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New Jersey Division of Youth and Family Services v. T.L.W

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 8, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
T.L.W., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF T.S.M.-W AND A.W., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-153-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 7, 2012 -

Before Judges Sabatino and Ashrafi.

Defendant T.L.W. appeals from a judgment of the Family Part terminating her parental rights to her two sons, now three and two years old. The Division of Youth and Family Services (DYFS) has had custody of the boys since their birth, and they have been in the care of their foster mother the entire time. The foster mother wishes to provide a permanent home for them by adoption. We affirm the Family Part's judgment.

I.

Defendant T.L.W. is the teenage biological mother of T.S.M.-W. and A.W. Her own childhood has been tragic. When defendant was a young child, DYFS received about two dozen referrals alleging that she was neglected and abused by her mother, who was a "severe" drug addict. The identity of defendant's father is unknown, and her mother died when defendant was twelve years old. She reported physical abuse at the hands of her grandmother and was placed in the care and custody of DYFS. From 2006 to 2011, DYFS placed defendant in more than twenty different foster homes, residential facilities, and shelters, making repeated changes because of her propensity to run away.

Defendant has substantial mental health and behavioral problems. She is emotionally volatile and prone to aggressive outbursts. As a child, she was admitted to Underwood Hospital Children's Behavioral Health Program for psychiatric treatment. Mental health professionals indicate she suffers from post-traumatic stress disorder, bipolar disorder, and oppositional defiance disorder. In 2005 and 2006, she received outpatient psychotherapy at Kennedy Health Center in Stratford. At another time, she was admitted to the crisis unit at a hospital in Cherry Hill. In October 2009, she was hospitalized for one night for psychiatric treatment related to "suicidal ideation." A DYFS caseworker also reported an instance of "homicidal ideation." A 2009 DYFS report indicates that defendant was "medically non-compliant."

Defendant has struggled at school. She has an IQ of sixty-six, in the bottom two percent of the population. She has not been able to achieve academically since a young age, and she was shunned by her peers. In addition to cognitive deficits, defendant's education has been fragmented and intermittent because of frequent relocation, three pregnancies, and her running away. Defendant's behavioral problems, especially aggression and fighting, have resulted in many suspensions and expulsion from school. She did not advance beyond ninth grade.

Defendant has a history of sexual promiscuity and sexually transmitted diseases. She states she was sexually abused as a child by a relative. She also states she was raped by the grandson of a foster parent when she was about twelve years old, and she mentioned another incident of sexual molestation by a foster parent in a different home. By the age of fifteen, DYFS was receiving reports from foster parents that defendant was "run[ning] the streets," using illegal drugs, and becoming involved in relationships with much older men. More recently, DYFS received reports that she may be engaged in prostitution. On multiple occasions, she has tested positive for or admitted to use of marijuana and PCP. She is a daily drug user but maintains she does not have a drug problem.

Defendant has had multiple encounters with law enforcement, beginning at about the age of thirteen. In 2007, she was arrested for assault and placed on probation. In May 2009, she was detained by Camden police for breaking the city's curfew. In September 2009, she was arrested for aggravated assault and criminal mischief after kicking out the window of a patrol car. She has also been arrested for shoplifting. In 2010, defendant was placed on house arrest for violating the terms of a prior probationary sentence. In 2011, she was arrested for attempting to purchase alcohol as a minor, and charged with underage possession of alcohol, obstruction of justice, resisting arrest, and criminal mischief. Defendant is an "adjudicated juvenile" for committing "aggressive assault."

After her first pregnancy ended in miscarriage, defendant became pregnant again at the age of fifteen and gave birth to T.S.M.-W. in November 2008. The father was twenty-four years old. After the Family Part granted DYFS custody of the child, DYFS placed the infant with the foster mother who was then caring for defendant so that defendant and the infant could be together. For six months, defendant resided in that foster home and had some limited involvement in the care of T.S.M.-W. After she left the foster home, defendant would not visit the child for months at a time.

Defendant became pregnant again and gave birth to A.W. in May 2010. During the pregnancy, DYFS received reports that defendant was using drugs and had engaged in violent altercations. DYFS referred her for a psychological evaluation, including a parenting assessment. Larry Seidman, a licensed psychologist, administered the Parenting Stress Index-Short Form and concluded:

[Defendant] does not exhibit the psychological development, maturity, accountability, and responsibility to care for [T.S.M.-W.] at this time, given the best of psychological and psychiatric support. . . . It is not recommended that [defendant] be given custody of [A.W.] and further that the possibility of her caring for her child in a Mother and Child Therapeutic Home also appears extremely doubtful.

DYFS obtained custody of A.W. and placed him with the same foster mother who was caring for T.S.M.-W. The foster mother allowed defendant to return to her home, and defendant stayed there for three months. She provided almost no care to her sons during that time but claimed that she was not allowed to do so.

Defendant has not resided with her sons or interacted with them on a daily basis since August 2010. She does, however, attend visitation. Under the foster mother's care, the children are healthy and they are achieving developmental milestones. The foster mother has cared for more than thirty foster children, and she maintains lasting relationships with many of them. The foster mother desires to adopt the two boys. T.S.M.-W.'s father has surrendered his parental rights. The identity of A.W.'s father is unknown. DYFS has ruled out extended family members of defendant as potential caregivers or kinship legal guardians.

From 2006 to 2011, DYFS has undertaken at least forty referrals for defendant to evaluate and treat her deficits, including educational services, psychological evaluations, counseling services, and residential placements. The theme that runs through DYFS reports is that "[i]t was very difficult to provide [defendant] services as she was often in missing status" and when present was "mostly non-compliant with services."

DYFS has provided defendant with specialized education. In October 2006, DYFS placed defendant at Vineland Residential Center, an alternative residential school for students struggling with substance abuse and other behavioral problems. In September 2007, DYFS placed her at the Bankbridge Middle School, a Gloucester County special services school designed to educate students with special needs. In March 2009, DYFS referred her to an individualized educational program. In August 2009, DYFS enrolled defendant at Camden High School for ninth grade. When she did not continue in high school, DYFS referred her for GED classes.

Defendant has undergone several psychological evaluations to identify and treat her mental health conditions. In July 2008, DYFS referred her for a psychiatric evaluation to address her emotional volatility and aggressive outbursts. Abayomi Ige, a board certified psychiatrist, diagnosed her condition as adjustment disorder with mixed disturbance emotion and conduct and borderline intellectual function; Dr. Ige recommended placement in a "stable therapeutic environment."

In November 2008, DYFS referred her for a psychological evaluation. Marla Deibler, a licensed psychologist, also diagnosed her as having adjustment disorder with mixed disturbance emotion and conduct and borderline intellectual function; Dr. Deibler recommended parenting classes and placement in a "therapeutic foster home" where defendant could develop "long-term bonding relationships with caregivers."

In January and October 2010, DYFS referred defendant for two psychiatric evaluations to comply with a court order. Fredric Shecter, D.O., diagnosed her with disruptive behavior disorder and borderline intellectual function; he recommended parenting classes and vocational training. Alex Strauss, M.D., diagnosed her with post-traumatic stress disorder, disruptive behavior disorder, and borderline intellectual function; he recommended "more intensive treatment," perhaps a "residential treatment center."

In September 2010, DYFS referred defendant to a second evaluation with Dr. Seidman, who administered various cognitive assessments. He diagnosed oppositional defiant disorder, bipolar disorder, post-traumatic stress disorder, mood disorder, cannabis abuse, and mild mental retardation. He noted that defendant is "highly susceptible to a neurotic breakdown . . . at some point in the future" and that she lacked the capacity to complete a GED program. Dr. Seidman concluded that defendant "does not exhibit the intellectual, psychological, and social wherewithal to [be] responsibl[e] to care for her child without the presence of twenty-four hour supervision."

In February 2011, DYFS referred defendant for another court-ordered psychiatric evaluation related to her substance abuse and behavioral problems. Hatice Yilmaz, M.D., diagnosed disruptive behavioral disorder, mood disorder, cannabis abuse, and borderline intellectual function. The doctor recommended drug treatment, parenting classes, and anger management counseling.

Over the years, DYFS provided about twenty different counseling services. In October 2007, DYFS referred defendant to Velez Professional Services for anger management classes. Letters from Velez indicated she was not attending classes, and she was discharged. In August 2008, DYFS referred her to the SAFE program, a counseling service for at-risk youth. She was discharged for defiant behavior and fighting.

After she became a mother, DYFS referred defendant to parenting and counseling programs, but she declined the services. In May 2009, DYFS referred her to Genesis Counseling Services for substance abuse counseling. In October 2009, DYFS referred her to Jescofound, a mentoring service for at-risk youth. The mentor reported minimal progress. In 2010, DYFS referred her to the Center for Family Services three times for parent training classes, but defendant was terminated from the program because of poor attendance. In 2010, DYFS also referred defendant to SODAT twice for counseling for drug addiction and anger management. She did not attend consistently.

In March 2010, DYFS referred her to Steininger Behavioral Care Services for individualized counseling. At the same time, DYFS referred her to Children's Opportunity Center for anger management and parenting courses. Defendant participated in the program but struggled to make progress. In 2010, DYFS referred her to Velez Professional Services a second and third time for individualized counseling and anger management classes. Velez discharged her in June 2010 for failure to attend. In 2010, DYFS also referred defendant to Genesis Counseling Services twice for substance abuse counseling. She only attended intermittently and was discharged for non-compliance once and abandoned the counseling another time.

DYFS has struggled to place defendant in stable housing. In 2006 alone she was placed in sixteen different foster homes. Defendant explained the multiple placements during a psychological evaluation: "I don't do what [the foster parents] want me to do and I do be ignorant to them . . . . [I]f I don't like them, I'm gonna do something to get DYFS to get me out of the house."

After completing the residential program at the alternative school in Vineland, defendant was placed at Community Treatment Solutions, a group home that serves neglected and abandoned children, but she was discharged in December 2007 after she became pregnant. In 2008, she had six different residential placements, including several shelters.

When defendant was pregnant with A.W., DYFS attempted to place her in a "Mommy and Me" program at the Union Industrial Home for Children, a residential program that provides support services that allow a teenage mother to be with her child. During the admission interview, defendant stated she did not want to participate because the home banned cell phones. In 2010, DYFS contacted other "Mommy and Me" programs but was unsuccessful because some programs had no room while others refused to accept defendant because of her behavioral history.

In 2009, she was placed at two different shelters. In October 2010, DYFS referred her to the Camden DREAMS program, which provides young adults with apartments in Camden to allow them to develop independence. Shortly thereafter, DYFS placed defendant in the Anchor House, a shelter for runaways and homeless youth. In November 2010, DYFS placed her at Ranch Hope, a residential treatment program for neglected teenage girls. By January 2011, defendant was back at the Youth Emergency Shelter.

In February 2010, DYFS referred defendant for a court-ordered psychological and bonding evaluation related to DYFS's complaint for guardianship of T.S.M.-W. Chester Sigafoos, a licensed psychologist, administered six clinical tests and diagnosed defendant with post-traumatic stress disorder, bipolar disorder, obsessive-compulsive disorder, depressive personality traits, cannabis abuse, and mild mental retardation. Dr. Sigafoos concluded that defendant's deficits result in "difficulty reading and understanding basic written instructions necessary to care for . . . children," "poor coping skills and difficulty . . . manag[ing] stressful situations," a tendency to "maintain[] distance in relationships . . . [which] will negatively impact on her ability to bond and form attachments to her child," and a general inability to protect children because of poor judgment and emotional volatility. He noted that defendant's prognosis is "poor" and she would probably need continuous treatment.

Subsequently, Dr. Sigafoos conducted the comparative bonding evaluation and observed that T.S.M.-W. gave the foster mother the focused attention that a child directs to a parent while he only gave defendant superficial attention and showed more interest in the environment and strangers. Dr. Sigafoos concluded that defendant was unable to provide T.S.M.-W. nurturing and stable guidance and that he "is strongly attached to the foster parent and will suffer serious and enduring harm if not allowed to have a continued relationship with her. [Defendant] does not have the capacity to help the child to recover from this loss."

A second psychological and bonding evaluation was conducted in March 2011 after DYFS's filed a complaint for guardianship for both T.S.M.-W. and A.W. Frank Schwoeri, a clinical psychologist, noted that during the interview defendant made statements that "reflect at least her lack of reflective self-awareness, related in turn to her low level of cognitive functioning, if not also a lack of actual parental concern for and involvement with her children." He also concluded that her "cognitive limitations make it very unlikely that she can live independently without substantial support." The Adult Adolescent Parenting Inventory was administered to assess defendant's propensity for child neglect and abuse. Her score "indicate[d] grossly deficient parenting attitudes, values, and beliefs, placing her at high risk for neglecting or abusing her own children."

During the comparative bonding evaluation, Dr. Schwoeri observed that T.S.M.-W. had formed "a degree of comfort" with defendant but concluded there was not a secure attachment bond, characterizing the relationship as that of a relative. A.W. exhibited passive and avoidant behavior when interacting with defendant, indicating no attachment. By contrast, Dr. Schwoeri observed that T.S.M.-W. has a secure attachment to the foster mother and that A.W. had a specific attachment to her. Dr. Schwoeri concluded that T.S.M.-W. and A.W. "would suffer significant and enduring harm should they be moved from their current placement with their foster mother," and that the boys do not "have a securely established attachment bond with their biological mother. . . . [so n]either child would suffer significant or enduring harm if [defendant's] parental rights were terminated." The report also noted that defendant "[s]till [is] a child herself with very substantial deficits and limitations[;] it will be years, if ever, before she would be ready to provide effective care for her children."

II.

In December 2010, DYFS filed a complaint for guardianship of both children. Trial was held over two days in May 2011. The court heard testimony from Dr. Schwoeri, a DYFS caseworker, and defendant. In an oral decision, the court noted the standard for termination of parental rights under N.J.S.A. 30:4C-15.1a, made relevant findings of fact, and held that termination of defendant's parental rights was in the best interest of the children.

A deferential standard of review applies to the Family Part's judgment terminating parental rights. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We do not disturb the Family Part's credibility determinations or findings of fact unless they are so wide of the mark that they are clearly mistaken. G.L., supra, 191 N.J. at 605.

Termination of parental rights is in the best interest of a child when:

(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-15.1a.]

"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). DYFS must prove each component of the best interest standard by clear and convincing evidence. G.L., supra, 191 N.J. at 606. Our detailed recitation of the record leaves no question that DYFS proved by clear and convincing evidence the statutory criteria for termination of defendant's parental rights.

Defendant argues that DYFS failed to prove the first requirement of N.J.S.A. 30:4C-15.1a because "there was no evidence that [she] ever put the children in actual danger." Additionally, she argues any future harm posed by her cognitive limitations was "overstated" and she cannot be penalized for harm arising from her unstable life because she was in the care of DYFS.

The first component of the best interest standard "does not concentrate on a single or isolated harm or past harm as such. .

. . [T]he focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. The trial judge identified two harms: the lack of permanency for the children and the "limited internal resources, unstable housing, no family support, incomplete education, [and defendant's] inability to support herself, let alone children."

The Supreme Court has "recognized the need for children to have permanent and stable relationships with a nurturing parent figure." In re Adoption of Children by LA.S., 134 N.J. 127, 140 (1993) (citing In re Guardianship of J.C., 129 N.J. 1, 26 (1992)). Cognizable harms under N.J.S.A. 30:4C-15.1a(1) include parental neglect, lack of nurture, and failure to provide a stable home, which cause psychological and developmental harm to young children. See K.H.O., supra, 161 N.J. at 353; In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999); N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591-92 (App. Div. 1996); In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977). Here, defendant has never been a primary caregiver to her sons, and she cannot provide a stable home for them.

Nor can defendant credibly attribute her parental deficits to DYFS. The statute does not look to why a parent causes harm but whether a child is in fact harmed by the parental relationship. See N.J.S.A. 30:4C-15.1a(1). The focus is the best interest of the child, not the cause of the parent's harmful behavior. Furthermore, DYFS did not prevent defendant from caring for her sons, or learning parenting skills. DYFS placed her sons in the same home where she was placed and provided her with the opportunity to be a caregiver with the supervision of an experienced foster mother. The foster mother reported that defendant would not visit for months at a time after she left the home.

DYFS also attempted to place defendant in "Mommy and Me" programs for teenage mothers, but those programs declined to accept her because of her aggressive behavior. When one home was willing to consider her application, she declined because cell phones were prohibited. Defendant had opportunities to demonstrate her parental commitment but did not.

Under the second requirement of the best interest standard: [the] inquiry is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child. Alternatively, under this second criterion, it may be shown that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm. [K.H.O., supra, 161 N.J. at 348-49 (internal citations omitted).]

Defendant contends that her cognitive and social limitations were exaggerated by the Family Part and that with proper support she could eventually become an effective parent. Every mental health expert that examined defendant reached a different conclusion. The consensus of the mental health experts is that defendant has severe cognitive deficits. Dr. Schwoeri concluded that her "cognitive limitations make it very unlikely that she can live independently without substantial support," and he noted her statements indicate a "lack of reflective self-awareness, related in turn to her low level of cognitive functioning, if not also a lack of actual parental concern for and involvement with her children." Dr. Sigafoos concluded that defendant's cognitive deficit would expose the children to a host of risks.

In addition to cognitive deficits, defendant is burdened with a host of mental health and behavioral disorders, including oppositional defiant disorder, bipolar disorder, and post-traumatic stress disorder. She is medically noncompliant, and she habitually abuses illegal drugs. The Adult Adolescent Parenting Inventory indicated that defendant has "grossly deficient parenting attitudes, values, and beliefs, placing [her] at high risk for neglecting or abusing her own children." Her prognosis for improvement is grim. Dr. Seidman concluded "with a reasonable degree of psychological certainty [that defendant] does not exhibit the intellectual, psychological, and social wherewithal to [be] responsibl[e] to care for her child without the presence of twenty-four hour supervision."

DYFS proved the second statutory requirement by producing evidence that defendant would be unable to overcome her cognitive deficits. See N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 436-37 (App. Div. 2001) (a diagnosis of ongoing mental disability satisfied prong two), certif. denied, 171 N.J. 44 (2002). Clear and convincing evidence in the record in the form of expert reports indicates defendant's cognitive and social limitations and the grim prospect of her ability to eliminate the harm she has caused her children.

Next, as our recitation of the facts clearly demonstrates, DYFS satisfied the third requirement of N.J.S.A. 30:4C-15.1a by attempting numerous services for defendant. DYFS must "undertake diligent efforts to reunite the family. . . . [focusing on] assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. "The reasonableness of [DYFS]'s efforts depends on the facts in each case." A.G., supra, 344 N.J. Super. at 435 (citing D.M.H., supra, 161 N.J. at 390).

The record indicates that over a three-year period DYFS referred defendant seventeen times to nine different organizations that provided counseling for anger management, substance abuse, and parenting. DYFS also referred defendant to a mentoring program. These services were largely ineffective because of her poor attendance and her inability to learn.

Defendant argues DYFS failed to provide therapeutic residential placements. DYFS referred defendant to specialized shelters for runaways, a residential facility for substance abuse, and a "Mommy and Me" facility for teenage mothers. These residential placements were ineffective because defendant would promptly run away or she refused the services. DYFS's inability to find defendant a long-term residential placement was primarily caused by her own actions.

We conclude that DYFS made reasonable efforts to help defendant overcome the deficits that prevent her from being an adequate parent. In addition, it considered alternatives to termination of parental rights, but no relatives or other resources were available to care for the children.

Defendant argues DYFS did not prove the fourth requirement of N.J.S.A. 30:4C-15.1a, that termination of her parental rights will not cause more harm than good. She alleges the Family Part erred by not considering "to what extent [defendant] can lessen the harm to the children" in the event they are separated from the foster mother. She also argues "the fact that the children may have a better relationship with the foster mother is immaterial and no reason to affirm the termination of [her] parental rights."

The fourth requirement "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The court considers "whether, after . . . balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his] natural parent[] than from the permanent disruption of [his] relationship with [his] foster parent[]." K.H.O., supra, 161 N.J. at 355. The focus is whether there is "clear and convincing evidence that separating the child from his . . . foster parent[] would cause serious and enduring emotional or psychological harm." J.C., supra, 129 N.J. at 19. DYFS must "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 parent[] and the foster parent[]." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 442 (App. Div. 2009) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)).

In assessing the fourth requirement, the Family Part judge considered the bonding evaluations, in particular, the attachment of the children to their biological and foster mothers. The bonding expert concluded within a reasonable degree of psychological certainty that the children would suffer serious and lasting harm if the relationship with the foster mother was terminated and would suffer no harm if the relationship with defendant was terminated.

Finally, defendant argues that "DYFS did not put forward any competent, particularized evidence that a delay in permanent placement . . . would cause the children any harm." This assertion is contrary to well-established precedents. The Supreme Court has recognized that: "it may be shown that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49. In the same vein, we warned that "[k]eeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." A.G., supra, 344 N.J. Super. at 438. When DYFS's efforts to rehabilitate a biological parent repeatedly fail, "permanent plans must be made for children, justifying the termination of parental rights." J.C., supra, 129 N.J. at 7-8. "The object [of termination] is to allow the child the opportunity for a permanent placement with a new family, where the child can grow and thrive with the end goal of adoption."

E.P., supra, 196 N.J. at 92.

The record clearly and convincingly establishes that DYFS proved all four prongs of N.J.S.A. 30:4C-15.1a and that the Family Part correctly terminated defendant's parental rights.

Affirmed.

20120608

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