Friday, January 31, 2014

Drug Testing for TANF Benefits and Nutritional Requirements for SNAP Benefits - 2014 Indiana House Bill 1351

31 January 2014

A bill making it's way through the Indiana House of Representatives would disqualify those testing positive for illicit drug use from receiving TANF benefits. It also establishes nutritional content minimums for “foods” that may be purchased under SNAP – Supplemental Nutritional Assistance Program


The bill is sponsored by Representative Jud McMillin who is joined by co-sponsors Koch, Kubacki, Messmer, Culver, Neese, Harman, Frye R, Ober, Huston, Smaltz, Rhoads, DeVon, and Mahan.

The synopsis of this bill is;
Welfare matters; drug testing. Requires the division of family resources to establish a statewide program for the Supplemental Nutrition Assistance Program (SNAP) that allows SNAP benefits to be used only for food and beverages that have sufficient nutritional value, as determined by the division of family resources. Requires the office of the secretary of family and social services (office) to administer a drug testing program (program) for individuals who are receiving Temporary Assistance for Needy Families (TANF) assistance or receiving TANF assistance on behalf of a child. Establishes requirements for the program and ineligibility penalties. Prohibits an individual who is ineligible to receive TANF assistance under the program from receiving assistance on behalf of a child and provides for an exception. Requires the office to collect data to assess and avoid discrimination in the program. Requires the office to provide information to the Indiana housing and community development authority and any division of the office that implements the federal Supplemental Nutrition Assistance Program concerning an individual who tests positive for controlled substances. Requires the department of workforce development to submit a report to the legislative council and the unemployment insurance oversight committee concerning certain unemployment topics.

The list of controlled substances that would disqualify an applicant or beneficiary of TANF is found at Ind. Code § 35-48-1-9 which includes Peyote, Marijuana, Clonitazene, and hundreds of others.

The general problem that I have with this bill is it takes a patchwork approach to public assistance qualifications and implicitly invokes a morality clause – drug use or abuse. However, the measure of moral deprecation through drug use fails to adequately draw a reasonable correlation when the demarcation is legality. A person who treats his or her body as though it were an open sewer and dumps in garbage made to appear as food – artificial colours or flavours, HFCS, hydrogenated oils -- and then encounters the resulting effects such as obesity and diabetes is giving the status of “victim” while the social pot smoker is branded a miscreant devoid of good character and unworthy of societal aide. To the contrary it is the immoral individual lacking any respect for his or her own body and subsequently often that of the person's dependent children who should be branded the moral transgressor – child abuser if the child is obese.


This leads to the second portion of this bill.

The bill does provide an exception for those who test positive for a controlled substance and are participating in a drug treatment program. This carrot-and-stick approach does make it more palatable although I feel a means-based testing approach is more appropriate. That is implicit in the drug testing portion of this bill. If you are wealthy enough to be able to afford recreational drugs then you don't need public assistance. If you are wealthy enough to be able to afford not nutritive snacks, to buy food necessary to carry the extra weight on your body from obesity, or to employ others to prepare your meals for you then you clearly have no need for public assistance.

This bill provides the following language establishing nutritional requirements for SNAP.
(a) The division shall establish a statewide program for SNAP that allows SNAP benefits to be used only for food, food products, and beverages that have sufficient nutritional value, as determined by the division.
(b) In determining sufficient nutritional value under subsection (a), the division shall consider the food limitations set forth in the women, infants, and children nutrition program (WIC) (under IC 16-35-1.5).


I wrote about the matter of nutrition in my 06 March 2012 posting, Fighting Hunger – A Sensible Cure. In that I specifically mentioned that SNAP benefits should be aligned to the WIC program. “Indiana's SNAP program should receive a major overhaul as it doesn't provide nutrients like WIC does.” I am pleased that these representative have adopted this common sense approach.

While I applaud the sponsors of this bill for their effort to improve the health of recipients I believe that the drug testing portion of the bill is arbitrary and falls woefully short of the appropriate means testing – the first and most obvious being body fat percentage.

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Thursday, January 30, 2014

Objective truths about HJR3 the Indiana Marriage Amendment: Breaking down proponent's scare tactics

30 January 2014

I hold no position on whether marriage should be defined as between a man and a woman. It is already in the Indiana Code so for me it is not a germane issue. But as it has been a hotly contested matter that is diverting attention away from legitimate child well-being issues I would like to see it disposed. As I engage in vigorous conversation with and attend informational events held by both proponents and opponents I am struck by the misconceptions, misstatements and blatant lies about HJR3 which come from both sides but moreso from what I see distributed by proponents. Particularly disturbing is the general characterizations that are being flipped on their heads with this issue.

I am not going to cite to authorities is this article. I have numerous years of experience in the field of child custody, marriage – or rather divorce – and advising state policy makers on matters pertaining to these.

The hallmark of conservatism is the protection of liberty. So I found it stunning when I received an email yesterday from a proponent of HJR3 attacking Indiana House members who voted to strip HJR3 of it's broad restrictive language. It was not the misunderstanding about conservatism that bothered me but, rather, it was the blatant lies.

American Family Association of Indiana

To me truth matters. I hold truth in such high regard that it is equaled by few other people. When my son was age 2 I told him that the Santa Claus stories perpetuated by our society are lies. I explained truth to him and the importance of being truthful. He understood. There is no one that I have a more trusting relationship than with my son. As someone who goes into courts across this state and provides expert opinion and testimony of observations the veracity of my statements is critical to the best interest of children. So when I hear these blatant lies it raises my ire. Especially when it is directed in a way to cause harm to children. This is why I am compelled to respond to the email from Micah Clark of the American Family Association. This is disturbing to me because I honestly believe that the AFA has made positive contributions towards childhood well-being following divorce.

The AFA states in regards to the House members who voted to amend HJR3, “Some even think that they are 'conservative,' but they are not.” I will address that opinion later after confronting the lies.

52 members voted for same-sex marriage and for keeping the government involved in this issue
NOWHERE in HJR3 as amended and passed is there any repeal of Ind. Code § 31-11-1-1 which prohibits same-sex marriage. The great contradiction here is that while opponents of HJR3 are trying to keep government out of the marriage business and let people decide the extent of their personal relationships not the government.

Every one [of the 52 House members] has tried to take away your right to vote on this issue and now has left the future of marriage in the hands of politicians and homosexual activists.
This is an absurd misstatement of the Indiana Constitution that goes against the basic tenants of our constitutional republic. There is no right of the people to vote on this issue or any other. Our law making process is constructed under a representative form that provides for voters to select other citizens to represent them as a law making body. In Indiana we have two house; a House of Representatives comprised of 100 members, and a Senate comprised of 50 members. These are the people who have a “right” to decide this issue as particularly described in Article 16 of the Indiana Constitution. Now I will move onto more about rights and the people deciding.

52 members of the Indiana House of Representatives ignored the will of 80% of Hoosiers who want to vote on the future of marriage.
I am thankful that we have legislators who are willing to ignore the will of 80% of Hoosiers. Ignore 100% or whatever it takes. Legislators took an oath to obey the Constitution and if upholding those principles conflicts with the will of the people then those representatives have done their job admirably.

Indiana was the first jurisdiction in the world to impose, by law, forced sterilization on citizens deemed to be unfit to procreate. This law formed the basis of the genocide legislation imposed onto certain Germans during the Third Reich. That legislation was supported by the majority.

That illustrates the tyranny of the majority. A simple analogy used by those of us who cherish liberty is that democracy is three wolves and one lamb voting on what to eat for dinner. Apparently the AFA wants the wolves to make the laws in Indiana. That is the immorality of pure democracy. It does not respect the rights of the individual.

[A] conservative respects the moral order of society.
What is moral does no harm. HJR3 as introduced would have led to harm. I have written about how it would invalidate Domestic Violence penalties and prevent victims from receiving services. It would also allow for a parent to terminate a child's relationship with the other parent by nullifying laws that would protect the child's right to that relationship.

[G]iving the people of Indiana the freedom to decide the matter once and for all.
This is the statement that shows the true desire of HJR3 proponents and how their claim over voter rights is fallacious. Another way to frame this sentence and give the same effect is to say, “Keep future voters and legislators from being able to have the ability to adapt statutes to the changing dynamics of society.” HJR3 is all about preventing people in the future from having a direct input into the government regulation of their lives. Imagine if one hundred years ago we had a constitutional amendment to define “biological parent” as “those parents who conceived their child through sexual intercourse.” Other parents would be adoptive parents. But then IVF came along and children were born to biological parents, as we know the term, who did not have intercourse.

What You Need to Know about Marriage

I received a pamphlet produced by Alliance Defending Freedom, Family Research Council, Focus on the Family, National Organization for Marriage, and The Heritage Foundation.

Let me begin by saying from a public policy standpoint [a position taken that is based upon statistical generalities] that a marriage between a man and a woman is best for raising children. I strongly advocate for presumptions that children are most well-adjusted when they have a meaningful and regular relationship with their mothers and fathers. This is acknowledged in the Indiana Parenting Time Guidelines and numerous published opinions of the Indiana Court of Appeals and decisions of the Indiana Supreme Court.

This pamphlet correctly acknowledges that “children need a mother and a father.” In advocating their public policy position on marriage these organization make what I believe to be some spurious claims. These include that marriage “brings together sexually complimentary spouses, in a monogamous relationship,” that “marriage is about the needs of children,” and that “Marriage ensures the well-being of children.” These statements on their face seem plausible from the standpoint of a policy advisor who works in the child custody arena I take issue with each.

Empirical data and my observations or interviews reveal that a substantial percentage of marriages are not monogamous. Further, that a high percentage of same-sex marriages are monogamous and are co-habitating unmarried parents.

While much of the claims of proponents rest on the presumptions about the historical perspectives a traditional marriage their current claim do not bear such congruence. “Marriage is about the needs of children” is a new concept. Marriage has long been a method of securing relationships between families for political or business purposes. Marriages were often arranged by parents. Black's Law Dictionary defines marriage to include “A contract, according to the form prescribed by law, by which a man and woman capable of entering into such contract, mutually engage with each other to live their whole lives (or until divorced) together in a state of union which ought to exist between a husband and wife.” That sounds vaguely like a civil union. Likewise to the business or political contractual application, marriages often served as a means of support for a woman and subsequently upon the bearing of children as a means of securing labour for the agrarian man. It was not until post-industrial revolution that a marked shift began to occur in which marriage became more focused on children's needs including the adoption of laws to protect children from being indentured into labour by their parents. To this day, in Indiana, there still exist a statute requiring adult children to financially support their parents. Thus, marriage or rather child rearing in general, is not entirely about providing for the needs of children but is a financial security blanket for parents under threat of imprisonment.

Then there is the well-being of children claim. If marriage does ensure the “well-being of children” then why are children in married households being abused and neglected? Why I am always involved in at least one court case involving allegations of domestic abuse between married parents?

Much of the information cited for opposing gay marriage or civil unions is that married mothers and fathers produce the best outcomes for children. Again, I emphatically say this is true. However, these authors juxtapose this data to same-gender civil unions. This is misplaced as the researchers generally are comparing married parents to unwed parents or single parents where one parent has abandoned the child. After traditionally married parents a civil union among monogamous same-sex “parents” is best.

One interesting claim I found was that “no one has the right to redefine marriage for all of us.” I almost find this bizarre. Allow same-sex civil unions would do nothing to restrict marriages as they currently exist between mixed gender adults. However, HJR3 would bar the government from recognizing same-gender relationships similar to marriage including allowing grant money to be used to supply Domestic Violence service to victims of same-sex abuse.

I will close on this statement. Marriage is “a permanent and exclusive union of a man and woman for childbearing and rearing.” Based upon that limitation then sterile persons should be barred from marriage. This also ignores the numerous cases I have seen where same-gender “parents” solidified their relationship through a ceremony for the purpose of being parents to the child or anticipated child of one of the partners.

Regardless of the position one holds on this issue the debate should not be tainted by misinformation, omissions, or lies.

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Wednesday, January 29, 2014

GPS Tracking following Domestic Violence conviction - 2014 Indiana Senate Bill 390

29 January 2014

One of the advantages to state legislation is that it is rarely verbose. Senate Bill 390 which has been introduced by Senator Richard Young easily complies with this practice. Senator Young is seeking to add a new section to the criminal code related to sentencing of Domestic Violence offenders. The complete text of the bill is;
Ind. Code § 35-38-2-2.8
(a) Except as provided in subsection (c), if:
(1) a person is convicted of a crime involving domestic of family violence; and
(2) the person is placed on probation or parole;
the sentencing court shall require the person to wear a GPS tracking device as a condition of probation or parole. The court shall require the person to wear the GPS tracking device for at least the first six (6) months of the person's probation or parole.
(b) If a court requires a person to wear a GPS tracking device as a condition of probation or parole, the court shall require the person to pay any costs associated with the GPS tracking device.
(c) A court is not required to require a person described in subsection (a) to wear a GPS tracking device if:
(1) the person is unable to pay the costs associated with the GPS tracking device due to indigency; and
(2) funding for GPS tracking is not otherwise available.

The effect of this bill is readily understood. Upon a conviction for Domestic Violence an offender, as part of the sentencing, will be required to wear a GPS device for no less than the first six months of probation or parole. The offender is required to pay for the cost of the monitoring. If, however, the person is indigent and funding is not otherwise available then the court is not required to order the GPS monitoring.

I have had clients who were on GPS monitoring as part of the condition of pre-trial release. While there is a financial cost associated with it, in at least one case it served my client well as he was able to use it to demonstrate that he had not violated the pre-trial No Contact Order as had been alleged. With the risk of probation revocation being high along with a reduced due-process standard the GPS monitoring could aid the probationers.

Likewise, the GPS monitoring could aid the protected person by certainly providing an incentive to the offender to not intentionally violate the No Contact Order. While the orders are never a guaranteed protection and neither would be the GPS monitoring it could still provide a valuable sense of security to the victim.

It is not clear to me from the language of the bill that a victim could offer to pay for the monitoring if the court could not otherwise require it. It does seem permissible though and could be worth it for those victims who would wish to pay the costs.

This bill has been referred to the Senate Committee on the Judiciary.

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Tuesday, January 28, 2014

HJR3 Marriage Amendment to the Indiana Constitution would have encouraged more Domestic Violence had it not been amended in a 52-43 vote

28 January 2014

Here is the complete text of the proposed Article 38 to the Indiana Constitution;
Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

The first sentence is already in Indiana Code § 31-11-1-1(a)
“Only a female may marry a male. Only a male may marry a female.” The second sentence (b) goes on to prohibit same gender marriages;
“A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.” This law was passed in 1997.

While I hold no position as to who may join themselves in an intimate relationship other than two consenting adults I oppose the passage of HJR3 on two basic principles. The first is it would deprive voters of the opportunity to decide these matters which I wrote about previously. The second reason, which I find more compelling, is that it could deny to children the right of access to both parents and it could deprive certain classes of people from receiving further protections or services related to Domestic Violence.

The HJR3 Second Sentence reads “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” This is a very broad sentence. “Legal status” refers to recognition by the government of a state of being and cuts across a wide swath of interactions from marriage to disability or – as I am going through a battle with Indiana University – whether I am a resident of the State of Indiana.

Child Custody
I will address the child custody matter first which is at the core of my professional activities -- child custody. Currently, Indiana law forbids people of the same gender to marry and be recognized as such by the State. This prohibition prevents the partner of a biological or legal parent from becoming an adoptive parent to the child. Thus, the female partner of a woman, while fully intending to be a second parent to the unborn child her partner carries, cannot become an adoptive parent of the child. A man not the biological father may. This is common in subsequent marriages and is known as a step-parent adoption. On this topic Indiana Supreme Court Chief Justice Brent Dickson correctly articulated;
“Indiana adoption law expressly addresses stepparent adoptions, permitting them if 'the adoptive parent of a child is married to a biological parent of the child.'[fn1] In all other cases, an adoption operates to divest the child’s parents of all rights with respect to the child. In addition, same-sex marriages are prohibited in Indiana. Even if King and [Benham] had not separated but were continuing to live together as same-sex domestic partners, it is my view that King could not lawfully adopt A.B. because stepparent adoptions require the adoptive parent to be married to the child’s parent, and same-sex marriages are not permitted. If a stepparent adoption is contrary to statute for same-sex domestic partners living together, it is likewise illegal after the termination of the couple’s relationship.”[fn2]

In such a case of same-sex parenting the biological or legal parent could summarily terminate the adult-adult relationship and also terminate the parent-child child relationship involving the partner and the child of the biological or legal parent. Thus, a child who has known a “parent” since birth could be summarily discharged from that person's life with no legal recourse. This is in clear opposition to public policy. The Preamble to the 2013 Indiana Parenting Time Guidelines begins;
The Indiana Parenting Time Guidelines are based on the premise that it is usually in a child's best interest to have frequent, meaningful and continuing contact with each parent. It is assumed that both parents nurture their child in important ways, significant to the development and well being of the child.
It could be a traumatic event with long lasting psychological implications for a child to have to go through this. As reproductive technologies allow, society becomes more accepting, and costs decrease we are going to see more same-sex parenting arrangements. Consequently, as with any partnerships be it traditional marriage or business relationships there are going to be dissolution actions. Some will not be amicable and some of these partners will do the despicable act of using the child as a tool of retribution. Children will need to be legally protected from this as currently exist in marriages, adoptions and paternity cases.

Domestic Violence
The second part of my argument against the Second Sentence is also germane to my activities as I am currently advising on a Domestic Battery cases in a criminal court. The Second Sentence could deprive victims of Domestic Violence from receiving support or having the legal status of a victim. “A legal status . . . substantially similar to that of marriage for unmarried individuals” could be surmised from intimate partnerships. Persons who qualify as victims of Domestic Violence include;
An individual who:
(1) is or was a spouse of the other person;
(2) is or was living as if a spouse of the other person as provided in subsection (c); or
(3) has a child in common with the other person;
[fn3]
If the Second Sentence of HJR3 had been adopted then defense attorneys in Domestic Violence cases involving same-gender intimate partners would be arguing constitutionally that the law may not be applied to their same-sex clients. (1) is not applicable because same-gender partners may not marry in Indiana. (2) is not applicable because “living as a spouse” is “substantially similar” to marriage. (3) is not applicable because the same-gender partner has no legal status related to the child as Chief Justice Dickson explained. Whereby the language of HJR3 as introduced would have prohibited prosecution of violent abusers in same-gender relationships. It would have also prohibited the victims from receiving services through victims advocates as the would be constitutionally barred from being granted a victim status and all shelters or other services providers would have had to deny services to these victims if the provider received any State support – as nearly all do through grants. Essentially, HJR3 as introduced was a green flag to same-sex abusers to be violent against their partners.

No one should advocate for encouraging violent relationships regardless of gender but that is what supporters of HJR3, whether through intent or ignorance, have done.

Next time you are given the opportunity to support a public referendum on a matter of law ask yourself if you knew that sending HJR3 as originally written to public referendum would have prohibited prosecutions of same gender offenders under Domestic Violence laws.

Footnotes
[fn1] Ind. Code § 31-19-15-2(a)
[fn2] King v. S.B., 837 N.E.2d 965 (Ind. 2005)
[fn3] Ind. Code § 35-42-2-1.3 version b

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Monday, January 27, 2014

Understanding the Indiana Child Support Guidelines - 2014 Calculation Revisions

27 January 2014

2015 Indiana Child Support Guidelines
review scheduled for public comment



The Domestic Relations Committee [DRC] of the Indiana Judicial Center is given the charge of reviewing the Indiana Child Support Guidelines every four years pursuant to federal law.[fn1] 2014 brings about the requisite passage of time to embark upon such a review. As the DRC begins the process I will attempt to provide to you relevant information in regards to the ongoing process and your opportunity to provide input. In this posting I intend to start by providing some background for you regarding the Indiana child support payment scheme and those of other jurisdictions.

Indiana uses the income shares model developed by Robert Williams. This model provides that based upon total parental income children would account for a particular portion of total family spending. From this total amount each parent is assigned a share to pay based upon the incomes of each. This appears as Line 4 on the Indiana Child Support Obligation Worksheet [CSOW]. Indiana is one of 35 states that use this model.

11 states use the percent of income method. These states take a percent of the non-custodial parent's [NCP] and provide it to the custodial parent as a direct payment to supplement the custodial parent's spending on the child. This system poses significant problems. The percent of family resources dedicated to children are not consistent across the spectrum of income levels. While a family earning about $50,000 a year may spend 20% of that on a child a family earning that will likely spend a higher percent while those earning significantly more will spend much less. Certain constants like a child's need for nutrients is not contingent upon parents' incomes. A child who's parents earn $250K per year does not eat ten times as much as those who earn $25K per year. Similar comparisons can be made with clothing, extra-curricular activities, and rides to school.

Three states use some form of the Melson formula. Melson first provides that the parent is entitled to basic needs. After the basic needs exemption a portion of income is then attributed to the needs of the child. Remaining income is subject to a standard of living adjustment – non-essential purchases.

Of the three formulas the income shares model that Indiana uses is the most popular and I feel is the best to most accurately represent spending on children across a broad spectrum. In practice though it sometimes produces absurdities that are not nearly reflective of a family's actual spending on the children. Part of the reason for this is that the data used to determine Indiana's child support payment obligations is based upon 1972 surveys by the U.S. Department of Labor. Another flaw is the per capita application of some expenses such as housing. Using the per capita method a one bedroom apartment for a parent only would attribute a cost to the parent of $500, A $600 per month two bedroom – one for a child – would attribute a cost to the child of $300. A $750 per month three bedroom – two for the children – would attribute a cost to the children of $500. But we know the parent cannot get a one bedroom for the remaining $250. The per capita method attributes too high of a cost to the children. I have written more about that in this case where a mother was living off of child support payments. The current model that Indiana uses attributes 44% of household expenditures on a per capita basis – most of that being housing.

The purpose of the income shares model is to provide the children with the same standard of living that the children would have enjoyed had the marriage remained intact[fn2]. Implicit in this standard is that the standard of living of the parents shall be reduced from what it would have been had they remained married. This standard of living dichotomy is appropriate as it is not the children that seek divorce but it is the selfish interest of adults that lead to divorce. However, the standard of living of the NCP often seems to suffer in a disparate proportion to that of the custodial parent.

Another problem encountered by William's income shares model is that it uses gross income. This creates a disparity because of taxes and savings. Lower income earners often pay no taxes and may even receive an EIC payment from the IRS. They also may spend more than they actually earn thereby incurring debt to maintain their standard of living. By contrast, high income earners[fn3] pay a substantial percent of their income to taxes and other levies while also saving at a higher rate. Rothbarth has developed a measure that uses a net income adjustment for calculating income shares.

The DRC has secured the services of Dr. David Betson, professor of economics at the University of Notre Dame, to assist in the development of a revised child support calculator. I spoke with Dr. Betson briefly about some of the problems with the current system and ways that I feel could ensure a more just application of the ICSG to achieve the stated objective of providing the children with the same standard of living that they would have enjoyed had the marriage remained intact. I will detail some of our conversation in a future posting.

1] 42USC§667(a)
2] Payton v. Payton, 847 N.E.2d 251, 253 (Ind. Ct. App. 2006).
3] Households or families with weekly gross combined incomes of $4,000 or greater are considered high income earners.

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