This comes from the unpublished opinion in JSM v BCM handed down on 15 December 2010. The appeal was taken from the Findings and Conclusion and Order from the Honorable Russell J. Sanders of the Shelby Superior Court in a Petition to Modify Custody.
For readers who may not have been following my blawg lately here is some relevant background. Judge Newman is the Madision Superior Court judge who entered the worst findings and conclusions in a custody case that I have ever seen. In Scarberry v Porcaro Judge Newman ordered on 08 November 2010 that the parties joint custody agreement would be dissolved in favor of sole custody for the mother based upon father having changed his religious preference from Christian to agnostic. Notice of Appeal was filed in the case on 01 December 2010.
In JSM Mother moved for custody modification, alleging the following:
An inability to communicate with each other effectively regarding child’s best interests, specifically his health care issues and parenting time; Father’s inability to meet his financial obligations regarding his son’s health care; and Father’s frequent, habitual, and dangerous drug and/or alcohol use based upon his behavior since 2006, which included three separate drug and alcohol related incidents with the Shelbyville Police Department and the Shelby County Sheriff’s Department.
The parties dissolution decree, per their agreement, provided for joint legal and physical custody of their son born in 1999 who has been diagnosed with cystic fibrosis. Their son requires daily treatment and medications at home, and frequent medical monitoring and treatments. The decree also provided specific times for physical custody by each parent, that neither parent was to pay child support, and that the parties were to divide the expenses associated with non-reimbursed healthcare costs with Father paying 60% and Mother paying 40%.
Similarly in Scarberry the parties dissolution decree, per their agreement, provided for joint legal and physical custody of their three children the youngest of which has cerebral palsy and requires regular medical care. The decree also provided specific times for physical custody by each parent, that neither parent was to pay child support, that Father would carry medical insurance and that the parties were to divide the expenses associated with non-reimbursed healthcare costs with Father paying 50% and Mother paying 50%.
After a hearing on the matter in JSM, the trial court entered findings of fact and conclusions of law, including the following:
15. There is no evidence that [child]’s medical condition has changed substantially during the period at issue and the treating physicians have reported to the parents that they are happy with the [child]’s current condition.
18. The parents have had difficulty in cooperating regarding health care bills and minor heath [sic] care issues.
22. . . . The Court received school records through the cooperation of each party. Those reports evidence the following pertinent information:
a. In the 2008-2009 school year [child] scored A’s, B’s and satisfactories;
b. [child]’s ISTEP scores for a test given in March, 2009 are similar to previous test scores, though in his initial science test he did not pass;
c. Grades for the second nine weeks of 2009 while lower than the last semester . . . are not significantly worse than previous years;
d. [child] was declared athletically ineligible for basketball because he failed mathematics but was later reinstated after improving his grades.
e. There is no evidence directly linking the worsening grades to the status of [child]’s custody arrangement with his parents.
Much of the same could have been said in the Scarberry case except replacing health care with religion. However, Newman didn't choose to make such detailed findings as these. Instead Newman made these "findings";
"8. There was evidence that the Respondent/Mother had left the minor children at home alone, did not feed them breakfast, and did not at time (sic) buckle them in their car seats."
"9. Further, parties disagree as to whether the Petitioner/Father participated with the Children and medical appointments."
"10. Further evidence indicated that the Petitioner/Father did not participate in the same religious training that the Respondent/Mother exercises and that the Petitioner/Father was agnostic."
"12. At the time of the Property Settlement Agreement, the Petitioner/Father considered himself a Christian and the parties were able to communicate relatively effectively."
Here is where I can help Newman a bit. "Finding" comes from "Findings of Fact" such that it should be a clear statement of a purported established truth as opposed to an unambiguous statement.
Number 8 should start with language like "The Court finds that the Respondent/Mother. . ." instead of just stating that there was evidence of that. Not that we can't still understand the intent of that paragraph but it is technically better.
Number 9 is not a finding at all. This is simply a rhetorical statement that simply summarizes why the parties appeared in court anyway. A statement like that does not belong in Findings of Fact.
Number 10 is so far from an appropriate finding that it is reprehensible to the entire judiciary of the State of Indiana. Judge Newman holds no shame in this blatant trampling of the United State Constitution and the protection against an establishment of religion. I would like for Newman to explain how he thinks being agnostic is relevant to a child custody decision.
Number 12 again is not a finding at all. This is simply a rhetorical statement. It's about as helpful as a finding like "At the time of the dissolution the parties had experienced an irrevocable breakdown in the marriage". If the parties didn't communicate well then Newman shouldn't have accepted their settlement agreement that provided for joint legal custody. DUH! That statement serves no other purpose than to introduce into the "findings" the reason why Judge Newman dissolved the agreement and stripped Scarberry of legal and physical custody of the children.
So here is the analysis in JSM which is important for anyone facing a challenge to joint legal custody based upon difficulty in communication or agreement on the best interest of the child.
Indiana Code section 31-17-2-21 provides that a trial court may not modify a child custody order unless the modification is in the best interests of the child and a “substantial change” has occurred in one or more of the following factors which a court is to consider in initially determining custody:
[Ind. Code § 31-17-2-8 provides us with these following eight factors]
(1) The age and sex of the child.
(2) The wishes of the child’s parent or parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parent or parents;
(B) the child’s sibling; and
(C) any other person who may significantly affect the child’s best interests.
(5) The child’s adjustment to the child’s:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
Mother asserted that she and Father were “incapable of making a joint custody arrangement work.” and therefore custody should be modified. Mother directed the Court of Appeals to Arms v. Arms, 803 N.E.2d 1201, 1210 (Ind. Ct. App. 2004), which states that when determining whether joint custody is appropriate, trial “courts examine whether the parents have the ability to work together for the best interests of their children.” In Arms, there were numerous allegations of abuse, parental coaching of the child to make negative comments about and use derogatory names for the other parent, several examples of an unwillingness to abide by the terms of custody and visitation orders, a physical altercation, and more. Under those facts, and acknowledging that “[p]ast behavior is a valid predictor for future conduct,” the Court concluded that evidence was sufficient to demonstrate an inability to work together to make joint custody “plausible.”
Not good enough for Judge Newman in Scarberry though. All it takes for Newman to find that there has been a substantial change in at least one of the statutory factors that a court must consider in modifying custody is that a parent changes his or her religious preference. Go back and read those eight factors and see if you can find that one.
In JSM however the Court found that the record provided no evidence as to any difficulties in cooperating or breakdowns in communication until the child was at least six years old, about five years after the parties divorced. Mother filed her present petition for custody modification in February 2009, when the child was about ten years old.
Here is what Mother relied upon as her basis that the parties could not effectively communicate; Father's failure to pay child support, which was due in most part to job loss, and an incident where the child had received medical treatment for a fever but Father did not immediately inform Mother However, the Court disagreed and stated, "We disagree, and view it as a relatively minor disagreement, especially because it appears to be an isolated incident when viewing the record as a whole. In over eleven years of [child]’s life, Mother does not show an inability to communicate or cooperate regarding [child]’s best interests."
The Court went further stating that Mother’s allegations as to a failure to cooperate center around Father’s failure to pay medical expenses and to carry health insurance. Also about the incident of the child having a fever. To the extent Mother and Father disagree as to what neighborhood or school would be best for the child the Court considered that "a reasonable and common dispute and not an example of an inability to cooperate to make decisions in their child’s best interests."
The Court went on to say that although Mother and Father have not fully worked out minor communications issues, they are not incapable of communicating and cooperating for the child’s best interests. Further, that the trial court found Mother and Father are both actively involved in ensuring that the child receives medical care and are familiar with his physicians, medicines, treatments, and prognosis. This is cooperation. Mother and Father also telephone and text-message each other regarding the child’s health. This is communication.
So knowing all of this the trial court then made its conclusions of which some were;
9. The mother has failed to satisfy the standards required to justify a change of custody. There has been no showing that a change of custody would be in the best interests of the child. There has been no showing that father’s criminal misconduct has harmed the child, though it does provide some concern for the Court. The lack of cooperation between the parties is mutual, and disturbing, but does not provide sufficient reason to alter the current arrangement.
10. Given the childs [sic] medical condition specifically and the difficulty of growing up in general, the Court finds that it would not be in [child]’s best interests to change his school. He has been there for several years and has performed both well and not so well. But there is no evidence that a change, with its attendant disruption, would be better for him than his current educational circumstances.
The Indiana Court of Appeals agreed and upheld the ruling by Judge Sanders.
So, to summarize for Judge Newman on how to properly write findings and conclusions;
1) Learn the law,
2) Limit the Findings to factual conclusions based upon the evidence presented, and
3) Make Conclusions in accordance with the law based upon the reasonable inferences from the Findings.
For a more detailed lesson he may want to contact me and receive one-on-one coaching.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions. 
No comments:
Post a Comment