Tuesday, June 25, 2019

Motion to Restrict, Terminate or have Supervised Parenting Time - Indiana Code 31-17-4-1(a)

In my last posting I elucidated formulating a response to a report of child abuse or neglect. Like there, when confronted with a Motion to Restrict, Terminate or have Supervised Parenting Time a response should be formulated while in a calm, rational state of mind.

Step one is to always stay calm. Easier said than done you may think. But think of it this way. Your child has not just fallen into a river. There is no need to activate your limbic system, increase your heart rate, cut off blood to the intestines and rush to aid your child. When you get the Motion the court is a stop light and you are sitting there in neutral waiting. It’s going to be a long light. You are wasting energy and will burn yourself out if you sit there with the pedal to the floor at 6000 RPMs. Instead, you want to shift your response from originating in the Amygdala [emotional] to the Cerebral Cortex [logical thinking].

Once you have settled yourself somewhere on the mental spectrum between pensive thought and nirvana, review the allegations. Next review the relevant statutory provisions. The court is statutorily bound when considering restricting parenting time. Also, familiarize yourself with the Indiana Trial Rules. Particularly TR52(a) - Findings and Conclusions.[fn1]

In the case at hand the attorney for Mother filed the Motion concurrent with the ongoing CPS investigation. In Mother’s purported June 20, 2019 motion to cease parenting time or for supervised parenting time, she alleges, among other things, that father failed to cooperate with the CPS investigation. She bases her motion upon allegations made to CPS and that “Your children are afraid of you and do not want to go to your house.”

Mother fails to grasp the meaning of the term “cooperate” though. Father voluntarily met with the CPS caseworker assigned to investigate the malicious allegations. However, he did first question the caseworker as to who made the report and what could be done against that person for making a false report. The caseworker told Father that she could not disclose who made the report but attorney Niehaus later confirmed that it was the children’s pediatrician Dr. Meredith Potrzebowski, a member of Community Physicians Network. It was her practice to which Father made a complaint to the Medical Licensing Board of Indiana last year for failing to comply with statutory requirements relating to the children’s medical records.

On Friday June 21, 2019 Father spoke with Shannon Pickering at DCS who is the supervisor of Channing Reed, the case worker who did the investigation. Pickering stated to Father that this case will be closed on Wednesday June 26, 2019 as “unsubstantiated.”

Mother’s Motion was based upon two prongs. The first, she alleges that the children do not want to go to Father’s house. The Indiana Parenting Time Guidelines [IPTG] at Section I(C)(1) states that the children should not be allowed to decide parenting time. This is because it can put them in the middle of conflict. The Commentary to this section specifically states that parenting time may not be justifiably denied because, “The child unjustifiably hesitates or refuses to go.” Mother has unilaterally terminated Father’s parenting time and also insists that Father enroll in a parenting class before parenting time may resume. The same Commentary additionally provides that parenting time may not be justifiably denied because, “The other parent failed to meet preconditions established by the custodial parent.”

Her second basis for her Motion is the unsubstantiated abuse and neglect allegations apparently made by the children’s pediatrician in retaliation for Father’s complaint against her last year. These unsubstantiated allegations do not rise to the level of that which would clearly show that Father’s continued parenting time would endanger the children. That is the standard for restricting parenting time. I will repeat it - would clearly show that Father’s continued parenting time would endanger the children.

Restriction of parenting time is governed by Indiana Code 31-17-4-1(a), which provides: A parent not granted custody of the child is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time by the noncustodial parent might endanger the child’s physical health or significantly impair the child’s emotional development. Even though the statute uses the word “might,” the Indiana Court of Appeals has previously interpreted the statute’s language to mean that a trial court may not restrict parenting time unless that parenting time “would” endanger the child’s physical health or emotional development. D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct. App. 2009).

Note that, under this statutory framework, parenting time may not be restricted until “after a hearing”.

In making a ruling on this matter a court must make a specific finding. That is, a general decision finding in favour of the Movant [person seeking to restrict parenting time] is not acceptable. "By 'its plain language,' [the statute] requires a court to make a specific finding 'of physical endangerment or emotional impairment prior to placing a restriction on the noncustodial parent's visitation.'" Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App. 2003) (interpreting Ind. Code § 31-14-14-1) (quoting In re Paternity of V.A.M.C., 768 N.E.2d 990, 1001 (Ind. Ct. App. 2002).

In all parenting time hearings I suggest that parties request TR52(a) - Findings and Conclusions. What this does is give the parties an opportunity to brief the court on the facts and law of the hearing. It also creates a lower standard for a reviewing court [fn2] to reverse the judgment unlike the general judgment standard[fn3] which requires deference to the trial court and must be supported on any theory.

Mother has, by basing her motion upon allegations which were found by CPS to be “unsubstantiated”, clearly failed to demonstrate a prima facia showing that continuing Father’s parenting time “might” or, more importantly, “would” endanger the children’s physical health or emotional development.

Finally, I note that Father did not receive a copy of the purported filing by Mother but was only given a synopsis from her by email in which she sought to amicably reach a settlement agreement prior to hearing. I doubt that any agreement will happen.

For all of these reasons it is apparent to me that Mother’s motion will be denied by the court without hearing. Father plans to file a response soon as he calmly reviews the sparse information that was given to him and marshals relevant evidence.

Footnotes

[1] Rule 52. Findings by the Court
(A) Effect. In the case of issues tried upon the facts without a jury or with an advisory jury, the court shall determine the facts and judgment shall be entered thereon pursuant to Rule 58. Upon its own motion, or the written request of any party filed with the court prior to the admission of evidence, the court in all actions tried upon the facts without a jury or with an advisory jury (except as provided in Rule 39[D]) shall find the facts specially and state its conclusions thereon. The court shall make special findings of fact without request
(1) in granting or refusing preliminary injunctions;
(2) in any review of actions by an administrative agency; and
(3) in any other case provided by these rules or by statute.
On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a master, and answers to questions or interrogatories submitted to the jury shall be considered as findings of the court to the extent that the court adopts them. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions appear therein. Findings of fact are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(B) (dismissal) and 59(J) (motion to correct errors).

[2] Where the trial court enters findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), our standard of review is well-settled. First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. Kwolek v. Swickard, 944 N.E.2d 564, 570 (Ind. Ct. App. 2011), trans. denied. In deference to the trial court’s proximity to the issues, we disturb the judgment only when there is no evidence supporting the findings or the findings fail to support the judgment. Id. We do not reweigh the evidence, but consider only the evidence favorable to the trial court’s judgment. Id. Challengers must establish that the trial court’s findings are clearly erroneous. Id. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. Id. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Id. Additionally, a judgment is erroneous under Indiana Trial Rule 52, if it relies on an incorrect legal standard. Id. We evaluate questions of law de novo and owe no deference to a trial court’s determination of such questions. Id.

[3] Where there are no specific findings, a general judgment standard applies and we may affirm on any legal theory supported by the evidence adduced at trial.” Trust No. 6011, Lake Cty. Trust Co. v. Heil’s Haven Cond. Homeowners Ass’n, 967 N.E.2d 6, 14 (Ind. Ct. App. 2012).

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Monday, June 24, 2019

Responding to a CPS Child Abuse complaint and identifying who reported

Receiving notice from the Department of Child Services [DCS] that a report has been filed alleging that you have abused or neglected your child can evoke anxiety in even the most mentally tough individuals. Knowing the laws and preparing for the interview can reduce this strain and ensure a better outcome for you and your child.

I was contacted recently by a father who had received such a notice and was clearly anxious. In counseling we discussed the nature of the allegations and his responses. Interestingly, a substantial portion of the allegations were stale; they related to situations occurring five to ten years earlier.

The father agreed to meet the caseworker to discuss the allegations. As there had been some recent activity by him against ancillary parties to the custody case between he and Mother we suspected that it was a retaliatory complaint.

During the interview Father remained calm and poised, answering questions as presented. But first he had a few questions of his own. Particularly, he asked if the caseworker knew who made the complaint and if there were any actions that could be taken against somebody for making a malicious report. The answers were that the caseworker did know who made the report but could not disclose because of confidentiality requirements.

Confidentiality can be broken though which I will get around to revealing.

The father was told that the county prosecutor can take action against individuals making false or malicious reports of child abuse of neglect to CPS. In this case the prosecutor may be asked to do so.

In the custody case the parents share joint legal custody. The child’s primary pediatrician is Dr. Meredith Potrzebowski, a member of Community Physicians Network, who has been so for three years. This doctor has been reluctant, at best, to comply with the law[fn1] allowing father access to the child’s medical records.

Due to the obstructive nature of Dr. Meredith Potrzebowski toward Father on multiple occasions he filed a complaint with the Medical Licensing Board of Indiana against her records keeper, Keri Fisher, R.N., last year. The crux of his complaint was that he sought clarification as to dosage levels prescribed for the children when mother provided an ambiguous response. Mother is the former IPS school teacher who testified that there are 56 weeks in a year. Nurse Fisher replied, "legally we are only allowed to discuss (daughter's) medical care with her mother." When pressed by Father to comply with the law by providing records or he would make a complaint Fisher ignored the request.

The Office of the Attorney General of Indiana released its conclusions in this matter [18-CP-56319] on 26 April 2019. This was just three days before the complaint to DCS was filed by Dr. Potrzebowski. The AG concluded, "We reviewed all available evidence and submitted our findings to the governing Board. It was determined that we cannot conclusively prove that a violation of the statutes and rules governing licensed professionals has occurred." [emphasis added]. The AG didn’t state that there wasn’t a violation but basically said there was no smoking gun that made it a clear cut winnable case.

Going back to the current CPS case, recall that I said the allegations were mostly stale. In thinking about the allegations, who would have known that years ago the father had moved business materials into the home and that it filled the living room for awhile? Who would have known that the children were not allowed to have free access to all foods in the house?

Logically, one could certainly speculate that someone who had regular interactions with the children and may have regularly questioned them about their home environment or other factors which may contribute to allergies would know this history.

Father and I suspected that it was the children’s pediatrician, Dr. Meredith Potrzebowski. We didn’t have to wait much time for confirmation. In an email from attorney Robin Niehaus, which I received shortly after our discussion of who made the malicious allegations, she stated, “It is my understanding the children’s pediatrician turned in a complaint to CPS”. Well it doesn’t take a big logical leap to conclude that Potrzebowski made a false, malicious report to CPS in retaliation for Father’s valid but not conclusively provable complaint to the Medical Licensing Board of Indiana.

Three days after the Attorney General makes a decision to not prosecute comes an allegation to CPS from a doctor who got the information up to three years earlier. Clearly sounds like a vindictive abuse of the system by Dr. Meredith Potrzebowski to me.

Neihaus additionally stated that it was also her understanding that Father had refused to cooperate with the CPS investigation.

I found it interesting that Neihaus was told that the father had not cooperated, but I do not know to whom she spoke. Shannon Pickering, the supervisor of the case worker who conducted the investigation, indicated that Father did cooperate and that by Wednesday of this week the case should be closed as “unsubstantiated”. However, she did state that father demanded that the investigator obtain a warrant/court order to enter and inspect the house.

Fourth Amendment rights apply to CPS investigators just as they do law enforcement agencies. If a police officer knocks on your door and says, “someone told us you were dealing drugs out of your home ten years so I just want to come in and have a look around” then you are well within your rights to refuse. That refusal may not be considered anything other than a neutral response and cannot be the basis for probable cause. Similarly, Ms. Pickering stated that it is not considered "non-cooperation" for a parent to not allow an impromptu inspection.

If you are contacted by CPS and told that an allegation of abuse or neglect has been made against you the first thing to do is stay calm. Review the allegations. Review the relevant statutory provisions. Keep in mind that the case-worker is performing a job to protect children and doesn’t know you until you make yourself known. So, be polite and cooperative. Cooperative can be as simple as returning a phone call and stating that you will make yourself available to comply with any court order related to the investigation. Cull clues from the allegations that may lead you to the identity of who made the report to CPS. This can help you formulate any responses you may make.

Finally, have confidence in the system. This father was anxious and was sure he was going to “get screwed” by CPS. By following the advice I just provided we were able to make a likely conclusion as to who made the report [which was later confirmed by attorney Neihaus] and formulate a plan based upon that conclusion. At the onset of the interview he immediately asked about the repercussions for a doctor making a false, malicious allegation in response to a complaint by him against the doctor to a regulatory agency. That set the tone for the investigation. As I learned late last week our suspicion was apparently correct. On Friday I was then told the case would be closed two days from now as “unsubstantiated.”

Footnotes
[1] Indiana Code 16-39-1-7 stipulates the circumstances under which parenting time may be restricted. It provides as follows;
(a) Except as provided in subsection (b), a custodial parent and a noncustodial parent of a child have equal access to the parents' child's health records.
(b) A provider may not allow a noncustodial parent access to the child's health records if:
(1) a court has issued an order that limits the noncustodial parent's access to the child's health records;  and
(2) the provider has received a copy of the court order or has actual knowledge of the court order.
(c) If a provider incurs additional expense by allowing a parent equal access to health records under this section, the provider may require the parent requesting the equal access to pay a fee to cover the cost of the additional expense.

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Tuesday, June 11, 2019

Instilling respect in your child and effective discipline

When hearing about respect my thoughts go back to early childhood in which I saw a poster that read, “To get respect, show respect”. Although that advisory axiom is well reasoned I feel it is insufficient or ambiguous. Rather, I would say, “To get respect, show respect for yourself then others”. It is my proposition that the lack of regard for respectful behaviours which proliferate through our society is due to a lack of respect for self.

To elucidate I will recount a recent event involving a neighbor and her son. Through this anecdote you will observe the missed opportunities of this parent for instilling the respect in her child which she desperately seeks. More important though is that you will notice that she actually inculcates her son with a disrespectful attitude. This is due largely to her lack of respect for herself. First, I will give you some relevant background information for you to draw upon to give these events adequate context.

I ride bicycles frequently and have numerous ones about the house, sidewalk, deck, and yard - two dozen or so in total. There is apparently about the same number of children around here within a stone’s throw.

It’s no surprise that some children have asked to use my air pump, a wrench, or for help with repairing a bicycle. As these requests increased I simply placed those items on my porch and told the children they were welcome to use them. Of course such usage was contingent upon the standard rule when borrowing something.

Recite that to yourself now. If you don’t know it then read on for sure.

It takes a village to raise a child

Or does it?

My neighbor’s son was aware of this rule about borrowing items which is part of the social contract of the members of most societies. His awareness of rules is not concurrent with compliance though which led to her seeking my assistance the week before school concluded for this year. On one evening she came out to where children, including her son, and I were playing and explained that it takes her from 8:00 pm to midnight to get the children inside, ready for bed and in bed each night. She then told me that if her children are out after 8:00 that I am to get them inside. Or to come tell her.

The incident

It was two days later that he was on my porch getting the air pump in the mid-afternoon. The next morning as I walked past their house I stepped over my pump which had been discarded on the sidewalk.

Later in the day I saw the boy and asked him what is the rule about borrowing items. His reply, “It wasn’t my fault.” Not satisfied with the reply I repeated my question. He then stated that he didn’t know. Numerous other people I have spoken with about that rule have stated it verbatim. This included other children. Apparently this boy knew enough of it to attempt to defend himself or diffuse blame by stating it wasn’t his fault.

I then told him that because he no longer knows it that he just won’t be able to take stuff any longer this year. He then proceeded to say that he didn’t care, he can get another one, that his mom made him leave it on the sidewalk and whatever else as he was walking away. I then told him to stop sassing me which was followed by some other insolent comment of his. With that I told him not to talk to me for the remainder of the year. My feeling was that if he wanted something again we would be going through the same argument. But, if he wanted to take some time to ruminate on the issue and then write something demonstrating contrition then we could discuss re-establishing the privilege of borrowing things from me at will.

Mom steps in

Later in the afternoon after his mother returned home from work she came marching over to my house and stood out on the sidewalk and yelled, “Hey Stuart! What is this about you grounding my son for a year?” As I started to explain that he had borrowed the bicycle pump and then let it be on the sidewalk for a full day afterward she interrupted by barking that her son is only seven years of age, that its a year, and that I cannot tell her child that.

I attempted to counter her contentions, particularly that her son has a right to borrow and not return my items, but she walked away continuing to talk over me by furthering her tirade and insults. Sound familiar?

As she got back to her yard I unloaded on her with my typical manner of dealing with irritants. I told her, “Goodbye!” repeated it and, as she continued to sass me, gave her a double dose of the big FU. That should eliminate that irrant from my life and I should not have to hear from her again how I can’t tell her son not to use my items at his will.

No person that I have counseled has demonstrated such a clear case of how to indoctrinate lawlessness into a child.

Speaking to me already?

A few days after this when, out in the roadway where we are playing, a friend asks me about the incident. As I was explaining to her the boy started listening in and came over to plead his case. This is precisely what I did not want happening. I had made my decision that, for the remainder of 2019, he had lost the privilege of taking items from my porch without asking. Further, because I didn’t want to hear him try to argue his way out of taking responsibility for the matter I told him to not speak to me for the remainder of the year.

What both he and his mother had pleaded has been soundly rejected by civil and criminal courts. Their argument is analogous civilly to liability by contractors or auto manufacturers who use subcontractors or suppliers. It would be that if they built your vehicle using a defective part from a supplier which resulted in malfunction and injury to you that they have no liability. Or, similarly, that if they hired an incompetent subcontractor to install the electrical service in your new home and that sub did so incorrectly resulting in electrocution to you or a fire, that it is a matter between you and the sub and as a general contractor they would have no liability.

That is just not the way it is.

As the person who came and took the bicycle air pump from my porch, the boy is responsible for it, including who uses it, and its return to my porch. If he entrusts another with the responsibility of returning it he is still, ultimately, responsible for seeing that it was returned.

However, he had the audacity to walk past it the next day and let it remain on the sidewalk because, as he pleaded, someone else use it after him and it wasn’t his fault that one of the other users didn’t return it.

Integrity

This is a matter of integrity. Integrity, being a substantial portion of the personal worth calculus, is critical for a child’s development and self-regard. Fortunately for this lad he does possess an organic sense of integrity.

A week following the initial incident he had a visiting friend who came over to my house. The friend asked if he could borrow the pump. He did so on the sidewalk in front of my house then returned it to the porch. The offending lad who was on his bicycle nearby said, “Thank you Stewie for letting him use your air pump.” I responded that he was quite welcome so long as it gets returned.

In the few days following he saw me at the swimming pool when I had taken other children there. When I acknowledged him he greeted me and was cordial.

He is now respecting himself by showing respect to me. Integrity in a person demonstrates that he or she feels a sense of self-worth. Those who don’t have this esteem don’t feel that their character can be damaged and, thus, they do not honour commitments, respect others, or demonstrate the various attributes of integrity.

Conclusion

This boy may insist that he has free-will and that his actions are a result of his decisions. However, the behaviour of this boy, as with many people, follows a pattern and is quite predictable.

His initial response was to ape his mother when faced with a conflict. As predicted, he sought to restate his excuse for his failure to return the pump which was totally ignored by me. Hence, the admonition not to speak to me. Upon the passing of time to reflect his attitude changed and he showed contrition. Following that he has re-established his cordial relationship with me and again earned respect from me.

He still has to ask my permission on an individual basis to use anything of mine for the remainder of 2019. To not demand such would indicate that I lack integrity.

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Monday, January 21, 2019

Martin Luther King vs the Presidents’ position on Human Equity and Civil Rights

Martin Luther King, Jr as a civil rights activist sought to end sanctioned racial disparities in opportunity. That -- racial inequity -- has been the hallmark of many societies throughout human existence. Primarily, these inequalities are expressed in a racial caste system which may have stated or implicit lines of demarcation for establishing the social or employment status of individuals. In the United States it has be held that “men” are white males of high European ancestry.

Racial inequities inherently seem to be an injustice which holds that there is oppressor on one extreme and oppressed on the other with varying degrees of both falling on a gradient plane somewhere between. The desire for a pluralistic society free of this gradation has long been dreamt by many, particularly those toward the oppressed end of the scale.

In early 19th Century America utopian societies abounded based upon an equitable share principle for all members and elimination of hierarchies or class but most of these were short-lived and disbanded over internal power squabbles.

Interestingly, these societies were nearly universally homogenous. Consisting of white members of high European ancestry The New Harmony settlement in Indiana added the additional qualifier of being in a position of scientific leadership. But it also fell apart in only a few years. So even the geniuses couldn’t make a go of it.

Thus, it would be a struggle of greater magnitude to then seek equity in class for a heterogenous group. In the United States the turmoil over the status of black people, notably slaves, would reach a tumult in both oratory fashion and physical contention. A portion of the United States would create a separate country over the ensuing financial and subsequent political ramifications. The two countries would engage in a protracted battle but not before Republican presidential candidate Abraham Lincoln addressed the issue of racial disparity.

“I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races, [applause] ... I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will for ever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be a position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race.” [fn1]

Lincoln is later credited with “ending slavery” in the United States by issuing the Emancipation Proclamation. This is not entirely accurate though. The Emancipation Proclamation was applied to the opposing combatant country, the Confederate States of America, during the middle period of the conflict. Slavery in the United States, to where recently freed slaves would migrate from the Confederate States and assist in the U.S. war effort, would remain intact however.

These former slaves would remain subjugated citizens in the position of inferior class as Lincoln had demanded and proclaimed. Their freedom was not to elevate their status but was designed to weaken the Confederacy by draining it of a labour pool and the financial benefit of exploited blacks whose exploitation in the U.S. would turn the tide of the war. The remaining slaves would subsequently be freed following cessation of combat.

To his credit, candidate Lincoln, while still being a white supremacist, did argue that slavery was morally unjust and should be ended through legislative action which was a hallmark of his candidacy and presidency. As president he was impeded by his Democratic counterparts who supported slavery. Some withdrew from the United States.

As it stood 150 years ago Democrats supported slavery while Republican leadership sought an end to the practice although their president was an ardent white supremist.

To check on the progress of racial equity in the United States as mandated through three constitutional amendments I advance you nearly 100 years. The issue of racial inequity and subjugation was being brought to the fore by Martin Luther King Jr. In 1960, just days before the presidential election, John F Kennedy had his brother put pressure on a DeKalb County judge which secured Martin Luther King Jr.’s release from jail. That action, followed by King’s praises for and endorsement of Kennedy, contributed to Kennedy obtaining 68% of the black vote in the presidential race and bolstered Democrats -- the pro-slavery party -- broadly.

King had been charged with trespassing after leading a sit-in demonstration against segregation in Atlanta. Kennedy’s intervention and subsequent election marked a clear alliance between civil rights activist and Kennedy. King would refer to Kennedy’s pre-election civil rights commitment as a “huge promissory note” to pass civil rights legislation.

However, Kennedy only reluctantly made token gestures toward civil rights advancement and the Democratic controlled House of Representatives let the early legislation die. Kennedy also undermined the efforts of King and consented to police violence against activists. That abruptly changed in June of 1963, when under intense political pressure following the brutal Birmingham police riot of 03 May 1963, he announced a plan for comprehensive civil rights legislation.

Kennedy, like many in the Democratic Party leadership, wanted blacks to have equity in voting -- based upon the likelihood of those votes being cast for him. When it came to social and economic equity however Kennedy sided with his Republican predecessor Abraham Lincoln.

Over 30 years ago when I was becoming politically active I explored groups that had a civil rights foundation at least partially based upon race. Whenever I broached the subject of ending racial discrimination I was given a cold shoulder. Except among one group. Ironically, it was white nationalists who embraced and lobbied for an end to sanctioned racial discrimination.

Some 30 years later it no longer seems ironic. During those years I have come to fully understand how pretending to support an oppressed group is socially, politically, and financially profitable. The leaders promises to walk hand-in-hand with the oppressed but need their support [votes / $$$] so the leaders can fight for change. Meanwhile, the individuals should stay in their place and accept their lot in life, continue to be exploited, and let the leaders they support make that change.

For over 150 years now Democrats have been providing lip service for racial equity but have only reluctantly accepted what has been thrust upon them by the mass of individuals who refuse to wait for change. The progress in obtaining racial equity in the United States has been a cultural push slowly advancing against the resistance of the Democrat Party which like the former presidential candidate Abraham Lincoln is “ in favor of having the superior position assigned to the white race.”

Martin Luther King Jr had a dream and Democrats appeared to be the political party to fulfill it. But like many dreams it was partially illusion. Racial equity will be realized by individuals. Individuals who refuse to acknowledge or disclose race on any official documents. Individuals who refuse to participate in sanctioned racial inequity. Individuals who "out" those who do play the race game -- particularly the politicians like Kennedy who pretended to be advocates..

Footnotes
1] The Lincoln-Douglas Debates 4th Debate Part I, Charleston, Illinois, September 18, 1858; Opening remark of Abraham Lincoln

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Wednesday, January 9, 2019

Choosing an Attorney for your best Medical Advice

As the frost covered grounds of Indiana begin to thaw during the closing days of Winter the amorous carnal longings of my extended family seem to burst forth. December births are common among my cousins who added to the clan this year in furtherance of this synchronized generational expansion. While the two newborns healthfully departed their maternal denizens their respective forays into the greater world have proceeded at distinctly contrasting rates.

Following the ritual Winter family gathering my parents queried between themselves why one baby is being brought into the throngs of fellow beings while the other is kept hunkered down in its domestic fortress. More particularly why is one doctor saying do not take the baby out of the house while the other encourages wanderings.

Such contrasting suggestions bring forth no bewilderment to my mind. However, they may not be apparent to those outside my fields of practice. Thus, I present this examination of general professional counsel using these babies as case in point.

The answer for why two medical professionals advising differently on the same circumstance comes down to their respective legal counsel and statistically probabilities of harm. In this case I will use a hypothetical statistical risk assessment using bacterial meningitis.

Let’s say that, while only considering whether a child is quarantined for the first two post-utero weeks of life, 1/3 of meningitis cases are of quarantined children while 2/3 are of environmentally exposed children. Based upon this 2:1 ratio legal counsel for the insurer of the first doctor says that newborns should be quarantined for the first two weeks. The reasoning behind this is that in a medical malpractice lawsuit against the doctor an attorney would raise the issue that the doctor knew that the risk was twice as high for babies not quarantined. Thus, the insurer for that doctor or a medical association includes the quarantine recommendation in its “best medical practices for doctors” guidebook.

So, what about the second doctor? Well, her insurer has legal counsel which read a medical journal article stating that 2/3 of cases contracted by babies outside the home occur from just a few risky scenarios. These included being bottle fed rather than breast fed [contaminated bottle] or exposure to the environment of livestock carrying e-coli or the workers around the livestock. Keep in mind that this is simply my imaginary statistics and causes.

Here is how this works out mathematically thus far;
3/9 cases occur in quarantined children
2/9 cases occur in exposed children
4/9 cases occur in exposed children

Setting aside cases from these few risk factors the ratio of contracting bacterial meningitis for quarantined versus exposed children is 3:2. Armed with this information the insurer for the second doctor publishes an advisory that says newborns are less likely to become infected if they are environmentally exposed but livestock environments and bottle feeding should be avoided.

This dichotomy demonstrates two contrasting styles of thinking. The first is the blanket approach that does not allow for judgment or deliberate action. The second is the case specific approach which requires deliberation and decision which reduce risks by a greater degree. The second approach is on the decline.

The overall goal is the reduction of risks. That is risks to the professional not you the consumer. Again, in the medical field this is apparent in the scheduling of elective surgery. It could be for a knee replacement. The doctor has two years of medical history, x-rays, and field knowledge about the scope, progression, and pain associated with the joint failure. The patient asks, “When should I get this done?” In years gone by the answer may have been, “You could wait until the end of Summer when your son goes off to college.”

But someone who had been told that message was going down some stairs the week before the post Summer surgery was scheduled. While doing so she lost her balance and fell which resulted in numerous fractures. During trial one expert said the deteriorating knee was a likely contributor and that the doctor should have scheduled the surgery earlier.

So, now the response from the doctor is, “I suggest doing it as soon as possible but I will schedule it for when you feel like you want it done.” Thus, if some adverse experience should occur pre-operative time then the doctor can fall back on the patient deciding to wait, against medical advice.

This professional decision making based upon legal advice is ubiquitous in our litigious society. Here is a hiring example.

This is based on actual events. A school hired a teacher based upon educational credentials, work experience, and a criminal background check. The necessary teaching degree/certifications had been obtained, there was positive employment experience, and he had not committed any of particular crimes of violence, sexual in nature or against children that would disqualify him. So, he was hired. Then he was criminally charged for sexual relations with a student.

~ ~ ~ A quick side note. If you want to know where the most prolific and proficient sexual molesters of children are go to where there is ready access to children and look for people not on the sex offender registry. ~ ~ ~

The school had protected itself in two ways. First, it relied upon information provided by others that are reasonable measures to filter potential sexual abusers of children from the employment pool. Second, no one could be held liable for wrongful termination for firing him on a “hunch” that he was going to do this.

The legal protection scheme goes like this. Create a record trail to say we tried to prevent the abuse through hiring procedures, if the potential for abuse is suspected then monitor but let it happen unless you have clear proof of intent, then terminate based upon the judgment of police or a prosecutor that abuse did happened. Using this scheme the sexual abuse risk is reduced. Not for the children but of the financial liability for the insurer of the school corporation.

Our society shuns responsibility. The cacophony of lamentations over parents not being responsible for their children. The lawsuits against tobacco companies for causing people to smoke. Now it’s obesity is caused by the so-called foods industry or portion sizes. People steal because of drugs. And the falsehoods and rationalizations for avoiding responsibility proliferate and have a common basis.

The root for it comes from the top. The white collar professionals have clearly demonstrated a near uniform avoidance of personal accountability for making judgments. Of the few domains where judgments are made those actors are protected by statutory immunity or legislatures are scrambling to expanding immunity to include them. Instead of making judgments based upon experience, intuition, or logical thinking the professionals have outsourced that to attorneys.

So next time you are seeking medical advice make sure it comes from a competent attorney.

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