Madison County Attorney Jane G Cotton commits FRAUD

This is not just my opinion, which is much harsher, but is the opinion of the Indiana Supreme Court which concluded that attorney Jane G Cotton violated Indiana Professional Conduct Rule 3.5(b) by engaging in an improper ex parte communication with a judge, and Indiana Professional Conduct Rule 8.4(d) by engaging in conduct prejudicial to the administration of justice.

This case started with a very common framework to obtain custody of children and a financial windfall in a dissolution proceeding. On August 20, 2007, a wife filed a pro se petition for a protective order against her husband in Madison County. The wife also submitted a proposed "Ex Parte Order for Protection," which ordered the husband to stay away from the wife's residence but did not identify where she lived. On blank lines, the wife wrote several addresses, including the address for the parties' "South Central Way Property." Magistrate Stephen D. Clase crossed out all the hand-written addresses and initialed the changes to indicate they were intentional. On his recommendation, Judge Thomas Newman signed the order as so revised ("Order for Protection") on August 20, 2007.

Side-note: This is the same Judge Newman who doesn't think that parents are entitled to religious freedom and instead feels that the government can mandate Christianity as a State religion. I have written more about that here.

A week later, on August 28, 2007, with husband removed from the home an unable to access his resources the wife, by counsel, filed a petition for dissolution of marriage. Attorney Scott Norrick ("Norrick") filed his appearance as the husband's lawyer in both the protection order case and the divorce case. On November 26, 2007, wife's counsel withdrew as her lawyer.

On December 11, 2007, Norrick filed a "Motion to Remove Personal Property," asking the divorce court to enter an order allowing the husband to remove his personal property at the South Central Way Property. On December 19, the divorce court signed an order granting the motion ("Personal Property Order"). The wife was served with both the motion and the order.

Meanwhile, on December 14, 2007, attorney Cotton began representing the wife. On that date, the wife asked Cotton to stop the husband from removing his personal property from the South Central Way Property. The wife gave a copy of the Order for Protection to Cotton, who saw that the South Central Way Property address had been crossed out and initialed by the Magistrate Clase. On the same date, Cottton and the wife went to the courthouse to talk with Magistrate Clase about the matter, but the only judge Cotton could find was Judge Thomas Clem, who was not involved in either the protection order or the divorce case but had authority to approve orders from other courts in the county's unified system.

Neither Judge Clem nor attorney Cotton took any steps to have the Photocopied Order entered in the Court's records. Cotton, however, took the court's seal and impressed it on the Photocopied Order over the South Central Way Property address written by Judge Clem to "authenticate" it. Cotton then gave the Photocopied Order, which she obtained through misrepresentation and fraud, to the wife for her use in preventing the husband from removing property from the South Central Way Property.

Although Cotton knew of the husband's counsel and had the obligation to provide a copy of the "order" to him she chose not to as to perpetuate the fraud.

On December 29, 2007, the husband went to the South Central Way Property and began loading his personal property on a truck, relying on the lawfully entered Personal Property Order giving him permission to do so. Then, almost as scripted, wife arrived at the South Central Street Property, called the police, showed the officers who arrived the fraudulent Photocopied Order, and asked them to arrest the husband. Although they declined to arrest him, they required him to unload his personal property from his truck and leave without it.

On January 8, 2008, Norrick filed a second motion to allow the husband to remove his personal property from the South Central Way Property. The court granted the motion, but when he went back to the South Central Way Property, some of his personal property that had been there on December 29, 2007, was, surprise, surprise, no longer there. Husband has been unable to recover the missing property. This really amount to nothing less than the wife and attorney Cotton involving themselves in a scheme to steal the husband's personal property through obtaining a court order through fraud which then allowed them to do so.

Attorney Cotton not only engaged in an improper ex parte communication with a judge, but she also affirmatively misrepresented to him a material fact, telling him that the South Central Way Property address had been inadvertently left out of the original Order for Protection she asked him to revise when in fact Magistrate Clase had crossed out the address and initialed the change to make clear that the alteration was intentionally made by the court. The accuracy of documents utilized by a tribunal in a proceeding is of the utmost importance to the administration of justice, and fraudulent alteration of such documents by an officer of the court is therefore serious misconduct. See Matter of Darling, 685 N.E.2d 1066, 1068 (Ind. 1997). Although Cotton did not fraudulently alter the original Order for Protection, her misrepresentation of a material fact to Judge Clem produced a similar result.

In the fifteen days between receiving the Photocopied Order and her client's use of the order to prevent the husband from retrieving his property, attorney Cotton took no steps to notify the husband or his counsel of the ex parte communication with a judge, to make the Photocopied Order part of the court record, to send the husband or his counsel a copy of it, or to alert them that the original Order for Protection had purportedly been altered to directly contradict the valid order permitting the husband to remove his property from the South Central Way Property. Her conduct subjected the husband to the risk of arrest and caused him an economic injury that will not be fully remedied by Cotton's tender of $1,275 as restitution for attorney fees he incurred.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of thirty (30) days, beginning February 7, 2011. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).

Justice Sullivan dissented from the majority and in his opinion suggested a suspension of 90 days. I think the punishment should be much harsher. This is not a simple matter of lying to a judge or falsifying an order.

Attorney Jane G Cotton was involved in a common scheme a filing a Petition for an Order of Protection, then filing a Petition for Dissolution of Marriage and using the protection order to gain a tactical advantage in the divorce, often times to deprive the children of access to the responding parent although that is not revealed in this case. What Cotton did was instead for financial gain.

Once the husband was able to get a court to allow him to retrieve his valuable personal property attorney Cotton hatched a plan to fraudulently obtain an order that would allow her client to keep the husband from getting his property. In essence Cotton masterminded a plan to steal the husband's property, something for which she should be charged and convicted for as the common criminal she is.

So if you have encountered attorney Jane G Cotton and are considering hiring her as your attorney I strongly advise against it. You could end up being a co-conspirator in a criminal scheme. If you are involved in a proceeding in which Cotton represents the opposing party then you must make it clear to everyone involved that Cotton will be suspended in February 2011.

If you are currently represented by this thief and need to find new counsel please contact me.

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Pro se Litigant Child Custody Appeals in Indiana

In this article I am going to present to you my contention that pro se litigants should NOT proceed on appeal without assistance. In doing so I am examining and referencing four cases; The published opinion of Novatny v Novatny decided 31 August 2007; Cook v Cook decided 03 April 2007; Deardordff v Deardorff decided 31 August 2010, and; Stearns v Stearns a dissolution case decided 17 August 2010.

The first thing I want to let you know is that it is well settled that pro se litigants are held to the same standard as licensed lawyers. [See Payday Today, Inc. v. McCullough, 841 N.E.2d 638, 644 (Ind. Ct. App. 2006)]. That is to say that the court is under no obligation to give a break to a litigant based upon the status that he or she is not represented by an attorney.

Pro se litigants can be effective advocates for their cause. After all, who is more committed to the cause than the very person who will be affected by the outcome. However, most fail to adhere to or fully understand court procedures and suffer the consequences. I see this often in applying the Rules of Evidence and to a lesser degree the Rules of Trial Procedure. But, when it comes to appeals there is much to be desired from the collective efforts of pro se litigants.

I have endured significant failures in legal proceedings while represented by attorneys. My successes have been much greater during the 10 years or so that I have been a pro se litigator. Attorneys have begged me to settle rather than go to trial, motions to dismiss or for summary judgment have failed, judges have had to correct their orders and, most importantly, prosecutors have refused to face me in criminal trials and dismissed charges, even over my objection and demand to be recharged.

But, I study law full-time.

The importance of learning the applicable law, courts rules and how the reviewing courts have applied these cannot be overstated. When it comes to an appeal there is little room for error. One must know, almost instinctively, the deadlines for filings and how to write an appeal brief which includes stating the issue upon appeal, applying the standard of review, stating the facts and making cogent argument by citing to the record and authority supporting the proposition.

I want to dive right in by giving you an example of why it is important to know, understand and comply with the Rules of Appellate Procedure. For this I am using the unpublished case of Cook v Cook decided 03 April 2007.

Cook v Cook

Christy Cook (“Wife”) appealed the trial court’s judgment as to custody, support, and property issues in the marital dissolution proceeding she initiated against Matthew Cook (“Husband”). Husband filed a motion to dismiss Wife’s appeal pursuant to Indiana Appellate Rule 36(B), based on his contention that her brief did not substantially comply with the Indiana Rules of Appellate Procedure. Husband characterized Wife’s appeal as frivolous and in bad faith and requested attorneys’ fees pursuant to Appellate Rule 66(E). The Court granted Husband’s motion to dismiss and his request for attorneys’ fees; then remanded for a determination of those fees.

It doesn't get much simpler than that. Follow the rules or you lose your case AND have to pay the opposing party's attorney fees. So, here is what the Indiana Court of Appeals was presented with and why the Court chose to dismiss Christy Cook's appeal.

The most egregious of Wife’s violations of the appellate rules involved Appellate Rule 46(A), which states that “[t]he appellant’s brief shall contain [eleven applicable] sections under separate headings and in the following order[.]” (Emphases added.)

Wife’s brief did not have a separate statement of issues, statement of case, statement of facts, or summary of argument as required by Rule 46(A)(4), -(5), and -(6). Instead, Wife’s brief had only three separate “issue” paragraphs, with an “argument” after each one. The first issue itself has numerous subissues, several of which were not addressed in the subsequent argument. The first two arguments consisted largely of a confusing rehash of testimony favorable to Wife, contrary to Rule 46(A)(6).

Indiana Appellate Rule 46(A)(6)(b) provides that “The facts shall be stated in accordance with the standard of review appropriate to the judgment or order being appealed.” What this means is that an appellant must state the facts of the case related to the basis for the appeal. In a child custody modification this may be stating what factors under IC 31-17-2-8 the court should have or wrongly considered.

Indiana Appellate Rule 46(A)(6)(c) provides that “The statement shall be in narrative form and shall not be a witness by witness summary of the testimony.” This means that it should be a mere recitation of facts not inclusive of how they were derived or their basis.

Wife’s third argument was a one-sentence assertion that the trial court improperly calculated her child support obligation.

Wife’s brief did not have a summary of argument as required by Appellate Rule 46(A)(7). This is rather simple to do. An Appellant needs to explain in concise language the legal basis for which he or she feels entitled to relief.

Appellate Rule 46(A)(8)(a) states that the appellant’s argument “must contain the contentions of the appellant on the issues presented, supported by cogent reasoning." It is simply not enough to say that the trial court improperly calculated a child support obligation. An Appellant must provide appropriate reasoning behind that statement such as the trial court failed to attribute to mother imputed income for the free housing provided to her by her parents in exchange for assistance with the family operated business.

The rule continues with, "Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.” This means that for my preceding example about free housing I would cite to a published opinion where the court had ruled that way in a previous case. I would then attach the documents the trial court relied upon such as mother's income and expense declarations.

The Court of Appeals concluded, "Wife’s arguments are devoid of cogent reasoning and nearly bereft of citations to (and explanations of) authorities and statutes."

Wife's shortcomings continued as noted by the Court. "Wife’s appellant’s appendix does not contain the chronological case summary (required by Appellate Rule 50(A)(2)(a)), the trial court’s judgment (required by Rule 50(A)(2)(b)), page numbers (required by Rule 51(C)), or a blue back cover (required by Rule 51(E)). The appendix contains only transcript excerpts and thus does not include copies of documents, such as the marital balance sheet or the GAL’s report, to which Wife refers in her argument on appeal."

The Husband also asserted that Wife had not complied with 'service' requirements. That is she did not provide to him copies of some of the filings that she made to the Court. This is required by Rule 24.

Finally, there was one thing that the Court doesn't take lightly which was Wife’s unsupported assertion that the trial court “grossly abused its discretion by completely ignoring not only the evidence presented on behalf of [Wife], but by ignoring the gross inconsistencies and inaccuracies of the testimony of the witnesses for [Husband], [Husband’s] own testimony, and by the Trial Court interjecting of [sic] its own bias to benefit [Husband].”

The Court of Appeals does have the plenary power to order a brief stricken “for the use of impertinent, intemperate, scandalous, or vituperative language on appeal impugning or disparaging this court, the trial court, or opposing counsel.” [See Pitman v. Pitman, 717 N.E.2d 627, 634 (Ind. Ct. App. 1999)].

Accusing a trial court of exhibiting bias is a serious matter and is not a tactic to be used simply because the court disbelieved certain witnesses and ruled against one’s client. In other words, accusations are not to be used in place of arguments on the merits. [See Catellier v. Depco, Inc., 696 N.E.2d 75, 80 (Ind. Ct. App. 1998)].

I certainly do not recommend that an appellant introduce himself or herself to the Court of Appeals panel by disparaging the Trial Court judge. In this case the judge was Fred Schurger of the Adams Circuit Court. I have never had the opportunity to sit in Schurger's court, although I intend to at some point, but I have had conversation with him and heard him speak about such issues. I simply don't believe that he holds a bias against Christy Cook, or mothers in general, nor do I believe that he ignores the testimony of witnesses.

The Court of Appeals had this to say in summary for its ruling. "Wife’s violations of the appellate rules are numerous and flagrant, and we hereby grant Husband’s motion to dismiss Wife’s appeal pursuant to Appellate Rule 36(B)."

They also granted Husband’s request for attorneys’ fees pursuant to Appellate Rule 66(E), which states, “The Court may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorneys’ fees. The Court shall remand the case for execution.” “In essence, damages should be assessed under this rule when an appeal is replete with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” [See Montgomery v. Trisler, 814 N.E.2d 682, 685 (Ind. Ct. App. 2004)]

The fact about this case that may shock you the most is that the appeal was not a pro se work but, instead, was the handiwork of attorney Trisha K. Walls of Fort Wayne, Indiana. You can understand why I hang onto this opinion. This also provides to me a great opportunity to reinforce the need for litigants to have me assist their attorney, especially on appeal.

This also encourages me to state my long held observation; The Court of Appeals has never granted the requested relief to both parties because at least one side is always wrong, even if both are represented by attorneys.

Deardorff v Deardorff

Next is the simple case of Deardorff which was recently decided.

Lori A. (Deardorff) Tilden appeals the denial of her motion to correct error in an order that reduced the child support obligation of her ex-husband, Kevin L. Deardorff. As the Court of Appeals was unable to address any of her allegations of error, the trial court was affirmed.

Lori's first argument heading was: “The trial court erred in the calculation by not including capital gains income.” She does not cite evidence in the record demonstrating there were such capital gains or explain what capital gains were erroneously excluded. Neither has she cited any case law to support an argument the trial court should have included the capital gains at issue in the computation of income for child support purposes."

The Court is therefore unable to address this allegation of error without developing Lori's arguments for her and this allegation of error is waived. [See Evansville Outdoor Advertising, Inc. v. Princeton (City) Plan Com’n, 849 N.E.2d 630, 636 (Ind. Ct. App. 2006), trans. denied.]

Lori's second allegation was: “The trial court erred in the retroactivity of the child support order.” She notes our Indiana Supreme Court recently affirmed that trial courts have discretion to determine when a modification becomes effective, quotes three sentences from that decision, and then claims: “In this case, equity would not be served if the Court makes any support modification retroactive.” Again, Lori failed to explained what the relevant facts are, where in the record the Court can find evidence to support those facts, how the trial court abused its discretion, why “equity would not be served,” and what relevance equity has to with the determination of whether the trial court abused its discretion. Thus, she has waived her allegation of error regarding the retroactivity of the child support order. [See, e.g., Evansville Outdoor Advertising, 849 N.E.2d at 636].

Lori's third issue statement is: “The trial court failed to rule on motion to correct errors 'Deemed Denied' – T.R. 53.3.” In support, she offers only a two-paragraph quote from a law review article regarding Trial Rule 53.3. She did not explain the application of that rule to whatever facts might be relevant for the Court of Appeals' consideration of the trial court's jurisdiction to enter its order when it did. Neither has Lori explained whether, or how, the relief she requests is impacted by the validity of the order denying her motion to correct error. Because Lori has not developed this argument, it is waived. [See, e.g., Evansville Outdoor Advertising, 849 N.E.2d at 636.]

Essentially she is just making bald assertions which she then expects the Court of Appeals to find justification for in the record. The Court of Appeals cannot do this. That would place them in the position of developing argument for her and being her advocate. [See, e.g., Evansville Outdoor Advertising, 849 N.E.2d at 636.]

The purpose of appeal is to demonstrate how the trial court either abused its discretion or misapplied the law. It is imperative, and a rule, that an appellant must make an argument supported by cogent reasoning. Without this the Court is left with no alternative but to dismiss.

Stearns v Stearns

Here is another recently decided case which is based upon the actions of a pro se litigant at the trial court level.

Mark Stearns (“Husband”) appeals the dissolution court’s Order Granting Motion to Strike and Order Granting Petition for Contempt Citation in post-dissolution proceedings with Amy Taylor-Stearns (“Wife). Husband presents four issues for review, which we consolidate and restate as:
1. Whether the dissolution court abused its discretion when it granted Wife’s motion to strike the motions Husband had filed after the court-ordered deadline.
2. Whether the dissolution court abused its discretion when it found Husband in contempt and sanctioned him for willful breach of the Settlement Agreement.
The Court of Appeals affirmed the trial court on all issues.

At the January 21 pretrial conference, the court ordered Husband to file within thirty days any motions to be consolidated for hearing on June 16. Husband filed numerous motions on May 4, seventy (70) days after the deadline. At the June 16 hearing, Husband explained his late filing as follows:
"When I came in here for pretrial, I fired my lawyer. And I had no idea what I was doing, and I asked the Court if we could put this pretrial off until I hire[d] new counsel. And I was pushed by counsel to go ahead with the pretrial, not knowing what I was doing. I had no idea at the time what I was doing. And, you know, I don’t understand why I was ever backed into a corner and had my hands tied so I couldn’t motion [sic] the Court, when the other side could motion [sic] the Court, and I couldn’t motion [sic] the Court because of those motions [sic]. It doesn’t make any sense to me. It seems unfair."

Here's another opportunity for me to interject an observation; "Fair" is a place where you find stinky animals, fattening foods and amusement rides, not something you find in a courtroom.

What litigants should do is understand the laws and court rules and the purpose for those.

Following a response by Wife’s counsel, the court stated:
"Deadlines must be adhered to. And sir, I acknowledge the fact that you are not a lawyer, but this was not a type of a deadline that you would not be able to understand without a Black’s Law Dictionary or something like that. Respondent [Husband] has thirty days to file any motions to be consolidated for hearing set forth above. So I am going to strike the pleadings that were filed[.]

Seventy days is not a simple oversight of a deadline. The volume of the pleadings filed demonstrate that they were very unlikely all completed on one day. At least some could have been filed earlier.

On appeal, Husband again argues that he missed the deadline because he was “unable to find competent counsel” within the thirty-day time period and therefore had to prepare the motions himself. But other than his statement that he was unable to find an attorney, Husband has not shown what efforts he made to find competent counsel. And Husband missed the deadline by a significant amount of time and had not applied to the court for an extension of time. Further, although Husband was attempting to pursue the matter pro se, again, pro se litigants are held to the standards of licensed attorneys. [See Goosens v. Goosens, 829 N.E.2d 36, 43 (Ind. Ct. App. 2005)]. That standard includes abiding by court-ordered deadlines. Based upon these facts the dissolution court did not abused its discretion when it granted Wife’s motion to strike Husband’s untimely filed motions.

Husband made some other assertions about the procedures employed by the trial court. But just like the others he failed to back his assertions with sufficient argument.

Indiana Appellate Rule 46(A)(8)(a) requires litigants to support their arguments with cogent reasoning and citations to authorities, statutes, and the Appendix or parts of the Record on Appeal relied on. Because Husband has not provided citations or cogent analysis, the argument is waived.

Husband's second issue was the contempt citation. Husband argued that the sanction for indirect contempt relating to certain financial obligations and limitations upon marital property was punitive in nature. However that argument failed as the court sought to compel performance and the Indiana legislature has codified a difference in direct and indirect contempt. Thus his argument fails.

He delved further into the contempt issue but again failed to support such with cogent reasoning and citation to authority. [see Indiana Appellate Rule 46(A)(8)(a)].

Again, an appeal that doesn't substantially comply with the rules because of a lack of providing proper form of argument.

Novatny v Novatny

Mary Ann Novatny (“Mother”) appealed the trial court’s order modifying the custody terms of her dissolution decree (“Modification Order”). Mother raised two issues for review, and Christopher Novatny (“Father”) cross-appealed and raised two other issues. The Court reordered and restated the issues, as follows:
1. Whether Mother’s appeal should be dismissed because she did not comply with the Appellate Rules.
2. Whether the court erred when it determined that it had jurisdiction under the Uniform Child Custody Jurisdiction Act (“UCCJA”).
3. Whether Mother should be ordered to pay appellate attorney fees due to her noncompliance with the Appellate Rules.

The Court first noted that "Mother did not substantially comply with the appellate rules or our order that she do so. And she offers no excuse for her noncompliance." However, dismissing an appeal may be warranted where an appellant fails to substantially comply with the appellate rules but the Court prefers to resolve cases on the merits. [See Hughes v. King, 808 N.E.2d 146, 147 (Ind. Ct. App. 2004)].

The needs of justice dictate that this case, which involves the modification of physical custody, be decided on its merits. Mother raises a significant issue on appeal that she properly preserved by a timely objection: the court had no jurisdiction under the UCCJA because she, the children, and Father had all moved from Indiana.

The court that first enters a custody decree on a matter gains exclusive jurisdiction, but that jurisdiction continues only until all parties and the children that were the subject of the decree have left the state. [See In re Custody of A.N.W., 798 N.E.2d 556, 561 (Ind. Ct. App. 2003), trans. denied].

Indiana is not the children’s home state as they moved to Virginia in February 2004 and continued to live there until the time of the hearing. Indiana Code § 31-17-3-2(5) defines “home state” as “the state in which the child, immediately proceeding the time involved, lived with his parents, a parent, or a person acting as a parent, for at least six (6) consecutive months. . . Periods of temporary absence of any of the named persons are counted as part of the six (6) months or other period.” I.C. § 31-17-3-2(5). Under the UCCJA as adopted in Indiana, Virginia would have qualified as the child’s home state.

“[B]y definition, if the child has a ‘home state’ other than Indiana, then jurisdiction may not be assumed in Indiana unless the home state has declined its jurisdiction.” [See Hughes v. Hughes, 665 N.E.2d 929, 932 (Ind. Ct. App. 1996)]. [See also Pryor v Pryor, 709 N.E.2d 374, 377 (Ind. Ct. App. 1999)]. Even though Virginia had not assumed jurisdiction of the case, there is no evidence that Virginia declined jurisdiction. Apparently, Virginia had never been requested to assume jurisdiction prior to the filing of Father’s petition. On August 22, 2006 Father filed his Petition to Modify Custody and Child Support. Father testified that he lived in Chicago and that he had lived in Illinois since November 2000.

Thus, neither the child nor parents lived in Indiana when Father's petition was filed. Therefore Mother was correct that the court abused its discretion when it determined that it had jurisdiction over the Petition to Modify.

Finally the Court had to address the issue of appellate attorney fees incurred by Father. Father contended that he was entitled to appellate attorney’s fees because of Mother’s noncompliance with the Appellate Rules. However, the Court tempers its determination to allow appellate attorney’s fees “so as not to discourage innovation or periodic reevaluation of controlling precedent.” [See Potter v. Houston, 847 N.E.2d 241, 249 (Ind. Ct. App. 2006) (citing Orr v. Turco Mfg. Co., 512 N.E.2d 151, 152 (Ind. 1987))].

An award of attorney’s fees under Appellate Rule 66 is appropriate “when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” [See Potter, 847 N.E.2d at 249 (quoting Boczar v. Meridian St. Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001))].

In this instance Mother preserved and prevailed on the one issue which controls the outcome of her appeal. Thus, Mother’s conduct in this appeal does not warrant the award of appellate attorney’s fees, Father’s request for attorney fees was denied.

Although Mother made some procedural flaws in her appeal she was fortunate enough to have a cause that was worthy of being decided on its merits and, ultimately, she prevailed. This is an unusual achievement for a pro se litigant. As I have demonstrated even a trained attorney can fail miserably at writing an appeal and prosecuting it.

Conclusion

I hope I have been able to demonstrate here the need for litigants to have assistance not only in the appeal process but at the trial level also. For with proper assistance at the trial level often times a costly appeal would not be necessary.

When it comes to the specialized practice of child custody litigation the stakes are too great to not have your case competently argued. Many litigants have wasted thousands of dollars on appeals or hearings at the trial level because of incompetent attorneys. More important though is the loss of a relationship with their child and the possible danger that the child may be exposed to in the current custody situation.

I liken this to building a house. If the foundation is laid upon a sink-hole or is not to code for the size of the house then does anything after that even matter?

Some attorneys are a sink-hole sucking money from clients who don't recognize the tactics and lack of legal acumen. Some attorneys and many litigants don't now the proper code or rules in which to conduct child custody proceedings and resulting appeals. At a minimum I suggest that you use the "Prospective Attorney Questionnaire" on this page when interviewing an attorney to represent you in a child custody proceeding.

I am thankful for the opportunity to serve litigants and attorneys who have the wisdom to recognize the value of consulting with a specialist. I feel sorrow for the innocent children who are victims of parents who refuse to have their actions or that of their attorney reviewed. If you are of the former please feel free to contact me for assistance with your case.

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Indiana Parenting Time Christmas Schedule to change in 2012

When I was first subject to using the Indiana Parenting Time Guidelines to divide Christmas break for my son,Therin, between his mother and I it was somewhat confusing. Throughout my years as a policy advisor I have heard the repeated complaint from parents that I first had. Primarily that when the middle of school breaks fall near Christmas Day and end very close to New Year's the Guidelines seem to provide a silly schedule at best.

In the most contentious situations I have seen a parent insisting upon a middle of the night exchange of the child. Sadly, that parent's lawyer was fully in support of that proposition. I don't want to go off onto a rant about lawyers but I strongly feel that the advocacy for their clients should come second to what we, through common sense, know id best for the children. Fortunately, the judge didn't go for it. For authority I cite to Stewart v. Stewart, 521 N.E.2d 956, 960 (Ind. Ct. App. 1988), trans. denied. "The parent’s right of visitation is subordinate to the best interests of the children."

So here is the language from the Guidelines related to what is called "Christmas Vacation";

B. Christmas Vacation.
One-half of the period which will begin at 8:00 P.M. on the evening the child is released from school and continues to December 30 at 7:00 P.M. If the parents cannot agree on the division of this period, the custodial parent shall have the first half in even-numbered years. In those years when Christmas does not fall in a parent’s week, that parent shall have the child from Noon to 9:00 P.M. on Christmas Day. The winter vacation period shall apply to pre-school children and shall be determined by the vacation period of the public grade school in the custodial parent’s school district.

Next we then have the language from the Guidelines related to New Year's Day which falls under "Holidays" as follows;
C. Holidays.
In years ending with an even number, the non-custodial parent shall exercise the following parenting time:
[1] New Year’s Eve and New Year’s Day. (The date of the new year will determine odd or even year). From December 30th at 7:00 P.M to 7:00 P.M. of the evening before school resumes.

I will examine this from an assumed 2010 school break schedule of students being released for break on Friday 17 December then school resuming on Monday 03 January.

Being an even numbered year, 2010, absent an agreement the custodial parent will have the children the first half of the break with the non-custodial parent having the children the second half which ends on 30 December. The custodial parent would be able to exercise Christmas Day parenting time from noon-9:00pm. For the New Years holiday 2011 will determine odd or even. So for 2010 the custodial parent would get the children for the New Year's holiday. We'll also assume, just for kicks, that the non-custodial parent's regular parenting time weekend began on Friday 17 December.

Thus, using the above scenario this years Christmas Vacation would be divided as follows:
NCP 17 December 2010 at 6:00pm through 17 December 2010 at 8:00pm;
2 hours
CP 17 December 2010 at 8:00pm through 24 December 2010 at 8:30am;
six and one half days
NCP 24 December 2010 at 8:30am through 25 December 2010 at noon;
27.5 hours
CP 25 December 2010 at noon through 25 December 2010 at 9:00pm;
9 hours
NCP 25 December 2010 at 9:00pm through 30 December 2010 at 7:00pm;
2 hours short of five days
CP 30 December 2010 at 7:00pm through 02 January at 7:00pm
3 days
The child should remain with the custodial parent unless the non custodial parent has a Sunday overnight in which case the child would go to the NCP at this time.

This produces 6 exchanges with 3 periods being about 1 day of less.

I have brought this to the attention of the Domestic Relations Committee of the Judicial Conference of Indiana [DRC] which, on its own, has not missed the glaring disruption that a schedule like this can create in the life of both the child and the parents.

So here is what the DRC is contemplating for Christmas Vacation and New Year's Day;
New Year's Day will be eliminated as a holiday and exchange times for holidays generally will be changed to 6:00pm consistent with regular parenting time weekend schedules. [Additionally the title may be changed to "Winter Break"]

Thus, if the proposed changes were applied this year the Christmas Vacation would be 16 whole days producing a midpoint of 6:00pm on Christmas Day. This produces a guideline that has both parents having the child on Christmas Day without any modification by the Guideline language, "In those years when Christmas does not fall in a parent’s week, that parent shall have the child from Noon to 9:00 P.M. on Christmas Day." I therefore propose a slight change to "In those years when the beginning of Christmas does not fall in a parent’s week, that parent shall have the child from Noon to 9:00 P.M. on Christmas Day."

The Christmas Break midpoint being 6:00pm would have the non-custodial parent not having the children at the beginning of Christmas Day. Thus, the schedule would look like this;

CP 17 December at 6:00pm through 25 December at noon;
NCP 25 December at noon through 02 January at 6:00pm

There may be situations where a school corporation would have only a one week break or a schedule that would produce short periods of time near the Christmas Day exchange. For this I suggest that no exchanges outside of Christmas Day that result in a parenting time period of less that 24 hours be allowed. Some members of the DRC have already suggested that all parenting time exchanges take place between 9:00am and 9:00pm.

Not to be overlooked is the Preamble to the Guidelines which includes; Parents "should be flexible and create a parenting time agreement which addresses the unique needs of the child and their circumstances." In Keen v. Keen, 629 N.E.2d 938, 941 (Ind. Ct. App. 1994) our court of appeals has affirmed this in stating, "We encourage parties to negotiate agreements regarding custody and parental visits." It is well settled that an agreement between the parties must succumb to the best interest of the child though.

The Court has further expanded on its premise that parents should cooperate in fashioning the own agreement. In McGill v. McGill, 801 N.E.2d 1249, 1251 (Ind. Ct. App. 2004) the Court stated, "As the name suggests, the Indiana Parenting Time Guidelines are not immutable, black letter law, but rather are guidelines that aim to assist divorced parties in developing an agreed parenting time arrangement for the non-custodial parent."

The DRC is currently reviewing the Guidelines and will be accepting additional public input. If you would like to participate in this process please contact me.

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Examining the Standard to Remove Parental Rights

It is often argued to me, generally by the parent who does not have primary rights and responsibilities, that the same standard applied to termination of parental rights proceedings [clear and convincing evidence] should apply to dissolution or paternity proceedings.

I have long taken the stand that the lower standard [preponderance of the evidence] is the appropriate standard since dissolution proceedings are covered by contract law and at least one of the parties invited the State to determine child custody.

When the matter is determining the division of time that the parents will share responsibilities for providing the daily care of the children I stand by that proposition. In this review I will examine the scenario in which one of the parents seeks to then suspend or terminate the other parents share of that time and whether a different standard applies.

Under Indiana law, and that throughout all states, married parents equally share the right to make decisions concerning the care, custody, and control of their children.[fn1] Before the state may intervene and take custody of their children the state must show; that there is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied; there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child; or, the child has, on two separate occasions, been adjudicated a child in need of services. [IC 31-35-2-4}

Indiana law states that a "finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence" [IC 31-37-14-2] which has been upheld through a long line of caselaw.[fn2]

The United States Supreme Court has articulated that a parent’s interests in raising his or her children is “perhaps the oldest of the fundamental liberty interests,”[fn3] and the Indiana Supreme Court has described it as “one of the most valued relationships in our culture.”[fn4] The parental rights upheld by the United States Supreme Court are applied to the many states individually through the Fourteenth Amendment to the United States Constitution.[fn5]

Yet courts throughout the state regularly divest a parent of parenting rights by assigning legal custody of the children to only one parent who then also has physical custody at a minimum. The standard in this instance is not clear and convincing but, rather, the lesser preponderance of the evidence as weighed against the eight factors provided for by statute. [IC 31-17-2-8]

Indiana does provide a mechanism in which a parents' rights may be restricted or eliminated. The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development. [IC 31-17-4-2]

The Indiana Court of Appeals has concluded that the preponderance standard is the appropriate burden of proof in this situation.[fn6] The Court held that the preponderance standard applied to a party seeking to terminate visitation rights in dissolution proceedings “[b]ecause the private interest at stake, although great, is not permanently terminated and the state is not the initiator of the termination”. However, a court in a dissolution proceeding can eliminate a parent's parenting rights until the child is emancipated thereby nearly serving the same result as a termination proceeding initiated by the State.

Our supreme court has explained that the clear-and-convincing standard is an intermediate standard of proof that lies between a preponderance of the evidence and beyond a reasonable doubt which is required to find guilt in criminal prosecutions. The burden of proof by clear and convincing evidence is not a burden of convincing you that the facts which are asserted are certainly true or that they are almost certainly true or are true beyond a reasonable doubt. It is, however, greater than a burden of conviction by a preponderance of the evidence which is that the facts are more probably true than not true.[fn7]

The Court has stated that the clear-and-convincing standard applies in proceedings to terminate parental rights, which are initiated by the State.[fn8] Yet clear and convincing evidence was not required in order for the trial court to establish a guardianship which, in effect, deprived the parents of all their parental rights for a temporary, but indefinite, period of time.[fn9]

The Honorable Jon W. Webster in a paternity case where mother had sought to temporarily terminate Father's parenting time rights tried to reconcile these varying standards against the potential deprivation of liberty of Father and the best interest of the child. Webster concluded;
There is a dearth of case law addressing modification of parenting time in the context of a paternity, but there is no reason to believe the scope of the Court‟s review should be any different than in a dissolution proceeding when modification of parenting time is sought. On the issue of elimination of parenting time, [Mother] carries the burden of proof. Typically, that burden is by a preponderance of the evidence. However, a parent seeking total elimination or suspension of parenting time, even for a short period, surely must be held to some higher standard because the effect, if successful, is to essentially terminate parental rights while still maintaining the requirements of parental financial responsibility for payment of child support, health care costs, etc. AND, worse yet, cutting a child off from the parent. Although no higher courts of this State have spoken on this issue, at least a clear and convincing standard, should be required before a trial court totally eliminates parenting time . . . A parent's right to raise and be a part of a child's young life is a fundamental Constitutional right deserving safeguard from only but the strongest of proof terminating or suspending that right." Mother appealed, arguing that the lesser standard should apply.

In that case Mother had alleged that Father had sexually assaulted the child and used a firearm pointed at the child. The Court found "a nearly total lack of evidence that would cause or lead educators, caregivers or other friends and family familiar with [child] and [Father] to believe [child] is in any distress and a father who shows no other signs of being an abuser or deviate.
There have never been any criminal charges filed against [Father] for any type of sex crime involving [child] nor for pointing a firearm at [child]. This fact alone is not conclusive, but important because the allegations are so severe, depraved, and reprehensible that surely if they had the slightest merit, something would have been filed.
Each official investigation by the Indiana Department of Child Services involving allegations against [Father] has been unsubstantiated.
There is little, if any, evidence from school personnel that [child] is anything other than a healthy, rambunctious little boy."

It is clear from these findings that Mother's allegations were false and used as a means of trying to deprive the child of access to and the nurturing influence of his father. The record also indicated that there may have been coaching of the child.

The Indiana Court of Appeals, in remanding the case, ruled that, "[U]ntil either our legislature or our supreme court determines otherwise, we conclude that the preponderance standard is the appropriate burden of proof in this situation."

Based upon that being a paternity case IC 31-14-14-1, the companion to the dissolution statute for the same purpose [31-17-4-2], controlled, which reads:
"A noncustodial parent is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time might endanger the child's physical health and well-being or significantly impair the child's emotional development." [emphasis added]

IC 31-14-14-2 then provides that "[t]he court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child."

The Indiana Court of Appeals has stated that even though IC 31-14-14-1 uses the term "might" the court interprets the statute to mean that a court may not restrict visitation unless that visitation would endanger the child's physical health or well-being or significantly impair the child's emotional development.”[fn10]

Considering the potential for abuse by a vindictive or alienating parent and the possible indefinite length of the suspension of parenting time, which may reach into the child's adult life, I believe that Judge Webster's motivation was correct. It is also apparent that it will take legislative action to change this which the appeals court has appeared to invite.

IC 31-17-4-2 and IC 31-14-14-2 should be amended to include language that states that a court may not terminate the parenting time of a parent, for any period of time, without a showing by clear and convincing evidence that the suspension of parenting time is necessary to protect the child from physical endangerment or significant impairment to the child's emotional development.

(1) Stanley v. Illinois, 405 U. S. 645, 651 (1972).
(2) Egly v. Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992); The State must establish these allegations by clear and convincing evidence.
(3) Troxel v. Granville, 530 U.S. 57, 65 (2000).
(4) Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).(quoting Neal v. DeKalb County Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)).
(5) id
(6) Stewart v. Stewart, 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), trans. denied.
(7) J.C.C. v. State, 897 N.E.2d 931, 934 (Ind. 2008)
(8) Moore v. Jasper County Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct. App. 2008).
(9) In re Guardianship of Thompson, 514 N.E.2d 618 (Ind. 1987).
(10) Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. 10 App. 2003) (citing Stewart v. Stewart, 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), trans. denied.

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Lesson for Judge Newman on how to write findings OR Joint custody for parents who don't agree

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.


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New Published Opinion on Arbitration and Child Custody

In Brockman v Brockman, published opinion handed down on 17 December 2010, the dispositive issue before the court was whether the trial court erred in concluding that Father‟s petition to modify custody had to be submitted to arbitration, pursuant to an earlier agreement signed by the parties.

In June 2007, Father filed a petition to modify legal custody. In February 2008, the trial court entered a final decree of dissolution, in which it incorporated its earlier child custody order but made no mention of Father's pending petition to modify legal custody. The parties later agreed to arbitration for the purpose of settling an education issue.

The trial court entered an “Order Approving Family Law Arbitration.” The order stated in part, “The parties will submit issues of dispute to Family Law Arbitration in accordance with the Family Law Arbitration Statute . . . .”
The agreement also stated, “The parties acknowledge that in the absence of an agreement in writing to repudiate this Agreement, it is valid, irrevocable, and enforceable until judgment is entered in such matters in which arbitration has occurred.”

On February 23, 2010 a hearing was held where the only matter discussed was whether Father's still-unresolved petition for modification of legal custody had to be submitted to arbitration. After the hearing, the trial court entered an order finding that the August 26, 2008 arbitration agreement bound the parties to continue with arbitration throughout the pendency of this action. The trial court concluded its order by stating, “Because of the novelty of the matter presented, the Court finds this should and shall be treated as a final decision so as to allow immediate appeal should [Mother] desire to appeal this decision.”

In Mother's response to the argument that this was an interlocutory order not subject to appeal she directed the appeals court to Evansville-Vanderburgh School Corporation v. Evansville Teacher's Association, 494 N.E.2d 321 (Ind. Ct. App. 1986). In that case the Court of Appeals held, “[a]n order compelling arbitration is an appealable final order in an action solely for that purpose because such an order has fully decided the issue before the court.” That is the order compelling arbitration may be appealed, not an issue decided during arbitration.

The arbitration agreement here arose under the auspices of the Family Law Arbitration Act (“FLAA”), which was enacted in 2005. No appellate court in this state has yet had the occasion to address the FLAA which makes this case worth reading.

Under Indiana law, a party seeking to compel arbitration has the burden of demonstrating the existence of an enforceable arbitration agreement. Showboat Marina Casino Partnership v. Tonn & Blank Construction, 790 N.E.2d 595, 597-98 (Ind. Ct. App. 2003).

The FLAA permits a broad range of family law matters to be submitted to arbitration, including dissolution actions in their entirety, actions to establish child support, custody, or parenting time, or petitions to modify any decree, judgment, or order entered under Indiana Code Title 31. As for this particular agreement it did mention the issue of the child's education but did not mention father's pending motion to modify legal custody.

The agreement states that it is “valid, irrevocable, and enforceable until judgment is entered in such matters in which arbitration has occurred.” This closely parallels the language of Indiana Code Section 34-57-5-3, which provides that an arbitration agreement is valid, irrevocable, and enforceable “until the judgment is entered in the matter in which arbitration has taken place.” Although the agreement refers to “matters” in the plural, while the statute refers to “matter” in the singular, the fact remains that only one “matter” ever has been submitted to arbitration in this case and only one judgment has been entered. Since the statute's reference to “matter” in the singular, after which an arbitration agreement may be terminated, is indicative of legislative intent that such agreements in the family law realm address specific disputed issues, rather than permitting open-ended agreements to encompass any future issues that may arise between the parties, unless of course the agreement clearly states to the contrary. The agreement here, however, does not clearly indicate an intent by the parties to arbitrate all possible future issues.

Although Indiana recognizes a general policy towards favoring arbitration, the appeals court will not construe an arbitration agreement to apply to matters not clearly delineated by the agreement. See Showboat Marina Casino, 790 N.E.2d at 598. The agreement here did not clearly state that it was to apply to Father's petition to modify legal custody, or that it was to apply to any possible dispute that might arise between the parties for an indefinite period of time. The trial court erred in concluding otherwise.

When presented with an arbitration agreement it is important that you be clear and precise as to what issues it is to relate. I disfavour open-ended agreements that, although may be expedient at the time, do not allow for the court to entertain future issues related to child-custody.

It is much easier for the parties to simply change language in a previous agreement to cover a new issue than it is to try to revoke an open-ended agreement.


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Profile of an Alienating Parent

There is a type of parent who holds a grudge against, wants to punish or wants to continue to control a former spouse and engages in a series of predicable and almost uniform events that ultimately harm their child. This person is the alienator.

The Scarberry case provides a great opportunity to see this in action. When the Scarberry marriage dissolved in early 2007 Craig and Christine decided and settled upon an agreement that they would share both legal and physical custody of their three young children. This process worked well for them and the children. Even as recently as February 2010 they were having sexual relations together but not co-habiting.

Then came a bit of tension in the relationship, almost as though they were experiencing the moments leading up to divorce again. As the parties had maintained an amiable relationship for the past three years, which had served the children well, Craig wished to maintain that. To do so, he offered and scheduled for them to meet with a mediator and Christine agreed.

But when the time to meet the mediator came Christine was not there. Three days later she filed a Motion for Modification of Child Custody. Contemporaneously she also filed a Petition for an Order of Protection which was granted ex parte, which means without an opportunity for the Respondent, Craig, to respond.

At a hearing on the Petition for Protective Order and Motion to Modify Custody her claims were refuted by witness testimony. She also admitted that when she stated that she would try to resolve issues through mediation that she actually had no intention of doing so. She simply wanted to catch Craig off guard. A typical strategy of an alienator.

Throughout the 20 hours of hearings Christine Porcaro continued to insist that the man she had selected to have three children with was unfit to be the father of her children.

Sound like Christine Porcaro? Are the children of the "Christian" woman better off without their father's involvement in their daily lives and the major decisions that will affect their education, health care and religion? Christine Porcaro and her attorney Anthony C. Lawrence think so.

To make an accurate assessment though let us first look at the record.

Based upon her admissions in court an investigation by the Madison County Department of Child Services has an open investigation on Christine Porcaro for suspected neglect of their children. MCDCS visited Porcaro's home on Thursday 02 December 2010.

So why did that happen? Scarberry and Porcaro's youngest child has Cerebral Palsy which causes her some difficulty in walking resulting in some falling. Did Porcaro feel that it was necessary to attend to this child's needs or that it was fine for her and her older brother, now age 6, to be left home alone? She admitted in court and the court including in its findings that she chose to leave the children home alone.

Did Porcaro feel that it was necessary to attend to the children's need to be properly nourished or that it was fine to send them to school or daycare without breakfast? She admitted in court and the court including in its findings that she chose to neglect them by failing to provide them with proper nourishment in the morning.

Research indicates that proper nourishment has a positive impact on learning.

Did Porcaro feel that it was necessary to properly restrain the children while they were traveling in her vehicle? These children are now age 4, 6 and 7. She admitted in court and the court including in its findings that she chose to use child safety restraints for the children at times when they were traveling in her car. This is a violation of Indiana law.

Could it be that mother's live-in boyfriend, Brandon Galbraith, who came to reside with her in early 2010 provides such a stable and supportive environment for the children that she feels the children no longer need their father's involvement in their lives? After receiving the Court's Order in November 2010 which denied to the children their right of access to their father, Porcaro allowed Brandon Galbraith to send taunts to Scarberry through email.

More upsetting though is that during the next parenting time exchange Porcaro allowed the children to watch Brandon Galbraith violently attack Scarberry for about three to four minutes. The children were screaming and crying, visibly shaken by witnessing the physical assault on their father which resulted in emergency care at a local hospital.

Brandon Galbraith is now scheduled for an initial appearance in the Anderson City Court on 29 December 2010 at 9:00 a.m. to face criminal charges in the case.

You must be wondering at this point what did Craig Scarberry do that would lead Master Commissioner George Pancol and Judge Thomas Newman to collectively decide that Porcaro is significantly more fit to parent these children than Craig Scarberry. Could it be that he used profanity within earshot of the children at some point during his marriage? The Court says he did.

In Master Commissioner Pancol's 83 years I am confident that he has heard the phrase; sticks and stones may break my bones but words will never hurt me. Not so in Pancol World where words hurt but leaving young children unattended at home, not using safety restraints for them in vehicles and failing to feed them is not potentially hurtful to these children.

I don't seriously think that custody was decided upon some utterances made after someone stubbed his toe, got frustrated over someone's failure to care for the children or whatever the circumstances may have been. No, I think it had to do with what the Findings actually said; that Scarberry had changed his religion from Christian to agnostic.

What type of parent thinks that her religious preference is better than the other parent and the children should lose their connection to that parent? Christine Porcaro.

What more can Porcaro do to alienate the children from their father. She could deny them the opportunity to have parenting time with their father as she did on 09 December 2010 after her attorney, Anthony C Lawrence, told her to do so.

She could try it again which she did. I was there while an Anderson Police Department officer told her she was in violation of the law for concealing the children and not allowing them to see their father during the time ordered by the court. Porcaro argued with the officer, lied to him during his investigation but ultimately conceded and said she would allow Craig to come retrieve the children.

So what happened when Craig went to get the children. Police were there who informed him that there was a complaint that he had been calling her on the phone and harassing her. Yet, just moments earlier I was there while Craig was not on the phone but instead listening to Poracaro argue with a police officer about whether she would follow the court's order and allow the children to have time with their father.

Another false allegation by Porcaro who with the assistance of her attorney, Anthony C Lawrence, lie to police and the court in an attempt to manipulate the legal system for the purpose of alienating three children from their father and, instead, placing them in potential harm.

So what type of person selects a mate, takes a vow to remain committed to that person for life, breaks that commitment and then tries to remove that person from the children's lives? The Parental Alienator.

David Pissara describes this person as an individual who often "suffers from some type of mental illness. The alienator perceives and portrays themselves as the victim. They are obsessed, consumed and driven, by the goal of destroying the “target” (rejected) parent in the eyes of the child (or children). They enroll family, friends, co-workers, neighbors, schools, churches, police, and the courts in their quest to remove the target parent from their child’s life."
"They need the rejected parent branded as an “abuser” in order to feel good about themselves and their actions. These people are damaged and in desperate need of professional psychological help and extensive therapy."

Christine Porcaro is so neglectful of their children and mentally damaged that the only way she can feel better about being a worthless parent is to try to destroy the relationship that their children have with their father. She is neglectful of the children and emotionally unstable that she tries to portray herself as a victim. She convinces herself that she is not the harmful parent by saying Craig is. Well Christine Porcaro is wrong and needs extensive therapy.

Complete information by Pissaro about parental alienators may be found here.

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Due Process in Custody Case Still Required Regardless of Outcome

The Honorable Mary R. Harper, Judge of the Porter Superior Court, may think that as long as the outcome is the same the process by which one gets there is superfluous. Fortunately, a panel of the Indiana Court of Appeals has found otherwise. What Harper felt was unnecessary was notifying a father that his child had been taken from the mother by the Porter County office of the Indiana Department of Child Services [PCDCS] who sought to terminate the parent-child relationship.

I'll start by telling you that these are not model parents. The evidence demonstrates that the mother uses crack cocaine and had placed the child in, or potentially in, serious harm. Father has been incarcerated for nine of the past 12 years and has had little contact with his child.

Father had signed a paternity affidavit at the hospital where the child was born and was listed as the child's father on the child's birth certificate. So when his paternal rights were terminated he appealed to the Indiana Court of Appeals which rendered its decision in the published opinion, Involuntary Termination of the Parental Rights of JSO, on 07 December 2010.

After mother crashed her car with the six-weeks of age child in it police found crack cocaine and drug paraphernalia in the vehicle. At the time of Mother's arrest, Mother informed the authorities that the child's biological father was incarcerated, and that there was no other adult available to assume custody of the child.

The following day, PCDCS investigating case manager Michael Fiala spoke with Mother at the Porter County Jail. Mother admitted to Fiala that she had bought and used crack cocaine prior to getting into the car and driving with the child the previous night. Mother also provided Fiala with Father's name, stated he was the child's biological father, and further explained that Father was incarcerated in the Lake County Jail on an outstanding robbery warrant. Fiala included this information regarding Father's name and whereabouts in his “Detention Hearing Report to the Court” filed on July 10, 2008.

On July 16, 2008, PCDCS filed a verified CHINS petition which did not name Father as the child's biological or alleged biological father, but instead contained the following language: “Paternity of [the child] has not been established . . . .” A blatant lie. Subsequently, father was not provided a copy of the CHINS petition, nor informed of the CHINS initial hearing date.

On August 6, 2008, PCDCS filed its pre-dispositional report with the trial court, which indicated under the sub-heading “Parental History” that “paternity has not yet been established for [Father].” The report later indicated, however, that the child's family formerly “consisted of [the child] and his parents. The father is currently in Lake County Jail . . . .”. Nevertheless, Father was not made a party to the CHINS proceedings, he was not offered and/or referred for reunification services, he was not provided with a copy of the pre-dispositional report, and he was never advised that a dispositional hearing had been set for August 19, 2008.

In March 2009, PCDCS filed a petition seeking the involuntary termination of both Mother's and Father's parental rights to their child. This time, however, PCDCS named Father as a party to the proceedings and mailed a copy of its termination petition to Father. Father, who remained incarcerated, thereafter participated in all termination hearings, either in person or telephonically.

The Legal Requirements to Provide Notice

Pursuant to Indiana Code section 31-34-3-4, notice that a child has been taken into custody under Indiana Code chapter 31-34-2 “must” be given “to each of the child's parents as described in sections 1 through 3 of this chapter.” Ind. Code § 31-34-3-4(2) (emphasis added). Father, although known, was not notified.

Indiana code section 31-34-3-2 requires PCDCS to make a good faith effort, not more than six (6) hours after the child has been taken into custody, to leave written notice at the last known address of the child's parent and that the child has been taken into custody. The record reveals no such notice was ever provided to Father in the present case, despite PCDCS's admitted knowledge of Father's whereabouts. Moreover, Father was never provided with notice of any subsequent CHINS hearings or copies of CHINS documents, including PCDCS case plans and trial court orders, in violation of numerous additional CHINS statutes.

One of those statutes is I. C. § 31-34-4-6 which states that the county office of family and children shall submit written information to parent of alleged CHINS regarding parent's legal rights to be represented by counsel, cross-examine witnesses, and present evidence on their behalf at each CHINS court proceeding.

Further, I. C. § 31-34-9-7 states that the child's parents are parties to CHINS proceedings and have all rights of parties under Indiana Rules of Trial Procedures.

Directly to the responsibility of the court is I. C. § 31-34-10-5 which states that the trial court has duty to inform parents that if a child is adjudicated a CHINS, parents may be required to participate in a program of care, treatment, or rehabilitation for the child, be held financially responsible for services rendered to the child, and may controvert any allegations made during dispositional or other hearings concerning the parent's participation.

Finally, I. C. § 31-34-15-3 states that a copy of completed case plans shall be sent to the child's parents and I. C. § 31-34-16-4 mandates that the trial court shall advise parent that failure to participate in services as required by dispositional order of court can lead to termination of parental rights. Neither of these was done for Father in this case.

Due Process Case Law

A panel of this court has previously held that a parent's interest in the care, custody, and control of his or her children is arguably one of the oldest of our fundamental liberty interests. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Further, in particular, this termination action concerns Father's interest in the care, custody, and control of his child, which has been repeatedly recognized as one of the most valued relationships in our society. In re E.D., 902 N.E.2d 316, 321 (Ind. Ct. App. 2009), trans. denied.

Terminating Father's relationship with his child, whatever it may be, requires significant due process as clearly indicated in the Indiana Code sections shown herein. Court's have long held that the bond between a parent and a child is a sacred right which should only be terminated as a last resort.

Yet, in this case, Judge Harper had already decided that Father was unfit and was not worthy of being provided notice of the CHINS proceedings or an opportunity to be heard on the matter.

Even if notice had been supplied to Father and he was able to fully participate in the proceedings the result would have likely been the same. Justice Kirsch in a dissent stated, "Other than sperm donation, the Father has made no contributions to the life of this child. He has no relationship with the child, has seen the child only two or three times since he was born, and has not seen him at all since July 2008. He has not contributed to the support of his child in any way. He has had a drug addiction that spans most of his adult life and has spent a significant portion of that life in prison."

However, this panel of the Court of Appeals rightfully concluded, [W]e simply cannot ignore PCDCS's and the trial court's failure to follow numerous and substantial statutory mandates in this matter. As such, the situation demands that we reverse the trial court's termination order on procedural due process grounds.

Simply put, it is of no issue if the eventual result is obvious, the law makes no provision to short-cut the process. Due process is a requirement as it should be, especially when the matter involves the custody of child and the right of that child to have a relationship with his or her parents.

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An Examination of the ORDER in Scarberry v Scarberry

The Order includes background info in paragraphs 1-6. Here is the remainder with my commentary.

7. Pertinent evidence presented at trial was the Mother and Father following the Dissolution of Marriage did have (sic) intimate relationship up and to including February 2010 but did not co-habitat (sic) together.

This is nearly three years after the dissolution. Mother and Father had a very healthy and smooth separation with both parties sharing physical and legal custody equally.

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.

The children are age 4, 6 and 7. The youngest has cerebral palsy. This behaviour fits definition of neglect. Under Indiana law the court was required to report suspected abuse or neglect. The Madison County Department of Child Services has started an investigation of the mother and visited her home on Thursday 02 December 2010.

9. Further, parties disagree as to whether the Petitioner/Father participated with the Children and medical appointments.

This is essentially a non-finding as it makes no finding as to whether the father did participate with the Children and medical appointments. There was testimony by the children's medical doctor that the father attended 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.

I have written about this extensively in another post. This is the section that has raised the ire of numerous constitutional rights advocates and attorneys. It makes NO mention as to whether there was any effect on the children. It also specifically mentions Father's religious preference.

11. There was evidence that the Petitioner/Father did involve himself in the children's activities

Father had numerous witnesses, including Mother, present evidence that he has had significant involvement in the children's lives.

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.

This is another troubling finding. It specifically mentions Father and a religion by name.

13. There was evidence that the Petitioner/Father did use profanity in the presence of the children and at time (sic) failed to control his anger. In addition, he was sending a great number of text messages to the Respondent/Mother.

What is conspicuously left out is that in a mutual conversation by text that there is both sending and receipt of texts. The evidence submitted shows that the text were in the form of conversation.

It is therefore the order of the Court that the Respondent/Mother shall have sole legal and physical custody of the minor children of the parties . . .

What we do not see from these "findings" is any statement that there has been a substantial change in one or more of the eight factors that the court may consider. Here is the law on modifying a custody order.

IC 31-17-2-21
Modification of child custody order
     Sec. 21. (a) The court may not modify a child custody order unless:
        (1) the modification is in the best interests of the child; and
        (2) there is a substantial change in one (1) or more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of this chapter.
    (b) In making its determination, the court shall consider the factors listed under section 8 of this chapter.
    (c) The court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described by section 8 and, if applicable, section 8.5 of this chapter.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.9.

Here is the law with the eight factors.

IC 31-17-2-8
Custody order
     Sec. 8. The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:
        (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.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.7; P.L.133-2002, SEC.32.

In looking at the court's 'findings' there is NO language that indicates there has been a substantial change in any of the eight factors. Nor is there any language that says the modification is in the best interest of the children.

For those who keep saying there must be more to the story than Father's religion this should clear it up. Of the seven paragraphs of findings two of them are dedicated to Father's religion. One is additional background information. One is a non-finding. One was confirming that Father has been involved with the children. One talked about negative aspects of the Father. One spoke to the specific findings of neglect of the children by the Mother.

It is quite difficult to objectively look at this Order and say that there has been a substantial change in one or more of the eight factors. Further, it is difficult to see that there is any finding demonstrating that it would be in the best interest of the children to be placed with a parent who has admitted to neglecting them.

A trial court may not modify custody until it determines that a substantial change has occurred and that a modification is in the child’s best interests. Mundon v. Mundon, 703 N.E.2d 1130, 1135 (Ind. Ct. App. 1999). The party seeking the modification bears the burden of demonstrating that the existing custody order is unreasonable because, as a general proposition, stability and permanence are considered best for the child. Haley v. Haley, 771 N.E.2d 743, 745 (Ind. Ct. App. 2002).

I see nothing in the court's 'findings' that demonstrate that a substantial change has occurred and that the modification is in the child’s best interests. The modification in this case was based almost entirely upon Father's religion which is an impermissible establishment of religion.


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