In The Matter Of:
C.R.,
A minor child. Guilford County
94-J-424
Appeal by respondents from order entered 14 March 2002 by
Judge Lawrence C. McSwain in District Court, Guilford County.
Heard in the Court of Appeals 19 May 2004.
Office of the Guilford County Attorney, by Assistant County
Attorney Kevin W. Whiteheart, for Guilford County Department
of Social Services.
Tracie M. Jordan for Guardian Ad Litem.
M. Victoria Jayne for respondent-appellant father.
Hall & Hall, P.C., by Susan P. Hall, for respondent-appellant
mother.
McGEE, Judge.
The Guilford County Department of Social Services (DSS) filed
a petition on 2 December 1998 to terminate the parental rights of
respondents P.R. (respondent-mother) and B.R. (respondent-father)
(collectively respondents) to their child, C.R. (the child). The
DSS petition set forth grounds for termination under N.C. Gen.
Stat. . 7A-289.32 (recodified N.C. Gen. Stat. § 7B-1111) alleging
neglect and abuse. The petition further alleged that the child was
willfully left in foster care for more than twelve months, that
respondents willfully failed to pay a reasonable portion of thecost of care for the child, and that respondents were incapable of
providing proper care and supervision. A hearing on the petition
was held on 7, 8, and 14 May 2001. The trial court entered a
written order on 14 March 2002 terminating respondents' parental
rights. Respondents appeal from that order.
The child, born 6 January 1993, was initially removed from
respondents' home by DSS after DSS was notified that the child had
suffered a spiral fracture to her right femur on or about 10 June
1994, while she was at home with respondent-mother. A spiral
fracture is the result of a twisting or wrenching motion applied to
a limb. The child's treating physician found respondent-mother's
explanation of the injury to be inconsistent with the nature of the
fracture, and the physician suspected physical abuse.
DSS took emergency custody of the child on 13 June 1994 and
filed a petition the same day alleging the child was abused and
neglected and should be removed from respondents' home. At a
February 1995 hearing, respondents stipulated the child was
neglected and the child was adjudicated neglected. The trial court
ordered that physical and legal custody of the child remain with
DSS. The child has continued in the custody of DSS since that time
and has not at any time been returned to the custody of
respondents. Respondents entered into a service agreement with DSS
on 14 October 1994 in which they agreed, inter alia, to participate
in and complete a psychological examination, attend parenting
classes, and visit with the child on a weekly basis. They signed
a substantially similar service agreement with DSS on 22 April 1996that included a stipulation that respondents would adhere to
recommended nutritional guidelines and discipline practices in
interacting with the child.
In December 1994, respondent-mother submitted to a
psychological examination which concluded that she was not in a
position at that time "to provide a reasonably healthy, safe and
nurturing environment for her young daughter." A second evaluation
completed three years later found no significant improvement in
respondent-mother's mental and emotional condition since the first
evaluation.
Respondent-father's psychological evaluations were conducted
in December 1994 and February 1995. Dr. Nissim Shimoni (Dr.
Shimoni), a psychologist, determined that respondent-father showed
poor insight and judgment and that he was "not yet capable of
caring for [his] daughter and providing a safe and secure
environment for her." In a 1997 evaluation, Dr. Shimoni noted that
there had been very little indication of change in respondent-
father's life since the previous evaluations. Dr. Shimoni
concluded that
in spite of some change in [respondent-
father's] life such as the fact that he is
employed now 20 to 30 hours a week, I was
unable to detect any other noticeable changes
in [respondent-father's] attitude, behavior,
judgment, and insight that are necessary if
reunification [with the child] is to take
place.
Dr. Shimoni stated that the prospect of reunification depended upon
respondents' progress in parenting classes and individual therapy
sessions. In addition to such clinical evaluations, respondents attended
parenting classes in 1996 under the supervision of Robert Egelson
(Egelson), a staff psychologist with Guilford County's mental
health program (Guilford Center). Egelson and Bob Herman (Herman),
a clinical specialist with Guilford Center, concluded in a
September 1996 letter to DSS that, although respondents had "worked
to implement the training provided[,]" reunification would fail
because respondents had reached a plateau in parenting training and
could not provide for the child's specific needs.
Respondents attended all scheduled visits with the child, but
the visits were always supervised. In a letter to DSS dated 25
February 1997, Herman stated that when the child returned from a
visit with respondents, she was "often aggressive (attacking [her
foster mother's children or dog]), self-abusive (scratching her
face and screaming until her throat [was] raw), urinating on
herself, and spitting." In March 1997, the trial court ordered
that all visitation cease until further orders of the trial court,
and that DSS provide a written report within ninety days as to when
and how visits should resume. Dr. Walter Schmalstieg, a
psychiatrist with Charter Greensboro Behavioral Health System,
wrote a specific recommendation in January 1998 that the child
"have no further contact with her biological parents" due to her
"severe physiological reactions from contact with her birth parents
(i.e. hives, skin rashes, etc.)[.]"
DSS was relieved of its efforts toward reunification and DSS
filed a petition to terminate respondents' parental rights inDecember 1998. Respondents' motion to resume visitation was denied
in July 1999 based, in part, on Egelson's testimony that such
visits were not in the child's best interest. Nonetheless, in
December 2000, the trial court directed that Egelson evaluate the
child and make a recommendation as to visitation. After speaking
with the child regarding a visit with respondents, Egelson
recommended that respondents be allowed one supervised visit. In
March 2001, the trial court permitted respondents to visit with the
child so long as therapeutic personnel found that visitation was
"appropriate or in the best interest of the . . . child."
Respondents did visit with the child before their parental rights
were terminated.
In respondents' first assignment of error, they contend their
constitutional and due process rights have been violated by the
poor quality of the audio recording of the termination proceedings.
Respondents contend that the absence of an accurate and complete
transcript denies them meaningful appellate review.
Respondents cite numerous instances of inaudible testimony
from throughout the hearings. They specifically point to the
destruction of an original taped audio recording containing a
portion of the 7 May 2001 hearing and they state that all remaining
copies of that tape are inaudible. The missing testimony largely
concerned respondents' mental health evaluations.
N.C. Gen. Stat. . 7B-806 (2003) requires that all juvenile
adjudicatory or dispositional hearings must be recorded by
stenographic notes or by some electronic or mechanical means. "Mere failure to comply with this statute standing alone is,
however, not by itself grounds for a new hearing. A party, in
order to prevail on an assignment of error under section 7B-806,
must also demonstrate that the failure to record the evidence
resulted in prejudice to that party." In re Clark, 159 N.C. App.
75, 80, 582 S.E.2d 657, 660 (2003). An appellant's general
allegations of prejudice are insufficient to show reversible error.
Id. "Where a verbatim transcript of the proceedings is
unavailable, there are 'means . . . available for [a party] to
compile a narration of the evidence, i.e., reconstructing the
testimony with the assistance of those persons present at the
hearing.'" Id. (quoting Miller v. Miller, 92 N.C. App. 351, 354,
374 S.E.2d 467, 469 (1988)). Hence, respondents must attempt to
reconstruct those portions of the transcript that are missing and
cited as error.
Respondent-father states that because an entire tape was
destroyed, any attempt to reconstruct the absent testimony would be
speculation at best. He surmises that since the trial court's
written order noted that the "parents functioned within the
borderline range of cognitive ability," the trial court "may have
relied heavily on this omitted testimony to find a ground for
terminating the father's parental rights." Respondent-mother
directs this Court to a long list denoting portions of the
transcript where the testimony is unintelligible on the recordings
from all three days of the hearing. She alleges that she can do
nothing further to reconstruct the record. This Court held in Coppley v. Coppley, that
where the appellant has done all that she can
[] do [to reconstruct the transcript], but
those efforts fail because of some error on
the part of our trial courts, it would be
inequitable to simply conclude that the mere
absence of the recordings indicates the
failure of appellant to fulfill that
responsibility.
128 N.C. App. 658, 663, 496 S.E.2d 611, 616, disc. review denied,
348 N.C. 281, 502 S.E.2d 846 (1998). However, in the case before
us, respondents make no attempt whatsoever to reconstruct the
testimony.
Respondents have failed to indicate any specific prejudice
they have suffered due to the absence of certain testimony. In
addition, respondents' mental health evaluations are among the
exhibits included in the record. This assignment of error is
overruled. See In re Bradshaw, 160 N.C. App. 677, 681, 587 S.E.2d
83, 86 (2003).
Respondent-father further contends that he was unduly
prejudiced by the trial court's failure to act within the time
frame imposed by statute for determining a petition to terminate
parental rights. N.C. Gen. Stat. . 7B-1109(e) (2003) mandates that
an "adjudicatory order shall be reduced to writing, signed, and
entered no later than 30 days following the completion of the
termination of parental rights hearing." Furthermore, N.C. Gen.
Stat. . 7B-1110(a) (2003) mandates that a disposition order
terminating parental rights must be "reduced to writing, signed,
and entered no later than 30 days following the completion of the
termination of parental rights hearing." The adjudication anddisposition orders in this case were entered more than ten months
after the termination hearing was concluded. Finally, N.C. Gen.
Stat. . 7B-1109(a) (2003) provides that a hearing on the
termination of parental rights is to be held "no later than 90 days
from the filing of the petition or motion unless the judge pursuant
to subsection (d) of this section orders that it be held at a later
time." The hearing in the case before us was held over two years
after the initial petition to terminate respondents' parental
rights was filed.
Although we are greatly concerned by the trial court's failure
to provide a timely resolution of the petition to terminate
respondents' parental rights, we conclude that respondent-father's
argument is misplaced. Respondent-father notes that "[a]lthough
Chapter 7B of the North Carolina General Statutes was not yet
enacted when this case started in 1994, the controlling sections of
former Chapter 7A correspond to current sections in 7B."
Respondent-father does not direct this Court to any statutory
provision in Chapter 7A setting forth such compulsory time frames,
and we find none. N.C.G.S. .. 7B-1109, 1110 were previously
codified, respectively, as N.C.G.S. §. 289.30, 289.31 and neither
statute contained such time limits. Also, the mandatory time frame
imposed by statute and cited by respondent-father was not in effect
at the time DSS filed its petition in December 1998, nor at the
time the termination hearing was conducted. The General Assembly
amended N.C.G.S. . 7B-1109 and 1110 in 2001 to include the
compulsory time within which a hearing must be conducted and ordersfiled, in an effort to avoid delays in proceedings to terminate
parental rights. 2001 N.C. Sess. Laws ch. 208, .. 7, 22, and 23.
The effective date of the amendments was "January 1, 2002, and [the
amendments applied] to actions filed on or after that date." 2001
N.C. Sess. Laws ch. 208, .. 7, 22, and 23. Thus, respondent-
father's argument is misplaced.
Respondent-father further assigns error to the trial court's
conclusion that termination of his parental rights was proven by
clear, cogent, and convincing evidence. The trial court held that
termination of parental rights was warranted pursuant to four of
the statutory grounds for termination. The trial court found: (1)
the child was abused, (2) the child was neglected, (3) the
respondents "willingly left" the child in foster care for more than
twelve months, and (4) respondents were incapable of providing
proper care and supervision of the child. Upon appellate review,
"[a] finding of any one of the grounds enumerated at Section
7A-289.32 will support a judge's order of termination." In re
Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990).
A proceeding for termination of parental rights is a two-stage
process. At the adjudication stage, the petitioner must establish
by clear, cogent, and convincing evidence that one or more of the
grounds for termination exists as set forth in N.C.G.S. . 7A-
289.32. In re Leftwich, 135 N.C. App. 67, 71, 518 S.E.2d 799, 802
(1999). If one or more of the specific grounds listed is proven,
the trial court must determine at the dispositional stage whether
it is in the best interest of the child to terminate the parentalrights. Id.
Although a party may challenge the sufficiency of the evidence
presented to support the trial court's findings of fact, our
appellate courts are bound by those findings "where there is some
evidence to support those findings, even though the evidence might
sustain findings to the contrary." In re Montgomery, 311 N.C. 101,
110-11, 316 S.E.2d 246, 252-53 (1984). Our Court's review is
therefore limited to a determination as to whether the trial
court's findings are supported by clear, cogent, and convincing
evidence and whether those findings support the conclusions of law
as to the termination of respondent-father's parental rights. Id.
at 110-11, 316 S.E.2d at 253.
In situations where a child is neglected and custody is at
issue, our Supreme Court has noted that
the best interest of the child is the polar
star. The fact that a parent does provide
love, affection and concern, although it may
be relevant, should not be determinative, in
that the court could still find the child to
be neglected within the meaning of our neglect
and termination statutes.
Id. at 109, 316 S.E.2d at 251-52. Accordingly, pursuant to N.C.
Gen. Stat. § 7A-289.32, a trial court may terminate parental rights
upon a finding that a child has been neglected within the meaning
of N.C. Gen. Stat. § 7A-517(21) (recodified N.C. Gen. Stat. § 7B-
101(15)), which defines a "neglected juvenile" as follows:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in anenvironment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law.
Our Court determined in In re Pope, 144 N.C. App. 32, 37, 547
S.E.2d 153, 156 (citations omitted), aff'd, 354 N.C. 359, 554
S.E.2d 644 (2001), that in order to establish neglect in a
termination proceeding,
there must be clear and convincing evidence:
(1) the juvenile has not, at the time of the
termination proceeding, "receive[d] proper
care, supervision, or discipline from the
juvenile's parent . . . or . . . is not
provided necessary medical care," and (2) the
juvenile has sustained "some physical, mental,
or emotional impairment . . . or [there is] a
substantial risk of such impairment as a
consequence of [such] failure[.]"
Although a prior adjudication of neglect may be considered by
the trial court in determining a later petition to terminate
parental rights on the ground of neglect, the sufficiency of a
prior adjudication of neglect, standing alone, will not support a
termination of parental rights when the parents have not had
custody of the child for a significant period of time preceding the
termination proceeding. In re Ballard, 311 N.C. 708, 713-14, 319
S.E.2d 227, 231 (1984); see also In re Young, 346 N.C. 244, 248,
485 S.E.2d 612, 615 (1997) ("Termination of parental rights for
neglect may not be based solely on past conditions which no longer
exist."). However, even if there is not evidence of neglect at the
time of the termination proceeding, the trial court may terminate
parental rights if there is a prior adjudication of neglect and the
trial court finds by clear and convincing evidence that there is a
likelihood of repetition of neglect if the minor child is returnedto the parents. Pope, 144 N.C. App. at 37, 547 S.E.2d at 156; see
also In re White, 81 N.C. App. 82, 90, 344 S.E.2d 36, 41 (1986)
("The court must also consider evidence of any change in condition
up to the time of the hearing, but this evidence is to be
considered in light of the evidence of prior neglect and the
probability of repetition of neglect."), disc. review denied, 318
N.C. 283, 347 S.E.2d 470 (1986); In re Caldwell, 75 N.C. App. 299,
302, 330 S.E.2d 513, 516 (1985) (The trial court "must also
consider evidence of changed conditions to the time of hearing in
light of the evidence of prior neglect and the probability of
repetition of neglect. It is not essential that there be evidence
of culpable neglect following the initial adjudication.").
At the time of the termination proceeding in this case,
respondent-father did not have custody of the child and therefore,
the trial court made no findings concluding that the child was
neglected at the time of the proceeding. Instead, the trial court
determined that there was a high probability of repetition of
neglect if the child returned to the care of respondent-father.
The trial court in its order confused conclusions of law with
findings of fact. Findings of fact are determinations based on the
evidence concerning facts averred by one party and denied by the
other; whereas conclusions of law are findings by the trial court
as determined by the application of rules of law. In re Johnston,
151 N.C. App. 728, 731, 567 S.E.2d 219, 221 (2002). We are able to
distinguish the trial court's findings of fact from its conclusions
of law. In the trial court's order, finding of fact thirteen states:
Pursuant to N.C.G.S. 7A-289.32(2), the
juvenile is a neglected child in that she was
adjudicated Neglected within the meaning of
the law on or about February 10, 1995. She has
remained neglected with regard to her parents
in that neither parent has corrected those
conditions which caused the minor child to be
removed. These include, but are not limited
to, the parents['] history of social
maladjustment; the parents' poor understanding
and judgment in regard to [the child's]
complex needs; their inability to cope with
situations having any complexity at all; and
their limited ability to absorb, understand
and apply information pertaining to parenting
issues as it relates to [the child]. Further,
the parents' participation in the services
offered to them through the history of this
case has done nothing to assure [the child's]
physical safety in their home even without any
consideration being given to [the child's]
intense personal and medical needs. The
parents will not be able to provide a safe
home within a reasonable time. The Court
notes specifically that at a recent visit,
even after Mr. Egelson had instructed the
parents not to do so, they fed the minor child
two snacks instead of one. The Court notes
further the considerable improvement made by
the child in her current home setting and the
risk to her of losing this if placed in an
inadequate, unsafe environment.
The trial court further found that despite the assistance of
DSS, respondents did not participate in parenting classes until
more than a year after the child was removed from their home. The
trial court also found that respondent-father missed at least two
appointments before completing his psychological examination in
1995. In addition, counselors from Guilford Center concluded in
their September 1996 letter to DSS that respondents where not yet
capable of caring for the child and that reunification of the
family would "fail." Notably, Egelson, the psychologist whodeveloped and implemented the parenting classes for respondents,
testified that respondents had not benefitted from the classes to
the point of being able to independently care for the child outside
the presence of another adult. The trial court found that
respondents: argued in front of the child during visits; failed to
notice when the child had wandered off; and fed the child "junk
food" despite being told by the psychologist and DSS not to do so
because the child was overweight.
The trial court also made several findings regarding the
child's mental health. Specifically, the trial court noted that
beginning in 1994 and into 1995, the child exhibited numerous
behavioral problems, including aggressiveness toward other
children, spitting, scratching, and biting her fingernails. At the
termination hearing, Egelson testified that because of behavioral
problems, the child had been hospitalized at age four and had been
placed on anti-psychotic medication. Subsequent to the
hospitalization, she was diagnosed as having posttraumatic stress
disorder and reactive attachment disorder.
In reaching its conclusion to terminate respondent-father's
parental rights, the trial court made numerous findings as to the
complexity of the child's physical and psychological needs based on
extensive testimony and documentary evidence. Regarding the
child's ongoing needs, Egelson testified that although the child no
longer presented aggression, severe non-compliance and severe
impulsivity, the child continued to occasionally demonstrate
problems with social skills and non-compliance, as well as extremerigidity. He further noted that the child was "pretty far behind
in her academics. She's in her second year in first grade and
still doesn't know all of her letters . . . and has a real hard
time identifying any of the sounds that are associated with the
letters." Egelson opined that he and others had been unable to
develop techniques to solve the child's problems and that "whatever
was going on in the foster family in terms of the way they were
using their discipline and the way they were structuring their days
for [the child], was matching well with what [the child's] needs
were." He credited the turnaround in the child's behavior to her
current foster family and concluded that "[the child is] too tough
. . . for the [respondents] to be able to successfully be able to
parent."
Egelson testified that respondent-father had responded
positively to the parenting classes, but he concluded in his
written report to DSS that reunification was not feasible. In
their September 1996 letter to DSS, Egelson and Herman wrote that
additional [parenting] training for
[respondents would] not make a difference in
their ability to parent [the child]. This
conclusion is based on an assessment of [the
child's] needs, evaluation of [respondents']
ability to discipline, and observations of
parent-child interaction over time, especially
the family's ability to use the information
provided in training.
In addition, respondent-father's psychological evaluations
indicated he was not capable of caring for the child and providing
a safe and secure environment for her. Dr. Shimoni, who conducted
both of respondent-father's psychological evaluations, concluded inhis October 1997 report that he was unable to detect any
improvement in respondent-father's attitude, behavior, judgment,
and insight which would be necessary for reunification. The
evidence showed little or no change in respondent-father's
situation since the time the child was adjudicated neglected. Dr.
Shimoni, Egelson and Herman concluded in their individual reports
that if the child were to be returned to respondents, she would be
subject to the same absence of proper care and supervision that led
to the initial adjudication of neglect.
"The determinative factors must be the best interests of the
child and the fitness of the parent to care for the child at the
time of the termination proceeding." Ballard, 311 N.C. at 715, 319
S.E.2d at 232. We do not question respondent-father's affection
for the child, but "'[t]he welfare or best interest of the child is
always to be treated as the paramount consideration to which even
parental love must yield[.]'" Montgomery, 311 N.C. at 109, 316
S.E.2d at 252 (citation omitted). A thorough review of DSS'
extensive evidence shows there is clear and competent evidence to
support the trial court's findings of fact as to neglect. Those
findings are sufficient to support a conclusion of law that the
child would not receive the care and supervision required for such
a demanding child if returned to respondent-father. Therefore, we
find respondent-father's assignment of error to be without merit.
Respondent-mother argues that the trial court abused its
discretion in determining at the dispositional phase that the best
interest of the child would be served by terminating respondent-mother's parental rights. Although the trial court need only find
one ground to "warrant termination of parental rights, termination
of parental rights is only required where the trial court further
concludes that it would be in the best interest of the child to do
so." In re Huff, 140 N.C. App. 288, 301, 536 S.E.2d 838, 847
(2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
Our Court's review is limited under this argument to whether
the trial court abused its discretion in concluding that the best
interest of the child would be served by the termination of
parental rights. See In re Anderson, 151 N.C. App. 94, 98, 564
S.E.2d 599, 602 (2002). Egelson testified at length as to the
child's special needs and to her success in her current foster home
placement. In a September 1996 letter to DSS, Egelson and Herman
wrote "[i]t appears that [respondent-mother] does not have the
mental abilities to learn, retain and demonstrate mastery of
[certain] parenting skills." As to the child's foster care
situation, Egelson wrote in an October 1998 summary of services
provided to the child, that the foster family is a "near perfect
match" for the child and that she is in the "right environment,
with a family that provides her with the right mix of structure,
teaching, relaxed parenting style, rewards and caring." Egelson
further stated that if the child was removed from "this near-
perfect environment . . . she will regress and again require
dramatic interventions including medications, hospitalizations and
extensive supports."
Based on the foregoing evidence, we cannot say that the trialcourt abused its discretion in finding and concluding that the
child's best interest was served by terminating respondent-mother's
parental rights. Respondent-mother's assignment of error is
therefore overruled.
Affirmed.
Judge TIMMONS-GOODSON concurs.
Judge TYSON concurs in the result with a separate opinion.
Report per Rule 30(e).
In the Matter of:
C.R., Guilford County
A minor child. No. 94-J-424
TYSON, Judge concurring in the result.
I concur in the result reached by the majority opinion to
affirm the trial court's order terminating respondents' parental
rights.
On appeal of an order terminating parental rights, we must
consider whether clear, cogent, and convincing evidence supports
the trial court's findings of fact, which in turn support its
conclusions of law. In re Montgomery, 311 N.C. 101, 110-11, 316
S.E.2d 246, 252 (1984) (citation omitted). Here, respondents have
failed to except to any of the trial court's findings of fact.
Under our standard of review, the trial court's findings of fact
are deemed conclusive and we need not consider the sufficiency of
the evidence. In re Caldwell, 75 N.C. App. 299, 301, 330 S.E.2d
513, 515 (1985) (citing In re Apa, 59 N.C. App. 322, 296 S.E.2d 811
(1982)). The crux of respondents' appeal rests on whether the
findings of fact support the conclusions of law. In re Montgomery,
311 N.C. at 111, 316 S.E.2d at 253.
“In all actions tried upon the facts without a jury . . . the
court shall find the facts specially and state separately its
conclusions of law . . . .” N.C. Gen. Stat. 1A-1, Rule 52(a)(1)(2003). While our standard of review is limited, trial courts must
adhere to the duty set forth in Rule 52(a). Although the majority
opinion concludes the “findings of fact” at bar are discernable
from the entangled web of findings of fact and conclusions of law,
the trial court's order makes it difficult for respondents to make
specific exceptions to mixed findings of fact and conclusions of
law.
Without any specific exception taken by respondents, our
standard of review presumes the evidence supports the “findings of
fact.” I agree with the majority opinion that the “findings of
fact” support the trial court's conclusion that the child was
neglected pursuant to the former N.C. Gen. Stat. § 7A-289.32(2),
now codified as N.C. Gen. Stat. § 7B-1111(a)(1) (2003). Neglect
provides an adequate basis to uphold the trial court's order
terminating respondents' rights. See In re Taylor, 97 N.C. App.
57, 64, 387 S.E.2d 230, 233-34 (1990). I concur in the result
reached by the majority opinion.
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