                                                                                        07/20/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                 June 23, 2020 Session

                                IN RE NE’KHIYA M.

                 Appeal from the Chancery Court for Shelby County
                     No. CH-19-0406-2 Jim Kyle, Chancellor
                     ___________________________________

                           No. W2019-02223-COA-R3-PT
                       ___________________________________

This is a termination of parental rights case. Mother and stepfather petitioned the trial
court to terminate father’s parental rights as to mother’s and father’s minor child on the
ground that he had willfully abandoned the child pursuant to Tennessee Code Annotated
section 36-1-102(1)(A). Additionally, mother and stepfather petitioned that stepfather be
allowed to adopt the child. While it was undisputed that father had abandoned the child,
based on his failure to support or visit the child, the trial court found that father had
attempted to establish a child support obligation against himself and that he had made
numerous, yet unsuccessful, attempts to contact mother in order to visit the child
following his release from prison. Accordingly, the trial court found that father’s
abandonment was not willful and denied the termination petition. We affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
                                  and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and CARMA DENNIS MCGEE, J., joined

James R. Becker, Jr. and Misty Dawn Morgan Becker, Memphis, Tennessee, for the
appellant, Chason H. and Jennifer M.

Laurie Winstead Hall, Memphis, Tennessee, for the appellee, Leon M.

Lori Renee Holyfield, Memphis, Tennessee, Guardian Ad Litem for Ne’Khiya M.
                                              OPINION

                         I. BACKGROUND AND PROCEDURAL HISTORY

       Ne’Khiya M.1 (“the Child”) was born on April 13, 2010, to Jennifer M.
(“Mother”) and Leon M. (“Father”). Both Mother and Father admitted that Father did not
sign the Child’s birth certificate. Mother testified that it was because Father did not want
to be put on child support; similarly, Father testified that, because he was about to be
incarcerated, he did not want to return home after years in prison to a large amount of
back child support. Prior to the birth of the Child, Father had been convicted of
aggravated robbery, aggravated burglary, and employment of a firearm with the intent to
commit a dangerous felony. However, because of the birth of the Child, Father’s jail
sentence and incarceration were postponed approximately three weeks. Before reporting
to prison, Father visited the Child one time at Mother’s parents’ home, during which he
brought clothes and diapers. On May 10, 2010, Father reported to prison to serve his
sentence.2 During Father’s incarceration, Mother met Chason H. (“Stepfather”), and the
two were married on May 7, 2016.

        After serving six years and nine months, Father was released from prison on
February 22, 2017. Following his release, Father went to Mother’s parents’ home—the
last place where he knew Mother and the Child were living—and left his phone number.
By the time Mother called this number, it had been disconnected. In the following
months, Father left two additional numbers with Mother’s parents, but they were never
able to speak by phone. Additionally, Father went to Mother’s parents’ home many other
times trying to locate Mother in his attempt to see the Child.

       In or around May 2017, Father visited Shelby County Child Support Services to
open a case and to be put on child support. Father also submitted to a DNA test on May
11, 2017. Subsequent to submitting to the DNA test, Father visited Mother’s parents’
home on an occasion when Mother happened to be there. He spoke to Mother in the front
yard and asked about seeing the Child, and he informed Mother about his taking the DNA
test and of his desire to have the Child tested. Mother, however, expressed an
unwillingness to have the Child tested. When the conversation became “heated”, Father
left.

      On November 30, 2018, Father filed a pro se Petition to Establish Parentage in the
Shelby County Juvenile Court (the “juvenile court”).3 The initial hearing was held on

        1
           This Court has a policy of protecting children’s identities in parental termination cases.
Therefore, when appropriate, we will abbreviate certain names.
         2
           The Child was only twenty-seven days old at the time of Father’s incarceration.
         3
           Appellants argue that, through his Petition to Establish Parentage, Father did not attempt to
establish a parent-child relationship because “he only sought to have himself legally declared [the
Child’s] father and to ‘address’ her surname.” However, in his prayer for relief, Father did ask for “such
                                                  -2-
January 28, 2019, but the case was continued to March 25, 2019 because a certified copy
of the DNA testing results4 had not been provided to the juvenile court.5 Prior to the
March 25, 2019 hearing before the juvenile court, however, Appellants, on March 19,
2019, filed their Petition for Step-Parent Adoption (the “Petition”) in the Shelby County
Chancery Court (the “trial court”), requesting that Father’s parental rights to the Child be
terminated on the ground that he had willfully abandoned the Child pursuant to
Tennessee Code Annotated section 36-1-102(1)(A). At the March 25, 2019 hearing on
Father’s petition, the juvenile court determined that Father was the biological father of
the Child. However, the juvenile court did not address the issues of Father’s child
support obligation or visitation “due to the pending adoption petition in Chancery Court.”
The juvenile court signed an order to this effect on March 25, 2019, but it was not filed
until May 21, 2019.

       A trial on the Petition was held on November 7, 2019. Looking at the relevant
four-month statutory period—which both parties agreed was from November 18, 2018 to
March 18, 2019—the trial court found that Father “neither visited, supported, nor made
reasonable payments toward the support of the minor child[.]” However, the trial court
also found that, while his attempts were unsuccessful, Father made sincere efforts to visit
and support the Child. Specifically, the trial court found as follows:

               Shortly after he was released from prison until March 25, 2019, and
        arguably until the date of trial, Father made countless attempts to try to visit
        with the minor child, establish a relationship with her, and set child support.
        For example, Father submitted himself to a DNA test on May 11, 2017;
        posted on his Facebook and reached out to Mother’s relatives on Facebook;
        visited Mother’s parents’ home on multiple occasions to drop off contact
        information; filed a pro se Petition to Establish Parentage in Juvenile Court;
        attended the first setting on his Petition on January 28, 2019; filed a Motion
        for Supervised Visitation with this Court on July 11, 2019; and, according
        to his testimony, opened a case with Maximus to be placed on child
        support.

               Father’s proof and testimony of his attempts to see and support the
        minor child were uncontradicted by Petitioners. The proof was clear that
        Father did not do a successful job in finding the child, and his attempts to
        see and support the minor child failed. But upon being released from
        prison after roughly seven years, Father had no support or network to assist
        him in succeeding in his attempts. In trying to see and support the minor

other relief for which [he] may be entitled.”
         4
           Mother, approximately 18 months after being requested by Father to do so, eventually took the
Child for a DNA test after Father filed his Petition to Establish Parentage in the Juvenile Court.
         5
           Significantly, at the January 28, 2019 hearing, Father stated his desire to seek visitation with the
Child as well as his willingness to have a child support obligation established against him.
                                                    -3-
       child, Father made all kinds of mistakes in trying to get everything done,
       but this Court believes trying counts. Effort means as much as success, and
       this Court will not hold it against Father that his attempts failed.

Further, the trial court noted that “there was no proof at all that Mother did anything to
facilitate visitation between the minor child and Father.” Accordingly, the trial court
determined that Father’s abandonment of the Child was not willful and, therefore, denied
the Petition. Appellants timely filed this appeal.

                                         II. ISSUE PRESENTED

        While Appellants raise two issues on appeal6, we believe the dispositive issue in
this case to be whether the trial court erred in finding that Appellants had failed to prove,
by clear and convincing evidence, at least one ground for termination of Father’s parental
rights.

                                      III. STANDARD OF REVIEW

       Under both the United States and Tennessee Constitutions, a parent has a
fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois,
405 U.S. 645, 651 (Tenn. 1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.
1996). Thus, the state may interfere with parental rights only when a compelling interest
exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745
(1982)). Our termination statutes identify “those situations in which the state’s interest in
the welfare of a child justifies interference with a parent’s constitutional rights by setting
forth grounds on which termination proceedings can be brought.” In re W.B., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7
(Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person
seeking to terminate parental rights must prove both the existence of one of the statutory
grounds for termination and that termination is in the child’s best interest. Tenn. Code
Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002).

        Because of the fundamental nature of a parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in
deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds
for termination and that termination of parental rights is in the child’s best interests must
be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In
re Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes that the truth
of the facts asserted is highly probable . . . and eliminates any serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.” In re M.J.B., 140

       6
           Nevertheless, we address Appellants’ specific issues within our discussion of the restyled issue.
                                                    -4-
S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence “produces in a fact-finder’s mind
a firm belief or conviction regarding the truth of the facts sought to be established.” Id.

       In view of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). We must then determine whether the facts, as found by the trial court or
as supported by the preponderance of the evidence, clearly and convincingly establish the
elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002).

                                        IV. DISCUSSION

       As noted earlier, Appellants petitioned to terminate Father’s parental rights on the
ground that he had willfully abandoned the Child by failing to visit and by failing to
support the Child. Termination of a parent’s rights may be initiated based on
“[a]bandonment by the parent or guardian, as defined in § 36-1-102[.]” Tenn. Code Ann.
§ 36-1-113(g)(1). As is relevant here, Tennessee Code Annotated section 36-1-102
provides that “abandonment” mean the following:

       For a period of four (4) consecutive months immediately preceding the
       filing of a proceeding, pleading, petition, or any amended petition to
       terminate the parental rights of the parent or parents or the guardian or
       guardians of the child who is the subject of the petition for termination of
       parental rights or adoption, that the parent or parents or the guardian or
       guardians either have failed to visit or have failed to support or have failed
       to make reasonable payments toward the support of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i).7 As stated above, it is undisputed that, during the
relevant statutory period, Father failed to visit, support, and make reasonable payments
towards the support of the Child. Therefore, the essential issue on this appeal is whether
Father’s abandonment of the Child was willful. Here, the trial court concluded that
Father was not willful in his abandonment of the Child. As such, we must determine
whether the evidence preponderates against the trial court’s determination that Father’s
abandonment of the Child was not willful. Further, we note that, although we review the
trial court’s findings of fact with a presumption of correctness, the trial court’s conclusion
that Father’s failure to visit and failure to support did not constitute willful abandonment
is a question of law, which we review de novo with no presumption of correctness. See
In re Catherine J., No. W2017-00491-COA-R3-PT, 2018 WL 618703, at *14 (Tenn. Ct.

       7
          Appellants filed the Petition on March 19, 2019. Accordingly, all versions of the statutes
referenced herein are those that were effective on that date.
                                               -5-
App. Jan. 30, 2018) (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn.
2007)).

        Prior to 2018, the statutory definition of abandonment placed the burden of proof
on the petitioner to show that the parent’s failure to visit or failure to support was
“willful.” On July 1, 2018, the Tennessee General Assembly amended Tennessee Code
Annotated section 36-1-102(1)(A) to remove the element of willfulness from the
definition of abandonment by failure to support or visit. Rather than include willfulness
as an element of the ground, Tennessee Code Annotated section 36-1-102(1) now
provides that it is an affirmative defense:

        For purposes of this subdivision (1), it shall be a defense to abandonment
        for failure to visit or failure to support that a parent or guardian’s failure to
        visit or support was not willful. The parent or guardian shall bear the
        burden of proof that the failure to visit or support was not willful. Such
        defense must be established by a preponderance of evidence. The absence
        of willfulness is an affirmative defense pursuant to Rule 8.03 of the
        Tennessee Rules of Civil Procedure[.]

Tenn. Code Ann. 36-1-102(1)(I) enacted by 2018 Tennessee Laws Pub. Ch. 875 (H.B.
1856), eff. July 1, 2018. Here, Appellants filed the Petition on March 19, 2019, and, in
his response to the Petition, Father raised lack of willfulness as an affirmative defense.
Accordingly, Father had the burden to show, by a preponderance of the evidence, that his
failure to visit the Child was not willful. After our review of the record and as explained
below, we conclude that Father has satisfied his burden.

       We begin our analysis by noting that Father filed a Petition to Establish Parentage
on November 30, 20188, and he attended the first hearing for the petition on January 28,
2019, during which he expressed his desire to see the Child as well as his willingness to
have a child support obligation established against him. While the mere existence of a
petition to establish visitation or a child support obligation is not, by itself, conclusive
evidence that a parent has not willfully abandoned a child, courts have previously held
that a parent who actively pursued such a petition during the relevant four-month period
could not be said to have willfully abandoned a child. See In re Adoption of A.M.H., 215
S.W.3d 793, 810 (Tenn. 2007) (concluding that “efforts at maintaining a parent-child
relationship to the courts” is inconsistent with a finding of “willful failure to visit as a
ground for abandonment.”); see also In re Chelbie, No. M2006-01889-COA-R3-PT,
2007 WL 1241252, at *1 (Tenn. Ct. App. Apr. 27, 2007).

        8
          One day prior to his filing the Petition to Establish Parentage, Father made a Facebook post,
pleading with anyone who knew Mother to “tell her to have a heart” and to let him see the Child.
Additionally, Father stated in the Facebook post that he had not “had [the] chance to love on my 1st baby”
and that he was “really lost” and “[did not] know where to turn[.]”
                                                  -6-
       For example, in In re Chelbie F., the father, for approximately seven years, neither
visited nor financially supported his child. In re Chelbie, 2007 WL 1241252, at *1.
Eventually, the father filed a petition to establish visitation and child support. Id.
However, this proceeding was preempted when the child’s mother and stepfather filed a
petition to terminate the father’s parental rights, which the chancery court granted upon
finding the father had abandoned the child by willfully failing to support or visit her. Id.
at *2. On appeal, we reversed, finding as follows:

        It is undisputed, however, that Kenneth F. filed a petition in the Chancery
        Court for Hamilton County on March 22, 2005 seeking the court’s
        assistance in establishing his visitation and his support obligation. It is also
        undisputed that Anita G. had been served with process and that Kenneth F.
        was actively pursuing his petition when Anita G. and Gary G. filed the
        petition to terminate his parental rights. In fact, it is undisputed that the
        parties were in the middle of the hearing on Kenneth F.’s petition when
        word came that the petition to terminate his parental rights had been filed in
        Bedford County and that the proceedings in Hamilton County were
        immediately suspended as a result of the filing of the petition in Bedford
        County.

Id. at *6. Based on these facts, we determined that the father’s “pursuit of a judicial
remedy is inconsistent with a finding that he willfully failed to support or visit Chelbie F.
during the four months immediately preceding the filing of the petition.” Id.

        Like the father in In re Chelbie F., Father, here, was actively pursuing a judicial
remedy to establish visitation and child support during the relevant four-month statutory
period and, thus, prior to Appellants’ filing their Petition. Appellants, however, argue on
appeal that, in Father’s petition to establish parentage, “[h]e did not ask for a visitation
schedule and he did not ask to pay child support.” We disagree. First, Father filed his
Petition to Establish Parentage pro se. As we have previously held, “[t]he courts give pro
se litigants who are untrained in the law a certain amount of leeway in drafting their
pleadings and briefs.” Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003).
Accordingly, “we measure the papers prepared by pro se litigants using standards that are
less stringent than those applied to papers prepared by lawyers.” Id. A review of
Father’s petition to establish parentage reveals that he specifically prayed “[f]or such
other relief for which [he] may be entitled[.]” Secondly, at the initial hearing on his
petition, when asked his purpose for filing the petition, Father responded as follows: “[I]t
was going to give me the right to say [the Child] was my daughter and put myself on
child support. That’s what I was hoping to establish, some type of visitation, some type
of legal – that I was her legal guardian. Her father.”9 Therefore, we find Appellants’

        9
         Further, since his release from prison, Father had been to Shelby County Child Support Services
on multiple occasions in an attempt to put himself on child support.
                                                 -7-
argument that Father did not properly request to establish a visitation schedule or child
support obligation without merit. As we held in In re Chelbie F., Father’s pursuit of a
judicial remedy is inconsistent with a finding that he willfully failed to support or visit
the Child during the relevant statutory period.

       In addition to his pursuit of a judicial remedy, Father made numerous—albeit
unsuccessful—attempts to visit and support the Child since his release from prison.
While some of these events occurred outside the relevant four-month statutory period,
this Court has previously noted that “courts often must consider the parent’s actions
outside the four-month period in order to assess the willfulness of the parent’s actions
within the pivotal four-month period, as ‘part of the constellation of facts that must be
considered to assess willfulness.’” In re Adoption of Marissa O.R., No. W2013-01733-
COA-R3-PT, 2014 WL 2475574, at *14, fn. 12 (Tenn. Ct. App. May 30, 2014) (emphasis
in original) (quoting In re Kaleb N.F., No. M2012-00881-COA-R3-PT, 2013 WL
1087561, at *23 (Tenn. Ct. App. Mar. 12, 2013)). Accordingly, “[t]he question of intent
or willfulness depends on the totality of the circumstances.” In re J.G.H., Jr., No.
W2008-01913-COA-R3-PT, 2009 WL 2502003, at *15 (Tenn. Ct. App. Aug. 17, 2009).

        Here, in March of 2017—just one month after his release from prison—Father
went to Shelby County Child Support Services (“SCCSS”) to open a case. Father
testified it was his understanding that, by opening a case with SCCSS, he would be better
able to see and support the Child:

       Q: Okay. And so you went to open up a case?
       A: Yes, ma’am.
       Q: And by “a case,” what did you understand that to mean?
       A: I understood that I basically would have to submit my DNA test to
       basically try to get some type of visitation and put myself on child support.
       Q: Okay. And so you understood that by going and doing that, all of that
       ultimately would take place?
       A: Yes.

In addition to opening up a case with SCCSS, Father reached out to a number of
Mother’s relatives on social media in an attempt to ascertain her and the Child’s
whereabouts. For example, on July 3, 2018, Father made a Facebook post in which he
asked, “If [a]nybody know [sic] [Mother] please tell her I want to see my child[.]”
Similarly, on July 27, 2018, Father posted on Facebook a picture of Mother with the
following caption: “[I]f you seen [sic] her or know her tell her to have a [heart][10] and let
me see my child[.]” That same day, Father also messaged Mother’s cousin on Facebook:
“I don’t know you but I just want to see my daughter so can you contact your cousin[.] I
don’t know any other way to contact her[.]” Father, however, received no response. On

       10
            In the original Facebook post, Father used a heart emoticon.
                                                    -8-
July 30, 2018, Father messaged Mother’s sister on Facebook, notifying her that he could
not get in contact with Mother and that he wanted to see the Child. Again, however,
Father received no response. On November 29, 2018—notably within the relevant four-
month period—Father made yet another Facebook post in which he pleaded with anyone
who knew Mother to inform her that he wished to see the Child.

       Father also visited Mother’s parents’ home on multiple occasions following his
release from prison. Mother, however, had moved out of her parents’ home and into a
home with Stepfather in December 2015, while Father was still incarcerated. Father,
however, testified that he was never given a new address or telephone number for
Mother, and Mother testified that she had never given him any form of contact
information, either. Nevertheless, Father left three separate telephone numbers at
Mother’s parents’ home. Mother called the first number, but it had been disconnected.
Mother attempted to call the second and third numbers as well, but Father never
answered because the calls came from a private number. A parent’s failure to visit or
support a child is willful when that parent “is aware of his or her duty to visit or support,
has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not
doing so.” In re Adoption of Muir, 2005 WL 3076896, at *5. Based on the foregoing, it
would strain credulity to hold that Father made no attempts to visit and support the Child.

       Appellants also argue on appeal that the trial court erred in finding that they had
an “affirmative obligation” to facilitate Father’s obligations to visit and support the Child.
However, after our review of the final order, we determine that the trial court made no
such finding. Specifically, the trial court found as follows:

              Through her testimony, Mother argued she did not stonewall, but she
       did not testify that she did anything to make it easier for Father to see the
       child. Therefore, Mother neither did anything to facilitate the visitation nor
       did she do anything to prevent it . . . .

              As previously stated, Father made multiple attempts to get into
       contact with Mother. Mother did not contradict these instances or attempts
       because there is no denying Father did do them; all of his attempts just did
       not lead to the minor child. Mother may not have known of all of Father’s
       attempts to see the minor child or all of the steps he was taking to establish
       some sort of relationship, visitation, or child support, but it can be said that
       it was because she did not want to know.

An offhand reference to the fact that Mother did nothing to facilitate the relationship
between Father and the Child is inconsistent with a finding that she had an affirmative
obligation to do the same. Rather, we conclude that the trial court’s finding alludes more
so to the often-quoted rule that the failure to visit or to support “is not excused by another
person’s conduct unless the conduct actually prevents the person with the obligation from
                                              -9-
performing his or her duty or amounts to a significant restraint or interference with the
parent’s efforts to support or develop a relationship with the child.” In re Audrey S., 182
S.W.3d 838, 864 (Tenn. Ct. App. 2005) (internal citations omitted).11 After our review of
the record, we conclude that Mother’s own testimony indicates that she interfered with
Father’s efforts to develop a relationship with the Child. For example, in October 2017,
Father spoke with Mother in her parents’ front yard and expressed his desire that he and
his family be allowed to visit the Child. Mother, however, refused. At trial, Mother
testified that, “at that time I didn’t feel like it was his decision to say when he could step
back in.” Additionally, she testified that “[i]t was just something that I felt like he
shouldn’t have control over anymore because he had his opportunity to do what he
needed to do if he wanted to be a part of [the Child’s] life.” Further, as to the efforts
Father made following his release from prison, Mother testified as follows:

        Q: [W]hy do you think that [Father] went to [SCCSS] and opened a case
        and did the DNA test if not to see [the Child] and establish legal rights to
        her?
        A: Honestly, I’m not sure. That’s why I was thrown off. Because when
        [the Child] was born his words to me were that he didn’t want to be put on
        child support, that was why he didn’t sign the birth certificate, and he
        wasn’t trying to do all of that[.]
        Q: Well, even assuming that testimony is true, you understand that this was
        several years later. And is it your testimony under oath that you really
        don’t know why he went to all that trouble?
        A: I don’t because that’s where we left off at, so that’s all I have to go by.

       Overall, Mother was aware that Father was taking steps in order to develop a
relationship with the Child. However, by her own testimony, she believed that allowing
Father to develop a relationship with the Child “was just something that . . . he shouldn’t
have control over anymore[.]” Mother’s interference with Father’s efforts to support or
develop a relationship with the Child, as well as Father’s pursuit of a judicial remedy to
establish a visitation schedule and child support obligation during the relevant four-
month period, are inconsistent with a finding that he willfully failed to support or visit the
Child. Accordingly, we conclude that the record does not contain clear and convincing
evidence that Father willfully abandoned the Child pursuant to Tennessee Code
Annotated section 36-1-113(g)(1).




        11
            Conduct that amounts to a significant restraint or interference with a parent’s efforts to support
or develop a relationship with a child includes, but is not limited to: “(1) telling a man he is not the child’s
biological father; (2) blocking access to the child; (3) keeping the child’s whereabouts unknown; (4)
vigorously resisting a parent’s efforts to support the child; or (5) vigorously resisting a parent’s efforts to
visit the child.” Id. at 864, fn. 34.
                                                    - 10 -
                      VI. CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed



                                      _________________________________
                                      ARNOLD B. GOLDIN, JUDGE




                             - 11 -
