1-05-0357

                                                                     FIFTH DIVISION
                                                                     JUNE 1, 2007

THE PEOPLE OF THE STATE OF ILLINOIS,                  )      Appeal from the
                                                      )      Circuit Court of
               Plaintiff-Appellee,                    )      Cook County.
                                                      )
       v.                                             )      No. 02 CR 3248
                                                      )
JAMAL BAKR,                                           )      Honorable
                                                      )      Nicholas Ford,
               Defendant-Appellant.                   )      Judge Presiding.
JUSTICE TULLY delivered the opinion of the court:

       Following a jury trial, defendant-appellant Jamal Bakr (defendant) was convicted of first

degree murder and aggravated battery with a firearm and sentenced to consecutive 50- and 10-

year prison terms. On appeal, defendant contends (1) that the trial court erred in admitting the

videotaped statements of two codefendants as substantive evidence against defendant, and (2)

that he was denied a fair trial due to the cumulative impact of instances of prosecutorial

misconduct. For the reasons that follow, we affirm.

                                              FACTS

       On the evening of October 19, 2001, Elmercelo Rivera, Daniel Ortiz, Wanda Colon, Luis

Colon, and Gene Colon were in the vicinity of 43rd Street and Ashland Avenue in Chicago,

Illinois, to watch some drag races. The races took place every weekend during the summer, and

the people who took part in them were known locally as “Racers.” On this particular evening, the

races were broken up by police just after midnight. At this time, Elmercelo, Daniel, Wanda, Luis,

and Gene left the area and went to a Dunkin Donuts shop in a strip mall on 43rd Street and

Ashland where they ordered food.

       The group was standing in the parking lot by Elmercelo’s car finishing their food when a

blue Chevrolet Astro van drove by. The van was driven by Antonio Gomez, a member of the

Almighty Latin Saints gang. Gomez was accompanied by fellow gang members Jesus Nevarez,

Oscar Garcia, Jorge Melendez, and defendant. When the men saw Elmercelo, Daniel, Wanda,
1-05-0357

Luis and Gene in the parking lot, they assumed that they were Racers. This angered the men

because they believed that one of their fellow gang members had recently been shot at by some

Racers.

       Defendant and his fellow gang members then drove to 44th and Marshfield, picked up a

gun from another member of the Almighty Latin Saints gang, Armando Montelongo, and

returned to the vicinity of the Dunkin Donuts. Garcia exited the van to see if the group of

suspected Racers was still at the Dunkin Donuts. He waved back to defendant indicating that

they were. Defendant then exited the van, approached Elmercelo and his friends, fired three shots
in their direction, and ran back to the van. The Saints then drove back to the alley by

Montelongo’s house, where defendant told Montelongo that he had “shot a guy and saw him fall”

and that he “thought he shot a second guy.”

       Back at the Dunkin Donuts, Elmercelo found Daniel lying on the pavement. Daniel told

Elmercelo that his back hurt and he could not move. Elmercelo also realized that his buttocks

were burning and his pants were torn. Elmercelo grabbed Daniel, put him inside the car, and, in

an effort to find the police, the group drove back to where the races had been. Two ambulances

arrived on the scene and took Daniel and Elmercelo to Cook County Hospital. Daniel later died

at the hospital due to a gunshot wound to the back. Elmercelo was treated for a gunshot wound to

the buttocks.

       The Chicago police department immediately began their investigation. The officers on the

scene recovered three discharged 9-millimeter cartridge casings in the parking lot. They also

interviewed Wanda, Elmercelo, Luis, and Gene. Based on their interviews, the Chicago police

officers concluded that the suspected shooter was a white male, Hispanic, about 18 years of age,

5 feet 8 inches tall, with a medium build and light complexion and wearing a dark or black

hooded sweatshirt and dark or black jeans.

                                                 2
1-05-0357

       The Chicago police were unable to identify any suspects in the shooting until January 16,

2002, when Nevarez was arrested for engaging in three separate narcotics transactions with

undercover Chicago police officers. Upon learning of the severity of the drugs charges he was

facing, Nevarez told the Chicago police officers he had some information on the homicide in

question. On the basis of this information, the Chicago police subsequently arrested defendant,

Garcia, Melendez, and Montelongo.

       The State jointly indicted defendant, Oscar Garcia, Jesus Nevarez, Jorge Melendez, and

Armando Montelongo, for, inter alia, first degree murder of Daniel Ortiz and aggravated battery
with a firearm of Elmercelo Rivera. Prior to trial, Nevarez, Melendez, and Montelongo pled

guilty to second degree murder and were sentenced to 12, 10, and 10 years, respectively.

Defendant filed a motion to quash arrest and suppress his alleged oral inculpatory statements to

Chicago Police and any evidence of defendant being identified in a police lineup. The trial court

denied the motion, finding that the Chicago police had probable cause to arrest defendant in light

of Nevarez’s statements to the police, in which he implicated defendant in the shootings.

Defendant and Garcia were set for a double jury trial, but Garcia did not appear for trial on the

day testimony was to commence. The trial court issued a bond forfeiture warrant for Garcia and

proceeded with defendant’s jury trial.

       The State’s first witness was Mayra Ortiz, mother of both Daniel Ortiz and Elmercelo

Rivera. During her testimony, Mayra stated that Daniel was “developmentally disabled.” The

prosecutor asked what that term meant, and defense counsel objected. The objection was

sustained. After Mayra’s testimony, defense counsel made a motion for mistrial based on her

testimony, stating that the prosecution had asked certain questions in an attempt to invoke

sympathy for the victim. The trial court denied the motion for mistrial and promised to instruct

the jurors not to be swayed by either sympathy or prejudice.

                                                 3
1-05-0357

       The State proceeded with its case by calling a number of witnesses, including Luis Colon,

who identified defendant as the shooter from that night, and Detective Anthony Powell, who

testified that defendant told him that he shot “in the direction of” the victims that night. The State

also called several of the codefendants who had previously offered evidence to Chicago police

implicating defendant in the shooting. Among the codefendants was Nevarez, who testified that

he remembered neither his conversations with the Chicago police officers at the station upon his

arrest nor his statements in several portions of the videotaped interview he had with the Chicago

police officers.
       During Nevarez’s testimony, defense counsel objected and requested a sidebar. Defense

counsel argued that the nature of Nevarez’s testimony rendered him essentially unavailable for

cross-examination and that allowing the prosecution to introduce his video statement violated the

United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d

177, 124 S. Ct. 1354 (2004). The trial court concluded that Crawford was inapplicable and

decided that the videotape would be admissible under section 115-10.1 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/115-10.1 (West 2004)). Subsequently, Nevarez’s attorney

testified that Navarez had sworn that the facts in his videotaped statement were true and that he

had gone over a copy of a transcript of the video statement with his client prior to Nevarez

accepting the plea. The State then authenticated the videotape through the detective who

conducted the interview of Nevarez, and the tape was played for the jury.

       Montelongo also was among the codefendants who testified at trial, although he testified

that he could not remember the details of the murder or his arrest. Montelongo claimed that he

did not remember anyone coming to his home on the night of the shooting and that he did not

remember either getting a gun from or giving a gun to defendant. He did recall getting arrested

and speaking with a detective subsequent to his arrest, although he stated that he did not recall

the substance of the conversations he had with Chicago police officers. Over defense counsel’s

                                                  4
1-05-0357

objection, Montelongo’s videotaped statement was admitted as substantive evidence under

section 115.10 as well. Montelongo’s videotaped account of the shooting incident was

substantially similar to Nevarez’s videotaped account. Montelongo added that defendant had

given him a loaded .9-millimeter gun the day before the incident and that this gun was the same

one eventually used. Montelongo also indicated that after the shooting, defendant told him that

he saw one of the people he was shooting at “fall.”

       Following all of the testimony, the State rested its case-in-chief. Defendant’s counsel

moved for a directed finding, which was denied by the trial court. Defendant then took the stand
on his own behalf. Defendant testified that he recalled being arrested, but recalled that he had no

idea why he was being arrested. He testified that he had told the police that he could not have

been involved in the shooting because he had a cast on from September to October 2001. He

added that he had not left his house except to go to the backyard for air or to see his girlfriend at

her house. Defendant stated that during the period of time surrounding the murder he was trying

to stay away from the neighborhood and the gang. Defendant denied knowing anything about the

shooting and stated that Nevarez, Montelongo, and Melendez were all lying. Defendant also

denied making any inculpatory statements to Detective Powell regarding the shooting.

       After closing arguments were delivered by both sides, the jury was instructed by the trial

court that neither sympathy nor prejudice should influence the jury. Following deliberations,

defendant was found guilty of first degree murder and aggravated battery. On October 29, 2004,

defendant filed a motion for a new trial, which was denied by the trial court. The trial court

sentenced defendant to 25 years in the Illinois Department of Corrections for his first degree

murder conviction. The court also made a specific finding that defendant had personally

discharged a firearm and added an additional 25 years to his sentence. The trial court also

sentenced defendant to 10 years based on the aggravated battery with a firearm charge to be

                                                  5
1-05-0357

served consecutive to the 50-year first degree murder sentence. Defendant’s motion to reconsider

the sentence was denied. Defendant appeals.

                                            DISCUSSION

        On appeal, defendant first contends that the trial court erred by allowing the State to

admit the videotaped statements of Jesus Nevarez and Armando Montelongo. Specifically,

Defendant argues that his constitutional rights under the confrontation clause, as enumerated by

the United States Supreme Court in Crawford v. Washington, 541 U.S. at 36, 158 L. Ed. 2d at

177, 124 S. Ct. at 1354, were denied when the trial court admitted the videotaped statements
"because Nevarez and Montelongo were unavailable for cross-examination." Before addressing

whether the trial court erred when it admitted the videotaped statements, we must determine the

appropriate standard for reviewing the trial court's evidentiary ruling.

        Defendant, relying on our supreme court's decision in People v. McClanahan, 191 Ill. 2d

127, 132 (2000), contends that we should review the trial court's decision to admit the videotaped

statements de novo because, according to defendant, the trial court's evidentiary ruling depended

upon a question of constitutional law. McClanahan, however, dealt with the issue of whether an

Illinois statute was constitutional, and, assessing the appropriate standard of review, our supreme

court stated that the issue of whether a statute is constitutional should be reviewed de novo.

McClanahan, 191 Ill. 2d at 132. While it is true that challenges to the constitutionality of

statutes are reviewed de novo, our supreme court has confirmed that evidentiary rulings, such as

the one presented by this case, are within the sound discretion of the trial court and should not be

reversed absent an abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89 (2001), quoting

People v. Williams, 188 Ill. 2d 365, 369 (1999), (holding that reviewing courts should defer to

trial court's evidentiary rulings even if they involve legal issues unless "<trial court's exercise of

discretion has been frustrated by an erroneous rule of law>"); see also People v. Purcell, 364 Ill.

App. 3d 283, 294 (2006) (citing to Caffey and applying abuse of discretion standard when

                                                   6
1-05-0357

reviewing whether trial court's admission of grand jury testimony violated Crawford). Therefore,

in reviewing the trial court's decision to admit the videotape recordings, we will assess whether

the trial court abused its discretion. Caffey, 205 Ill. 2d at 89. “An abuse of discretion will be

found only where the trial court's ruling is arbitrary, fanciful, unreasonable, or where no

reasonable person would take the view adopted by the trial court.” Caffey, 205 Ill. 2d at 89.

       As stated, the initial issue raised by defendant's appeal is whether his rights under the

confrontation clause were violated by the trial court's decision to admit into evidence the

videotaped statements of Nevarez and Montelongo. The trial court admitted the videotaped
statements provided by Nevarez and Montelongo as substantive evidence pursuant to section

115-10.1 of the Code of Criminal Procedure (725 ILCS 5/115-10.1 (West 2004)). Defendant

does not argue that the trial court abused its discretion by admitting the videotaped statements

into evidence pursuant to section 115-10.1; rather, defendant contends that the admission of the

evidence violated his rights under the confrontation clause of the sixth amendment of the United

States Constitution. Specifically, defendant asserts that his constitutional right to confront

witnesses was violated because Nevarez and Montelongo testified that they did not recall making

the videotaped statements and, therefore, Defendant was unable to cross-examine either witness.

We disagree.

       The confrontation clause of the sixth amendment requires that “[i]n all criminal

prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses

against him.” U.S. Const., amend. VI. This amendment applies to the states pursuant to the

due process clause of the fourteenth amendment. U.S. Const., amend. XIV. The Illinois

Constitution echoes the confrontation clause in article 1, section 8, which provides that “[i]n

criminal prosecutions, the accused shall have the right *** to be confronted with the

witnesses against him or her." IL. Const. 1970, art. I, §8.

                                                7
1-05-0357

       In Crawford v. Washington, the United States Supreme Court reinterpreted the

Confrontation Clause and held that the "testimonial" hearsay statements of a witness who is

unavailable at trial may not be admitted against a criminal defendant unless the defendant had

a prior opportunity for cross-examination. Crawford, 541 U.S. at 42, 158 L. Ed. 2d at 187,

124 S. Ct. at 1359. The Crawford Court also confirmed that "when the declarant appears for

cross-examination at trial, the Confrontation Clause places no constraints at all on the use of

his prior testimonial statements." (Emphasis added.) Crawford, 541 U.S. at 60 n.9, 158 L. Ed.

2d at 198 n.9, 124 S. Ct. at 1370 n.9. Furthermore, in People v. Desantiago, 365 Ill. App. 3d
855, 870 (2006), we elaborated on the Crawford Court's reinterpretation of the confrontation

clause and held that “a defendant’s rights under the confrontation clause are not absolute;

rather, ‘the confrontation clause guarantees an opportunity for effective cross-examination,

not cross-examination that is effective in whatever way, and to whatever extent, the defense

might wish'" (emphasis in original) quoting People v. Jones, 156 Ill. 2d 225, 243-24, 620

N.E.2d 325 (1993)). See also People v. Redd, 135 Ill. 2d 252, 310, 553 N.E.2d 316 (1990)

(confrontation clause is not violated as long as declarant is actually testifying as a witness

and is subject to cross-examination). Moreover, no confrontation clause problems exist

simply because a declarant's alleged memory problems precluded the declarant from being

cross-examined to the extent that defense counsel would have liked. Desantiago, 365 Ill.
App. 3d 855, citing Mercer v. United States, 864 A.2d 110, 114 (D.C. 2004).

       Here, defendant contends that Nevarez's and Montelongo’s ability to recall neither

“making their statements nor the incident that was the subject of their statements” rendered

the witnesses “unavailable” for effective confrontation, and therefore the admission of their

videotaped statements into evidence deprived defendant of his rights under the confrontation

clause. Contrary to defendant's assertion that Nevarez and Montelongo were unavailable, this

record confirms that both Nevarez and Montelongo physically appeared at trial and were

                                                8
1-05-0357

subject to cross-examination by defendant's defense counsel. Defense counsel was afforded

the opportunity to cross-examine the witnesses on issues such as the witnesses’ bias and the

witnesses’ motive to lie. Furthermore, defense counsel elicited testimony on cross-

examination from Nevarez that he said “whatever he would to get him out of trouble” and

from Montelongo that “he said whatever he needed to get out of the police station.” In doing

so, defendant had the ability to impeach the witnesses’ credibility, therefore satisfying the

confrontation clause’s goal of challenging the reliability of adverse evidence. Faced with this

record, which confirms that Navarez and Montelongo were present at trial and subject to
cross-examination, we cannot agree with defendant's contention that his constitutional rights

under the confrontation clause were violated by the admission of Navarez's and Montelongo's

videotaped statements.

        Defendant’s second claim of error is that defendant was denied a fair trial by the

cumulative impact of instances of prosecutorial misconduct committed by the State.

Specifically, defendant alleges that the prosecutors (1) improperly elicited testimony that the

victim was developmentally disabled, (2) repeatedly asked defendant to comment on the

veracity of the State’s witnesses, and (3) made several improper arguments during rebuttal

closing argument, including shifting the burden of proof, misstating the extent of the

presumption of innocence, and making comments that penalized defendant for exercising his

rights to counsel at trial.

        Because defendant failed to object to any of these alleged instances of improper

conduct and failed to include them in his posttrial motion, we address each of defendant’s

allegations using the plain error standard set for in Illinois Supreme Court Rule 615(a)(134

Ill. 2d R. 615(a)). In a criminal case, the plain error doctrine may be invoked in two

instances: first, where the evidence in the case is closely balanced, and, second, where to

leave the error or errors uncorrected raises a substantial risk that an accused was denied a fair

                                                9
1-05-0357

trial and remedying the error or errors is necessary to preserve the integrity of the judicial

process. People v. Shaw, 186 Ill. 2d 301, 326-27 (1998). The error or errors must be so

fundamental to the integrity of the judicial process that the trial court could not cure the error

or errors by sustaining an objection or instructing the jury to disregard the errors. Shaw, 186

Ill. 2d at 327.

        In this case, we cannot say that the evidence was closely balanced. The evidence

against defendant included eyewitness identification by Luis Colon, who identified defendant

as the shooter with “one hundred percent” certainty. The State also presented the accounts of
several of defendant’s cooffenders, each of whom identified defendant as the shooter.

Additionally, Jesus Nevarez testified to seeing defendant fire the gun in the direction of the

victims. Finally, Detective Powell testified regarding defendant's incriminating statements,

which included defendant's admission that he shot "in the direction of" the victims. Given

the substantial evidence against defendant, his conviction will not be overturned based on the

alleged prosecutorial misconduct unless the alleged misconduct is of such a magnitude that

defendant was denied a fair trial and remedying the error or errors is necessary to preserve the

integrity of the judicial process. We address each of the alleged errors in turn.

        First, defendant argues that the prosecutor improperly elicited testimony from the

victims mother, Mayra Ortiz, suggesting that the victim was developmentally disabled. While

we agree that discussing the victim's mental disability is immaterial to defendant's guilt or

innocence, eliciting testimony regarding the personal traits of a victim is only reversible error

where the testimony is presented in a manner that causes the jury to believe it is material,

rather than incidental. People v. Williams, 147 Ill. 2d 173, 229 (1991). Our supreme court

has confirmed that where, as here, the testimony regarding the victim’s mental condition was

elicited by the prosecutor in the form of a single question and not referenced during the rest

of the trial, such conduct was not reversible error. See People v. Page, 155 Ill. 2d 232, 270

                                                10
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(1993). Therefore, because the reference to the victim's mental condition was limited to an

isolated question and not referred to again, we do not find that this constituted prosecutorial

misconduct such that defendant was denied a fair trial.

        Second, defendant claims that the prosecutors engaged in improper cross-examination

by asking the defendant to comment on the veracity of the State’s witnesses. We disagree.

During direct examination, defendant accused all of the witnesses testifying against him of

lying. By raising the issue of the witness' veracity, defendant opened the door for the

prosecution to challenge defendant’s credibility. People v. Millighan, 265 Ill. App. 3d 967,
972 (1994). Furthermore, the scope of cross-examination is in the sole discretion of the trial

court and will not be reversed absent an abuse of that discretion. People v. Baugh, 358 Ill.

App. 3d 718, 739 (2005). Accordingly, we do not believe that the State's cross-examination

of defendant was in any way improper and we certainly cannot say that the cross-examination

undermined his right to a fair trial.

        Third, defendant claims that the prosecutor made several improper arguments during

rebuttal closing argument, including shifting the burden of proof, misstating the extent of the

presumption of innocence, and making comments that penalized defendant for exercising his

rights to counsel at trial. However, prosecutors are afforded wide latitude in closing

arguments (People v. Wood, 341 Ill. App. 3d 599, 612 (2003)), and comments made during a

prosecutor’s rebuttal argument will not be deemed improper if they were invited by defense

counsel’s closing argument. People v. Watson, 342 Ill. App. 3d 1089, 1093 (2003). Here, the

prosecution’s rebuttal argument addressed defendant’s credibility and was a direct response

to the defendant’s attempt to convince the jury of defendant’s credibility, a tactic that has

been held proper by this court. Furthermore, the prosecutor did not improperly shift the

burden of proof by pointing out that defendant failed to volunteer an credible explanation for

his whereabouts on the night of the murder, especially since defendant suggested he could not

                                               11
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have committed the crime because he was wearing a cast at the time of the shooting and

because he only left his home to visit his girlfriend . See People v. Watkins, 220 Ill. App. 3d

201, 209 (1991) (comments that would be otherwise constitute an inappropriate shifting of

burden are not improper when the comments are an invited response to insinuations by the

defendant or defense counsel). Finally, it is clear that the prosecutor did not improperly

misstate the extent of defendant's presumption of innocence; rather, this record confirms that

the prosecutor's statement was limited to a suggestion that the State's overwhelming evidence

would "remove" the presumption of innocence to which defendant was entitled. This
comment, viewed in its proper context, was meant to comment on the quality of the State's

case rather than on the presumption of innocence to which defendant was entitled. People v.

Cisewski, 118 Ill. 2d 163, 178 (1987) (holding that prosecutor's statement to the jury, "'Now

is the time, Ladies and Gentlemen, to remove the cloak of innocence from this defendant'"

was not an improper misstatement of presumption of innocence). Accordingly, we hold that

the State did not engage in prosecutorial misconduct and that, even if these acts were deemed

improper, the cumulative impact of these acts would not have denied the defendant his right

to a fair trial.

         Defendant's final argument on appeal is that he is entitled to an additional 362 days of
credit against his sentence based on the time he spent in custody from January 17, 2002,

which was the date on which defendant was arrested, until December 14, 2004, which was

the date on which defendant was sentenced. The State concedes that defendant is entitled to

362 days of credit. Pursuant to Supreme Court Rule 615 (134 Ill. 2d R. 615), "a reviewing

court on appeal may correct the mittimus at any time, without remanding the cause to the trial

court". People v. Whitfield, 366 Ill. App. 3d 448, 451 (2006). Therefore, we order the

correction of that portion of the mittimus to reflect the 362 days of credit.

                                       CONCLUSION

                                                12
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       For the foregoing reasons, the judgment of the trial court is affirmed and the mittimus

corrected.

       AFFIRMED.

       O'BRIEN, P.J., and GALLAGHER, J., concur.

                                             13


981 So.2d 1213 (2008)
PERRY
v.
DEPARTMENT OF CHILDREN AND FAM. DIST.: 11.
No. 3D08-413.
District Court of Appeal of Florida, Third District.
May 1, 2008.
Decision without published opinion. App. dismissed.


                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 20, 2016                    521191
________________________________

In the Matter of ROBERT OO.,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

SHERRELL PP.,
                    Respondent.
________________________________

Calendar Date:    September 7, 2016

Before:    Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.

                              __________

      Colwell Colwell & Petroccione, Albany (Brett A. Engel of
counsel), for appellant.

      Bailey, Kelleher & Johnson, Albany (Monique B. McBride of
counsel), for respondent.

     Paige E. Crable, Albany, attorney for the children.

                              __________

Rose, J.

      Appeal from an order of the Family Court of Albany County
(Maney, J.), entered October 28, 2014, which, in a proceeding
pursuant to Family Ct Act article 6, granted respondent's motion
for summary judgment dismissing the petition.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the unmarried parents of a son (born
in 2007), a daughter (born in 2008) and twins (born in 2009).
Pursuant to a February 2013 order entered on consent, the parties
shared joint legal custody and the mother had primary physical
custody, with a schedule of parenting time for the father. In
March 2014, the father commenced this modification proceeding
seeking, among other things, primary physical custody of the
                              -2-                521191

children. In support of his request, the father alleged that the
mother, among other things, did not properly supervise the
children and used excessive corporal punishment.

      The mother moved to dismiss the petition for failure to
state a cause of action. In support of her motion, the mother
attached a letter from the Office of Children and Family Services
stating that allegations of abuse or maltreatment against her had
been determined to be unfounded. She also proffered a report
prepared by a child protective services caseworker for the Albany
County Department for Children, Youth and Families (hereinafter
the report) that concluded that there were no current safety
concerns (see Family Ct Act § 1034). After the father responded
and opposed the motion, Family Court notified the parties that it
was treating the motion as one for summary judgment and provided
them with time to submit additional proof (see CPLR 3211 [c];
Family Ct Act § 165 [a]). The court thereafter granted the
mother's motion, finding that she had met her burden of
establishing the absence of triable issues of fact regarding the
existence of a change in circumstances and that the father had
failed to raise an issue of fact in opposition. The father now
appeals.

      It is well settled that a motion for summary judgment may
be utilized in a Family Ct Act article 6 proceeding (see Matter
of Daniels v Lushia, 101 AD3d 1405, 1406 n 2 [2012]; Matter of
Wiltsey v Wiltsey, 294 AD2d 638, 639 [2002]), but such a motion
should be granted only when "there are no material facts disputed
sufficiently to warrant a trial" (Matter of Liz WW. v Shakeria
XX., 128 AD3d 1118, 1120-1121 [2015] [internal quotation marks
and citations omitted], lv dismissed 25 NY3d 1195 [2015];
see Matter of Ryan v Nolan, 134 AD3d 1259, 1262-1263 [2015]). In
a custody modification proceeding, the controlling "material
fact" is whether or not there is a change in circumstances so as
to warrant an inquiry into whether the best interests of the
children would be served by modifying the existing custody
arrangement (see Matter of La Bier v La Bier, 291 AD2d 730, 731
[2002], lv dismissed 98 NY2d 671 [2002]; see also Matter of Tara
AA. v Matthew BB., 139 AD3d 1136, 1137 [2016]; Matter of Schmitz
v Schmitz, 139 AD3d 1123, 1123 [2016]).
                              -3-                521191

      In our view, Family Court erred in concluding that the
mother met her initial summary judgment burden. Although the
report, which was the result of a Family Ct Act § 1034
investigation, concludes that there were no current safety
concerns, the inquiry sought to be addressed by the report –
namely, whether a Family Ct Act article 10 proceeding should be
initiated (see Family Ct Act § 1034 [1] [a]) – is a separate and
distinct inquiry from the one at issue here. Significantly, the
report confirms that one of the subject children and the mother's
12-year-old daughter, who is unrelated to the father, disclosed
that the mother hits them with "her hand or a belt." The report
further reveals that the mother's 12-year-old daughter would
"sometimes watch the children overnight when [the] mother goes to
work." In addition, one of the subject children reported that he
had been left home alone and that, on one occasion, the mother's
12-year-old daughter threw another one of the subject children up
in the air "to be mean." In doing so, she accidentally dropped
the child and, as a result, the child suffered a broken leg.
Based upon these allegations, we find that the mother failed to
establish the absence of triable issues of fact as to whether
there has been a change in circumstances so as to warrant an
inquiry into whether the best interests of the children would be
served by modifying the existing custody arrangement and, thus,
an evidentiary hearing is warranted (compare Matter of Ryan v
Nolan, 134 AD3d at 1262-1263; Matter of La Bier v La Bier, 291
AD2d at 732-733).

     Peters, P.J., McCarthy, Garry and Mulvey, JJ., concur.
                              -4-                  521191

      ORDERED that the order is reversed, on the law, without
costs, motion denied and matter remitted to the Family Court of
Albany County for further proceedings not inconsistent with this
Court's decision.

                             ENTER:

                             Robert D. Mayberger
                             Clerk of the Court


132 F.Supp.2d 497 (2000)
Susie RAND and Benjamin Rand, et al., plaintiffs,
v.
EMPIRE FUNDING CORPORATION, et al., defendants.
No. 3:00-CV-61WS.
United States District Court, S.D. Mississippi, Jackson Division.
August 2, 2000.
*498 *499 *500 Mark I. Burton, Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, AL, James Byrnes Grenfell, Grenfell, Sledge & Stevens, Jackson, MS, for plaintiffs.
Janet McMurtray, John Simeon Hooks, Adams and Reese, Jackson, MS, for defendants.

ORDER REMANDING THIS CAUSE TO STATE COURT
WINGATE, District Judge.
Before the court is the motion of the plaintiffs for mandatory abstention pursuant to Title 28 U.S.C. § 1334(c)(2),[1] for permissive abstention pursuant to Title 28 U.S.C. § 1334(c)(1),[2] and for remand to the Circuit Court of Holmes County, Mississippi, pursuant to Title 28 U.S.C. § 1452(b),[3] or, alternatively, to sever the plaintiff Sara Smith and remand the case to the aforesaid Mississippi court. The defendants, Empire Funding Corporation, T.M.I. Financial, Inc., Home Products, Inc, and Ron Miller have not responded to the plaintiffs' motion.
This action originally was filed in the Circuit Court of Holmes County, Mississippi, and had been pending since April of 1999 when it was removed to this court pursuant to Title 28 U.S.C. § 1452(a)[4] on January 21, 2000, by Empire Funding Corporation and T.M.I. Financial, Inc. (hereinafter the "defendants"), immediately after learning that one of the plaintiffs, Sara Smith, had filed a Chapter 13 bankruptcy petition and received a discharge after the underlying transactions pertaining to this lawsuit had occurred and her claims arose. The defendants also asserted that the defendants Ron Miller and Home Products, Inc., filed a Chapter 7 bankruptcy petition and a Chapter 11 bankruptcy petition, respectively, on January 21, 2000. The defendants contended that the bankruptcy matters involved core proceedings which had to be resolved by the bankruptcy court, and that this case was an integral part of the bankruptcy proceedings. Thus, said defendants in their notice of removal, this case should be transferred to the United States Bankruptcy Court for the Southern District of Mississippi.
*501 The defendants contended initially that this court's jurisdiction over this case was based on Title 28 U.S.C. § 1334(b)[5] (cases relating to a proceeding under Title 11 of the United States Code). However, the defendants have not responded to or otherwise opposed the plaintiffs' motion for abstention, remand and/or severance.
The plaintiffs first note that the bankruptcy petitions of the defendants Ron Miller and Home Products, Inc., have been dismissed voluntarily and the cases closed.[6] Secondly, the plaintiffs contend that the Chapter 13 petition of Sara Smith offers this court no basis for jurisdiction over the instant case. However, say plaintiffs, if this court finds that it has jurisdiction over Sara Smith, then she should be severed and the rest of the plaintiffs remanded to state court.[7]
Inasmuch as the defendants have not responded to the plaintiffs' motions, this court's analysis first shall address whether the basis for this court's jurisdiction as maintained by the defendants is valid.

"RELATED TO" JURISDICTION UNDER § 1334(b)
The defendants contend that this court has jurisdiction over this case under Title 28 U.S.C. § 1334(b) because this is a case "relating to" the aforementioned bankruptcy proceedings. Ordinarily, this court's analysis of § 1334(b)'s scope would begin by recognizing that Congress intended "to grant comprehensive jurisdiction to the bankruptcy courts so that they might deal efficiently and expeditiously with all matters connected with the bankruptcy estate." See Celotex Corporation v. Edwards, 514 U.S. 300, 115 S.Ct. 1493, 1499, 131 L.Ed.2d 403 (1995). However, in the instant case there is no bankruptcy estate to be considered. The bankruptcies of Ron Miller and Home Products, Inc., have been dismissed voluntarily, and the matter of Sara Smith is no longer before the bankruptcy court. An action is "related to bankruptcy if the outcome could alter the debtor's rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate." See Pacor Inc. v. Higgins, 743 F.2d 984 (3rd Cir.1984), a decision adopted by the Fifth Circuit in In re Wood, 825 F.2d 90 (5th Cir.1987). As stated in Pacor, the "usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy." Pacor, 743 F.2d at 994. In the instant case there is currently no estate being administered in bankruptcy to which the instant case relates. Therefore, this court finds no basis for "related to" jurisdiction pursuant to Title 28 U.S.C. § 1334(b) and concludes that this case should be remanded to the state court.

THE PLAINTIFFS' MOTION TO ABSTAIN, OR TO SEVER AND REMAND
This court concludes that it lacks "related to" jurisdiction over the instant case and that the plaintiffs' motion to remand the case to state court should be granted. However, even if it could be shown that such jurisdiction is present in the instant case, this case still should be remanded to the state court for the following reasons.

*502 a. Mandatory Abstention

Section 1334(c)(2) provides for mandatory abstention when the proceeding in question is related to a case under Title 11 but not arising under Title 11 or arising in a case under Title 11. Matters "arising under title 11, or arising in a case under title 11" are "core proceedings." See Title 28 U.S.C. § 157(b)(1). Proceedings which are "related to" a bankruptcy case are non-core. In Re Wood, 825 F.2d at 96-97.
Section 1334(c)(2) also provides that the district court shall abstain from hearing a related proceeding if an action is already commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. Accordingly, under this statute, courts must abstain from hearing a state law claim if the following requirements are met: (1) the claim has no independent basis for federal jurisdiction, other than § 1334(b); (2) the claim is a non-core proceeding, i.e., it is related to a case under title 11 but does not arise under or in a case under title 11; (3) an action has been commenced in state court; and (4) the action could be adjudicated timely in state court. Matter of Rupp & Bowman Company, 109 F.3d 237, 239 (5th Cir.1997), citing Gober v. Terra + Corp. (In re Gober), 100 F.3d 1195, 1206 (5th Cir.1996). All these requirements are present in the instant case. Thus, even if "related to" jurisdiction were present in the instant case, inasmuch as all the requirements for applying mandatory abstention under § 1334(c)(2) are present, this court would have to abstain from hearing this lawsuit.

b. Discretionary Abstention

Alternatively, under Title 28 U.S.C. § 1334(c)(1), this court has "broad discretion to abstain from hearing state law claims whenever appropriate `in the interest of justice, or in the interest of comity with State courts or respect for State law.'" Matter of Gober, 100 F.3d 1195, 1206 (5th Cir.1996), citing Wood v. Wood (In re Wood), 825 F.2d 90, 93 (5th Cir.1987) (noting that § 1334(c)(1) "demonstrate[s] the intent of Congress that concerns of comity and judicial convenience should be met, not by rigid limitations on the jurisdiction of federal courts, but by the discretionary exercise of abstention when appropriate in a particular case"). "A court ... may abstain at its discretion from deciding either core or non-core proceedings under § 1334(c)(1) if the interests of justice, comity, or respect for state law so require." Gober, 100 F.3d at 1206. Therefore, where "related to" jurisdiction is present, but the grounds for mandatory abstention under § 1334(c)(2) are not, this court still could exercise discretionary abstention under § 1334(c)(1)[8] and the case would be remanded to state court.

c. Severance and Remand

Inasmuch as this court finds no basis for "related to" jurisdiction in this case, there is no reason to consider the plaintiffs' motion to sever Sara Smith. However, even *503 if "related to" jurisdiction were present, this court would remand the case without severing Sara Smith. For the reasons previously stated, this court would abstain from hearing this case. Consequently, the matter of whether to sever Sara Smith would be a matter for the state court to decide. See Hal Ray Owens and Doris Owens v. Chevron, U.S.A., Inc., et al., Civil Action No. 3:99-cv-37WS.
Finally, even though this court has determined to remand this case to state court because "related to" jurisdiction is not present, this court would remand the case even if "related to" jurisdiction were present pursuant to Title 28 U.S.C. § 1452(b).
Title 28 U.S.C. §§ 1452(b) (remand) and 1334(c) (abstention) are kindred statutes. Section 1452(b) favors comity and the resolution of state law questions by state courts, as does section 1334(c)(1). Twyman v. Wedlo, Inc., 204 B.R. 1006, 1019 (Bankr.N.D.Ala.1996). Furthermore, Section 1334(c) encourages, and in certain cases, requires "federal courts to allow state courts to hear state law matters when the only basis for federal jurisdiction is § 1334(b)." See Thomasson v. AmSouth Bank, 59 B.R. 997, 1002 (N.D.Ala. 1986). "Section 1334(c) expresses a strong congressional desire that in respect to non-core proceedings the federal courts should not rush to usurp the traditional precincts of the state courts." Cook v. Griffin, 102 B.R. 875, 877 (N.D.Ga.1989). Together, sections 1452(b) and 1334(c) strongly evince a congressional policy that, absent countervailing circumstance, the trial of state law created issues and rights should be allowed to proceed in state court, at least where there is no basis for federal jurisdiction independent of section 1334(b) and the litigation can be timely completed in state court. Because the statutes are similar in purpose and spirit, circumstances which weigh in favor of discretionary abstention or dictate mandatory abstention under the respective subsections of section 1334(c), likewise weigh in favor of or constrain remand under section 1452(c). Twyman v. Wedlo, Inc., 204 B.R. at 1020.

CONCLUSION
Accordingly, this court finds that it lacks "related to" jurisdiction in the instant case and the matter must be remanded to the Circuit Court of Holmes County, Mississippi. However, even if "related to" jurisdiction applied in the instant case, this court would find that it would be in the interest of justice for this court to abstain pursuant to Title 28 U.S.C. § 1334(c)(1) and to remand this action pursuant to Title 28 U.S.C. § 1452(b) to the state court.
NOTES
[1]  Title 28 U.S.C. § 1334(c)(2) provides that, "[u]pon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction."
[2]  Title 28 U.S.C. § 1334(c)(1) provides that, "[n]othing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11."
[3]  Title 28 U.S.C. § 1452(b) provides in pertinent part that "[t]he court to which such claim or cause of action is removed [under § 1452(a)] may remand such claim or cause of action on any equitable ground."
[4]  Title 28 U.S.C. § 1452(a) provides that "[a] party may remove any claim or cause of action in a civil action ... to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title."
[5]  Title 28 U.S.C. § 1334(b) provides that, "[n]otwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11."
[6]  Ron Miller's Chapter 7 petition was dismissed on March 8, 2000, and the case was closed on May 12, 2000. The Chapter 11 petition of Home Products, Inc., was dismissed on March 6, 2000, and that case was closed on June 8, 2000.
[7]  According to the plaintiffs' attorney, Sara Smith has no pending bankruptcy matters at this time.
[8]  In In re Republic Reader's Service, Inc., 81 B.R. 422 (Bankr.S.D.Tex.1987), the court set forth twelve factors to consider in determining whether to exercise discretionary abstention as follows:

(1) the effect or lack thereof on the efficient administration of the estate if a Court recommends abstention, (2) the extent to which state law issues predominate over bankruptcy issues, (3) the difficulty or unsettled nature of the applicable state law, (4) the presence of a related proceeding commenced in state court or other non-bankruptcy court, (5) the jurisdictional basis, if any, other than 28 U.S.C. § 1334, (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case, (7) the substance rather than form of an asserted "core" proceeding, (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court, (9) the burden of [the bankruptcy judge's] docket, (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties, (11) the existence of a right to a jury trial, and (12) the presence in the proceeding of nondebtor parties.
Id. at 429.


901 N.E.2d 1179 (2009)
JOHNSON
v.
STATE.
No. 49A05-0806-CR-317.
Court of Appeals of Indiana.
February 13, 2009.
BROWN, J.
Disposition of case by unpublished memorandum decision. Affirmed in part and Reversed in Part.
ROBB, J. Concurs.
CRONE, J. Concurs.


426 F.Supp. 543 (1977)
Joseph INTURRI, et al.
v.
John F. HEALY, Individually and as Chairman of the Liquor Control Commission, State of Connecticut, et al.
Civ. No. H-76-4.
United States District Court, D. Connecticut.
February 16, 1977.
*544 Arthur L. Spada, Spada, Vinkels & Kristofak, Hartford, Conn., for plaintiffs.
Carl Ajello, Atty. Gen., State of Connecticut, Richard M. Sheridan, Barney Lapp, Daniel R. Schaefer, Asst. Attys. Gen., Hartford, Conn., for defendants.
Before TIMBERS, Circuit Judge, CLARIE, Chief Judge, and ZAMPANO, District Judge.

MEMORANDUM OF DECISION
CLARIE, Chief Judge:
The plaintiff, Joseph Inturri, is the permittee of Helton, Incorporated, a cafe located in Hartford, Connecticut, which is licensed by the State Liquor Control Commission (LCC).[1] Included as plaintiffs are Helton, Incorporated, the corporate backer, and Charlene Jordan, a dancer, who alleges that the LCC regulations interfere with the conduct of her chosen profession, "topless and/or bottomless" dancing. The plaintiffs brought this § 1983 action against the members of the LCC, whose regulations prohibit various types of sexually oriented entertainment, including topless dancing, in establishments licensed to sell alcoholic beverages for on-premises consumption. The plaintiffs claim that these LCC regulations violate their first and fourteenth amendment rights to free speech and equal protection.
On January 23, 1976, the plaintiffs' motion for a preliminary injunction was denied by the district court. Thereafter, a three-judge court was convened under 28 U.S.C. §§ 2281 and 2284 to consider the constitutional claims raised by the plaintiffs against the Commission's regulations, which have state-wide application. The Court finds that the issues of this case fall squarely within the ambit of California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), without raising any of the distinguishing factors present in the Salem Inn cases.[2] Accordingly, judgment shall enter for the defendants.

FACTS
At the time when this action was filed and argued, section 30-6-A24 of the State Liquor Control Regulations read in part, as follows:
"No on-premises consumption place of business, such as a restaurant, tavern, hotel, cafe or club, shall permit entertainment consisting of impersonations either of females by males or of males by females, nor shall any permittee of any such establishment advertise, give, permit or participate in any obscene, indecent, immoral or impure show or entertainment." (Emphasis added).
By an interpretative policy pronouncement issued on July 15, 1974 (Policy Memo # 21), the LCC construed this regulation as requiring that the attire of dancers on licensed premises should consist of "not less than a bikini type halter and a bikini type covering *545 for the lower portion of the torso. `Pasties' and `G-Strings' are not acceptable." The Memo further stated that "[t]he actions of the performers will not be such as to excite the prurient interest of the observer."
Violations of the aforesaid regulations led to three arrests for public indecency at the plaintiff Inturri's establishment during 1975,[3] followed by a letter from the LCC directing the plaintiff to cease "such activities."[4] A review of Inturri's cafe permit was initiated by the Commission, but action has been held in abeyance pending the resolution of this litigation. A formal request by the plaintiff to have topless dancing allowed on his premises was denied by the Commission in a letter dated November 19, 1975, with the observation that "[n]o exceptions [to the "topless" rule] have been made, nor will be made."
At the commencement of this action, the plaintiffs argued that the state's blanket prohibition on topless performances in licensed liquor establishments violated their first amendment right to freedom of expression, as applied to the states through the fourteenth amendment. They further alleged that the LCC's regulations have not been enforced against dinner-theater establishments, which stage legitimate theater productions, while patrons dine at individual tables nearby at which liquor is served. The plaintiffs claim that certain productions staged at these dinner-theaters have violated the LCC's regulations, yet no action has been taken against them. Such non-uniform application of the Commission's rules, the plaintiffs argued, violates their right to equal protection under the fourteenth amendment.
At the hearing on the merits, held March 29, 1976, the Attorney General of Connecticut advised the Court that new regulations were being prepared to replace those being contested by the plaintiffs, and that any decision issued by the Court prior to their final adoption might therefore be rendered moot. The Court withheld judgment pending the issuance of these revised regulations, which were published in final form on *546 December 14, 1976.[5] Thereafter the plaintiffs renewed their challenge on the identical grounds raised in the initial complaint.
As amended, the new section 30-6-A24 of the Connecticut State Agency Regulations reads, in its relevant portions:
"(d) No person shall be employed or otherwise used in permit premises while such person is unclothed or in such attire, costume or clothing as to expose to view any portion of the female breast below the top of the areola or any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals. No person on the permit premises shall be permitted to touch, caress or fondle the breasts, buttocks, anus or genitals of any other person, nor shall any person or employee be permitted to wear or use any device or covering, exposed to view, which simulates the breast, genitals, anus, pubic hair or any portion thereof.
"(e) No `live' entertainment shall be permitted except in accordance with prior written permission of the commission. . . . No entertainer, dancer, or other person shall perform acts or or acts which simulate: sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law; the touching, caressing or fondling of the breasts, buttocks, anus or genitals; the displaying of any portion of the female breast below the top of the areola or any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals. No permittee shall permit any person or entertainer to remain in or upon the permit premises who exposes to public view any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals. Entertainers must perform in one location and entertainers may not mingle with the patrons.
. . . . .
"(g) The showing of film, still pictures, electronic reproduction or other reproductions depicting the following shall be in violation of the regulations: acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law; any persons being touched, caressed or fondled on the breast, buttocks, anus or genitals; scenes wherein a person displays any portion of the female breast below the top of the areola or any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals; scenes wherein artificial devices or inanimate objects are employed to depict, or drawing [sic] are employed to portray, any of the prohibited activities described in the above."
These highly detailed strictures in the amended regulations have narrowed the plaintiffs' freedom of expression claim, by eliminating much of the alleged vagueness inherent in the original regulations. The plaintiffs' claims remain otherwise unaffected, however, and so the Court must determine whether, under controlling case precedent, Connecticut's revised liquor control regulation prohibiting sexually oriented performances on licensed liquor premises is constitutionally enforceable against topless female dancers and entertainers.

DISCUSSION OF THE LAW
In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the Supreme Court upheld California liquor control regulations very similar to those recently promulgated in Connecticut. Writing for the Court in LaRue, Justice Rehnquist noted that a state's authority to regulate liquor distribution under the twenty-first amendment is broader than its general police powers. Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 12 L.Ed.2d 350 (1964); State Board v. Young's Market Co., 299 U.S. 59, 64, 57 S.Ct. 77, 81 L.Ed. 38 (1936); but see Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). Noting that "[a] common element" in the contested regulations was "the Department's conclusion that the sale of liquor by the drink and lewd or naked dancing and entertainment should not take place" in bars and cocktail *547 lounges, id., 409 U.S. at 115, 93 S.Ct. at 395, the Court declined to overturn California's regulations, even though much of the prohibited behavior would be constitutionally protected under the first amendment, if engaged in other than on licensed liquor premises.[6] For a liquor control regulation to be valid, the LaRue Court intimated, all that is required is that a relation exist between the contested enactment and some valid regulatory purpose which is not wholly irrational.[7]
Despite the broad primary holding in LaRue, however, the Court did not completely foreclose constitutional attacks upon state liquor regulations limiting lewd entertainment. In one paragraph the Court stated:
"[W]e conceive the State's authority [in regulating bar room performances] to be somewhat broader than did the District Court. This is not to say that all such conduct and performance are without the protection of the First and Fourteenth Amendments. But we would poorly serve both the interests for which the State may validly seek vindication and the interests protected by the First and Fourteenth Amendments were we to insist that the sort of bacchanalian revelries that the Department sought to prevent by these liquor regulations were the constitutional equivalent of a performance by a scantily clad ballet troupe in a theater." 409 U.S. at 118, 93 S.Ct. at 397 (emphasis added).
Similarly, in discussing whether California's regulations were constitutionally enforceable in all circumstances, regardless of first amendment considerations, the Court said:
"Because of the posture of this case, we have necessarily dealt with the regulations on their face, and have found them to be valid. The admonition contained in the Court's opinion in Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 52, 86 S.Ct. 1254, 1264, 16 L.Ed.2d 336 (1966), is equally in point here: `Although it is possible that specific future applications of [the statute] may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise.'" Id. at 119 n. 5, 93 S.Ct. 397 n. 5.
Subsequent to LaRue, a series of related actions  the Salem Inn cases[8]  were decided in this Circuit. The controversy in these cases centered on efforts of the North Hempstead, Long Island town fathers to ban topless dancing and related activities in any "cabaret, bar and/or lounge, dance hall, or discotheque, or any other public place within the Town of North Hempstead. . . ." Initially, Judge Bartels of the United States District Court for the Eastern District of New York issued a preliminary injunction restraining enforcement of the town's ordinance on first amendment grounds. Salem Inn, Inc. v. Frank, 364 F.Supp. 478 (E.D.N.Y.1973), aff'd, 501 F.2d 18 (2d Cir. 1974). In the course of its decision, the court made reference to LaRue:
"Obviously LaRue, which is predicated upon the powers of the State Liquor Authority, *548 has no relevance to the constitutionality of the present ordinance, which has no other justification than the exercise of the police powers of the community. While it is true that the police power of the state may be invoked for the protection of society, it cannot be exercised in a manner inconsistent with the peaceful expression of the plaintiffs' constitutionally protected First Amendment rights." 364 F.Supp. at 482.
On appeal to the Supreme Court, Judge Bartels' issuance of a preliminary injunction was upheld. Again writing for the majority, Justice Rehnquist stated:
"Although the customary `bar room' type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409 U.S. 109, 118 [93 S.Ct. 390, 397, 34 L.Ed.2d 342] (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances. In LaRue, however, we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a state could therefore ban such dancing as a part of its liquor license program.
"In the present case, the challenged ordinance applies not merely to places which serve liquor, but to many other establishments as well." 422 U.S. at 932-33, 95 S.Ct. at 2568.
Subsequent to the Court's decision, a minor change was made in the North Hempstead ordinance.[9] The district court found the revised ordinance, like its predecessor, to be constitutionally defective, and so issued a permanent injunction. Salem Inn, Inc. v. Frank, 381 F.Supp. 859 (E.D.N.Y. 1974), aff'd, 522 F.2d 1045 (2d Cir. 1975). In affirming the district court, the Second Circuit, per Judge Oakes, observed that
"[T]o the extent that the ordinance in its preamble or the Town in its brief relies upon the suggestion in Doran v. Salem Inn, Inc., supra, that the Twenty-first Amendment may validate the ordinance, . . . we agree with Judge Bartels that the ordinance was not adequately limited in its impact. The Twenty-first Amendment does not justify regulatory control over places that serve only food or which provide entertainment but not alcoholic beverages." 522 F.2d at 1049-50 (footnote omitted).
This ruling concluded the principal phase of the Salem Inn controversy. Another phase has ensued, however, which is relevant to the present discussion. In October of 1975, the New York State Liquor Authority moved to revoke Salem Inn's liquor license. Concurrently, the Authority promulgated a rule defining "lewd and indecent performance" on licensed liquor premises. The rule, while less stringent than Connecticut's or California's, employs a similar approach and uses similar operational language. The Salem Inn brought suit to have the New York rule declared unconstitutional. While agreeing to convene a three-judge court, Judge Bartels refused to issue a preliminary injunction. Salem Inn, Inc. v. Frank, 408 F.Supp. 852 (E.D.N.Y. 1976). In the course of his opinion, he noted that
"this case is entirely different from Doran v. Salem Inn, Inc. [422 U.S. 922], 95 S.Ct. 2561 [45 L.Ed.2d 648] (1975), and Salem Inn, Inc. v. Frank, 501 F.2d 18 (2d Cir. 1974), where local ordinances attempted to prohibit topless dancing across the board in violation of the plaintiff's First Amendment rights. Here a new element has been introduced predicated upon the authority of the State under the Twenty-First Amendment . . ..
"In [LaRue], the Supreme Court held that in the context of the regulation of the sale and distribution of alcoholic beverages *549 the States's broad power under the Twenty-First Amendment is broad enough to prohibit, on licensed premises, topless or bottomless dancing which otherwise might be protected by the First Amendment." Salem Inn, Inc. v. Frank, supra, at 855.
The court then proceeded to consider certain distinguishing factors not relevant here.[10]
It seems clear that the Salem Inn cases, upon which the plaintiffs place great weight, are not directly in point, except for the most recent opinion of Judge Bartels, and that ruling favors the defendant Liquor Commissioners in this action. Accordingly, with respect to the plaintiffs' first amendment claim the Court finds that the rule of California v. LaRue, supra, is directly controlling, and that Connecticut's regulations must therefore be deemed constitutional on their face.
The plaintiffs also raise an equal protection challenge to the Connecticut LCC's "topless dancing rule," and to the manner in which it is enforced. Specifically, they allege that the LCC has not taken action against prohibited performances in dinner-theater establishments, while closely scrutinizing the entertainment offered in lounges or cafes.[11]
It should be noted at the outset that the equal protection claim upheld by the Second Circuit in Salem Inn, Inc. v. Frank, 522 F.2d 1045, 1049 (2d Cir. 1975), is not in point here. The original Salem Inn cases involved a town ordinance rather than a liquor authority regulation, and their disposition required no balancing of the fourteenth and twenty-first amendments. Thus, in deciding that the fourteenth amendment prohibited the application of North Hempstead's ordinance to some commercial enterprises but not others, absent the showing of a compelling state interest in the classification, the court had no occasion to address the narrower question of whether or not a state liquor control authority, acting pursuant to a regulation valid under LaRue, is empowered to draw reasonable distinctions between licensed establishments for purposes of applying its rules.
Turning to this latter question, the Court is mindful that "the Twenty-first Amendment [does not] empower a state to act with total irrationality or invidious discrimination in controlling the distribution of liquor within its borders." California v. LaRue, supra, 409 U.S. at 120, 93 S.Ct. at 398 (Stewart, J., concurring); see also Craig v. Boren, 429 U.S. 191, 204-210, 97 S.Ct. 451, 50 L.Ed.2d 397; Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). However, the discrimination here is far from invidious. Under a "rational relation" test,[12] a state liquor control *550 authority might construe, for enforcement purposes,[13] that non-conforming performances in a dinner-theater would be unlikely to present the same provocations as are posed by the "bacchanalian revelries" typically associated with bar room nudity.[14] The Court is not called upon here to make a determination of whether or not under LaRue[15] Connecticut's regulations may be applied generally to dinner-theater presentations, given the artistic merits of particular productions and the existence of a theater type environment. It is sufficient for the purposes of this case to state that the Court finds no basis to upset the contested Connecticut liquor control regulations on equal protection grounds.
After having considered all of the plaintiffs' constitutional claims, the Court concludes that Connecticut's liquor control regulations governing sexually oriented performances in licensed liquor establishments, while restrictive, do not infringe upon any of the plaintiffs' constitutional rights. Judgment is accordingly entered for the defendants. SO ORDERED.
NOTES
[1]  See Conn.Gen.Stat. § 30-22a (cafe permits).
[2]  Salem Inn, Inc. v. Frank (I), 364 F.Supp. 478 (E.D.N.Y.1973), aff'd, 501 F.2d 18 (2d Cir. 1974), aff'd sub nom. Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Salem Inn, Inc. v. Frank (II), 381 F.Supp. 859 (E.D.N.Y.1974), aff'd, 522 F.2d 1045 (2d Cir. 1975); Salem Inn, Inc. v. Frank (III), 408 F.Supp. 852 (E.D.N.Y.1976).
[3]  The following excerpts, taken from police reports made in connection with the arrests at Helton, Inc., demonstrate that the performances presented at the cafe had no discernible artistic aspiration:

(1) (Feb. 25, 1975): "[T]he music . . . started up and five . . . girls came from [the kitchen] and started to perform their go-go dance. While they were performing the girls would at times be lying down on the table, spread their legs and wrap same around the necks of the patron sitting at this table. The patron would at times reach out and rub their hands in the private area of the dancer, sometimes on the outside of the bikini and on occasions put their hands down into the bikini placing money into the garment. Some of the dancers were observed during their gyrations bending over and some patrons were observed placing a kiss on the buttocks of the dancer. All of the dancers were touched by patrons in some way, shape or form, none of the dancers showed any form of objection to this and at no time did they stop their performance to register a complaint with the management. In the opinion of this Officer the girls seem to encourage this type action from the patrons."
(2) (Feb. 27, 1975): "[T]he accused was observed to walk onto the stage wearing a long black shirt which covered her body to her mid thigh. The accused then began to dance around the stage and while dancing unbuttoned her shirt and with both hands pulled her shirt away from her chest area completely exposing both of her breasts while dancing for a period of approximately 3 to 5 minutes. She then left the stage and entered the kitchen area where she was subsequently placed under arrest . . .."
(3) (Nov. 13, 1975): "Both officers observed Accused # 2 on the stage . . .. She was dressed in a `G' string and small halter. After a very short time on stage, the accused removed her `G' string and halter. She was now on stage dancing with no clothing on what so ever [sic] . . .."
"Accused # 1 then took over the dancing. She was also on stage a short time when a male customer walked to the stage, pulled open the accused halter [sic], and place [sic] a bill (money) inside of the halter. This male then kissed the accused on the lips and placed his hands on the ass of the accused. . . . Both accused were placed under arrest. . . ."
[4]  Exhibit D. By this the LCC says it meant all live performances. Inturri construed the letter as directing him to cease only prohibited performances  not an unreasonable interpretation, it would seem, in light of the letter's extremely ambiguous language. Believing that Inturri had defied its directive, the LCC initiated a special review of the plaintiff's license.
[5]  See XXXVII Conn.L.J. No. 24 at 22 (Dec. 14, 1976).
[6]  The Court stated that

"[we] do not disagree with the District Court's determination that these regulations on their face would proscribe some forms of visual presentation that would not be found obscene under Roth [Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)] and subsequent decisions of this Court. . . . But we do not believe that the state regulatory authority in this case was limited to either dealing with the problem it confronted within the limits of our decisions as to obscenity, or in accordance with the limits prescribed for dealing with some forms of communicative conduct in O'Brien [United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)] . . .." 409 U.S. at 116, 93 S.Ct. at 396.
[7]  "Based on the evidence from the hearings that [the Calif. Alcoholic Beverage Control Department] cited to the District Court, and mindful of the principle that in legislative rulemaking the agency may reason from the particular to the general, Assigned Car Cases, 274 U.S. 564, 583 [47 S.Ct. 727, 71 L.Ed. 1204] (1927), we do not think it can be said that the Department's conclusion [seeking to separate nude or semi-nude exhibitions and liquor distribution] was an irrational one." 409 U.S. at 115-16, 93 S.Ct. at 395.
[8]  See note 2 supra.
[9]  The sole change was removal of the phrase "or any other public place within the Town of North Hempstead," from the list of places where the ordinance would apply, along with the addition of restaurants and coffee shops.
[10]  It was argued that LaRue should not apply to the New York regulations, since (a) proper hearings were not held before their adoption, and (b) criminal penalties were assessed for non-compliance. Neither of these factors is relevant here.
[11]  It must be emphasized that no evidence whatsoever was presented by the plaintiffs to substantiate this allegation. Nevertheless, inasmuch as the Court finds the proffered equal protection claim to lack merit, the truth of the allegations may be assumed for purposes of discussion.
[12]  The appropriate "standard of scrutiny" to be applied in an equal protection analysis involving twenty-first amendment considerations remains unsettled, although the matter was addressed in the recent case of Craig v. Boren, 429 U.S. 191, 204-210, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); see also id. at 210-215, 97 S.Ct. 451 (concurring opinions). Therein, the Court, stated that "[o]nce passing beyond consideration of the Commerce Clause, the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful." Id. at 206, 97 S.Ct. at 461. It further stated:

"It is true that California v. LaRue, 409 U.S. 109, 115, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972), relied upon the Twenty-first Amendment to `strengthen' the State's authority to regulate live entertainment at establishments licensed to dispense liquor, at least when the performances `partake more of gross sexuality than of communication,' id. at 118 [93 S.Ct., at 397]. Nevertheless, the Court has never recognized sufficient `strength' in the Amendment to defeat an otherwise established claim of invidious discrimination in violation of the Equal Protection Clause. Rather, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 178-179 [92 S.Ct. 1965, 1974, 32 L.Ed.2d 627] (1972), establishes that state liquor regulatory schemes may not work invidious discriminations that violate the Equal Protection Clause." 429 U.S. at 207, 97 S.Ct. at 462.
Craig involved a gender-based discrimination in the minimum drinking age for 3.2% beer in Oklahoma. The Court held, despite the twenty-first amendment's application to the case, that the Oklahoma law restricting the access of young males (but not young females) aged 18-21 to 3.2% beer was not "substantially related" to the state's proffered interest in traffic safety.
The presently contested liquor control regulations are distinguishable from the drinking age statute in Craig. To begin with, a more persuasive link may be drawn between nude performances in licensed liquor establishments and public disorder than Oklahoma officials were able to establish between the consumption of 3.2% beer by young males aged 18-21 and traffic safety. Compare California v. LaRue, supra, 409 U.S. 111, 93 S.Ct. 390, with Craig v. Boren, supra, 429 U.S. at 204, 207, 210-215, 97 S.Ct. 451. Nor, under the Supreme Court's rulings, would it appear that a "strict scrutiny" category exists. See, esp., Doran v. Salem Inn, Inc., 422 U.S. at 932, 95 S.Ct. 2561; but see, Salem Inn, Inc. v. Frank,, 522 F.2d 1045, 1049 (2d Cir. 1975).
[13]  Enforcement typically enters into equal protection analyses when an otherwise permissible statute or ordinance is applied in a discriminatory fashion. Here, the regulation itself may be overbroad, given that it could be found unconstitutional in some particular applications. See LaRue, supra, 409 U.S. 119 n. 5, 93 S.Ct. 390 (set-out in text above). Yet under LaRue the regulation is constitutional on its face. This being so, the question becomes whether a state's enforcement of the regulation violates the equal protection clause when a reasonable effort is made to discriminate between appropriate and inappropriate applications prior to initiating enforcement efforts.
[14]  See, e. g., LaRue, 409 U.S. at 111, 93 S.Ct. 390; note 3 supra.
[15]  See LaRue, 409 U.S. at 119 n. 5, 93 S.Ct. 390; Craig v. Boren, supra, 429 U.S. at 207, 97 S.Ct. 451; note 13 supra.


5 Kan. App. 2d 277 (1980)
615 P.2d 801
In the Interest of MARIE ANN WATSON, A Child Under 18 Years of Age.
No. 51,411
Court of Appeals of Kansas.
Opinion filed August 15, 1980.
J. Michael Lehman, of Goering, Lehman & Blanton, of Wichita, for appellant Barbara A. Watson, the natural mother of Marie Ann Watson.
Robert R. Hiller, Jr., of Wichita, for appellee Kansas State Department of Social and Rehabilitation Services.
Before REES, P.J., SPENCER and MEYER, JJ.
MEYER, J.:
Barbara A. Watson (appellant) appeals from the trial court's order severing her parental rights pursuant to K.S.A. 1979 Supp. 38-824(c).
Appellant first claims that the court erred in overruling her objections to expert testimony because of improper foundation.
Appellant objected to the testimony of Dr. Margie L. Cowan, a clinical psychologist. Dr. Cowan's testimony regarding appellant's past mental history was based upon copies of psychological evaluation reports made by others and dated from October 1967 until September 1976. Her evaluation of appellant's present condition was based upon copies of reports of tests administered later by a Mr. Eyman and by Dr. Cowan herself. Appellant specifically objected to Dr. Cowan's conclusion that appellant would be unable to change her present parenting abilities as it was based upon a comparison of present test results with the past *278 reports of earlier tests. Reports of the earlier test results were not offered into evidence.
K.S.A. 60-456(b) provides:
"If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness."
Thus, an expert must base his testimony upon facts personally perceived by or known to him or made known to him at the hearing.
"`Perceived' means knowledge acquired through one's own senses. (K.S.A. 60-459[c].) `Made known' refers to facts put into evidence." Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978).
See also Casey v. Phillips Pipeline Co., 199 Kan. 538, 546, 431 P.2d 518 (1967).
The rationale for this rule was stated in Staudinger v. Sooner Pipe & Supply Corporation, 208 Kan. 100, 105, 490 P.2d 619 (1971):
"The province of an expert witness is to aid a jury in the interpretation of technical facts or to assist in understanding the material in evidence and not to state simple conclusions based upon facts which could be, but which have not been placed in evidence."
The facts and data in this case which were the basis for Dr. Cowan's conclusion that appellant could not change her parenting abilities were primarily test reports prepared by persons other than Dr. Cowan. Dr. Cowan could not have made the comparison with past abilities without the earlier reports. Therefore, they were not perceived by the witness.
In the case at bar, the evidence of prior evaluations and the current test results by Mr. Eyman were hearsay. There was no attempt to show any applicable exception to the hearsay rule. No attempt was made to qualify the reports as regular business entries nor is there any indication that the persons making them were unavailable as witnesses as required by K.S.A. 60-460(d)(3).
"Hearsay evidence is not admissible in the adjudicatory stage of a proceeding to terminate parental rights." In re Johnson, 214 Kan. 780, Syl. ¶ 1, 522 P.2d 330 (1974).
When expert testimony is based on hearsay, it does not meet the requirements of K.S.A. 60-456(b). In Mesecher v. Cropp, 213 Kan. *279 695, 701-2, 518 P.2d 504 (1974), an examining physician was allowed to testify about findings made in a report prepared by a neurosurgeon who was not at trial. The appellate court noted that those facts or data were not perceived by or personally known to him, nor were they made known to him at the hearing in any acceptable way. The court concluded that the testimony was inadmissible.
Appellee cites In re Kerns, 225 Kan. 746, 594 P.2d 187 (1979), for the proposition that the testimony was admissible. Kerns is distinguishable in that the tests from which the psychologist testified were administered by him and were, thus, within his personal knowledge. Further, the witness' written reports of the tests, results and conclusions had previously been admitted without objection.
The opinion testimony of Dr. Cowan founded upon the earlier reports was inadmissible in this case. However, in order to constitute reversible error, the error must be prejudicial. In this case, there was other competent evidence to support the finding of unfitness.
Not all of Dr. Cowan's testimony was based on hearsay, and that which was not was properly admitted and considered. The doctor had personally observed Barbara and Marie Watson (appellant and her daughter) interacting together for approximately one hour. She testified that there was evidence that appellant had a possible neurological impairment. The behaviors that she directly observed included emotional liability on the part of appellant and a very, very limited stability of emotional response. Dr. Cowan, from personal observation, found that appellant would become very forceful with the infant, grabbing hold of her arm, forcing her to do something, talking rather loudly to the child, teasing her, much like one would tease a pet rather than a child. Dr. Cowan further testified that appellant displayed a "very distorted" judgment of what a ten-month-old child should be able to do and that appellant was lacking in the knowledge of what was socially appropriate for a given situation. Dr. Cowan also testified that the minor child was a totally different infant when the child interacted with her foster mother, and that while with the foster mother the child was more expressive and emotionally responsive than when with her natural mother.
A security officer for a department store testified that when *280 appellant was stopped for shoplifting, she became angry and picked up the child from her baby carrier and threw her to the floor, causing the subsequent hospitalization of the child.
Yet another witness, a social worker employed by SRS, testified that appellant refused to sign a medical consent for treatment when the child was transported by ambulance to the hospital following the incident above.
Another witness, an occupational therapist at the medical center where the child was taken, testified regarding her observations of the interactions between the appellant and her child. She noted that there were very inappropriate expectations by appellant as to her child, and that the child withdrew from her mother. In comparison, the witness testified that when the child was with her foster mother, she was smiling, laughing, and able to initiate play, and would vocalize.
Several other witnesses testified that (1) there was substantial improvement in the child after she was placed with foster parents; (2) appellant changed addresses numerous times and had not maintained consistent employment; (3) appellant failed to keep appointments and had stated she felt that parenting classes were so boring that she did not want to go to them again; (4) appellant refused to have psychological evaluation or counseling; and (5) appellant was capable of giving the child her bottle and changing her diaper, but had very little ability beyond that.
Furthermore, the guardian ad litem recommended severance of parental rights. All of the numerous witnesses called, other than the appellant, also recommended severance and indicated appellant had an inability to change from her present parenting abilities.
While it was error to admit into evidence the portions of Dr. Cowan's testimony founded on hearsay, the error was harmless since clear and convincing evidence, excluding the hearsay, sufficiently supported the finding of parental unfitness. See In re Johnson, 214 Kan. 780.
Appellant also complains that the court erred in overruling counsel's objection to expert testimony on the basis that it was speculative and conjectural.
Dr. Cowan was asked the question, "Based on your observations of the mother and daughter both, is there any indication to you as examiner of a possible physical abuse by the mother of the *281 child?" Appellant objected on the grounds that the answer called for was mere speculation and conjecture. This objection was overruled. Dr. Cowan answered by stating, in part, that:
"Based on the observations of Marie with the mother and the mother's overall psychological make-up, I would have to predict that the possibility of abuse is very, very strong."
"Where opinion testimony of an expert medical witness is speculative or conjectural in nature, based upon possibility and not probability, it cannot be admitted in evidence over objection." St. Clair v. St. Clair, 211 Kan. 468, Syl. ¶ 5, 507 P.2d 206 (1973).
"Where there is little factual data, computations based upon assumption and speculation should not be received in evidence." Lollis v. Superior Sales Co., 224 Kan. 251, 258, 580 P.2d 423 (1978).
Here, in spite of the fact that the word "possibility" was used, the fact that the witness stated that the possibility was "very, very strong" indicates that she was thinking and speaking in terms of probability.
As to the sufficiency of the factual data upon which to base her opinion, the observation by Dr. Cowan of the interaction between the mother and child, while limited, was sufficient given the additional testimony that continual rejection by a child of a parent leads to frustrations by the parent which can cause abuse.
Regardless, the fact that this evidence may have been speculative need not alter the outcome of this case in that there was other evidence, not of the mere possibility of abuse, but the factual certainty of past abuse evident from the testimony that the child was thrown to the floor on one occasion.
Appellant next complains that the trial court erred in overruling an objection to testimony it is claimed was offered by the witness not in response to a question.
While Dr. Cowan was testifying in response to a question, she was interrupted by defense counsel making an objection. After said objection, she was allowed to continue her answer in response to the question asked before the interruption. The answer was thus responsive to the question.
Appellant complains that the court improperly sustained objections to counsel's inquiry as to the prospective adoption of the child by the foster parents. There was no error because, apart from relevancy, the witness stated she had no knowledge of whether the foster parents were going to adopt the little girl. A response by the witness to the question would be speculative and beyond her knowledge.
*282 Appellant also claims the court erred in overruling counsel's objections to leading questions.
The witness was asked, "Based on your testing then, and observations, would you recommend that Marie be returned to her mother's custody?", and then was asked, "Would you recommend that parental rights be severed?"
The most that can be said of rulings regarding these questions is that if error, same are harmless.
Appellant claims there was not sufficient clear and convincing evidence to support the trial court's finding of unfitness.
"In reviewing the sufficiency of evidence to support a finding of unfitness, the evidence is viewed from the aspect most favorable to the findings made by the trial court. [Citation omitted.] A parent will not be permanently deprived of parental rights with respect to a dependent and neglected child unless there is clear and convincing evidence." In re Kerns, 225 Kan. at 753.
The evidence was clear and convincing that appellant was emotionally unable to meet the needs of the child.
"Inherent mental and emotional incapacity to perform parental obligations can constitute such breach of parental duty as to make the parents unfit to be entrusted with custody of their child." In re Penn, 2 Kan. App.2d 623, 625, 585 P.2d 1072 (1978).
As noted above, even without the testimony which was admitted in error, there was clear and convincing evidence to support the finding of unfitness.
Appellant's final claim of error is that the court improperly considered evidence outside the record as to "bonding" between an infant and a parent figure.
The trial court stated:
"I cannot ignore expert testimony that I have heard on this bonding issue over the last two and a half years that the first two years of a baby's life are the most crucial for bonding to parent figures ... and that a failure of such bonding has a very detrimental effect on the entire future ability of the child to form lasting relationships. Dr. Cowan touched on that in her testimony yesterday."
There was no prejudicial error in this statement by the court as there was testimony regarding bonding in evidence from both Dr. Cowan and one Dr. Davis. The fact that the judge gave substantial weight to this testimony because of his prior experience is not grounds for reversal.
Appellant's motion for assessment of attorney fees is considered *283 and appellant is awarded $1,048.33, same to be paid by Sedgwick County, Kansas. In re Brehm, 3 Kan. App.2d 325, 594 P.2d 269 (1979).
Affirmed.


                 THEATTORNEYGENERAL
                         OF TEXAS
                            AUSTW.    T-s      78711

                               August 30, 1977

Hon. Oscar H. Mauzy, Chairman                  Opinion No. H-1044
Senate Education Committee
Senate of the State of Texas                   Re: Whether a school dis-
Austin, Texas 78701                            trict may require newly em-
                                               ployed teachers to report
                                               for a week of preparation
                                               without pay.
Dear   Senator     Mauzy:

     YOU have asked whether a school district may require newly
employed teachers to report for five days of preparation without
pay in addition to the ten-day period of inservice training per-
mitted by the Education Code. Your request involves an inter-
pretation of certain provisions of the Education Code that have
been amended by Senate Bill No. ,l enacted by the First Called
Session of the 65th Legislature, effective September 1, 1977.
In answering your question we will discuss both the present law
and the amendments.
     Chapter 16 of the Education Code provides for the Foundation
School Program whereby school districts may receive state finan-
cial aid. Education Code 5 16.004. The commissioner of education,
with approval of the State Board of Education, may
             make such rules and regulations consistent
             with the terms of this chapter as may be
             necessary to implement and administer the
             Foundation School Program.
Education Code 6 16.005. To receive financial support under the
program, school districts must comply with various statutory
standards, including those governing compensation of school em-
ployees. -Id. 8 16.051.
       Section 16.055 of the Education Code now provides:
                 (a) A school district must pay each em-
                 ployee who is qualified for and employed
                 in a position classified under the Texas
                 Public Education Compensation Plan set
                 forth in Section 16.056 of this chapter

                                     p. 4298
Hon. Oscar H. Mausy           -   Page   2   (H-1044)

          not less than the minimum monthly base
          salary, plus increments for teaching ex-
          perience, specified for the position.

          (b) Salaries shall be paid on the basis
         of a minimum of 10 months' service, which
         must include 180 school days lus not more
         than 10 days of inservice trafning and
         preparation. Personnel employed for more
         than 10 months shall be paid not less than
         the minimum monthly base pay plus incre-
         ments for experience for each month of
         actual employment. Personnel employed for
         11 months must render 210 days of service,
         and personnel employed for 12 months must
         render 230 days of service.
(hphasis added.) This statute expressly limits to ten the
number of inservice strainingdays that can be required of
teachers paid for ten months' service. In our opinion, under
this law a school district may not require teachers employed
for ten months of service to report for five additional days
of preparation.
     Senate Bill 1 makes the following provision for inservice
training:
         Each school district must provide for not
         less than 175 days of instruction for
         students and not less than 10 days of
         inservice-and
                   trainin
         teachers for the 1977-1978 school year
         and not less than 175 days of instruc-
         tion for students and not less than eight
         days of inservice training and preparation
         for teachers for each school year there-
         after. . . .
Education Code 8 16.852(a) (emphasis added). Section 16.055(b),
relating to compensation, is amended in part:
         Salaries shall be paid on the basis of a
         minimum of 10 months' service, which must
         include the number of days of instruction
         for students and days of inservice train-
         ing and preparation for personnel required
         by Section 16,052 of this code. The days

                         p. 4299
Hon. Oscar H. Mausy          - Page 3 (H-1044)

         of inservice training and preparation
         required herein shall be conducted by
         local boards of education under rules and
         regulations established by the State Board
         of Education tha'tare consistent with the
         state accreditation standards for program
         planning, preparation, and improvement.
         Personnel employed for more than 10 months
         shall be paid not less than the minimum
         monthly base pay plus increments for
         experience for each month of actual employ-
         ment. Personnel employed for 11 months
         must render 210 days of service, and
         personnel employed for 12 months must render
         230 days of service. . . .
The amendment to section 16.052(a) removes the ten day limita-
tion on inservice training. Thus, as of September 1, 1977,
school districts may require more than ten days of inservice
training, subject to the rules and regulations established by
the State Board of Education.

     Section 16.055(b) indicates how many days of service must
be rendered to receive payment for ten, eleven, or twelve
months. A schedule in section 16.056 gives the monthly salary
rate applicable to various employee classifications. 'Section
16.055(b) expressly provides that persons employed for more than
ten months "shall be paid not less than the minimum monthly base
pay . . . for each month of actual employment." With respect to
districts paying the minimum salary required by section 16.055(b),
the Texas Education Agency has construed this provision to re-
quire payment for any fraction of a month worked of the corres-
ponding fraction of a month's salary. Without this interpretation,
a district might require teachers to work 200 days a year for ten
months' salary. It could thereby circumvent the pay increase
achieved when the legislature mandated ten monthly payments for
190 days of work, rather than the nine months' pay for 180 days
formerly required. See Acts 1969, 61st. Leg., ch. 872, S 1, at
2634; Attorney GenerxOpinion   M-643 (1970).
     If a school district pays for each day of work at least
the minimum salary set forth in section 16.056, it has complied
with the requirements of section 16.055. 'It has considerable
discretion with respect to how it supplements the basic salary
as long as its decision has some reasonable basis. See Attorney
General Opinion M-493 (1969). The terms of employmentare thus
a matter of contract between the district and the employee. If
the district wishes to compensate some teachers at a lower rate

                        p. 4300
Hon. Oscar H. Mauzy                - Page 4 (H-1044)

than others it may do so, .providingthat the total compensation
is at least the amount required by section 16.056, and that
salary differences rest on some reasonable basis. By requiring
five extra days of work, the district in effect is changing the
compensation rate of newly employed teachers. In our opinion
it has authority to do so, but whether it has done so depends
on the terms of the particular contract, which is not before
us. See e.     Cusmiinsv. Eanes'Independent Schodl Dist
S.W.2ml&Lx.      Civ. App. -- Austin lvlh"t8
Morton Independent School Dist., 85 S.W.2d 853 (Tex. Crv. App. --
Amarillo 1935, writ dism'd).
                        S U   M   M AAR Y
            Prior to September 1, 1977, a strhool
            district could not require a teacher
            employed on a ten-month contract to
            serve more than ten days of inservice
            training. After September 1, 1977,~the
            school districts could require teachers
            to have more than ten days of inservice
            training. Article 16.055 of the Education
            Code does not prevent the district from
            requiring extra days inservice training
            without extra compensation, as long as the
            overall per day compensation is at least
            equal to the per day compensation under
            the minimum base pay set out in section
            16.056.
                                  *Very truly yours,

                                            General of Texas

APPROVED:

DAVID K. KENDALL, First Assistant

                           p. 4301
Hon. Oscar H. Mauzv      - Page 5 (H-1044)

Opinion ComnitGe
jst

                      p. 4302