M.C.A. v. Etowah County Department of Human Resources and O.P. (Appeal from Etowah Juvenile Court: JU-21-10.01).

Rel: January 31, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________

CL-2023-0286
_________________________

M.C.A.

v.

Etowah County Department of Human Resources and O.P.

Appeal from Etowah Juvenile Court
(JU-21-9.01)

_________________________

CL-2023-0287
_________________________

M.C.A.

v.

Etowah County Department of Human Resources and O.P.
CL-2023-0286 and CL-2023-0287

Appeal from Etowah Juvenile Court
(JU-21-10.01)

PER CURIAM.

This is the second time these parties have been before this court.

Two children, E.V.A., a daughter, and E.C.A., a son ("the children"),

were born of the marriage of O.P. ("the mother") and M.C.A. ("the

father"). The mother also has a daughter ("the stepdaughter") who was

born as a result of a previous relationship of the mother's and who lived

in the home with the mother, the father, and the children.

The record indicates that in April 2019 the Calhoun County

Department of Human Resources ("the Calhoun County DHR")

investigated allegations that the father had sexually abused the

stepdaughter. A Calhoun County DHR social worker explained that

because the family had not cooperated with the investigation and no

further information could be gathered, the Calhoun County DHR had

taken no action. No criminal charges were filed in Calhoun County with

regard to the father's alleged abuse of the stepdaughter.

Regardless, in May 2019, the mother filed an action in the Calhoun

Circuit Court in which she sought a divorce from the father. On January

2
CL-2023-0286 and CL-2023-0287

20, 2020, the Calhoun Circuit Court entered a judgment divorcing the

mother and the father. That divorce judgment purports to award the

mother and the father joint custody of the children. However, the terms

of the divorce judgment pertaining to custodial periods with the children

state that the mother and the father will agree to custodial periods but

that, if they cannot agree, the father is awarded visitation with the

children from Thursday to Sunday on alternating weeks and overnight

every Friday. Thus, the divorce judgment awards the mother sole custody

of the children, affords the father periods of visitation with the children,

and awards the mother and the father joint legal custody of the children.

See § 30-3-151, Ala. Code 1975; Whitehead v. Whitehead, 214 So. 3d 367,

371 (Ala. Civ. App. 2016).

In July 2020, the Etowah County Department of Human Resources

("DHR") received a report of inadequate shelter for the children at the

father's home; the children were visiting the father when DHR received

that report. During the course of investigating that inadequate-shelter

report, DHR social workers learned of the allegations of sexual abuse of

the stepdaughter by the father. DHR filed actions requesting that the

Etowah Juvenile court ("the juvenile court") find the children and the

3
CL-2023-0286 and CL-2023-0287

stepdaughter dependent and sought an award of custody of all three

children. Only the actions pertaining to the children are at issue in these

appeals.

After conducting a dependency hearing at which it received ore

tenus evidence, the juvenile court entered judgments on February 11,

2021, in which it found the children dependent and awarded custody of

them to DHR pending a dispositional hearing. We note that DHR had

placed the children in the mother's home. The father appealed, and this

court affirmed the February 11, 2021, judgments, without an opinion. See

M.C.A. v. Etowah Cnty. Dep't of Hum. Res., 357 So. 3d 656 (Ala. Civ. App.

2021). The father filed petitions for the writ of certiorari to the Alabama

Supreme Court, which denied those petitions. See Ex parte M.C.A., 357

So. 3d 657 (Ala. 2021). On December 20, 2021, this court issued its

certificates of judgment in M.C.A. v. Etowah County Department of

Human Resources, supra.

On January 25, 2022, DHR filed in the juvenile court motions

requesting that custody of the children be returned to the mother. The

juvenile court conducted a hearing over the course of two days at which

it received ore tenus evidence on DHR's motions. On April 5, 2023, the

4
CL-2023-0286 and CL-2023-0287

juvenile court entered a judgment in each of the actions in which it

awarded custody of the children to the mother, awarded the father

supervised visitation with the children, and terminated DHR's

involvement in the matters. The father filed a postjudgment motion in

each action, which were denied by operation of law. See Rule 59.1, Ala.

R. Civ. P.; and Rule 4(a)(1), Ala. R. App. P. The father timely appealed

both judgments. This court consolidated the appeals.

The father argues in his appellate brief that the juvenile court was

without authority to award custody of the children to the mother and

award him supervised visitation with the children. The father relies, in

part, on portions of the Alabama Juvenile Justice Act ("the AJJA"), § 12-

15-101 et seq., Ala. Code 1975, which provides, in part, that "[a] juvenile

court shall exercise exclusive original jurisdiction of juvenile court

proceedings in which a child is alleged ... to be dependent ...." § 12-15-

114(a), Ala. Code 1975. See § 12-15-102(8), Ala. Code 1975 (defining the

term "dependent child"). A "dependent child" is defined as

"[a] child who has been adjudicated dependent by a juvenile
court and is in need of care or supervision and meets any of
the following circumstances:

"1. Whose parent, legal guardian, legal
custodian, or other custodian subjects the child or

5
CL-2023-0286 and CL-2023-0287

any other child in the household to abuse, as
defined in Section 12-15-301[, Ala. Code 1975,] or
neglect as defined in Section 12-15-301, or allows
the child to be so subjected.

"2. Who is without a parent, legal guardian,
or legal custodian willing and able to provide for
the care, support, or education of the child.

"3. Whose parent, legal guardian, legal
custodian, or other custodian neglects or refuses,
when able to do so or when the service is offered
without charge, to provide or allow medical,
surgical, or other care necessary for the health or
well-being of the child.

"4. Whose parent, legal guardian, legal
custodian, or other custodian fails, refuses, or
neglects to send the child to school in accordance
with the terms of the compulsory school
attendance laws of this state.

"5. Whose parent, legal guardian, legal
custodian, or other custodian has abandoned the
child, as defined in subdivision (1) of Section 12-
15-301.

"6. Whose parent, legal guardian, legal
custodian, or other custodian is unable or
unwilling to discharge his or her responsibilities to
and for the child.

"7. Who has been placed for care or adoption
in violation of the law.

"8. Who, for any other cause, is in need of the
care and protection of the state."

6
CL-2023-0286 and CL-2023-0287

§ 12-15-102(8)a.

Initially, DHR alleged that the children were dependent because of

the father's alleged sexual abuse of the stepdaughter, which invoked the

juvenile court's subject-matter jurisdiction. The AJJA also specifies that

if a juvenile court finds a child dependent, it may immediately "make

proper disposition of the case" or may make a custodial disposition of the

child at a later, dispositional hearing. § 12-15-311(a), Ala. Code 1975; see

also Rule 25(A), Ala. R. Juv. P. ("At any adjudicatory hearing in a …

dependency … case …, the juvenile court may proceed immediately to a

dispositional hearing after adjudication or may set a dispositional

hearing for a later date."). In its February 11, 2021, judgments, the

juvenile court found the children dependent, awarded pendente lite

custody of the children to DHR, and scheduled the matter for a future

hearing. Thus, because the February 11, 2021, judgments did not dispose

of the dependency actions, those judgments were adjudicatory and not

dispositional.

In 2022, when DHR asked the juvenile court to return custody of

the children to the mother, DHR took the position that the mother was a

fit parent and capable of properly caring for the children; it contended,

7
CL-2023-0286 and CL-2023-0287

however, that the children were dependent as to the father. The juvenile

court scheduled the matters for a dispositional hearing pursuant to § 12-

15-311.

Under the AJJA, a juvenile court may make a custodial disposition,

or a custodial award, of a child only if that child is found to be dependent

at the time it enters the dispositional judgment. § 12-15-311(a); see also

§ 12-15-314(a) ("If a child is found to be dependent, the juvenile court may

make any of the following orders of disposition to protect the welfare of

the child .…). Although a juvenile court may find a child dependent at

the time of an adjudicatory hearing, if a dispositional hearing is

conducted on another date, the child must be determined to be dependent

at the time of the entry of the dispositional judgment in order for the

juvenile court to have jurisdiction to enter that judgment. See H.A.S. v.

S.F., 298 So. 3d 1092, 1102 (Ala. Civ. App. 2019); J.P. v. D.P., 260 So. 3d

862, 871 (Ala. Civ. App. 2018). This court has explained:

" 'Juvenile courts are purely creatures of
statute and have extremely limited jurisdiction.
See Ex parte K.L.P., 868 So. 2d 454, 456 (Ala. Civ.
App. 2003). That limited jurisdiction allows a
juvenile court to make a disposition of a child in a
dependency proceeding only after finding the child
dependent. V.W. v. G.W., 990 So. 2d 414, 417 (Ala.
Civ. App. 2008) (quoting K.B. v. Cleburne County

8
CL-2023-0286 and CL-2023-0287

Dep't of Human Res., 897 So. 2d 379, 389 (Ala. Civ.
App. 2004) (Murdock, J., concurring in the result))
(" '[I]n order to make a disposition of a child in the
context of a dependency proceeding, the child must
in fact be dependent at the time of that
disposition.' ").'

"T.B. v. T.H., 30 So. 3d 429, 431 (Ala. Civ. App. 2009) (some
emphasis added)."

M.D. v. S.C., 150 So. 3d 210, 212 (Ala. Civ. App. 2014). The AJJA allows

a juvenile court to award custody of a dependent child to a parent. See §

12-15-314(a)(1).

The father argues on appeal that because it was undisputed that

the mother was a fit parent for the children at the time of the disposition

of the children, the children could not be found to be dependent at that

time. For that reason, he says, the juvenile court was without jurisdiction

to enter a custodial disposition of the children. See § 12-15-311(a); § 12-

15-314(a); H.A.S. v. S.F., supra; and J.P. v. D.P., supra.

In Ex parte L.E.O., 61 So. 3d 1042 (Ala. 2010), petitioners who were

unrelated to the child at issue in that case, but with whom the child had

lived for three years with the permission of the child's mother, filed a

petition seeking to have the child found dependent and seeking an award

of custody of the child. The child's father, who had not seen the child in

9
CL-2023-0286 and CL-2023-0287

more than three years, opposed the petition. He contended that the

mother had prevented him from visiting the child. However, the father

admitted that he had not sought court intervention in locating the child

and had not made any financial contribution to the support of the child.

The juvenile court in that case entered a judgment finding that the child

was not dependent under former § 12-15-1(10), Ala. Code 1975 (now

amended and renumbered as § 12-15-102(8)a.), which defined the term

"dependent child" and was applicable to that action. The petitioners

appealed, and this court affirmed the juvenile court's judgment, without

an opinion. See L.E.O. v. A.L., 61 So. 3d 1041 (Ala. Civ. App. 2009). On

certiorari review, our supreme court reversed, holding that the evidence

clearly established that the father had abandoned the child and,

therefore, that the child was dependent. Ex parte L.E.O., supra.

In its opinion in Ex parte L.E.O., supra, our supreme court

explained that former § 12-15-1(10) provided that a child was dependent

if he or she met one of a list of factors and, with regard to those factors,

was "in need of care or supervision." 61 So. 3d at 1047. See also § 12-15-

102(8)a. (A "dependent child" is one "who has been adjudicated dependent

by a juvenile court and is in need of care or supervision and meets any of

10
CL-2023-0286 and CL-2023-0287

the following circumstances …."). The supreme court stated that, in

considering whether a child is "in need of care or supervision" under

former § 12-15-1(10), and now § 12-15-102(8)a., "the juvenile court must

consider whether the child is receiving adequate care and supervision

from those persons legally obligated to care for and/or to supervise the

child." Ex parte L.E.O., 61 So. 3d at 1047. In that case, the supreme court

concluded that the child was dependent because, instead of providing the

child care and supervision, the father had "simply assumed" that the

child was receiving adequate care and support, had "made no effort to

determine who was meeting the child's needs," and had "abdicated his

responsibility to contribute to the financial support of the child." Ex parte

L.E.O., 61 So. 3d at 1049-50.

The father in this case points out in his appellate brief that this

court recently held that a child who has a fit custodial parent who is

capable of protecting the child may not be determined to be dependent

because of the conduct of the noncustodial parent that might otherwise

render the child dependent. See E.D. v. Lee Cnty. Dep't of Hum. Res., 266

So. 3d 740, 744 (Ala. Civ. App. 2018). The father, relying on Ex parte

E.D., supra, argues that, regardless of his conduct, the children could not

11
CL-2023-0286 and CL-2023-0287

be dependent because the mother could properly care for and supervise

them.

In Ex parte E.D., supra, the mother and the father in that case

shared joint custody of their child at the time the Lee County Department

of Human Resources ("the Lee County DHR") sought to have the child

declared dependent as to the father. The Lee County DHR made no

allegation that the child was dependent as to the mother. The mother had

filed in the Lee Juvenile Court an action seeking to modify a previous

custody judgment that had awarded the parents joint custody, and she

also sought and obtained a protection-from-abuse ("PFA") order

prohibiting the father from visiting the child. Ex parte E.D., 266 So. 3d

at 741-42. After a hearing, the Lee Juvenile Court entered a judgment

finding the child dependent only as to the father and awarding the

mother custody of the child.

On appeal in that case, this court discussed the holding in Ex parte

L.E.O., supra, and concluded that "[t]here is no evidence demonstrating

that the child's care or supervision is inadequate. The mother, a person

legally obligated to care for and to supervise the child, has the authority

to take appropriate actions on behalf of the child, and she has done so."

12
CL-2023-0286 and CL-2023-0287

Ex parte E.D., 266 So. 3d at 744. This court reversed the juvenile court's

judgment, holding that because the mother, as a joint custodian, was a

fit custodial parent capable of acting to protect the child, the child could

not be found to be dependent under the AJJA. See Ex parte E.D., 266 So.

3d at 746 ("[B]ecause the child has a custodial parent able to properly

care for and supervise him, the child is not a dependent child."). We note,

however, that this court qualified its holding by explaining:

"This opinion should not be read as holding that a child with
joint custodians, only one of whom has been allegedly harming
the child, can never be declared dependent. If an otherwise fit
joint custodian fails to adequately protect a child from the
harm of another joint custodian, the child may be adjudicated
dependent and subjected to state protective services under Ex
parte L.E.O., [61 So. 3d 1042 (Ala. 2010)]."

Id.

Thus, in Ex parte E.D., supra, this court held that, generally, if a

joint custodian has failed to "properly care for and supervise" a child, but

the child's other joint custodian is capable of providing the child that

proper care, protection, and supervision, the child is not dependent. 266

So. 3d at 746. We have reconsidered the holding of Ex parte E.D., supra,

however, and we conclude that it does not comport with the supreme

court's holding in Ex parte L.E.O., supra. In Ex parte L.E.O., our supreme

13
CL-2023-0286 and CL-2023-0287

court held that a child is dependent if he or she does not receive "adequate

care and supervision from those persons legally obligated to care for

and/or to supervise the child." 61 So. 3d at 1047 (some emphasis omitted).

"Persons" is a plural form of the word "person." In declaring that a child

is dependent if "those persons" legally obligated to provide care and

supervision for the child fail to do so, our supreme court referred to both

of the child's joint custodians. In other words, under the holding of Ex

parte L.E.O., supra, even if a child has a fit joint custodian, that child can

still be "in need of care or supervision" with regard to the child's other

joint custodian, and, therefore, the child can be a dependent child. To the

extent that Ex parte E.D., supra, fails to follow our supreme court's

holding in Ex parte L.E.O., supra, we overrule Ex parte E.D., supra.

Under § 12-15-314 and Ex parte L.E.O., supra, the juvenile court

had jurisdiction to award custody of the children to the mother, a fit

custodian, if the father's conduct would render the children dependent as

to the father. Rule 25(A), Ala. R. Juv. P., and § 12-15-310(b), Ala. Code

1975, specify that, in dependency actions, a juvenile court must make a

written finding in its judgments regarding whether a child is dependent.

Although it noted that the children had been determined to be dependent

14
CL-2023-0286 and CL-2023-0287

in the February 11, 2021, judgments, the juvenile court in this case failed

to make such a finding in its April 5, 2023, judgments. However,

numerous cases have held that, under certain circumstances, a finding of

dependency may be determined to be implicit in a juvenile court's

judgment. T.E. v. Calhoun Cnty. Dep't of Hum. Res., 344 So. 3d 895, 899

(Ala. Civ. App. 2021); H.C. v. S.L., 251 So. 3d 793, 794 (Ala. Civ. App.

2017); M.W.H. v. R.W., 100 So. 3d 603, 607 (Ala. Civ. App. 2012); L.L.M.

v. S.F., 919 So. 2d 307, 311 (Ala. Civ. App. 2005); O.L.D. v. J.C., 769 So.

2d 299 (Ala. Civ. App. 1999). If the evidence "clearly supports a

dependency determination" in a case in which the judgment contains no

express finding of dependency, such a finding may be held to have been

implicit in the judgment. H.C. v. S.L., 251 So. 3d at 794. "[A]lthough a

finding of the continued dependency of a child may indeed be implicit in

a judgment redisposing of that child's custody, the evidence of record

supporting dependency must so ' "clearly support[] a dependency

determination" ' that no fact-finding is necessary." T.E. v. Calhoun Cnty.

Dep't of Hum. Res., 344 So. 3d at 899. See also O.L.D. v. J.C., 769 So. 2d

at 302 ("In the interest of judicial economy and because the record

supports a finding of dependency, we will not remand this case to the

15
CL-2023-0286 and CL-2023-0287

trial court for a dependency hearing."). Accordingly, we look to the record

to determine whether a finding of dependency may be implicit in the

juvenile court's April 5, 2023, judgments. See T.E. v. Calhoun Cnty. Dep't

of Hum. Res., supra; O.L.D. v. J.C., supra.

The record shows that in 2020 DHR found the father "indicated" for

the "sexual molestation" of his stepdaughter for actions he took when the

stepdaughter was a young teenager. Those actions included purchasing

lingerie for the stepdaughter and forcing her to model it for him,

encouraging the stepdaughter to allow him to take suggestive

photographs of the stepdaughter in a vehicle, requesting that the

stepdaughter sleep in his bed on a night when the two were alone, and

touching the stepdaughter inappropriately. In response to DHR's 2020

investigation into those incidents, the father did not dispute that he had

taken those actions. Instead, the father attempted to excuse his improper

conduct toward the stepdaughter by stating that he had been "testing"

her to see how she would react if a teenaged boy had exhibited similarly

inappropriate conduct toward her. The record indicates that, based on its

investigation, DHR determined that the father constituted a threat not

16
CL-2023-0286 and CL-2023-0287

only to the stepdaughter, but also to the two children at issue because of

his sexual abuse of the stepdaughter.

The vast majority of the evidence presented at the dispositional

hearing pertained to DHR's 2020 investigation of the sexual-abuse

allegations against the father. However, DHR also presented some

evidence during the dispositional hearing that raises additional concerns

about the father's conduct pertaining to the children. Dannika Edgar, a

DHR social worker, testified that, in 2020, when DHR initially restricted

the father's visitation with the children pursuant to a safety plan, the

father expressed interest in visiting only with his daughter, who was

then approximately seven years old. According to Edgar, the father was

uninterested in visiting with his son, who was then one year old.

In addition, evidence was presented indicating that, after the

juvenile court entered its February 11, 2021, dependency judgments,

which awarded the father supervised visitation with the children, the

father visited the children twice in approximately two years. Edgar

testified that the father had exercised one of those supervised visitations

in February 2021 and the other in the spring of 2022, shortly after the

first day of testimony in the dispositional hearing. Edgar explained that

17
CL-2023-0286 and CL-2023-0287

the father had said that he would prefer not to visit the children at all

rather than exercise supervised visitation with them. Edgar stated that,

between those two visits, the father had not contacted DHR to inquire

about the welfare of the children. Amanda Cook, another DHR social

worker, testified that, near the end of 2022, the father had had some

other visits with the children that were supervised by the father's sister.

The record does not indicate how many visits the father's sister might

have supervised. However, before the end of 2022, the father's sister

refused to be a visitation supervisor for the father. Cook testified that she

did not know the reason for that refusal. The juvenile court noted in its

judgments that it had entered an order on December 8, 2022, directing

the mother and the father to contact a services provider who would

supervise the father's visitation. However, the juvenile court stated that

there was no indication that either parent had contacted that services

provider. At the time of the second day of testimony in the dispositional

hearing, which occurred on April 5, 2023, the father had not visited the

children since November 2022.

During the pendency of the mother's and the father's divorce action,

the mother had obtained a PFA order against the father; it is not clear

18
CL-2023-0286 and CL-2023-0287

whether that PFA order also encompassed protection for the children.

Regardless, the PFA order expired before the entry of the divorce

judgment and was no longer in effect. DHR presented no evidence

regarding whether the mother has sought another PFA order in any court

or whether she has filed a petition in the Calhoun Circuit Court seeking

to modify the father's visitation under the divorce judgment in a manner

that would protect the children from the possibility of abuse.

Under § 12-15-102(8)a.8., a child is dependent if he or she has been

adjudicated dependent, "is in need of care and supervision," and, "for any

other cause, is in need of the care and protection of the state." Unlike the

mother in Ex parte E.D., supra, the mother in this case does not have in

place a PFA order that prevents the father from visiting the children. In

Ex parte E.D., supra, the mother had filed a petition seeking to modify

the custody judgment between her and the father, and that petition had

been served on the father at the jail at which the father was incarcerated

at the time of the dispositional hearing. Ex parte E.D., 266 So. 3d at 741-

72 and 742 n.3. In the absence of the proper exercise of dependency

jurisdiction by the juvenile court, the issue of the father's contact with

the children would be governed by the divorce judgment, pursuant to

19
CL-2023-0286 and CL-2023-0287

which, it appears, the father would be allowed unsupervised overnight

contact with the children. The father's litigation strategy in these cases

appears to be to seek reinstatement of unsupervised contact between

himself and the children pursuant to that divorce judgment.

The record contains evidence indicating that the father sexually

abused the stepdaughter when she was a young teenager and that the

children are approaching the age at which that abuse began. The juvenile

court, like DHR, could reasonably be skeptical of the father's explanation

for that sexual abuse and find his explanation to be inappropriate. The

father participated in no services or evaluations that might lead to the

conclusion that the father could and would behave appropriately with the

children. Also, with only limited exceptions, the father refused to visit the

children during the pendency of these actions because the juvenile court

required that those visitations be supervised for the children's protection.

At the time of the second day of testimony in the dispositional hearing,

that refusal had resulted in his having had no contact with the children

for approximately four or five months. That evidence calls into question

the father's intent with regard to the children and demonstrates that his

priority is not the safety, protection, or best interests of the children.

20
CL-2023-0286 and CL-2023-0287

Therefore, we conclude that the evidence demonstrates that the children

are in need of care and supervision and the protection of the state. § 12-

15-102(8)a.8. Accordingly, we conclude that a determination that the

children were dependent is implicit in the juvenile court's April 5, 2023,

judgments. M.W.H. v. R.W., 100 So. 3d 603, 607 (Ala. Civ. App. 2012)

(" ' [T]his court has held that when the evidence in the record supports a

finding of dependency and when the trial court has made a disposition

consistent with a finding of dependency, in the interest of judicial

economy this court may hold that a finding of dependency is implicit in

the trial court's judgment.' " (quoting J.P. v. S.S., 989 So. 2d 591, 598 (Ala.

Civ. App. 2008))); L.L.M. v. S.F., 919 So. 2d 307, 311 (Ala. Civ. App. 2005)

("Given the factual findings contained in the ... judgment, we conclude

that a finding of dependency was implicit in the trial court's judgment.").

Given the dependency finding implicit in the juvenile court's April 5,

2023, judgments, we hold that the juvenile court had jurisdiction to enter

its April 5, 2023, dependency judgments in these cases. K.A.B. v. J.D.B.,

279 So. 3d 607, 616 (Ala. Civ. App. 2018); M.W.H. v. R.W., 100 So. 3d at

608. We also reject the father's argument that the children could not be

21
CL-2023-0286 and CL-2023-0287

found to be dependent based on the mother's ability to properly care and

supervise them. Ex parte L.E.O., supra.

The father does not argue on appeal that the evidence pertaining to

his conduct does not support the implicit dependency determination.

Therefore, that issue is waived. See Boshell v. Keith, 418 So. 2d 89, 92

(Ala. 1982) ("When an appellant fails to argue an issue in its brief, that

issue is waived.").

For the foregoing reasons, we affirm the juvenile court's judgments.

CL-2023-0286 -- AFFIRMED.

CL-2023-0287 -- AFFIRMED.

Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.

Edwards, J., concurs in the result, without opinion.

22