|
(Cite
as: 221 P.3d 1255) |
Supreme
Court of Nevada.
In
the Matter of the Parental Rights as to N.J.
Dawn
M., Appellant,
v.
Nevada
State Division of Child and Family Services; and Faye Cavender,
Respondents.
No.
51125.
Dec.
24, 2009.
*1258
Law Office of John C. Brown and John C. Brown, Alamo, for
Appellant.
Catherine
Cortez Masto, Attorney General, and Shannon C. Richards, Deputy Attorney
General, Carson City, for Respondents.
Before
the Court En Banc.
OPINION
By
the Court, SAITTA, J.
In
this appeal, we resolve questions concerning the Indian Child Welfare Act
(ICWA), 25 U.S.C. ?? 1901-63 (2006). Specifically, we address what evidentiary
standards apply in parental termination cases involving the ICWA. We also
consider whether the Existing Indian Family (EIF) doctrine, a judicially created
exception to the ICWA, applies in those cases in which neither the Native
American parent nor the tribe is contesting termination.
We
conclude that a dual-standard burden of proof is appropriate for evidentiary
findings in parental termination cases involving the ICWA. Therefore, the higher
beyond-a-reasonable-doubt evidentiary standards of the ICWA will be used for
ICWA-related findings, and Nevada's clear-and-convincing evidence standard will
apply to state law findings. We further hold that under specific circumstances,
such as when the breakup of a Native American family is not at issue,
application of the EIF doctrine may be appropriate.
FACTS
AND PROCEDURAL HISTORY
N.J.
was born in Nevada in September 2005, two weeks premature. At the time of her
birth, N.J. and her mother, petitioner Dawn M., tested positive for marijuana
and methamphetamine. N.J. suffered respiratory problems and was flown to a
children's hospital in Utah. Having determined that Dawn had exposed N.J. to
drugs while in utero, respondent Nevada State Division of Child and Family
Services (DCFS) became involved and worked with Dawn to find a safe placement
for not only N.J., but also Dawn's two other minor children. On September 16,
2005, Dawn informed DCFS that she was unable to secure a suitable placement for
N.J. DCFS was unable to locate the putative father, Javy J. On September 20,
2005, N.J. was released from the hospital and placed in foster care, where she
remains today.
In
October 2005, Javy made contact with DCFS. Subsequent DNA tests showed that Javy
was the biological father of N.J. However, according to DCFS, Javy denied
paternity. Moreover, he never made further contact with DCFS, nor did he ever
contact N.J., acknowledge her, or petition the court to establish his parental
rights. It was determined that Javy is an enrolled member of the Ely Shoshone
Tribe, and therefore, N.J. was eligible to become a member of the tribe. Yet the
Ely Shoshone Tribe did not intervene in the underlying case, and its only
participation was to provide expert testimony when called upon. Furthermore,
Dawn is neither a member of the Ely Shoshone Tribe nor any other Native American
tribe.
DCFS
made arrangements for Dawn to visit N.J. and created a case plan for her to
follow. In addition, DCFS referred Dawn for a drug and alcohol evaluation and to
parenting and mental health classes. In May 2007, due to Dawn's continued drug
use and failure to abide by the case plan, DCFS filed a petition to terminate
her parental rights as to N.J.
At
the parental rights termination hearing, DCFS presented testimony that for the
first 18 months of N.J.'s life, Dawn continued to test positive for marijuana
and methamphetamine. It further established that it was not until the spring of
2007, more than 18 months after N.J.'s birth, that Dawn showed more compliance
with her case plan by maintaining sobriety and attending mental health
appointments, as well as visitation appointments with N.J. However, Dawn managed
to maintain only a few months of sobriety, testing*1259
positive for illegal substances again in October 2007.
The
testimony showed that DCFS was seeking termination of Dawn's parental rights
because reunification efforts had failed as a result of her continued drug use.
Respondent Faye Cavender, a social worker with DCFS, stated that she witnessed
Dawn fall asleep during some of her visits with N.J. She testified that Dawn's
continued struggle with drugs; the lack of a meaningful bond between Dawn and
N.J.; the ongoing relationship between Dawn and her boyfriend, which was
described as a domestic violence situation; and the fact that N.J.'s entire life
had been spent in foster care were all factors that led the agency to seek
termination of Dawn's parental rights.
N.J.'s
foster mother, Karla, also provided relevant testimony that showed that N.J. was
fully integrated into the foster family. Karla testified that since the day she
and her husband, Mark, brought a fragile N.J. home, they had worked to enable
N.J. to thrive physically by taking her to all of her doctor appointments. They
also worked on supporting her emotional needs. Karla explained that both she and
Mark had Native American ancestry and would help educate N.J. about her tribal
roots. She also provided detailed testimony regarding N.J.'s close bond with
Mark and the couple's other children. Karla testified that the family would
adopt N.J. if the petition for termination of parental rights was
granted.
Jacqueline
Volkmann, a clinical social worker with DCFS with 15 years of experience, who
had an opportunity to observe N.J. with her foster family, testified that N.J.
was integrated into the family. In Volkmann's opinion, removing N.J. from the
only family she had ever known would be traumatic for the child. In addition,
Volkmann testified that in her experiences dealing with methamphetamine users,
it was impossible to parent well on even the lowest dosage of the
drug.
DCFS
also presented the testimony of Diane Buckner, the chairperson and health
director for the Ely Shoshone Tribe. As to the traditions of the tribe, Buckner
explained that the tribe is so integrated in the non-native community that each
family chooses what tradition it will practice. Buckner stated that she had no
concerns about N.J.'s placement with a non-native family. She explained that
upon her review of Dawn's case file, it was her opinion that returning N.J. to
Dawn would be problematic. However, during cross-examination, Buckner testified
that she did not feel qualified to make such an assessment.
Dawn
testified on her own behalf, admitting to her struggles with alcohol, marijuana,
and methamphetamine abuse. Dawn admitted that during the first year of N.J.'s
life, she may have missed more than half of the scheduled visits with her
daughter because she was not given adequate notice. Dawn stated that she and
N.J. had bonded.
Following
the hearing, the district court issued an order granting DCFS's petition for
termination of parental rights. In its order, the district court explained that
it applied a dual-level evidentiary standard, using a clear-and-convincing
standard for state law findings and the ICWA's higher beyond-a-reasonable-doubt
standard for the ICWA findings. Accordingly, it found by clear and convincing
evidence that N.J.'s best interest would be served by terminating Dawn's
parental rights. However, it determined that DCFS failed to meet the ICWA's
higher evidentiary standard. In making this determination, it found that
Buckner, though a qualified tribal expert, was not qualified to testify whether
continued custody by either of N.J.'s parents would result in serious harm. In
noting this evidentiary deficiency, the district court determined that
application of the EIF doctrine was appropriate. The EIF doctrine is a
judicially created exception to the ICWA. The district court reasoned that in
some cases, like N.J.'s, in which neither the Native American parent nor the
tribe was contesting the termination and the breakup of a Native American family
was not at issue, the EIF doctrine was appropriate. Accordingly, it granted
DCFS's petition to terminate Dawn's parental rights, and she
appeals.
DISCUSSION
[1]
This appeal involves a child who is eligible for enrollment with the Ely
Shoshone *1260
Tribe. The Tribe sent a letter to DCFS indicating that N.J.'s putative father,
Javy, is an enrolled member, and therefore, N.J. is eligible for enrollment.
Accordingly, N.J. is a Native American child, and the parental termination
proceedings are subject to the ICWA. See
Matter
of Petition of Phillip A. C.,
122 Nev. 1284, 1291, 149 P.3d 51, 56 (2006).
On
appeal, Dawn raises two overarching issues. She asserts that the district court
erred when it found clear and convincing evidence of parental fault. Dawn
additionally contends that the EIF doctrine should not apply in this case. In
resolving these issues, we first address the evidentiary standard of parental
termination cases involving the ICWA. We adopt the dual-standard approach, which
is used in the majority of states and requires state law grounds for termination
to be proved by a clear-and-convincing standard and the ICWA grounds for
termination to be proved by the higher beyond-a-reasonable-doubt standard.
Additionally, we hold that the EIF doctrine is applicable under limited
circumstances, such as when neither the Native American parent nor the tribe is
contesting the termination.
Evidentiary
standards
[2]
As a threshold issue, we must first define the evidentiary standards applicable
in this case. The specific issue before us is the interplay between Nevada's and
the ICWA's standards of proof in parental termination cases.
[3][4]
Nevada has a clear-and-convincing evidentiary standard for parental termination
cases, Matter
of Parental Rights as to D.R.H.,
120 Nev. 422, 428, 92 P.3d 1230, 1234 (2004), while the ICWA requires that a
beyond-a-reasonable-doubt evidentiary standard be met before granting a petition
for termination of parental rights. 25 U.S.C. ? 1912(f) (2006). When a case
arises, such as this, where both standards are implicated, the fact-finder is
faced with two competing standards. In reconciling this difference, we conclude
that the state standard applies to state law findings and the ICWA standard
applies to federal law findings. We find support for our holding in the federal
statutes' language.
[5][6]
When interpreting a statute with clear and unambiguous language, the apparent
intent of the statute will be given effect, thereby avoiding meaningless or
unreasonable results. Matter
of Petition of Phillip A. C.,
122 Nev. at 1293, 149 P.3d at 57. ? ?When construing a specific portion of a
statute, the statute should be read as a whole, and, where possible, the statute
should be read to give meaning to all of its parts.? ? Id.
at 1293, 149 P.3d at 57-58 (quoting Building
& Constr. Trades v. Public Works,
108 Nev. 605, 610, 836 P.2d 633, 636 (1992)). This court has held that statutes
with a protective purpose, such as the ICWA, should be ?liberally construed in
order to effectuate the intended benefits.? Id.
at 1293, 149 P.3d at 58.
[7]
By its own terms, 25 U.S.C. ? 1902 describes the ICWA as setting forth ?minimum
Federal standards? for the removal of Native American children from their
families. The language, therefore, does not
expressly provide a uniform standard, but rather, creates the minimum criterion
for ICWA-related findings. In another section of the ICWA, the evidentiary
standard issue is addressed more directly:
[i]n
any case where State or Federal law applicable to a child custody proceeding
under State or Federal law provides a higher standard of protection to the
rights of the parent or [Native American] custodian of [a Native American] child
than the rights provided under this subchapter, the State or Federal court shall
apply the State or Federal standard.
Id.
? 1921. We determine that these sections read together to effectuate the ICWA's
intended benefits-mainly the best interests of Native American children-require
the stricter evidentiary standard of the ICWA to only apply to findings related
to the federal statute. We find support for our interpretation of the ICWA in a
recent decision by the Arizona Supreme Court, which noted that almost every
state court that has considered this issue has concluded that the ?ICWA allows
states to specify the standard of proof for state-law findings distinct from the
findings required by ICWA.? Valerie
M. v. Arizona*1261
Dept. of Econom. Sec.,
219 Ariz. 331, 198 P.3d 1203, 1207 (2009): see
also Matter
of J.R.B.,
715 P.2d 1170, 1171 (Alaska 1986); In
Interest of H.A.M.,
25 Kan.App.2d 289, 961 P.2d 716, 721 (1998); In
re T.F.,
681 N.W.2d 786, 791-92 (N.D.2004). Accordingly, so do we. With those evidentiary
principles in mind, we now turn to the issue of whether the evidence presented
supported a finding of parental fault warranting termination of Dawn's parental
rights. We begin our analysis with Nevada's evidentiary standard.
Clear-and-convincing
standard
[8][9]
In Nevada, to terminate parental rights, ?a petitioner must prove by clear and
convincing evidence that termination is in the child's best interest? and that
parental fault exists. Matter
of Parental Rights as to D.R.H.,
120 Nev. at 428, 92 P.3d at 1234; see
NRS 128.105. This court will uphold a district court's order to terminate
parental rights if substantial evidence supports the decision. Matter
of Parental Rights as to D.R.H.,
120 Nev. at 428, 92 P.3d at 1234.
Child's
best interest
[10]
In determining what is in a child's best interest, the district court must
consider the child's continuing need for ?proper, physical, mental and emotional
growth and development.? NRS 128.005(2)(c). It is presumed that termination of
parental rights is in the child's best interest if a child has been in foster
care for 14 of any 20 consecutive months. NRS 128.109(2). When this presumption
applies, the parent bears the burden of presenting enough evidence to overcome
the presumption. Matter
of Parental Rights as to A.J.G.,
122 Nev. 1418, 1426, 148 P.3d 759, 764 (2006).
[11][12]
In the present case, N.J. has been in foster care almost her entire life. It was
her foster mother, Karla, who took N.J. home after she was released from the
hospital. At the time that DCFS filed the petition to terminate parental rights,
N.J. had been living with her foster family for approximately 20 months.
Therefore, the presumption of NRS 128.109(2) applied, and it was up to Dawn to
overcome it. Dawn's failure to maintain sobriety and bond with her daughter
demonstrate that she failed to overcome this presumption.
Foster
care considerations
[13]
In instances where the child has been placed in foster care and the custodial
agency institutes proceedings to terminate parental rights, with the ultimate
goal of having the child's foster family adopt her, the district court must look
at specific considerations, including whether the child has become integrated
into the foster family ?to the extent that [her] familial identity is with that
family.? NRS 128.108. Other considerations include ?[t]he length of time the
child has lived in a stable ... foster home? and ?[t]he permanence as a family
unit of the foster family.? NRS 128.108(4) and (5).
We
conclude that there was substantial evidence that N.J. had become fully
integrated into the foster family. Volkmann, who spent time with N.J. and her
foster parents, testified that N.J. would seek out her foster parents for
protection, comfort, and pleasure. She witnessed N.J. trip on two occasions and
call out for Mark, her foster father, for comfort. Volkmann further testified
that it would be traumatic for N.J. if she was removed from the foster home.
N.J.'s foster mother, Karla, testified that N.J. had bonded not only with her
and her husband, but also with Karla and Mark's other children. With the foster
family, N.J. has thrived, and Karla and Mark have provided for N.J.'s medical
needs since they brought her home from the hospital. The family intends to
permanently adopt N.J. given the opportunity. In sum, the foster care
considerations in this case supported the district court's finding that
termination of Dawn's parental rights was in N.J.'s best interest.
Parental
fault
[14]
Dawn argues that there was not substantial evidence of parental fault.
Specifically, she asserts that the district court improperly gave too much
weight to the evidence of her drug use and ignored the brief period of sobriety.
We disagree.
*1262
The district court found parental fault on the following grounds: neglect,
unfitness, and token efforts. We consider each in turn.
Neglect
[15]
In Nevada, a child is considered neglected if a parent ?neglects or refuses to
provide proper or necessary subsistence, education, medical or ... other care
necessary for [the child's] health, morals or well-being.? NRS 128.014(2). NRS
128.106(4) provides that when determining neglect, the court shall consider
whether excessive drug and alcohol use interfered with the parent's ability to
care for the child. And NRS 128.106(8) requires the court to consider the
inability of public agencies to reunite the parent and child, despite reasonable
efforts.
With
regard to neglect, the district court's findings were as follows: Dawn was not
able to care for N.J. from the time the child was born because of Dawn's ongoing
addiction to drugs. During the first 17 months of N.J.'s life, Dawn made minimal
efforts to bond with her daughter, missed more than half of the scheduled
visitations, and continued to use drugs. N.J. was born and diagnosed with a
failure to thrive, due possibly
to Dawn's use of alcohol, methamphetamine, and marijuana during pregnancy. Dawn
did not attend N.J.'s medical appointments to keep up with N.J.'s physical
progress. Additionally, Dawn has never provided any financial assistance to N.J.
Moreover, DCFS made active efforts to reunite mother and daughter by providing a
case plan and offering Dawn the opportunity to visit N.J. as much as five times
a week. It is clear from the record that further efforts would be futile because
of Dawn's continued drug use and the lack of a bond between her and N.J.
Accordingly, we conclude that substantial evidence supports the district court's
finding of neglect.
Unfitness
[16]
An unfit parent is ?any parent of a child who, by reason of his fault or habit
or conduct toward the child or other persons, fails to provide such child with
proper care, guidance and support.? NRS 128.018. What constitutes being unfit
can vary from case to case but generally includes continued drug use, criminal
activity, domestic violence, or an overall inability to provide for the child's
?physical, mental or emotional health and development.' ? Matter
of Parental Rights as to D.R.H.,
120 Nev. at 429-30, 92 P.3d at 1235 (quoting NRS 128.106(6) ); see
Matter
of Parental Rights as to K.D.L.,
118 Nev. 737, 746-47, 58 P.3d 181, 187 (2002).
The
district court properly determined that Dawn was an unfit parent because of her
continued drug use, her failure to provide for any aspect of N.J.'s physical or
mental well-being, and her ongoing relationship with her then-boyfriend, which
was described as a domestic violence situation. Dawn argues that the district
court overlooked the few months of sobriety she maintained in 2007; however, she
misstates the record. The district court indeed took note of the brief period of
sobriety, but it appropriately ruled that Dawn was unfit because she continued
to test positive for drugs. In the months leading up to the termination of
parental rights hearing, Dawn again used methamphetamine, was subsequently
arrested, and spent 30 days in jail. Additionally, an experienced social worker,
Volkmann, testified that in her experience with recovering addicts, it was
practically impossible to parent on even the lowest dose of methamphetamine. The
evidence of Dawn's unfitness as a parent was overwhelming, and the district
court did not improperly emphasize any one period of time. Accordingly, we
conclude that substantial evidence supports the district court's finding of
parental unfitness.
Token
efforts
[17]
Pursuant to NRS 128.105(2)(f), parental fault may be established when a parent
engages in only token efforts to (1) ?support or communicate with the child?;
(2) ?prevent neglect of the child?; (3) ?avoid being an unfit parent?; or (4)
?eliminate the risk of serious physical, mental or emotional [harm] to the
child.? Moreover, NRS 128.109(1)(a) and (2) state that if a child has been in
foster care for 14 months of a 20-month period, it is presumed that the parent
has made only token efforts to care for the child and that termination of
parental rights is in the child's best interest.
*1263
The district court, while not addressing each of the four factors, determined
that Dawn had, at best, made token efforts as defined by NRS 128.105(2)(f). We
agree.
First,
the record demonstrates that Dawn made only token efforts to support or
communicate with N.J. during the first 18 months of the child's life. While not
employed, Dawn received disability income, but she failed to provide any
financial assistance for N.J.'s care. In addition, Dawn was observed falling
asleep during her visits with N.J. Moreover, Dawn only made token efforts to
address her drug addiction some 17 months after N.J.'s birth. Her failure to
address her drug issue and terminate an abusive domestic relationship
demonstrate a lack of effort on Dawn's part to prevent neglect, avoid unfitness,
and eliminate risk of serious emotional and physical harm to N.J. A mere few
months of sobriety almost a year and one-half after N.J.'s birth is a token
effort at best. Accordingly, we conclude that substantial evidence supports the
district court's finding that Dawn made only token efforts to care for her
daughter.
Having
concluded that substantial evidence exists to support the district court's
determination, pursuant to Nevada's clear-and-convincing evidentiary standard,
that termination of Dawn's parental rights is in the best interest of N.J., we
now turn to the issue of whether the evidence presented supports termination
pursuant to the ICWA's higher evidentiary standard.
Beyond-a-reasonable-doubt
standard
In
passing the ICWA, Congress declared that it is the United States' policy to
advance the best interests of Native American children and Native American
families by establishing minimum federal standards for the removal and adoption
of Native American children. 25 U.S.C. ? 1902 (1978). Congress expressly stated
that the ICWA was enacted in response to the ?alarmingly high percentage? of
Native American families that were broken up due to the oftentimes unwarranted
removal of Native American children by nontribal public and private agencies.
Id.
? 1901(4). It further noted that state courts have ?often failed to recognize
the essential tribal relations of [Native American] people and the cultural and
social standards prevailing in [Native American] communities and families.?
Id.
? 1901(5). Those policy goals comport with the statute's higher evidentiary
standards.
The
ICWA requires that the district court make two findings before terminating the
parental rights of a Native American child. First, there must be a
determination,
supported by evidence beyond a reasonable doubt, including testimony of
qualified expert witnesses, that the continued custody of the child by the
parent or [Native American] custodian is likely to result in serious emotional
or physical damage to the child.
Id.
? 1912(f). Second, the court must also be persuaded that
active
efforts have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the [Native American] family and that these
efforts have proved unsuccessful.
Id.
? 1912(d). For the reasons set forth below, we agree with the district court
that DCFS did not meet the ICWA's higher evidentiary standard, yet termination
of parental rights was proper because of the application of the EIF
doctrine.
Qualified
witness testimony
[18]
The ICWA does not expressly define a qualified expert witness. We determine that
NRS 128.093(2) is helpful. It states:
As
used in this section, ?qualified expert witness? includes, without
limitation:
(a)
[A Native American] person who has personal knowledge about the [Native
American] child's tribe and its customs related to raising a child and the
organization of the family; and
(b)
A person who has:
(1)
Substantial experience and training regarding the customs of [Native American]
tribes related to raising a child; and
(2)
Extensive knowledge of the social values and cultural influences of [Native
American] tribes.
*1264
The district court determined that DCFS did not sufficiently meet the ICWA
evidentiary standard because there was no qualified expert witness who testified
as to the likelihood of serious physical or emotional harm to N.J. if she were
returned to either parent. We agree.
While
DCFS presented substantial evidence that Dawn was an unfit parent and
termination of her parental rights was in N.J.'s best interest with regard to
Nevada's standards, it did not meet its burden of proof pursuant to the ICWA.
While the tribal expert provided by DCFS, Buckner, met the standards of NRS
128.093(2) because she was the chairperson of the Ely Shoshone Tribe and had
substantial experience about the tribe and its customs related to raising
children, she could not provide testimony that returning N.J. to Dawn would
result in serious emotional or physical damage to the child as is required by ?
1912(f). We note that one witness, Volkmann, a clinical social worker with DCFS,
testified that removing N.J. from the foster family would be traumatic. However,
she could not testify as to whether returning N.J. to Dawn would result in
serious harm. Therefore, DCFS failed to meet the ICWA's higher evidentiary
standard for termination of parental rights.
The
EIF doctrine
[19]
As the ICWA was enacted to protect against the unwarranted removal of Native
American children from an existing Native American family unit and the resultant
breakup of the Native American family, we agree with the district court's
observation that the application of the ICWA to this case would serve only one
purpose: to deprive N.J. of the only home she has ever known and come to love.
We determine that the outcome would be counter to the ICWA's goal of protecting
the best interests of Native American children.
[20]
The judicially created EIF doctrine is an exception to the ICWA that precludes
its application in cases where the court determines that there is no existing
Native American family, meaning the child is not, and never was, part of a
Native American family or tribe. In
re Alexandria Y.,
45 Cal.App.4th 1483, 53 Cal.Rptr.2d 679, 686 (1996) (holding that ?recognition
of the [EIF] doctrine is necessary to avoid serious constitutional flaws in the
ICWA?).
[21]
We hold that the EIF doctrine should be used on a case-by-case basis to avoid
results that are counter to the ICWA's policy goal of protecting the best
interest of a Native American child. In the present case, we recognize that
N.J.'s interest is protected by the ICWA because her putative father is a member
of the Ely Shoshone Tribe. Her father, however, is not contesting the
termination, nor is the tribe. The termination will not result in the breakup of
a Native American family. Indeed, the only person contesting the termination is
the non-Native American parent, Dawn. In addition, the foster family that is
taking care of N.J. plans on adopting N.J. and is committed to educating her
about her heritage. Those factors lead us to conclude that in this circumstance,
the application of the EIF doctrine is appropriate because, while it is an
exception to the ICWA, in such scenarios it serves to advance the ICWA's goal to
protect the best interests of Native American children. Because we conclude that
the EIF doctrine is applicable, we need not reach the issue of whether DCFS made
active efforts, pursuant to the ICWA, see
25 U.S.C. ? 1912(d), to reunite Dawn and N.J., as application of the EIF
doctrine negates the necessity of that inquiry.
CONCLUSION
In
parental termination cases in which the ICWA is implicated, we conclude that a
dual-evidentiary standard is appropriate. The district court shall use Nevada's
clear-and-convincing standard for state law findings and the ICWA's higher
beyond-a-reasonable-doubt standard for ICWA-related findings. We further hold
that the judicially created exception to the ICWA, the EIF doctrine, may be
applicable on a case-by-case basis. Specifically, when a non-Native American
parent is challenging the termination of parental rights, the breakup of a
Native American family is not at issue, and neither the tribe nor the Native
American parent is contesting*1265
the termination, we conclude that application of the EIF doctrine may be
appropriate. In the present case, we conclude that substantial evidence supports
the district court's determination that termination of parental rights was in
the child's best interest and that parental fault existed. We further determine
that the district court correctly applied the EIF doctrine in this case.
Accordingly, we affirm the district court's judgment.
We
concur: HARDESTY, C.J., and PARRAGUIRRE, DOUGLAS, CHERRY, GIBBONS, and
PICKERING, JJ.