92-037

Petitioners appeal from the determination of an impartial hearing officer upholding the November 7, 1991 refusal by respondent's committee on special education (CSE) of petitioners' request to immediately declassify petitioners' child, while maintaining the child's placement in a private day school for disabled children during the 1991-92 school year, and the CSE's refusal to simultaneously recommend that the child be placed in a regular education first grade class for the 1992-93 school year. The appeal must be dismissed.

In May, 1990, the child was screened by respondent's staff, in preparation for the child's entry into kindergarten for the 1990-91 school year. The elementary school principal and the school psychologist testified, at the hearing in this matter, that the child had been agitated during the screening. On September 6, 1990, the child entered kindergarten, but was removed from class for disruptive behavior. He returned to school on September 7, 1990, but thereafter did not attend school again until October 10, 1990. On the first day of school, the child's teacher referred the child to respondent's committee on special education (CSE). The child's mother orally agreed to allow the child to be evaluated. Respondent's school psychologist obtained a social history from the child's mother and observed the child during his first day of school, during which she noted the child's inability to follow directions and to interact appropriately in class. The school psychologist reported that all of the child's activities were frequently interrupted because the child would fall to the floor to engage in self-stimulating behaviors. She also noted that his communication was limited to random phrases which were out of context. At the hearing, the school psychologist testified that she had been unable to perform a formal psychological evaluation of the child because the child would not listen or attend to what the school psychologist said. On September 7, 1990, the child was observed for one hour in respondent's resource room by a special education teacher, who reported that he was generally unresponsive to questions, but appeared to know the letters of the alphabet and the numbers one through ten. The child verbalized certain words or phrases which were not in any context, and often tapped or slapped objects as he walked around the room.

The CSE met on September 12, 1990, but deferred making a recommendation until the child could be evaluated. On October 9, 1990, the CSE recommended that the child be classified as emotionally handicapped, and that he be placed in a primary management intervention class of the Albany-Schoharie-Schenectady Board of Cooperative Education Services, which was located in a public school in Albany, New York. However, the CSE agreed with petitioners to defer its recommendation, so that the child could attend a regular education kindergarten class for three days on a trial basis. The parties further agreed that the child would be videotaped while in his kindergarten class. The child attended school for two of the three days during the trial period. At the urging of respondent's school psychologist, petitioners had the child evaluated with educational, pediatric, psychological and psychiatric assessments at the Eleanor Roosevelt Developmental Services (ERDS). The ERDS pediatrician reported that the child had allergies, and an eustachian tube dysfunction. The ERDS pediatrician, psychologist, and psychiatrist each noted that the child displayed evidence of an attention deficit disorder with hyperactivity. The pediatrician also observed that the child displayed a delay in speech and language development.

On October 16, 1990, the CSE reiterated its earlier recommendation. Petitioners expressed their desire to explore other options, but the parties could not resolve their differences. At petitioners' request, a hearing was held on December 17 and December 20, 1990. The hearing was terminated by agreement of the parties that petitioners would disclose to the CSE the results of the evaluation of the child by ERDS; that the child would be classified as multiply handicapped; that the child would receive one hour per day of instruction at home, pending his anticipated admission into the Wildwood School, an approved private school for disabled children; and that if the child were placed in the Wildwood School, petitioners would withdraw their request for an impartial hearing.

On April 4, 1991, the CSE recommended that the child be classified as multiply handicapped, and that he be placed in a twelve-month program at the Wildwood School, which had accepted the child for admission. The CSE further recommended that the child be evaluated to determine his need for occupational, music and speech/language therapies, and receive counseling services from a social worker, and speech therapy twice per week. Petitioners consented to the initial placement of the child in a special education program, and respondent approved the CSE's recommendation. On April 8, 1991, the child began to attend the Wildwood School on an one-half day basis to become accustomed to the school. After approximately two weeks, the child attended the Wildwood School on a full-day basis, and he has remained in that school.

On June 11, 1991, the CSE conducted its annual review of the child's program. The CSE recommended that the child continue to be classified as multiply handicapped, and that he remain in a special education class of not more than twelve children, a teacher and four aides at the Wildwood School for the 1991-92 school year. Petitioners agreed with the CSE's recommendation, which respondent approved.

By letter dated September 4, 1991, petitioners asked for a CSE meeting, at which they wished to discuss whether there were damp or moldy areas or dusty rooms in respondent's school and whether any children in school manifested certain facial characteristics and/or behaviors which were possibly attributable to the allergies of such children. On September 25, 1991, the child was observed in his class at the Wildwood School by the CSE chairperson. In a letter dated September 26, 1991 to the Wildwood School, petitioners requested that the Wildwood School refrain from providing any information about the child to respondent's staff or allow respondent's staff to have access to the child, without the prior written consent of petitioners.

On October 3, 1991, the CSE met with petitioners, a representative of ERDS and the school social worker from the Wildwood School to discuss the child's progress at the Wildwood School. Petitioners also discussed the child's allergies, and suggested that the child be returned to respondent's school for first grade in September, 1992. In support of their request, petitioners provided the CSE with copies of various medical reports concerning the child's allergies, which had been redacted to prevent disclosure of the physicians' identities. The reports revealed that the child had allergies, but did not link the child's behavior in school to his allergies. No action was taken at the October 3, 1991 meeting.

On November 7, 1991, the CSE met again with petitioners and representatives of the Wildwood School, including the child's teacher. Petitioners requested that the child be declassified and enrolled in a regular first grade class in September, 1992. At the hearing, the CSE chairperson testified that the CSE believed that petitioners' request was premature and that the CSE needed additional information about the child. In a letter dated November 12, 1991, petitioners asked the CSE to reconsider its position. In a letter to petitioners dated November 15, 1991, the CSE chairperson stated that the CSE would reconvene to consider petitioners' request after additional evaluations of the child had been completed. The CSE made arrangements to have the child evaluated by a pediatric allergist and by a psychologist. However, petitioners declined to have the child seen by either the allergist or the psychologist.

On November 18, 1991, petitioners requested that an impartial hearing be held to review the CSE's refusal to declassify the child, as well as unspecified due process violations. On December 5, 1991, the CSE chairperson also requested that an impartial hearing be held because of petitioners' refusal to allow the child to be further evaluated.

At the first day of the hearing on February 10, 1992, respondent asked that the issues of the child's classification and placement be held in abeyance by the hearing officer, until the evaluations sought by the CSE were completed. The hearing officer denied respondent's request, but agreed to an adjournment of the hearing to afford petitioners an opportunity to obtain counsel. The hearing reconvened on March 16, 1992, and continued for an additional ten days, ending on June 1, 1992. Petitioners were not represented by counsel at the hearing.

In a decision dated August 8, 1992, the hearing officer rejected petitioners' claim that respondent had not performed a comprehensive evaluation before recommending that the child be classified, because petitioners were bound by the terms of their December, 1990 stipulation with respondent with regard to the child's classification. The hearing officer further held that respondent was entitled to obtain its own evaluation of the child, rather than relying upon evaluatory data provided by petitioners. The hearing officer ordered petitioners to make the child available for medical and psychological evaluations, unless they offer to the CSE independent evaluations which are satisfactory to the CSE. With regard to the child's classification, the hearing officer found that the written evidence and testimony overwhelmingly supported the child's continuing need to be classified as multiply handicapped, and that there was insufficient evidence in the record to support petitioners' assertion of a correlation between the child's allergies and his behavior. The hearing officer also rejected petitioners' request that the child be placed in a regular education class but receive the assistance of a certified special education teacher for the 1992-93 school year, because he found that the child's management, social, physical and academic needs required a smaller and more structured setting, with substantial related services. The hearing officer ordered the CSE to amend the child's IEP to include family counseling as a related service.

The hearing officer held that he had no jurisdiction to determine petitioners' charge that respondent had violated their civil rights and had not afforded them due process of law. However, the hearing officer did find that respondent had violated the requirement of 34 CFR 300.512 (a) and 8 NYCRR 200.5 (c)(10) that a decision be rendered in each impartial hearing within 45 days after the hearing was requested, by not appointing the hearing officer within 30 days after receipt of petitioners' request for a hearing. He also found that he had erred in not requiring the hearing to proceed on consecutive days and by affording the parties extensive opportunities for examination of witnesses. Nonetheless, the hearing officer stated in his decision that the parties had orally agreed to waive the 45 day time limit for his decision to be rendered.

Although respondent raised the defense of improper service of the notice of petition and petition in its answer, respondent has subsequently agreed to waive the defense. Respondent also asserts that the petition is defective because it fails to include a prayer for relief, in violation of 8 NYCRR 275.10, which applies to petitions for review by virtue of the provisions of 8 NYCRR 279.1. I find that, not withstanding petitioners' omission of a prayer for relief, the petition does set forth the basis of petitioners' disagreement with the conclusions reached by the hearing officer. If substantiated by the record, petitioners' claims would require that I annul the decision of the hearing officer. Therefore, I find that petitioners' omission of a prayer for relief is not a fatal defect in the petition (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 519).

One other procedural issue must be addressed. Petitioners seek to add 36 documents and one videotape to the record of this appeal. Three of the documents submitted by petitioners, items D, VV and 8, are unnecessary because they are duplicates of exhibits which are in evidence. Evidence which was not in the record before the hearing officer will generally not be considered in a review of the hearing officer's decision, unless such evidence was not available at the time of the hearing, or unless the record is incomplete (Application of a Child with a Handicapping Condition, Appeal. No. 91-34; Application of a Child with a Handicapping Condition, Appeal No. 92-23; Application of a Child with a Handicapping Condition, Appeal No. 92-27). Petitioners have not offered any credible explanation why the 23 documents which were not marked for identification at the hearing and which they now ask be added to the record were not available at the time of the hearing. In view of the extensive record in this appeal, including almost 2200 pages of transcript and 108 exhibits admitted into evidence, as well as the nature of the 23 documents in question, I find that the documents are not necessary to complete the record.

The remaining 10 documents and the videotape which petitioners seek to have added to the record were marked for identification as possible exhibits at the hearing. However, petitioners failed to request that Exhibits DD and LL be entered in evidence, and they offer no explanation for their failure to do so in this appeal. With regard to Exhibit CC, the hearing officer sustained respondent's objection to the proposed exhibit because the exhibit was a copy of only a portion of a document, but advised petitioners that they could submit a copy of the entire document. Petitioners offer no explanation for their failure to introduce a copy of the entire document, and I find that there is no basis for annulling the hearing officer's ruling. The hearing officer ruled that petitioners had failed to lay the proper foundation for exhibits B, C, X and W, because they attempted to introduce the exhibits through witnesses who had no personal knowledge of the exhibits. I concur with the hearing officer's ruling, and note that 2 of the 4 exhibits are copies of other exhibits which are in evidence. The remaining 3 documents and the videotape were excluded by the hearing officer upon the ground of irrelevancy. The documents include a bibliography of medical studies involving allergies, and brief magazine articles on the treatment of allergies and yeast overgrowth. The videotape is of a television interview with an allergist who has treated petitioners' child, but does not specifically relate to the child. I find that the hearing officer properly excluded the exhibits because they could not afford a basis for concluding whether the child does or does not have a handicapping condition for purposes of Article 89 of the Education Law, and because respondent would have had no opportunity to cross-examine the physicians whose opinions were expressed in the articles and videotape.

Petitioners assert that the hearing officer was not impartial. I find that there is no basis in the record to support their assertion. In essence, they fail to understand the basis for the hearing officer's evidentiary rulings and disagree with the conclusions reached by the hearing officer in his decision. A review of the record reveals that the hearing officer afforded petitioners an ample opportunity to present their case and gave petitioners a reasonable explanation for each of his evidentiary rulings. Although petitioners assert that they were deprived of an opportunity to fully present evidence concerning their child's allergies through the testimony of their expert witness, I note that petitioners' witness was not a physician, nor did the witness have any personal knowledge of the child. The hearing officer extended petitioners considerable leeway during their direct examination of the witness, and permitted them to introduce into evidence printed information about allergies and their possible effect upon children's behavior.

Petitioners assert that the hearing officer erred by failing to find that respondent had violated their right to due process of law by suspending the child from school at various times between September 7, 1990 and January, 1991. The hearing officer held that he lacked jurisdiction to consider the issue because the child was not classified as disabled at least until the parties entered into their stipulation of December 20, 1990. Although I do not agree with the hearing officer's rationale, there are additional reasons why petitioners' claim cannot be resolved in this appeal. The child was classified as disabled by the CSE on October 9, 1990, notwithstanding the fact that petitioners exercised their right to challenge the CSE's recommendation. During the pendency of a proceeding brought to review the CSE's recommendation, respondent was required to maintain the child in his then current placement, i.e. his initial kindergarten class, unless petitioners and respondent agreed to an alternative placement (Section 4404 (4) of the Education Law). However, the record is insufficient to establish the reason why the child did not attend school during the period in question. Although there is some evidence that the child was suspended from school for three days after the CSE had recommended that he be classified, such a short-term suspension is not necessarily a violation of either Federal or State statute (Honig v. Doe, 484 U.S. 305).

At the hearing, petitioners challenged the composition of the CSE at its meetings of October 3 and October 29, 1991, as well as their exclusion from the latter meeting and respondent's failure to provide them with the minutes of the October 29 meeting. Section 4402 (1)(b)(1) of the Education Law provides that a CSE shall consist of the child's teacher as defined by Federal regulation, a school psychologist, a representative of the school district who is authorized to provide or supervise the provision of special education, a parent of a child with a handicapping condition and a school physician, except that the physician need not attend a meeting unless requested to do so by a parent. Since the child was placed by respondent in a private school, the child's teacher at the private school should have participated in person or by telephone in CSE meetings which involved the child's IEP (34 CFR 300, Appendix C, Question 59). The child's teacher at the Wildwood School did not attend the October 3, 1991 meeting. At the hearing, the teacher testified that she did not recall having been invited to attend the meeting. However, the CSE chairperson testified that the teacher had been invited, but the chairperson did not explain what, if any, steps the CSE took to have the teacher participate in the meeting. In any event, no action was taken at the October 3, 1991 meeting.

Neither the child's teacher nor petitioners were invited to attend the October 29, 1991 CSE meeting. The CSE chairperson testified at the hearing that members of the CSE held a planning conference, rather than a formal meeting on that date. The purpose of the planning conference was to develop questions to be asked of the staff of the Wildwood School who were to attend the November 7, 1991 CSE meeting. A CSE may not exclude the parents of a child from meetings at which the child's IEP is prepared or changed (Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Handicapping Condition, Appeal No. 92-22). However, a CSE may discuss a child during a meeting at which the child's parents are not present (Application of A Child with a Handicapping Condition, Appeal 90-18; Application of a Child with a Handicapping Condition, Appeal No. 91-13). In view of the purpose of the October 29, 1991 meeting or conference, I find that petitioners were not invalidly excluded from the meeting, and that there is no legal basis for their claim that respondent must provide minutes of the planning conference.

Petitioners assert that respondent failed to perform a complete evaluation of the child in the Fall of 1990, and dispute the hearing officer's finding that they were precluded from challenging the validity of the child's initial classification because of the December 20, 1990 stipulation in which they agreed that the child would be classified as multiply handicapped. At the time of the child's initial classification by the CSE, State regulation required an individual evaluation of a child suspected of having a handicapping condition include a physical examination, an individual psychological evaluation, a social history and other suitable evaluations (8 NYCRR 200.4 [b][1]). In this instance, the CSE relied upon the results of a medical examination which the child's physician had performed shortly before the child was referred to the CSE. The record reveals that the child's mother provided social history information to the school psychologist. Although an individual psychological evaluation would ordinarily include the use of standardized tests of intelligence and ability, the school psychologist testified that she did not employ such tests in her evaluation of the child because the child did not respond to questions. Since the failure to respond to questions would have distorted the results of a standardized test, I find that it was appropriate for the school psychologist to rely upon other methods of assessment, such as observation. In view of the parties' stipulation that the child would be classified as multiply handicapped, no useful purpose would be served by reviewing the CSE's initial classification of the child as emotionally handicapped.

The child was formally classified as multiply handicapped at the April 4, 1991 meeting of the CSE. Petitioners did not dispute the appropriateness of that classification for the remainder of the 1990-91 school year, and I may not review the appropriateness of the child's classification for that school year (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). Although petitioners signed the child's IEP for the 1991-92 school year, they were not precluded from subsequently challenging the child's classification for that school year (34 CFR 300.506 [a]; 34 CFR 300.504 [a][2]). At the hearing, the child's mother testified that during the Summer of 1991 she discovered that her child's behavior in school might be caused by his allergies. The child's mother further testified that she obtained medical treatment for the child, including provocation neutralization, and made changes in the child's diet, so that as of November 26, 1991, the child's allergies were under control and he exhibited appropriate behavior. While not challenging the appropriateness of the child's placement at the Wildwood School for the 1991-92 school year, petitioners sought to have the child immediately declassified and to have the child provided with first grade curriculum materials at the Wildwood School to prepare the child for placement in a regular first grade in respondent's school during the 1992-93 school year.

Respondent bears the burden of proving the appropriateness of the child's classification of multiply handicapped (Application of a Child with a Handicapping Condition, Appeal No. 2-23; Application of a Child with a Handicapping Condition, Appeal No. 92-32). A multiply handicapped child is defined by State regulation as a child:

". . . with two or more handicapping conditions that result in multisensory or motor deficiencies and developmental lags in the cognitive, affective or psychomotor areas, the combination of which cause educational problems that cannot be accommodated in a special education program solely for one of the impairments." (8 NYCRR 200.1 [ff][11])

The record reveals that the child has fine and gross motor deficiencies. The ERDS psychologist found that the child had difficulty copying basic shapes with a pencil. An occupational therapy evaluation of the child in September, 1991, revealed that the child has difficulty with eye-hand coordination, visual tracking and tactile defensiveness. The occupational therapist reported that the child was reluctant to perform gross motor tasks which required him to balance himself. In January, 1992, when the child was 6 years and 9 months old, his Wildwood School teacher assessed the child's adaptive behavior skills. The teacher found that the child was unable to fasten his clothes or to use a knife, fork or spoon. The record further reveals evidence of deficits in the child's affective, psychomotor and language skills. Evidence of the child's deficits in psychomotor and affective development include his inability/unwillingness to follow directions, lack of impulse controls, unprovoked aggressive or hurtful behavior, lack of play skills with his peers, inability to understand danger, inappropriate laughing or smiling. The child's communication deficits which were displayed in the same January, 1992 test include inconsistent understanding of the meaning of the word "yes", inconsistent ability to indicate a choice or express a simple message, inability to relate an experience with any detail. The child was unable to respond to simple questions, or to use prepositions in his speech. When asked, the child was unable to tell his teacher his birthday, telephone number or address. The testimony of the Wildwood School staff at the hearing clearly demonstrated the child's need for a multiplicity of special education services for a multiply handicapped child under the Federal regulation defining a multiply handicapped child (34 CFR 300.5 [b][5]) and under the State regulation (8 NYCRR 200.1 [ff][11]).

In essence, petitioners contend that the classification of multiply handicapped, or indeed any classification, is inappropriate because it would be inconsistent with the medical evidence in the record. They assert that the hearing officer's decision is erroneously based upon the testimony of people who were familiar with the child before he was treated for his "environmental sensitivities", i.e. allergies and an overgrowth of yeast. I find that petitioners' arguments are untenable. I have examined the medical information which petitioners submitted to the CSE, at or before its November 7, 1991 meeting, including an October 9, 1991 letter by one of the child's local allergists, who opined that the child has recurrent allergic rhinitis (hay fever) and that such allergy "could be a contributing factor in his school's (sic) tiredness, inattentiveness and irritability." Although such an opinion affords a basis for the CSE to seek a further evaluation of the child, it does not provide any credible basis for a finding on this record that the child's extensive behavioral and developmental deficits are caused solely by his allergies.

The petitioners repeatedly referred throughout the hearing to the treatment the child had received from a Buffalo, New York allergist. However, that allergist did not testify at the hearing. The documentary evidence in the record which relates to the allergist's treatment of the child does not afford a basis for concluding that the child's allergies are responsible for the child's consistently displayed motor, social and communication deficits. The child continued to display those deficits in January, 1992, when he was tested by his teacher, despite his mother's testimony that the child's allergies were under control as of late November, 1991. Indeed, the testimony of the child's teacher, his social worker, speech/language therapist and occupational therapist at the Wildwood School establishes that the child continued to have special educational needs, including direct instruction in activities of daily living and self-help, and placement in a teaching environment which offers a low child to adult ratio and the services of several specialists. Upon the record before me, I find that respondent has met its burden of proof with respect to the appropriateness of the child's classification as multiply handicapped for the 1991-92 school year.

I further find that the CSE had a rational basis for seeking additional evaluations of the child by an allergist and a psychologist when presented with petitioners' request that the child be declassified and be prepared for a transition back to a regular education program. Indeed, the Federal regulations implementing Section 504 of the Rehabilitation Act of 1973 require local educational agencies to conduct an evaluation of a child before making any significant change in the child's placement (34 CFR 104.35 [a]). In view of petitioners' assertion that the child's allergies were responsible for his inappropriate behavior, it was and still is appropriate for the CSE to obtain an evaluation by an allergist to clarify the relationship between the child's educational handicap and his allergies. The documentation which petitioners have presented does not demonstrate any nexus between the child's allergies and educational deficits. An allergist's report would assist the CSE and the educators who will work with the child in establishing the child's present medical condition. The testimony and documentary evidence provided by the staff of the Wildwood School at the hearing established that the child has progressed academically and behaviorally. An updated psychological evaluation would assist the CSE in planning an appropriate educational program for the child, by delineating the child's current cognitive strengths and weaknesses and providing additional information concerning the child's learning style.

Petitioners did not challenge the appropriateness of the child's placement at the Wildwood School for the 1991-92 school year, and I note that the record adequately demonstrates that such placement was appropriate. I do not reach the issue of the child's placement for the 1992-93 school year, because it would be premature to do so before the additional evaluation sought by the CSE has been performed and because the record does not disclose whether the CSE has in fact made a recommendation for such school year. I do find that the CSE was correct in declining to make a placement recommendation for the 1992-93 school year at its November 7, 1991 meeting.

Petitioners object to the hearing officer's directive to them to cease attempting to deny or limit access by respondent's staff to the child at the Wildwood School, and to his directive to cooperate with the CSE by making the child available for further evaluation. With regard to the issue of access to the child by respondent's staff, I find that there is no basis in law for petitioners' assertion that respondent's staff may not observe the child at the Wildwood School or discuss the child's performance with the Wildwood staff without petitioners' prior written approval. The U.S. Department of Education has opined that a school district which has placed a disabled child in a private school may conduct an on-site monitoring visit at such school without prior notice to or the consent of the child's parents (18 IDELR 592). Petitioners also have an obligation to cooperate with the CSE in having the child evaluated. The CSE must consider any pertinent information, including medical reports, which petitioners present to the CSE (8 NYCRR 200.5 [a][1][v]). However, a CSE has the right to insist upon its own evaluation by individuals whom it selects (Vander Malle v. Ambach, 673 F. 2d 49 [2nd Cir., 1982]; Rettig v. Kent City School District, 720 F. 2d 466 [6th Cir., 1983]; DuBois v. Connecticut State Board of Education, 727 F. 2d 48 [2nd Cir., 1984]). The record demonstrates a substantial breakdown in the relationship between the parties, who have a mutual obligation to work together (School Committee Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). It is imperative that they do so.

At the hearing, petitioners asserted that their civil rights had been violated by the alleged abduction of their child by respondent's staff, by the alleged persecution of the child because of cultural differences, and by an alleged attempt by respondent's attorney to coerce them into abandoning or deferring the hearing which they requested. I find that there is no merit to any of these assertions. They further asserted that respondent excessively classifies children as disabled. The hearing officer held, and I concur, that such a claim is outside the scope of an impartial hearing (Application of a Child with a Handicapping Condition, Appeal No. 91-18). Federal regulation accords parents the right to an impartial hearing concerning the evaluation, educational placement or provision of a free appropriate public education to their children (34 CFR 300.504 [a][1] and [2]; 34 CFR 300.506 [a]). With respect to other matters, Federal regulation mandates that each State establish complaint procedures to resolve complaints that a local educational agency has violated a Federal statute or regulation which applies to a Federally funded program (34 CFR 76.780). Therefore I will refer that portion of the petition and complaint alleging that respondent excessively classifies children to the Office of Special Education Services of the State Education Department (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 211).

I have considered petitioners' other assertions, which I find to be without merit.

THE APPEAL IS DISMISSED.