[Cite as In re K.C., 2015-Ohio-3815.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               DEFIANCE COUNTY



IN RE:

        K.C.                                            CASE NO. 4-15-05

DEPENDENT CHILD.
                                                        OPINION
[MELISSA SCHWINNEN - APPELLANT].


IN RE:

        C.C.                                            CASE NO. 4-15-06

DEPENDENT CHILD.
                                                        OPINION
[MELISSA SCHWINNEN - APPELLANT].



                Appeals from Defiance County Common Pleas Court
                                 Juvenile Division
                         Trial Court Nos. 31435 and 31436

                      Judgments Reversed and Cause Remanded

                          Date of Decision: September 21, 2015



APPEARANCES:

        Timothy C. Holtsberry for Appellant

        Russell R. Herman for Appellee
Case Nos. 4-15-05, 4-15-06


SHAW, J.

      {¶1} Mother-appellant, Melissa Schwinnen (“Melissa”), appeals the March

2, 2015 judgment of the Defiance County Court of Common Pleas, Juvenile

Division, granting the motion for permanent custody filed by plaintiff-appellee,

Defiance County Department of Job and Family Services (the “Agency”), and

terminating her parental rights. Melissa raises the following assignments of error

on appeal.

                      ASSIGNMENT OF ERROR NO. I

      THE TRIAL COURT ERRED IN ACCEPTING THE
      CONSENT OF THE MOTHER VIA AFFIDAVIT AS THAT
      CONSENT DID NOT COMPLY WITH JUVENILE RULE
      29(D).

                      ASSIGNMENT OF ERROR NO. II

      THE TRIAL COURT ERRED IN ACCEPTING THE
      CONDITIONAL CONSENT VIA AFFIDAVIT OF THE
      MOTHER WHEN ALL CONDITIONS OF THE AFFIDAVIT
      WERE NOT MET.

                     ASSIGNMENT OF ERROR NO. III

      THE TRIAL COURT ERRED IN ACCEPTING MOTHER’S
      CONSENT VIA AFFIDAVIT IN VIOLATION OF THE
      HEARSAY RULE.

                     ASSIGNMENT OF ERROR NO. IV

      APPELLANT WAS DENIED HER CONSTITUTIONAL
      RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.



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Case Nos. 4-15-05, 4-15-06


           {¶2} On June 26, 2013, the Agency filed a complaint alleging Melissa’s

children C.C. (born in 2012) and K.C. (born in 2013) to be dependent children.

The complaint was filed shortly after K.C.’s birth, at which time K.C. tested

positive for cocaine on a toxicology screen. Melissa admitted to the drug use and

further admitted that others in the home where she cared for then one-year-old

C.C. also abused drugs. Based on Melissa’s drug use during pregnancy, the

complaint also alleged K.C. to be an abused child.1 The children were placed in

the temporary custody of the Agency pursuant to an ex parte order issued by the

trial court.

           {¶3} On July 3, 2013, the trial court appointed a Guardian Ad Litem

(“GAL”) to the case.

           {¶4} On September 5, 2013, Melissa and the children’s father Charles

(“Blake”) C. appeared in open court with counsel.2 Melissa entered a plea of “Not

True” to the dependency and abuse allegations contained in the complaint. Blake

entered a plea of “Not True” to the Agency’s abuse allegation regarding K.C. and

entered a plea of “True” to the dependency allegations regarding both children.

The parties stipulated and agreed that continuing the Agency’s temporary custody

of the children during the pendency of the action was in their best interest.




1
    The record indicates that C.C. also tested positive for cocaine at the time of his birth in 2012.
2
    Blake’s paternity was later established as the result of court-ordered genetic testing.

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Case Nos. 4-15-05, 4-15-06


        {¶5} On October 7, 2013, the trial court held an adjudication hearing.

Melissa was not present due to her incarceration on drug related offenses.

Nevertheless, her attorney submitted to the trial court a three-page affidavit signed

by Melissa changing her plea from “Not True” and entering a plea of “True” to the

allegation of dependency regarding both C.C. and K.C. The trial court found that

Melissa’s plea was entered knowingly, intelligently and voluntarily. The Agency

moved to dismiss the abuse allegation concerning K.C. Consequently, the trial

court accepted both parents’ pleas and found the children to be dependent. The

trial court further found that continuing the Agency’s temporary custody was in

the children’s best interest and ordered the same. Disposition of the case was

continued for a later date.

        {¶6} On May 21, 2014, the Agency filed a motion requesting the trial court

extend its temporary custody of the children for six months. The record indicates

that Melissa was still incarcerated at the time with a release date in the fall of

2015.    However, the motion stated that Blake had made some progress in

complying with the case plan and the Agency requested the trial court grant

additional time for Blake to attempt to complete the case plan objectives. After

conducting a hearing, the trial court granted the Agency’s motion to extend its

temporary custody of the children for six months.




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Case Nos. 4-15-05, 4-15-06


           {¶7} On September 3, 2014, the Agency filed a motion for permanent

custody of the children. In support of its motion, the Agency stated that the

children had been in its temporary custody for twelve or more months of the past

consecutive twenty-two month period. The Agency further noted that Melissa was

serving a two-year prison term for drug related offenses and that Blake had made

minimal progress with the case plan. Blake also informed the Agency that he did

not want to continue to work with the Agency toward reunification and that he had

no intention of attending any further hearings in the matter.

           {¶8} On October 28, 2014, the trial court conducted a semi-annual review

of the case and continued the Agency’s temporary custody of the children.

           {¶9} On January 23, 2015, Melissa filed a motion for legal custody in

which she requested that the trial court grant legal custody of the children to

Blake’s grandmother, Linda Claud, the children’s paternal great-grandmother.

Melissa acknowledged that naming Linda Claud legal custodian of the children

would provide her with residual parental rights, rather than terminating those

rights.3

           {¶10} On January 29, 2015, the GAL filed her report in the case

recommending that the trial court grant the Agency’s motion for permanent

custody so that the children may be placed for adoption. In her report, the GAL



3
    We note that Linda Claud was never made a party to the case.

                                                     -5-
Case Nos. 4-15-05, 4-15-06


voiced her concerns with Linda Claud being named legal custodian. Specifically,

the GAL noted that Linda was 72-years-old at the time of the hearing and

questioned her ability to care for the two very young children.

       {¶11} On February 3, 2015, Melissa filed a three-page affidavit which

stated the following with regard to the Agency’s motion for permanent custody.

       Melissa Schwinnen, being first duly cautioned and sworn, states
       as follows:

       1.   I am the mother of [K.C.] and [C.C.].

       2. I have received a copy of the State’s Motion for Permanent
       Custody filed September 3, 2014.

       3. I have reviewed the Motion for Permanent Custody and
       understand it. I have had the opportunity to speak with my
       attorney, [] by phone with any questions I have regarding the
       motion.

       4. I understand that if permanent custody of the children is
       awarded to the State, my parental rights and responsibilities will
       be forever terminated. I understand that I will have no legal
       rights to visitation, custody, or any other rights or
       responsibilities with respect to the children.

       5. I understand that if the State acquires permanent custody
       and places the children with Linda Claud, Mrs. Claud has no
       legal duty to allow me to visit or communication with the
       children, and that I will not have the legal right to demand
       visitation or communication with the children if she chooses to
       deny such contact.

       6. I understand that an alternative to permanent custody is
       legal custody to Linda Claud. I understand that if the Court
       awards legal custody [to] Linda Claud, my paternal rights and
       responsibilities would not be terminated. I understand that my

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Case Nos. 4-15-05, 4-15-06


      attorney has filed a Motion for Legal Custody to place the
      children with Linda Claud in order to preserve my parental
      rights and responsibilities as an alternative to permanent
      custody.

      7. I hereby permit my attorney to withdraw the Motion for
      Legal Custody to Linda Claud.

      8. I hereby consent to the State’s motion for permanent
      custody of my children. I give this consent in reliance upon the
      State’s representations that it will place the children with Linda
      Claud for adoption.

      9.   I consent to Linda Claud adopting the children.

      10. I understand that my voluntary surrender of the children
      on the conditions set forth herein cannot be revoked or modified
      once granted. I understand that an order will be entered which
      will forever terminate my parental rights and responsibilities.

      11. I understand that Revised Code Section 2151.414(E)(11)
      lists as a factor in determining whether the children cannot be
      placed with me within a reasonable time that the “parent has
      had parental rights involuntarily terminated with respect to a
      sibling of the child…” (emphasis added). I have decided to
      voluntarily consent to termination of my parental rights in order
      to preserve my rights as to children I give birth to or adopt
      hereafter.

      12. I believe permanent custody as set forth herein is in the best
      interests of my children.

      13. I have signed this Affidavit knowingly, willingly, and
      intelligently. I was not coerced to sign, have had adequate time
      to consider whether signing would be in my best interests, and
      have signed of my own free will.

      14. I have no medical conditions that would prevent me from
      understanding the effect of executing this affidavit. I am not


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Case Nos. 4-15-05, 4-15-06


       under the influence of any medications or other substances that
       affect my understanding or comprehension.

       15. I have had adequate time to consult with my attorney [],
       concerning this Affidavit, and any questions I had have been
       answered to my satisfaction.

(Doc. No. 64) (emphasis added).

       {¶12} On February 5, 2015, the trial court conducted a hearing on the

Agency’s motion for permanent custody. Melissa was not present at the hearing

due to her incarceration. Melissa’s attorney presented the trial court with the

affidavit expressing Melissa’s consent to the Agency’s motion for permanent

custody.   The trial court noted the unusual method of conveying a party’s

voluntary surrender of parental rights by affidavit and further inquired of

Melissa’s attorney to ascertain whether she was knowingly, intelligently, and

voluntarily waiving her right to require the Agency to prove its case against her

and consenting to the termination of her parental rights.        Melissa’s attorney

relayed his prior conversations with her to the trial court in the following exchange

at the permanent custody hearing.

       Counsel: So I talked to her, it would have been February 3rd on
       the telephone. She acknowledged that she had received my
       letter, she understood it. She also understood that it would—
       because of the statute that’s reflected in the paragraph eleven of
       the affidavit, it would be in her interests not to have an
       involuntary termination of her parental rights for that reason
       and she was willing to voluntarily consent to permanent custody
       to the State. She said she’s been in contact with Linda Claud as
       well. She understands that permanent custody here is to the

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Case Nos. 4-15-05, 4-15-06


      State and not to Linda Claud. The State will try to place the
      children with Linda, but that was a discussion we had over the
      telephone and then I talked to the case manager after speaking
      with her. The case manager had me email the affidavit to her
      and then she emailed it back after Melissa signed it. She
      scanned it in and emailed it back and then I filed it.

      Trial Court: Well I guess my question then and I can’t, you
      know, I can’t ask her directly because she’s not here obviously,
      but and maybe you can answer this and maybe you can’t, but
      what was her motivation for filing this affidavit? Why didn’t
      she just let the proceedings proceed and force the State to
      present their evidence and—

      Counsel: Sure. I guess paragraph eleven of the affidavit would
      be the way to address that. It eliminates—there are many
      factors, but it eliminates this one factor as the basis for any
      future children she may have because she is only in her mid-
      twenties. An involuntary termination can be used as a factor
      that the State can use to allege that future children cannot be
      placed with her within a reasonable time. So for that reason I
      think she believed that voluntary consent was in her interest.

      Trial Court: Okay. Alright. So this was something you had
      discussed with her. She felt that it might be better to voluntarily
      consent given her circumstances of being incarcerated under a
      lengthy sentence in a state facility, is that correct?

      Counsel: That’s correct.

      **

      Trial Court: So were you satisfied then from your discussions
      with her and your involvement with her that she understands
      the absolute permanency of this, that this just cannot be undone
      and she can’t come back later on when she eventually gets out of
      prison and say, “you know, I’m okay now and I’d like to have
      my kids back?”



                                      -9-
Case Nos. 4-15-05, 4-15-06


      Counsel: Absolutely I do, Your Honor. Based on my
      discussions with her—when I talked to her on February 3rd, it
      was as though she was ready to go with this affidavit the way it’s
      written. She said, “absolutely this is the way to go, I read your
      letter and I understand it, I understand this is permanent.”
      She’s hoping I think the children end up with Linda and she’s
      hoping that Linda allows her to interact with the children going
      forward, but I think she understands we don’t live in a perfect
      world and those things may not happen.

      Trial Court: They may not happen at all.

      Counsel: That’s correct.

      Trial Court: Okay.

      Counsel: So I think she knows she’s operating in an imperfect
      world at this point. She knows she’s in no position right now
      having been incarcerated for basically this whole case. She’s
      really in no other position but to consent to permanent custody.

      Trial Court: Okay and she says in the affidavit here and I
      understand you may have typed it up, but she says she has
      knowingly, willingly, and intelligently signed this affidavit.

      Counsel: Um-hum.

      Trial Court: What brought you to that conclusion to include
      that language?

      Counsel: Well, based on my interactions with her in person
      prior to her incarceration, she is intelligent. She’s actually an
      intelligent person. She—in talking with her on February 3rd, it
      was clear that she believed that this was best, that she didn’t
      feel—she understood that I had a Motion for Legal Custody
      pending and that there was an alternative, okay?

      Trial Court: Um-hum.



                                     -10-
Case Nos. 4-15-05, 4-15-06


       Counsel: And it wasn’t like you have no choice, you have to sign
       this. I told her I can go forward on the Motion for Legal
       Custody. If we’re successful on that then your parental rights
       would be preserved. That’s an option here. So she understood
       there were some options.

       Trial Court: I guess that alleviates some of my concern then is
       that she didn’t feel that she was trapped in prison and she had
       no other alternative available to her but to sign this affidavit. Is
       that your opinion?

       Counsel: That’s correct, Your Honor.

       ***

       Trial Court: * * * I’m satisfied with—it’s very unusual to not
       have the mother here and I understand the circumstances are
       that she can’t be here. It’s unusual to have an affidavit appear
       in a case like this which you all know, but I guess I do
       understand her motivation of wanting to do this in a voluntary
       fashion rather than risk there being some kind of involuntary
       termination. I understand that so I’m willing to accept that
       affidavit and her position and your representations on her
       behalf[.]

(Doc. No. 86 at 10-15).

       {¶13} Blake was also present at the hearing with counsel and expressed his

intention to voluntarily terminate his parental rights and consent to the Agency’s

motion for permanent custody. The trial court engaged in a lengthy dialogue with

Blake to ensure that he understood the legal consequences of his decision and to

verify that Blake was knowingly, intelligently, and voluntarily consenting to the

termination of his parental rights.



                                      -11-
Case Nos. 4-15-05, 4-15-06


       {¶14} The trial court also heard from Linda Claud and inquired about her

ability to care for two young children. The GAL also spoke at the hearing and

gave her recommendation that the Agency’s permanent custody motion should be

granted and the children be placed for adoption.

       {¶15} On March 2, 2015, the trial court issued its judgment entry granting

the Agency’s motion for permanent custody.              Based on her attorney’s

representations of his conversations with Melissa regarding the matter, the trial

court accepted her affidavit and found that she “knowingly, intelligently, and

voluntarily consents to the termination of her parental rights with full

understanding and knowledge as to the effect thereof.”            (Doc. No. 68 at 2).

Similarly, the trial court also found “[a]fter full inquiry” that Blake “knowingly,

intelligently, and voluntarily” consented to the termination of his parental rights.

(Id. at 2-3). The trial court then made the following findings:

       In light of the parents’ consent to the termination of their
       parental rights and considering the underlying factors which
       support the Agency’s Motion, the Court finds the Agency has
       met its burden of proof by clear and convincing evidence that
       the children has [sic] been in the custody of the Agency for over
       twelve (12) of the past twenty-two (22) month period.
       Furthermore, the Court specifically finds that the children
       cannot or should not be placed in their parents’ care within a
       reasonable period of time because they have failed to follow the
       objectives of the case plan, and thus have failed to rectify the
       problems that initially caused the children to be removed from
       their custody.



                                        -12-
Case Nos. 4-15-05, 4-15-06


          Having considered all of the statutory factors in Ohio Revised
          Code Section 2151.414(D)(1) and with particular emphasis on
          the opinions of the Guardian Ad Litem as expressed in her
          report, the Court finds it is in the best interest of the children
          that they be placed in the permanent custody of the Agency so
          that they may be made available for adoption. The Court
          further finds that the Agency has made reasonable efforts to
          prevent the continued removal of the children from [their]
          parents’ care. Therefore, the Court finds that the Agency’s
          Motion for Permanent Custody of [K.C.] and [C.C.] is well
          taken.

(Doc. No. 68 at 2-3).

          {¶16} Melissa subsequently filed this appeal, asserting four assignments of

error.

                     First, Second, and Third Assignments of Error

          {¶17} In her first, second, and third assignments of error, Melissa contends

that the trial court erred in accepting her affidavit conveying her consent to the

Agency’s motion for permanent custody and to voluntarily terminate her parental

rights.

          {¶18} Initially, we note that a parent has a “ ‘fundamental liberty interest’

in the care, custody, and management of [his or her] child” and “the right to raise

one’s children is an ‘essential’ and ‘basic civil right.’ ” In re Murray, 52 Ohio

St.3d 155, 157 (1990).         “In a case where parental rights are permanently

terminated, it is of utmost importance that the parties fully understand their rights

and that any waiver is made with full knowledge of those rights and the


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Case Nos. 4-15-05, 4-15-06


consequences which will follow.” Elmer v. Lucas Cty. Children Serv. Bd., 36

Ohio App.3d 241, 245, (6th Dist.1987). “[F]undamental due process requires that

when a parent is waiving the fundamental right to care for and have custody of a

child, the trial court must have a meaningful dialogue with that parent to be certain

that the consent is truly voluntary.” In re Terrence, 6th Dist. Lucas No. L-05-

1018, 2005-Ohio-3600, ¶ 89. Thus, the parties to such an action “must be afforded

every procedural and substantive protection the law allows.” In re Hayes, 79 Ohio

St.3d 46, 48 (1997). If a parent expresses uncertainty or misunderstandings about

his or her decision to waive parental rights, the trial court’s acceptance of the

waiver is improper. In re Terrence at ¶ 89.

       {¶19} As acknowledged by the trial court, the circumstances of the present

case are somewhat unusual. In addition, this is a case of first impression in this

Court. Melissa was incarcerated at the time of the permanent custody hearing and

was not present.    Nevertheless, her trial counsel appeared on her behalf and

presented the trial court with the affidavit dated February 3, 2015 in which Melissa

purported to consent to the Agency’s motion for permanent custody and to the

voluntary termination of her parental rights. The question before us is whether

this affidavit was sufficient to comply with the relevant case authority governing a

parent’s waiver and voluntary termination of parental rights.




                                        -14-
Case Nos. 4-15-05, 4-15-06


       {¶20} Prior to accepting her consent to the termination of her parental

rights, the trial court was required to ascertain whether Melissa fully understood

her rights and that her waiver was made with full knowledge of those rights and

the attendant consequences. We might question whether this determination can

ever properly be made based entirely upon an affidavit and dialogue with counsel

alone. Moreover, we have serious reservations as to the stated motivation for any

waiver of parental rights being based, as it was in this instance, upon the

anticipation that the failure to do so in the current situation might prejudice the

Agency and/or the court toward that parent with regard to the possible removal of

a future child.

       {¶21} However, in this instance, it is not necessary to address these

concerns because the wording of this particular affidavit fails to establish that

Melissa truly understood the nature and extent of her waiver. Specifically, the

affidavit contains inconsistent statements regarding Melissa’s understanding of

permanent custody, the effect on her parental rights, and the potential adoption of

the children by Linda Claud. More importantly, the affidavit also explicitly places

a condition on Melissa’s consent in stating that “I give this consent in reliance

upon the State’s representations that it will place the children with Linda Claud for

adoption. * * * I understand that my voluntary surrender of the children on the




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Case Nos. 4-15-05, 4-15-06


conditions set forth herein cannot be revoked or modified once granted.” (Doc.

No. 64 at ¶¶ 6, 8)

       {¶22} While perhaps not as persuasive, it is also noteworthy that Melissa

submitted a letter to the trial court after its grant of the Agency’s motion for

permanent custody stating her confusion regarding the parameters of permanent

custody and her understanding that her consent was conditional upon the “State”

permitting Linda Claud to adopt the children.              Clearly, any of these

“misunderstandings” on Melissa’s part could have been addressed by the trial

court prior to accepting her “consent” had the trial court held a “meaningful

dialogue” with Melissa.

       {¶23} It is apparent from the record that the trial court tried to satisfy the

“meaningful dialogue” requirement through its discussion with Melissa’s trial

counsel at the permanent custody hearing. However, trial counsel’s narrative of

Melissa’s comprehension regarding the waiver and voluntary termination of her

parental rights does not comport with the language of the affidavit itself. Given

the contingencies and inconsistencies in the affidavit previously discussed, trial

counsel’s reassurances to the trial court at the permanent custody hearing were

simply not an adequate substitute for Melissa’s own acknowledgement on the

record of the ramifications of her decision to enter her consent and voluntary

waiver of parental rights.


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Case Nos. 4-15-05, 4-15-06


         {¶24} We note that the trial court engaged in an extensive discussion with

Blake on the record at the permanent custody hearing regarding the waiver and

voluntary termination of his parental rights, which we believe was a good example

of a “meaningful dialogue” under these circumstances. When comparing the

approach used by the trial court to ascertain the knowing, intelligent, and

voluntary nature of Blake’s decision to enter his consent to the one afforded to

Melissa, the disparity and incongruence between the procedures is palpable.4

         {¶25} In sum, the internally inconsistent statements in the affidavit

expressing Melissa’s comprehension as to the nature of permanent custody and the

explicit conditional elements contained in the affidavit seriously undermined the

requisite and crucial demonstration that Melissa’s waiver and voluntary

termination of her parental rights was made with her full knowledge of those

rights and the consequences. Therefore, we conclude that this flawed affidavit

coupled with the lack of a meaningful dialogue between the trial court and Melissa

rendered the trial court’s acceptance of her consent to the voluntary termination of

her parental rights improper.

         {¶26} We acknowledge that the trial court also made findings in its

judgment entry which appear to support an involuntary termination of parental


4
  The relevant case authority does not specify the underlying mechanics of how this “meaningful dialogue”
is to take place—i.e., whether the exchange must be made in open court with the parent present. Thus, we
see no reason to exclude the possibility of the trial court satisfying this requirement by the use of telephone
or video conference or by other means at the trial court’s disposal.

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Case Nos. 4-15-05, 4-15-06


rights based on the children being in the custody of the Agency for over twelve of

the twenty-two month period and the trial court’s conclusion that the children

cannot or should not be placed in their parents’ care within a reasonable period of

time. However, the record reveals that the Agency presented no evidence at the

permanent custody hearing to substantiate these findings. In fact, had the Agency

taken the minimal steps to present evidence, subject to cross-examination, of the

duration of the children’s time in the Agency’s temporary custody, the length of

Melissa’s prison sentence, and both parent’s non-compliance with the case plan,

the trial court may have had sufficient grounds to terminate Melissa’s parental

rights without her consent. Unfortunately, the present record fails to establish any

of the evidence necessary to issue a judgment based upon the involuntary

termination of Melissa’s parental rights.

       {¶27} Accordingly, we conclude that the trial court committed reversible

error when it granted the Agency’s motions for permanent custody and we sustain

Melissa’s first, second, and third assignments of error.

                            Fourth Assignment of Error

       {¶28} In her fourth assignment of error, Melissa claims her trial counsel

was ineffective for a variety of reasons. However, given our disposition of the

first three assignments of error, the arguments under this assignment of error are

rendered moot and we decline to further address the issues raised therein.


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Case Nos. 4-15-05, 4-15-06




       {¶29} Based on the foregoing, the judgments are reversed and the causes

remanded for further proceedings consistent with this opinion.

                                                         Judgments Reversed and
                                                              Causes Remanded

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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