that once they returned to Nigeria, prayer would make the voices go away. He was committed to raising Evan with Olivia and stated that he would not return to Nigeria without her.
With respect to Floyd's plan to co-parent Evan with Olivia, Dr. Singer testified that Floyd's denial that Olivia suffers from a "significant . . . chronic mental illness . . . leads one to believe that . . . [his] plan is just not a realistic, viable plan for [Evan]." Dr. Singer further noted that Floyd's heritage and culture "is having a tremendous impact on his ability to plan."
Dr. Singer also conducted a bonding evaluation of Floyd and Evan. Dr. Singer observed that although Evan sat on his father's lap for the majority of the evaluations, his interactions with his father were mostly non-verbal, and "[he] tended to speak more responsively than he did spontaneously." Evan himself presented as a "friendly, very well-groomed young man." When asked about where Evan would like to live, Dr. Singer indicated that the youngster was conflicted, "he indicated that he would live with his father or live with his foster mom and brother and dad."
Dr. Singer opined that while Evan "intellectually" understood that Floyd was his father, he did not view him as a consistent parental figure in his life. Nonetheless, Dr. Singer concluded that although Evan was attached to Floyd, Evan enjoyed only one psychological parent: Ms. Thomas. If Evan's relationship with Floyd were to be severed, Evan would likely negatively react to such a loss, but in Dr. Singer's words, "the data does not suggest that it would be significant and enduring."
In January 2010, Dr. Singer conducted a psychological evaluation of Olivia in Maryland. The evaluation was conducted with the help of an interpreter, although Dr. Singer noted that Olivia "appeared to have a command of the English language." The purpose of the evaluation was to assess Olivia's parenting ability and adjudge her capacity to participate in guardianship proceedings.
At the time of the evaluation, Olivia had been hospitalized for a continuous period of approximately four years. Although she was permitted to leave the facility in May 2008, she had remained a voluntary patient there to the present.
Dr. Singer noted that Olivia exhibited signs of denial, maintaining that she only took one vitamin a day and did not suffer from mental illness. With regard to her plans for the future, Olivia confirmed that she did not wish to return to Nigeria despite Floyd's desire that they do so. During the interview she told Dr. Singer that she did not wish to be married to Floyd any longer, and would like to care for her son in Maryland where she had family. She asserted that she and Evan would live with her aunt and godfather, who would also help care for Evan.
From his review of Olivia's medical records, Dr. Singer noted that if she were discharged and failed to comply with medical protocol, she could experience psychotic episodes, which would place Evan at risk of harm. In general, Dr. Singer observed that Olivia "has difficulty formulating a realistic long-term plan . . . and cannot plan appropriately in her child's best interest."
Dr. Singer also conducted bonding evaluations of Evan and his foster mother in May 2009 and in March 2010. From both evaluations he concluded that there was not only an attachment between them, but that Evan has come to view her as a "consistent, central parental figure" and "psychological parent" in his life. When asked what effect it would have on Evan for him to remain in his current foster home but not be adopted, Dr. Singer stated that such a situation would "perpetuate a conflict within [Evan]" which had already been evidenced by some aggressive behavior. In his opinion, if Evan were to be separated from his foster mother he "would likely have a significant reaction to that loss." He recommended adoption by Ms. Thomas and termination of parental rights, opining that the "healthy, secure attachment to his psychological parent and that relationship would likely serve to mitigate any of the impact that [Evan] may experience should he never see his dad again."
On June 25, 2010, upon completion of the Division's case, the Law Guardian moved to dismiss the complaint pursuant to Rule 4:37-2(b). On July 6, 2010, following oral argument, the trial court granted the motion, reinstated the long terminated Title Nine proceedings, and ordered the Division to pursue a KLG with Ms. Thomas.
Specifically, the court found that giving the Division all favorable inferences, it had failed to prove, by clear and convincing evidence, that termination of parental rights would not do more harm than good.*fn8 The court agreed with the Division that 1) reunification with Floyd, given his housing situation was not prudent or foreseeable, and 2) that Evan is bonded to Ms. Thomas with whom he feels comfortable and is attached. However, noting that Floyd had also been a consistent parental figure in Evan's life, visiting him on a weekly basis since the initial removal, the court adopted part of Dr. Singer's opinion that if Evan's relationship with Floyd were severed, Evan would suffer emotional harm. Accordingly, the court ordered, at the suggestion of the Law Guardian and Floyd's counsel, that the Division pursues a KLG for Evan as an alternative to termination of parental rights. No findings or conclusions were stated as to Olivia, and as far as the record reveals, there have been no further proceedings regarding the Division's claims against her, although we believe that may be due to the dismissal of the guardianship complaint in its entirety.*fn9
The narrow issue raised in this appeal is whether the Family Part correctly applied the directed verdict standard. Unlike a more mainstream Title Thirty appeal, we do not engage in the usual deferential review of the Family Part's fact findings. Cf. Seidman v. Clifton Sav. Bank, S.L.A., __ N.J. __ (2011) (slip op. at 37) (restating that final determinations made by a trial court sitting in a non-jury case will be upheld as long as they are supported by substantial credible evidence in the record); N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010) (observing that factfinding and discretionary decisions of the family part are accorded particular deference due to the specialized nature of the court).
Under Rule 4:37-2(b), a motion for a directed verdict should be granted only if "upon the facts and upon the law the plaintiff has shown no right to relief." Conversely, "such [a] motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Id.; see also Verdicchio v. Ricca, 179 N.J.1, 30 (2004). Dismissal is appropriate only when "no rational [trier of fact] could draw from the evidence presented by plaintiff" that an essential element of the plaintiff's case is present. Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 340 (App. Div. 2001).
These principles are fully applicable in the Family Part, and apply to termination of parental rights' proceedings. In re Guardianship of R., 155 N.J. Super. 186, 193 (App. Div. 1977).
In Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969), the Supreme Court described the judicial role as follows:
In the case of motions for involuntary dismissal, the test is, as set forth in R. 4:37-2(b) and equally applicable to motions for judgment, whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor" of the party opposing the motion, i.e., if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. . . . The point is that the judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion. [Id.]
More recently, the Court held that "[a] motion for involuntary dismissal only should be granted where no rational juror could conclude that the plaintiff marshaled sufficient evidence to satisfy each prima facie element of a cause of action." Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008). The issue in this case is whether the Division established a prima facie case for termination of parental rights, sufficient to withstand the Law Guardian's motion to dismiss. Our review of the record convinces us that the Family Part erred in two fundamental ways: first, the court did not give the Division the benefit of all reasonable inferences from the record, and second, the court engaged in a weighing process of the available evidence that is countermanded by the required "mechanical" approach of our jurisprudence. The court, at this juncture of the trial, was not permitted to reject the worth of the Division's proofs, even if its experience and intuition suggested that the Division's case would not become stronger as the trial progressed.
A parent's right to raise his or her child is a fundamental right under both the New Jersey and federal constitutions. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 109 (App. Div.), certif. denied, 180 N.J. 456 (2004); N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 83 (App. Div. 2003) (citing In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Moreover, "the period of time a child has spent in foster care is not determinative of whether parental rights to that child should be terminated, as '[t]he protection of parental rights continues when a child is placed in foster care.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 169-70 (2010) (quoting K.H.O., supra, 161 N.J. at 347); see also, C.S., supra, 367 N.J. Super. at 109.
A parent's right to be free from all government intrusion, however, is not absolute, and the State may use its parens patriae power to protect the health and general welfare of children. S.V., supra, 362 N.J. Super. at 83. Because termination of parental rights is the ultimate interference, however, we hold the State to a heightened standard of proof in order to sustain an action for termination of parental rights.
I.S., supra, 202 N.J. at 151. "Merely showing that a child would be better off with an adoptive parent rather than with the biological parent is not enough." In re Adoption of Children by C.P.B., Jr., 161 N.J. 396, 404 (1999). Rather, the Division must satisfy, by clear and convincing evidence, the four prongs of the best interests of the child test articulated in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591 (1986) and codified in N.J.S.A. 30:4C-15.1(a). The four criteria are:
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.]
While these elements are intended and expected to overlap, together providing a comprehensive analysis of the child's best interests, C.S., supra, 367 N.J. Super. at 111; S.V., supra, 362 N.J. Super. at 84, harm to the child is the touchstone of termination of parental rights cases, I.S., supra, 202 N.J. at 167.
In particular, "'[t]he fact that the parents may be morally blameless in [an] unfortunate situation is not conclusive on the issue of permanent custody.'" N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 439 (App. Div. 2001)
(quoting In re Guardianship of R., supra, 155 N.J. Super. at 194-95), certif. denied, 171 N.J. 44 (2002). That is, the fact that there is an absence of abuse or similarly reprehensible conduct should not tip the scales in favor of a parent by virtue of that fact alone. It is the best interests of the child that is the focus, not the "presence or absence of . . . fault." Ibid.
In granting the motion to dismiss, the Family Part focused on the third and fourth prongs of N.J.S.A. 30:4C-15.1, as will we. The third prong of the best interests analysis requires the Division to show that it "has made reasonable efforts" to assist the parent in correcting or improving the circumstances which led to the removal. N.J.S.A. 30:4C-15.1(a)(3). In its decision, the trial court wavered on whether the Division had demonstrated such efforts, first stating that the Division would not be able to sustain its burden on this element, but ultimately finding that it had in order to go forward with a KLG.
Although the court's reasoning on this prong was not well articulated, we readily conclude that the Division supplied more than sufficient evidence to withstand the motion for a directed verdict. In April 2007 and again in October 2008, Floyd was referred to Tri-Cities for housing assistance and later on to Catholic Charities for both housing and immigration assistance. Floyd was also offered counseling and parenting skills, however, the extent to which he availed himself of any of those services is unclear. On July 17, 2009, the court ordered the Division to explore whether Floyd was eligible for housing assistance in light of his immigration status. In response, Holland took Floyd to the Newark Housing Authority to apply for low-income housing and to the Nigerian Consulate in New York City in August 2009 to help re-establish his identity since Floyd had reportedly lost all proof of identification.
The Division also considered alternatives to termination of parental rights, including assessments of relatives living in New Jersey and Nigeria. Olivia's relatives were ruled out due to an unsavory personal history and by the time the home study was completed for the Nigerian relatives, it was determined that moving Evan out of his foster home to live with relatives whom he had never met was against his best interests. Because the Division demonstrated substantial efforts to both improve Floyd's circumstances and facilitate reunification with Evan, there was sufficient evidence to satisfy this element of the Division's prima facie case.
The trial court primarily based its order granting the motion to dismiss and terminating the guardianship complaint on the fourth prong of the best interests standard, finding that the Division did not demonstrate that terminating Floyd's parental rights would not cause Evan more harm than good. We disagree that a prima facie case was not established.
To satisfy its burden of proof as to this prong, DYFS presented the testimony of Dr. Singer. Dr. Singer identified the two major issues in this case: 1) Floyd's inability to parent Evan and 2) the nature and quality of attachment between Evan and his father, as well as between Evan and his foster mother. With respect to Floyd's parenting ability, Dr. Singer observed that he continued to lack the physical resources to care for Evan in the United States. Dr. Singer suggested that Floyd's failure to find work or housing could be tied to his inflexible view that the best option for his family was to relocate everyone to Nigeria.
Regarding Evan's emotional attachment to both Floyd and Ms. Thomas, Dr. Singer reported that even seeing his father weekly, Evan did not view Floyd as a consistent parental figure in his life. Moreover, Dr. Singer concluded that if Floyd's parental rights were terminated, Evan's reaction would be neither significant nor enduring, and would likely to be mitigated by Evan's strong continued relationship with his foster mother, whom he had come to view as his psychological parent.
Dr. Singer also commented that the co-existence of these two adult figures in Evan's life had created conflict, stressing the importance of a permanent arrangement for Evan. As such, he recommended adoption by Evan's foster parent was in the child's best interests, thereby necessitating termination of Floyd's parental rights.
Viewing these Division-produced proofs, "together with the legitimate inferences therefrom," there was sufficient clear and convincing*fn10 evidence to enable -- but not necessarily require -- the court to find that termination of parental rights would not do more harm than good. R. 4:37-2(b). Not only was the Division not required to prove more than this at that juncture, the trial court was constrained in deciding the motion from assessing "the worth, nature, or extent . . . of the evidence." Dolson, supra, 55 N.J. at 5-6. "'[A]ccording [the Division] the benefit of all inferences which can reasonably and legitimately be deduced therefrom,'" we find that "'reasonable minds could differ'" and the motion should have been denied. Verdicchio, supra, 179 N.J. at 30 (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)).
Because there must be a retrial, we will briefly address the question of the bifurcation of the proceedings. From what we have reviewed, we cannot detect a sound basis to try separately the Division's claims against Floyd and Olivia. Although we recognize that the bifurcation decision was committed to the sound discretion of the Family Part, we believe that the overarching goal of achieving a permanent arrangement for Evan requires that the Division's claims against both parents go forward together. In so ordering, we do not expect that the Family Part will abdicate its responsibility to ensure a fair trial for all concerned or otherwise abandon its duty to oversee the administration of justice according to established principles. Questions of a party's mental capacity, appointment of a guardian ad litem, provisioning a translator, and ensuring appropriate participation in the proceedings are illustrative of the issues that must be given scrupulous attention by the Family Part on remand. We in no way suggest that the trial court committed any errors of omission in this regard. Instead, our comments regarding bifurcation reflect our inability to detect an objective jurisprudential basis for the court's action.
As done in analogous circumstances, we order that this matter be referred on remand to a different trial judge by the vicinage assignment judge or Family Part presiding judge. See In re Baby M, 109 N.J. 396, 463 n.19 (1988). The original trial judge's potential "commitment to its findings," A.W., supra, 103 N.J. at 617, and the extent to which a judge "has already engaged in weighing the evidence," In re Guardianship of R., supra, 155 N.J. Super. at 195, persuade us to make that change. On remand the trial court will consider developments subsequent to the original trial court's dismissal, and subject to the November 30, 2011 deadline, shall facilitate the parties' ability to adequately prepare for trial anew.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.