Wednesday, August 29, 2012

PART V - Child Advocates, Inc. Attorney Lies About Court Order

Thus far I have provided to you a simplified background of the case of Moore v Moore [Part I], information about the parents [Part II], reviewed the third-party players and their respective roles [Part III], and analyzed the communications between the parties [Part IV]. Today I present to you the final installment. The smoking gun -- the email from Cynthia Dean instructing Mr Moore to violate the Court's order.

Child custody decisions by far can be the most complicated, emotional, divisive and difficult judgments that parents, lawyers and judges can make. While we have great insights into child development, research data confirming likely outcomes and knowledge of best parenting practices, a child custody decision still involves people. The most important of these people are the children, often times mute in the eyes of the Court.

As the arbiters between parents who have a child in common but not residence nor a desire for lifelong unity, judges are in the unenviable position of having to make decisions that may affect a child until his adult life and thereafter. This awesome responsibility often includes making a determination as to which parent can provide the best environment for the child, whether either or both parents represent a threat to the child's well-being, who gets to make major decisions for the child and ultimately what is in the child's best interest.

Judges place their trust and reliance then in the third-party players - mental health professionals and other evaluators - to make recommendations or gather information to assist the judge in molding a child custody order that best suits the needs of the children. Parents may posture for the court, lie to his or her attorney and even justify their adverse actions to themselves. For the neutral third-party examiner though this veil of deception is to be easily pierced so that a factually correct, evidence based recommendation to the Court can be made about the parents and what an appropriate custody arrangement would be. Judges are free to accept or reject any or all of these recommendations.

It is then imperative that these third-party professionals possess not only the skills necessary to assist the Court but that they maintain the highest level of ethics and integrity. To do otherwise is to jeopardize the confidence in the judicial process and the lives of children. I stress the importance of this because these people are often in the position of determining the last vestige of a past life to which a parent may cling. There is a war saying - The fiercest enemy is the one that has nothing left to lose - that is also applicable to these proceedings. Once a parent's home, dignity, savings, possibly job, mental stability and finally children have all been lost the foundation is set for a violent rebuke of a custody decision. For the safety of all parties involved these decisions should be made fastidiously and be based upon the best knowledge available.

There are times in my life when I see such a grave injustice that I put the rest of my life on hold as I become fixated on remedying a wrong. As you can see through my writings of the past week this is a such a case.

In a series of emails sent by attorney Cynthia Dean of Child Advocates she tried to coerce a father into violating a court order by lying to him about the Court's orders. Please read on to see the evidence for yourself.

In Kristy L Moore, Petitioner v. Brian S Moore, Respondent [49D12-0810-DR-44790] Robin Pannell of the DRCB recommended that custody by modified to give Kristy Moore sole legal and physical custody of the parties children.

One must wonder what evidence the DRCB based this decision on. Considering the evidence and why the parties are still embattled in a custody fight would seem to contradict that recommendation. It was Del Anderson, the GAL who has not completed his report, who said to Pannell that Brian represented a threat to Kristy and the children.

Quite to the contrary though I have seen no evidence of a threat by Brian towards Kristy or, of all people, the children whom he shares in common with Kristy that he cherishes. If you read Part IV you have seen the conciliatory mood that Brian possesses while Kristy's appears bitter and combative. It was Brian who sought to mediate this latest custody action which was filed by Kristy.

Please carefully read the following email exchanges involving Cynthia Dean. Use your best judgment to determine if you feel that she exhibits any bias, incompetence or maliciousness in her words. But most important, determine if you feel that she should be entrusted with assisting a court in the awesome responsibility of making a child custody determination.

Here is an email dated 10 July 2012 from Cynthia Dean to Brian

Mr. Moore,

Please see the following response that I received from Mr. Deenik.  He states Kristy Moore will agree to mediation as long as it does not delay the trial; which I believe you agree as well with this term.  The second term is that you pay the costs.  I am guessing you would have preferred to divide the costs.  In deciding if these terms are acceptable, I suggest you consider that it is always better to reach an agreement than to proceed to Court and to allow a Judge to make decisions concerning your children.  Secondly, successful mediation results in less “damaging words and statements” between you and Ms. Moore which will make it more difficult to co-parent in the future.
I have sent an email to Chris Barrows to determine if he has time available and his current rate to give you an idea of the expense and if scheduling prior to trial is possible.
Best regards,
Cindy Dean

This is the email from Jonathan Deenik setting forth the terms for acceptance of mediation to which Dean referred.

From: Jonathan Deenik []
Sent: Tuesday, July 10, 2012 2:58 PM
To: Cindy Dean
Subject: RE: Moore v. Moore
She is agreeable to mediation so long as it doesn’t delay our trial, and Mr. Moore forwards the cost.
Do you have an ETA on the GAL report?

Jonathan R. Deenik
Certified Indiana Family Law Specialist-
Family Law Certification Board
Cross, Pennamped, Woolsey & Glazier, P.C. 
Meridian Mark II
11711 N. Meridian St, Suite 100
Carmel, Indiana 46032
T: 317.582.1040| F: 317.582.0240

Cindy Dean wanted Brian to accept Kristy's terms -- that the trial not be delayed and that Brian bear the cost of the mediation. However, that day the Court had ordered that each party pay half the mediation fees.


The Respondent, having filed his Motion for Mediation on June 26, 2012, and the Court, having reviewed such Motion and being duly advised in the premises, now orders that: 
1. Respondent’s Motion for Mediation is GRANTED. 
2. The parties shall agree upon a mediator within 10 days and report such to the Court along with the date for which mediation has been scheduled.  In the event the parties are unable to agree upon a mediator, then the Court shall provide a striking panel or appoint a qualified family law mediator.  
The parties are to each be responsible for paying half of the mediation fees and shall make arrangements with the mediator for payment of those fees. 

With each party paying half they are both invested in the process and more likely to reach resolution. When only one party is responsible for the costs then it allows the other to enter the negotiation unmotivated to efficiently resolve the matter. A vindictive party could use it as an opportunity to inflict financial pain upon the paying party by dragging out the negotiation in a malicious manner not in the spirit of settlement.

Brian contacted Dean at the end of July regarding trying to resolve the issue of the children's schooling for the 2012-2013 school year. Essentially school would be starting in less than two weeks and Brian was wanting to agree upon a school that would not be costly to both parents. Time was of the essence because, per the agreement of the parties and the order of the Court which Judge Welch reiterated during the 13 June 2012 hearing, the children's school cannot be changed without agreement of the parties or order of the Court. .

From: brian moore []
Sent: Tuesday, July 31, 2012 12:16 PM
To: Cindy Dean
Subject: Re: Disappointing News
Ms. Dean,
Thank you for your quick reply.  Unfortunately, I do not know the name of the elementary school in Pendleton Kristy proposes the children attend.  She never communicates with me about such matters.  Frankly, I have not bothered to research it much because the idea is so unreasonable. 
I know it is about 26 miles from my house to downtown Pendleton; this would result in over 100 miles of driving for me each day I have the children and they attend school.  I would seek reimbursement for extraordinary travel expenses associated with this at the IRS mileage rate of about $0.53 per mile, resulting in an expense for Kristy of over $50 per day.  Additionally, I would have the opportunity cost of nearly three house of lost work on those days.  These far exceed the cost of tuition at Cornerstone. 
Thank you for your attention to this matter. 
Brian Moore

Cindy Dean responded in the following email message

From: Cindy Dean
To: brian moore
Sent: Wednesday, August 1, 2012 2:37 PM
Subject: RE: Disappointing News

Mr. Moore,
I do not share your opinion of the email from Kristy Moore concerning mediation.  If you were hoping to begin a true negotiation, Kristy Moore was likely expecting some offer of concession from you as opposed to your arguing the merits of your position.  Although you are convinced of the merits of your argument, Kristy Moore is likewise convinced of the merits of her arguments.  If neither party is willing to consider a different opinion then mediation is likely to fail.
If you would like to work towards a resolution with Ms. Moore then I suggest you offer to accept some of Ms. Moore’s position.
Cindy Dean

Kristy's position had been made quite clear -- the children would be enrolled in Pendleton Schools and Kristy would have no financial or transportation responsibilities. Use your own judgment to determine if you feel it is a reasonable proposition. Why did Dean not suggest to Kristy that she accept some of Brian's position?

On 02 August 2012 Brian took the proactive role of filing a Motion to Determine Children's School. He was seeking the court's clarification as to whether the court would do nothing, in which case the children would continue to attend Cornerstone as agreed by the parents, or whether a change would be made. The motion did not get ruled upon in a timely manner because Judge Welch was sitting in another court for a two week jury trial.

Mediation had been scheduled for 09 August 2012, the day before school resumed, but was canceled upon the request of Jonathan Deenik on 07 August 2012.

Jonathan Deenik had not sought any intervention by the court since his request to have the matter heard on 13 June 2012 was denied by the Court or since he sought on 07 August 2012 to have the mediation session set for 09 August 2012 rescheduled.

As of 09 August 2012 the Court had yet to rule on his motion so Brian paid the fees for the children to begin attending Cornerstone during the 2012-2013 school year. He notified Kristy by email the next morning that he had complied with his obligation under the Settlement Agreement adopted by the Court. He provided information about what she still needed to do during the time she would have the children the following week. He also offered to assist her with any logistical needs she may have.

From: brian moore
To: kristy moore
Sent: Friday, August 10, 2012 6:21 PM
Subject: Kids' School

Friday, August 10, 2012
Today was the kids' first day back to school at Cornerstone Baptist Academy.  Unfortunately, they were not able to attend due to [Child 1]'s illness.  [Child 1] felt so bad this morning and was having diarrhea so frequently that she and I did not think she could even ride in the car while I took [Child 2]. 
[Child 1] and [Child 2] have attended Cornerstone for 2 1/2 years, beginning in January of 2010 when Dr. Ehrmann instructed us to do so as Parenting Coordinator.  Since you and I had not discussed or agreed upon a different school, and since the Judge had not ordered otherwise, this means the kids needed to stay in Cornerstone.  I did not want them to be truant, either, and I am sure you would agree. 
The kids will need to be at Cornerstone for the start of school Monday (8/13/12) by 8:00 AM, the same time as last year.  I do not know exactly what time before-school care opens.  Also, you will need to stop by the office and sign your Financial Agreeent [sic] and pay the matriculation fee ($300) and tuition for one child.  I went to the office yesterday and signed my Financial Agreement and paid; there was no other paperwork that needed to be done since the kids were simply returning students. 
If there is anything I can do to help with the logistics in the mornings please let me know. 

On 13 August 2012 early in the morning Kristy acknowledged that neither parent has the legal authority to enroll the children at a school. Thus they will have to continue with their formal education where currently enrolled -- Cornerstone Baptist Academy -- as agreed upon by the parties. But, she also stated that she was not going to comply with Indiana's compulsory attendance law and send the children to school. Yet, IPS chooses to employ someone who won't send her pre-adolescent children to school or provide for their education at home.

From: Kristy L. Moore
Sent: Monday, August 13, 2012 5:19 AM
Subject: school


Neither one of us can legally enroll the kids until the judge decides on our case.  Deenik will make a motion today for a special hearing for the school decision.  Since you are working today, Leesa will be watching the kids.


Brian responded within an hour, prior to the start time of school for the day.

From: brian moore
To: Kristy L. Moore
Sent: Monday, August 13, 2012 6:08 AM
Subject: Re: school

I object to what you are doing regarding the kids and school.  [Child 1] and [Child 2] need to be in school.  I talked to the Court last week and found out that Judge Welch is in a two-week jury trial, which is why our trial was vacated.  She will not be able to address this issue for some time.  In the meantime, the kids need to be in school. 
You are incorrect that "neither of us can legally enroll the kids until the judge decides on our case."  First, we could agree to a school.  Second, and more importantly, the kids were already enrolled at Cornerstone.  I did not have to fill out any enrollment forms last week, as they had never been withdrawn from Cornerstone. 
As we discussed on the phone a few minutes ago, I want to exercise Right of First Refusal today and each day this week.  It sounds like you leave your house at around 7:00 AM each morning, based on what you just said on the phone.  I don't see why you cannot get the kids up at around 6:00 AM and bring them with you; I used to get them up at 6:00 AM every morning I took them to school without any problems. 
Please let me know where and when you will pick the kids up this afternoon. 

After the morning emails were sent one of the children became ill. Kristy did not take them to school but instead to their pediatrician where she was met by Brian. They both amicably participated in that doctor visit. That morning Brian had already taken the proactive step of seeking a court order to compel Kristy to facilitate the children's formal education based upon statements she had made to him that she did not want the children in school. Unbeknownst to Brian, Kristy contacted Cornerstone and stated that she objects to the children's continued education there.

The next day, Tuesday 14 August 2012, Brian picked up the children for an opportunity for additional parenting time and took them to Cornerstone. There he was informed [wrongly] that the children could not attend because Kristy had objected. Also that day, knowing that she had no legal authority to do so, Kristy unilaterally enrolled the children in the South Madison schools. Deenik, showing that he is well aware that joint legal custody requires consent of both parties or the court to make a change, also filed a motion to set a hearing for the issue of schooling. This was after the school year had begun. Here is a paragraph from that motion.

2. The parties share joint legal and physical custody of the children and have reached an impasse regarding where the children should attend school.

The GAL left a telephone message for Brian around 3:00 pm. Brian returned call by around 3:30 and left a message.  Shortly thereafter, around 4:00 pm, Brian received an email from Cynthia Dean, attorney for the GAL, inquiring about the children's school attendance and the need for such.

From: Cindy Dean
To: 'Jonathan Deenik' ; ""
Sent: Tuesday, August 14, 2012 3:09 PM
Subject: Moore children

The Guardian ad Litem has contacted Cornerstone Baptist and Pendleton Elementary School.  It is our understanding that although both schools have started as of today, the Moore children are not enrolled in either school and home-schooling has never been mentioned. 
I understand Mr. Moore filed a Motion with the Court for assistance concerning the school choice on August 2; however I have not received an order setting an emergency hearing.  I have also not received available dates for mediation from Mr. Deenik or Mr. Barrows confirming a new date.
Clearly, it is in the best interests of the children to be in school. Do the parents intend to take action immediately to get the children in school?
Thank you,
Cindy Dean
[emphasis in original]

Cynthia Dean then sent an email solely to Brian. Although she does not give any indication who the GAL would recommend as the sole custodian of the children, when read in conjunction with the email about mediation and the email sent the day after this one there is a clear inference to be made.

From: Cindy Dean
To: brian moore
Sent: Wednesday, August 15, 2012 10:47 AM
Subject: RE: Moore Children -- School

Mr. Moore,
I have to assume your concern for the children’s safety has been eliminated. 
As to the school issue,  I understand you are opposed to the children attending Pendleton Schools.  However, Ms. Kristy Moore has stated numerous times that she is unable to afford CBA and it is no longer located near her employment.  The school issue may need to be decided by the Honorable Judge Welch.  If Judge Welch is required to determine which school the children should attend then I believe a strong argument may be made that Joint Legal Custody is not possible between the parents.  Clearly attending school is in the children’s best interest, an issue arose concerning the children’s attendance at CBA and both parents were aware of the issue; the parents were unable to amicable resolve the issue. 
I will await to receive a copy of your filing but I do cause [sic] you that if you and Ms. Kristy Moore are not able to work together to resolve fundamental matters concerning your children then it leaves little room for the Guardian ad Litem to recommend Joint Legal and Joint Physical custody.
Cindy Dean

On Thursday 16 August 2012 the Court issued its orders on schooling and contempt.

[T]he 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.

Clearly the Court has ordered that the children are to attend Cornerstone unless the parties agree to a change. The Court set the contempt hearing for Wednesday 22 August 2012.

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;

Not being presented with every piece of communication involving Cynthia Dean, Jonathan Deenik and Brian Moore it may not be clear to you that Deenik and Dean are operating in collusion against Brian and the best interest of the children. I, having read all the correspondence, see what appears to be a pattern of Dean trying to coerce Brian into fulfilling the wishes of Deenik. If you have any doubt that Dean holds a position against Brian then keep on reading because here it is.

NOW FOR THE SMOKING GUN! Here is the text of the email sent by Cynthia Dean in which she tries to get Brian to violate the Court's order by not sending the children to Cornerstone.

From: Cindy Dean
To: brian moore ; Jonathan Deenik
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]


Cindy Dean

Just five paragraphs preceding this is the relevant text of the Court's Order -- Per the Settlement Agreement adopted by the Court the children have attended Cornerstone and the Court's order directed that this was to continue. Dean was told in court on 13 June 2012, as recalled by Judge Welch, that the children were to continue at Cornerstone unless she ordered otherwise. Dean also stated that the children are able to attend Pendleton although that is a direct violation of the Court's order. CINDY DEAN LIED TO BRIAN AND TOLD HIM TO DO OTHERWISE.

Brian was not tricked into succumbing to what appears to be Dean and Deenik's nefarious plan. Instead, on Friday, after receiving the order in the mail, Brian contacted Kristy about trying to reach agreement on the school which they would like for the children to attend. I present that email in its entirety as it clearly exemplifies the extent to which Brian values and seeks Kristy's input as well as provides a model of what I feel is the proper form for effective co-parenting communication.

Subject: Important School Issue
From: brian moore
Date:Fri, Aug 17, 2012 4:03 pm
To:kristy moore

I just received in the mail some Orders from the Court regarding school for [Child 1] and [Child 2].  Have you gotten copies yet or heard from Mr. Deenik about them?  I thought you should be aware of them, so I am emailing you.  A hearing is set for Wednesday, August 22nd at 10:30 AM.

I would like for you to understand, as is my understanding of it, that the Order on Respondent’s Motion to Compel School Attendance allows us to both agree on what school our children attend.  Otherwise, the Judge will decide for us.  
I think your input is imperative about what school the children attend.  That is why I emailed you early in the week about the issue.  I would welcome and request your ideas on the schooling options I suggested in that email, as well as any other ideas you may have.  I think “brainstorming” about all possible ideas is important, so no suggestions would be considered out of the question. 
I want [Child 1] and [Child 2] to attend a school that is first and foremost suitable to meet their needs.  It also must to be convenient to both parents so that each of us can have the maximum opportunity for involvement with the kids in their educations, both in and out of school.  As I am sure you know as a teacher, children with both parents involved in their educations thrive more that those who don’t have both involved.  I want to do everything I can to ensure we agree on a school that affords us each with the greatest opportunity for involvement
I am aware that you don’t currently agree with Cornerstone due to cost and distance issues.  I do value your input, and am willing to pursue less costly education options.  As one example, I believe financial aid is available at Heritage Christian School.  We could also look in to education vouchers. 
As I said in Tuesday’s email, perhaps there is some way I could assist you in the mornings regarding getting the kids to school.  After all, I should be your primary support network regarding the kids.     
What suggestions do you have?  I would like to hear any ideas – perhaps you can elaborate on the suggestions I made Tuesday in my email about IPS schools, other private schools, or online schools.  As a teacher, you probably have exposure to lots of information about school options. 
I am not aware of where you are teaching.  I felt you did not want me to know when I asked you in emails two times this summer and you did not respond.  Nevertheless, I am certainly open to trying to select a school that accommodates your travel routes to and from your school.   
There is a likelihood that on Wednesday the Court could determine that our children attend a school other than either Cornerstone or Pendleton Elementary.  I know I would like to have input on where the kids attend school, and think you would also.  That is why I think we should try to agree on their school over the weekend.  If we could agree over the weekend, we could go to the chosen school together Monday and enroll the kids.  They could start Monday without ever missing a day.  I think that would be great

As we are both aware, the events of the past week have been disruptive for [Child 1] and [Child 2].  I know we would like to avoid further disruption for their sakes.  I think it would be best if we could agree on a school that the kids could attend for at least the rest of this year without changing.  Therefore, I think it is in the children’s best interest for us to work together this weekend to try to select the best school for them. 
Please contact me either by phone or by email as soon as you feel like addressing this.  I will change whatever necessary in my schedule to work with you on this tremendously important issue.

I will now be filing a complaint against Cynthia Dean for her various violations of the Rules of Professional Conduct in her attempt to get Brian Moore to violate the Court's order and collusion with opposing counsel.

I will then seek an investigation into Child Advocates, Inc. and an audit of cases in which they have provided GAL services to see if there is a similar pattern in other cases.

The applicable Rules of Professional Conduct

Rule 4.1. Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Rule 8.4. Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(g) engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors. Legitimate advocacy respecting the foregoing factors does not violate this subsection. A trial judge's finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule. [emphasis added]

Here are some relevant standards from The ABA Standards of Practice for Lawyers Representing Children in Custody Cases

I. Enforcement
The lawyer should monitor the implementation of the court’s orders and address any non-compliance.

As a general rule Best Interests Attorneys should encourage, not undermine, settlements. However, in exceptional cases where the Best Interests Attorney reasonably believes that the settlement would endanger the child and that the court would not approve the settlement were it aware of certain facts, the Best Interests Attorney should bring those facts to the court’s attention. This should not be done by ex parte communication. The Best Interests Attorney should ordinarily discuss her or his concerns with the parties and counsel in an attempt to change the settlement, before involving the judge.

7. Whom to Appoint
Courts should appoint only lawyers who have agreed to serve in child custody cases in the assigned role, and have been trained as provided in Standard VI-B or are qualified by appropriate experience in custody cases.

If you have been involved in a case utilizing Child Advocates, Inc., Cynthia Dean or with Jonathan Deenik as opposing counsel then please visit my website and contact my scheduler to make an appointment to meet with me.

If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.

Subscribe to this blawg.

More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.

©2012 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

No comments: