Feedback is coming in response to my requests for investigation into the actions of Cynthia Dean and Child Advocates, Inc. They range from this is a form of bullying to the more common response that Dean needs to be removed from the case. As one attorney stated "it seems she definitely has a bias and has lost focus on which party she is to represent - the kids. Wow! ". That is the position to which I wholeheartedly agree. Here is the basis for my opinion.
ORDER ON MOTION FOR RULE TO SHOW CAUSE
ORDER ON RESPONDENT'S MOTION TO COMPEL SCHOOL ATTENDANCE
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Make a suggestion for me to write about.
Dean was or should have been fully aware that Judge Welch had instructed everyone on 13 June 2012 that the school which the children were to attend in the upcoming school year was not to be changed. This order from the bench was reduced to writing on 16 August 2012 along with an order on the father's motion for contempt against mother for changing the children's school. Here are both orders.
The Respondent, having filed his Motion for Rule to Show Cause on August 16, 2012, and the Court, having reviewed such Motion and being duly advised in the premises, now orders that:
1. Respondent's Motion for Rule to Show Cause is set for a hearing.
2. Mother, Kristy L. Moore is hereby ordered to appear and show cause why she should not be held in contempt of Court for her violation of the Court's prior order granting joint legal custody; she is to appear at 10:30 am o'clock on the 22nd day of August, 2012 for a hearing on this issue.
SO ORDERED this 16th day of August 2012.
The Respondent, having filed his Emergency Motion to Compel School Attendance on August 14, 2012, and the Court, having reviewed such Motion and being duly advised in the premises, now finds that the Respondent and Petitioner do not have permission of the Court to have the children attend a different school then [sic] they attended during the school year of 2011-2012 unless they both agree pursuant to the Settlement Agreement approved by the Court on December 10, 2009. If either party violates the Court's order, they may be found in contempt of Court.
SO ORDERED this 16th day of August 2012.
Dean had a copy of each order as she admitted to the father the next day when she sent this email to him.
From: Cindy Dean
To: brian moore
Cc: Del Anderson
Sent: Friday, August 17, 2012 2:25 PM
Subject: Moore children
Mr. Moore,
The GAL has been contacted by a Pendleton School professional stating you have informed the school that the children are no longer to attend Pendleton schools and a hearing is set for next Wednesday, August 22 at 10:30.
I have also received the three orders issues by the Court yesterday and I would direct your attention to the Order that states the children are not to attend Cornerstone Baptist but instead set this matter for hearing.
If both orders are read, it would appear the children are not to attend school until order of the court. I don't believe this is the intent of the Court particularly since CBA will not admit the children without a court order and the children are able to attend Pendleton at this time. Clearly, everyone should agree it is in the children's best interest to attend a school awaiting Court action.
I would like to hear from you as to whether the children will be attending school Monday through Wednesday at Pendleton. [emphasis added]
Sincerely,
Cindy Dean
American Bar Association Family Law Section Standards of Practice for Lawyers Representing Children in Child Custody Cases at Section III(I) states, "The lawyer should monitor the implementation of the court’s orders and address any non-compliance." Thus, Cynthia Dean had a fiduciary responsibility to ensure that she was adequately familiar with the Court's orders to a degree that she could ensure compliance. While a casual reader unfamiliar with the case may not understand from the ver batim language of the order that the children were to attend Cornerstone, anyone familiar with the case would understand this to be true. The Court at the 22 August 2012 hearing even stated that it didn't matter how the order was worded, everyone knew the intent was that the children do not change schools as was the oral instruction from the bench on 13 June 2012.
Rule 4.1(a) of the Indiana Rules of Professional Conduct governing the behaviour of attorneys states, "In the course of representing a client a lawyer shall not knowingly: make a false statement of material fact or law to a third person"
Rule 8.4(c) states that "It is professional misconduct for a lawyer to: engage in conduct involving dishonesty, fraud, deceit or misrepresentation"
A Judge’s Guide: Making Child-Centered Decisions In Custody Cases - Second Edition by The American Bar Association's Center on Children and the Law at the Commentary on page 210 discussing misconduct by Lawyers and Guardians Ad Litems for children gives guidance to the court. "[T]he court oversees their conduct and can remove or admonish them for obvious misconduct" and also that "[T]he court is the ultimate custody decision-maker and should not give deference to a best-interests argument based on an inadequate or biased investigation."
Taken as a whole these standards require that Dean intimately familiarize herself with the case for the purpose of pursuing the objective, unbiased best interest of the children and that she convey her feelings to the parents while ensuring that they follow the Court's orders. Additionally she should be guiding the parents towards settlement as it is well understood that protracted litigation is not in the best interest of the children. I believe that Judge Welch conveyed the feeling quite adequately on 22 August 2012 that it would have been better for the children if Kristy had not refused to discuss the matter with Brian and instead demand a court decision.
Dean has failed in those objectives. At based she has displayed gross negligence or incompetence by directing Brian to violate the order on schooling. The downhill possibilities move from the display of an obvious bias all the way to collusion with Deenik who, as an officer of the Court, should have directed Dean and Brian to the correct meaning of the Court's orders. He didn't do so. Instead Kristy took the children to the Pendleton school on her next opportunity for which she was found in contempt of court.
Dean presented a defense that essentially the orders were ambiguous. I see no ambiguity in those orders. The children's school was not to be changed and Dean instructed the exact opposite.
Clearly Dean should be removed from the case for any one or all of multiple reasons as detailed herein. Further, Dean may now be presumed to hold a bias against the father because he filed a disciplinary complaint with the Disciplinary Commission of the Indiana Supreme Court on the day following the contempt hearing. As Director of the Custody Program at Child Advocates it could also be presumed that the GAL, Del Anderson, and any other employee under the supervision of Dean would inherit the same bias or trepidation to work proactively with Brian towards the children's best interest.
I disagree with Brian's choice to file a disciplinary complaint against Dean because I believe that further muddles a clear case of why Dean should be removed from the case. From Dean's perspective she could argue that Brian was trying to get her removed by creating a presumed de facto bias in Dean through the adversarial position of the disciplinary complaint. It is not so much that he filed it -- it is confidential although I get them from time to time -- but that he sent a copy to her. I was planning to file a complaint against Dean and will be doing so soon. As advocates for children we are charged with a duty to ensure that all of our actions are balanced in a manner that achieves the best results for the greatest number of children. At times this may require self-exclusion from the child custody environment or the efforts on our parts to remove those who won't. This is one discipline where only the best of the best with the most honourable of motives should be allowed to exert their influence.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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Thursday, August 30, 2012
Child Advocates' Cynthia Dean should be removed from Moore v Moore case
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