2015 Indiana Senate Bill 0263 - Physical Education and Healthful Living

Senate Bill 0263 has been introduced by Senator Dennis Kruse. The first section provides a new section to the Indiana Code, IC 20-19-3-6.5, which requires that the Indiana Department of Education [DOE] to establish a program in health and physical education to meet certain criteria. Specifically for students, these are to encourage children in kindergarten through grade 12 to develop healthful living habits, an interest in lifetime health and physical fitness, and decision making skills in the areas of health and physical fitness. Specifically for school administration, these are to establish the position of education consultant for health and physical education, and to hire an individual to perform the duties of education consultant for health and physical education.

The education consultant for health and physical education shall plan and develop curricula for health and physical education for kindergarten through grade 12, provide assistance to school corporations in developing and carrying out the requirements of the new section requiring 30 minutes of physical education, and perform other duties designated by the department.

The program in health and physical education must include local school program development, technical and inservice training assistance for local schools, local school initiatives in writing curricula in the areas of health and physical education, and cardiopulmonary resuscitation training using a training program approved by the American Heart Association or an equivalent nationally recognized training program. The DOE may give grants to or enter into contracts with individuals or school corporations to carry out the purposes of the program in health and physical education.

The second section amends IC 20-30-2-2 to increase the student instructional day in grades one through six by 30 minutes to at least five hours and thirty minutes of instructional time. Except as provided the student instructional day in grades seven through 12 will increase by 30 minutes to at least six hours and thirty minutes.

The third section provides a new section to the Indiana Code, IC20-30-5-21, which sets the parameters of the additional 30 minutes of instructional time for physical education to the school day. It applies to public schools which includes charter schools. Beginning with the 2015-2016 school year, a school shall conduct at least thirty minutes of physical education each regular school day for kindergarten through grade 12. The physical education may be divided into two periods of fifteen minutes or longer. These may be included as a part of a classroom activity and must consist of activities that are appropriate to a participant's age and physical and mental abilities, raise a participant's heart rate, and provide strength and endurance training.

The final section is a new section to the Indiana Code, IC20-34-3-21, for the purpose of collecting data and monitoring student performance. Beginning in the 2015-2016 school year, each school corporation and charter school shall collect and record the height, weight, ethnicity, age, and sex of students in the following grades one, six, and twelve. The school corporation or charter school shall report annually the information collected to the state department of health. A school corporation or charter school shall inform in writing the parent of a student that the information concerning the student was collected and that the parent may obtain the information upon request from the school. The data collected will not be maintained in a manner that correlates it to a particular student when reported. Schools will be required tomfollow written procedures designed to ensure privacy for the students when being measured. The data collected under this section may not be recorded on a child's report card, a child's transcript, or another document from which an individual other than the child's parent or school personnel could determine the identity of the child. The state department of health shall publish and make available to the public an annual report summarizing data collected about student health. The state department of health shall develop materials for school corporations and charter schools to distribute that include an explanation of body mass index, the limitations of body mass index as a measure and, the need to interpret body mass index on an individual basis.

Commentary
This is a great step toward reversing the deliberate actions by some school corporations that contribute to student’s academic, physiological, and psychological decline. The funding incentives for designating students as having psychological disorders is a likely contributor to these decisions which often include eliminating recess and physical education. In 2011 when I wrote Why Students should NOT place primary importance on Academic Achievement I was responding to the harmful effects that I had observed in students from these policies. Ignoring well-being in place of emphasizing academic achievement is the common error of treating a symptom rather than the condition. In that post I detailed the nexus between physical fitness and psychological condition and academic performance of students. There is a direct correlation between well-being and academic achievement. Hindering a student from attaining greater well-being hinders academic improvement. Yet, schools actively resist those caution.

Ensuring that the materials and activities collected or produced for instruction to students is not corrupted will be the key element to the efficacy of this effort. This legislation seeks to inform students and then allow them to make decisions based upon their preferences. This is a welcomed change from the ethos which has for so long sought to restrict knowledge and impose proscriptions or mandates rather than foster individual liberty.

There is no knowledge of greater importance than that of the body and its healthful maintenance. This should, first and foremost, be the duty of parents. But in a society ravaged by the effects of divorce and parents who shun their responsibilities this obligation must also fall upon the schools. Some proponents of adverse student health and other profiteers argue that it is not the place of schools to instruct children on matters that are not academic in nature. They understand that the wellness of children dramatically reduces the opportunities for financial gain from treating or responding to adverse health. It is incumbent upon those of us who endorse wellness for children to remonstrate the dubious claims of such well financed and nefarious parties.

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2015 Indiana Senate Bill 0345 - Qualification for Indiana Post-Secondary Residential Tuition Rate

Indiana SB 0345 has been introduced by Senator Earline Rogers. The purpose of this bill is to establish a statutory proscription for students to be qualified for residential tuition rates to attend a public college in Indiana.

The first section makes technical changes to IC 12-32-1-6 that are necessary to implement the proposed new chapter. It also adds that an agency or a political subdivision required to verify the eligibility of an individual shall require the individual to execute a verified statement. The statement shall be made under penalty of perjury and include that the individual is not applying for any state or local public benefit or federal public benefit, other than the resident tuition rate, that is provided by the agency or political subdivision.

The second section of the bill is the new section which will be in statute at IC 21-14-11.5. It provides the qualifications that a prospective Indiana public post secondary educational institution must meet for eligibility as an in-state student for tuition paying purposes. The individual must have attended a high school in Indiana for at least three (3) years, register as an entering student at, or is currently enrolled in a state educational institution not earlier than the fall semester (or its equivalent, as determined by the state educational institution) of the 2015-2016 academic year, and have graduated from a high school located in Indiana or received the equivalent of a high school diploma in Indiana.

Under Indiana Administrative Code 500-1-1-4(7), which has expired, the Indiana Commission on Higher Education required that a prospective student “be domiciled in the state on or before December 31 of the year preceding application for an award and be continuously domiciled in the state thereafter. For a dependent student, the determination of residency status was based upon the permanent place of residence of the parents of the student. Senator Roger’s bill would require that the student be domiciled in Indiana longer than previously. The basis for having two rates set is because a residential student is assumed to have or have parents who contributed financially to the coffers of the State of Indiana.

I had an issue last year with this topic when my son was denied residential tuition rate because I was alleged to not be a resident of the state of Indiana by the Registrar of Indiana University, Bloomington. As a child of divorced parents my son was entitled to receive residential tuition rate where either parent was domiciled. In this appeal brief I challenged the finding of Indiana University that I was not domiciled in Indiana. Although I appeared for oral argument, the reviewing panel concluded that I was domiciled in Indiana and oral argument was unnecessary.

I would like to see Senator Roger’s amend her bill to include a provision that a child of divorce will qualify if either parent resides in Indiana for at least the three year period. Additionally, some statutory requirements should be delineated that are logically related to confirming residency rather than the arbitrary list that Indiana University mandated.

I do support the underlying purpose of this bill but I do want to ensure that children like my son, who was born and raised in Indiana, has over 90% of extended maternal and paternal family living here, and intends to live here but was moved to Kansas City by his mother, will still qualify.



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2015 Indiana House Bill 1342 Domestic Violence shelters, GPS tracking, and other matters

Indiana HB1342 has been introduced by Representative Karlee Macer. This bill has eight sections which cover multiple Domestic Violence matters including providing shelters in each county, mandatory GPS tracking for offenders, and statistical reporting.

This first section amends IC 5-2-6-3, the statute that established the Indiana Criminal Justice Institute, by adding a provision for the compilation and reporting of crimes involving Domestic Violence. The Indiana Criminal Justice Institute is required to compile information concerning crimes that occur in Indiana and involve domestic violence, and submit the information to the National Incident-Based Reporting System(NIBRS) maintained by the Federal Bureau of Investigation. The Institute shall also assist counties in establishing and operating Domestic Violence shelters under the proposed new chapter IC 12-18-9, shown in the third section.

The second section amends IC 5-2-6.7-10 by requiring that the victim services division of the Indiana criminal justice institute to make grants to a city, town, county, or township or other qualified entities. Current law provides that the division may make the grants.

The third section adds IC 12-18-9 as a new chapter. It reads;
Chapter 9. Domestic Violence Shelters
Sec. 1. As used in this chapter, "domestic violence" includes conduct that is an element of an offense under IC 35-42 or a threat to commit an act described in IC 35-42 by a person against another person who: (1) is or was a spouse of; (2) is or was living as if a spouse of; (3) has a child in common with; (4) is a minor subject to the control of; or (5) is an incapacitated individual under the guardianship or otherwise subject to the control of; the person regardless of whether the act or threat has been reported to a law enforcement agency or results in a criminal prosecution.
Sec. 2. As used in this chapter, "shelter" refers to a domestic violence shelter established under section 3 of this chapter.
Sec. 3. (a) Each county shall establish and operate a domestic violence shelter in the county to assist victims of domestic violence in the county.
(b) The expenses of establishing and operating a shelter shall be paid from the county general fund. However, a county may accept: (1) appropriations from the general assembly; and (2) grants, gifts, and donations from any other source; to assist in operating a shelter.
Sec. 4. The Indiana criminal justice institute established under IC 5-2-6-3 shall assist counties in establishing and operating shelters under this chapter.

The fourth section amends IC 34-26-5-9, the Civil Protection Order Act by providing that upon a finding of a violation of an order for protection, the court shall require a respondent to wear a GPS tracking device; and may prohibit the respondent from approaching or entering certain locations where the petitioner may be found. The current language of the statute provides that the court may require a respondent to wear a GPS tracking device.

The fifth section amends IC 35-33-1-1.7, which pertains to detention of Domestic Violence arrestees, by changing the hold time from eight hours to 24 Hours.

The sixth section amends IC 35-38-1-7.1, which relates to the sentencing of defendants, by adding an additional mitigating factor. Under this section the court would be allowed to consider as a mitigating circumstances that the victim of the crime involving the use of force against him or her had committed an act of domestic violence against the convicted person.

The seventh section amends IC 35-44.1-2-12, which is an employment security provision for persons participating in criminal prosecutions, by adding a specific Domestic Violence provision. An employer would be prohibited from dismissing, withholding benefits, or threatening to do either if the employee participated in certain legal proceedings. These include attending a court proceeding or participating in a law enforcement investigation related to a criminal case in which the employee is a crime victim or attending a court proceeding related to a civil case in which the employee is a victim of domestic or family violence. This provision also protects employees for whom an order for protection has been issued under IC 34-26-5 on the employee's behalf or the employee is a victim of family violence as defined in IC 31-9-2-42.

The final section amends IC 35-50-2-9, which also relates to the sentencing of defendants, by adding an eighth qualifier as a mitigating circumstance for the crime of murder. Like the sixth section this section would allow the court to consider as a mitigating circumstances that the victim of the crime of murder against him or her had committed an act of domestic violence against the convicted person.

Commentary
Domestic Violence reduction is of great interest to me. My Domestic Violence Goal is: To have the US Department of Justice, Bureau of Justice Statistics contact the State of Indiana to ask why our Domestic Violence rates are much lower than any other state.

Representative Macer’s bill would be a step toward that goal of mine. Essential to reducing Domestic Violence is to acknowledge the demographic of perpetrators as well as those targetted and to provide services to both. Progress has been made federally through VAWA reauthorizations.

The 2006 VAWA reauthorization added this provision in Section 3, Grant Provisions:
‘‘(8) NONEXCLUSIVITY.—Nothing in this title shall be construed to prohibit male victims of domestic violence, dating violence, sexual assault, and stalking from receiving benefits and services under this title.”

This new provision in the 2013 VAWA reauthorization under Section 3, Grant Provisions, follows and qualifies the above listed paragraph on Nondiscrimination:
`(B) EXCEPTION – If sex segregation or sex-specific programming is necessary to the essential operation of a program, nothing in this paragraph shall prevent any such program or activity from consideration of an individual’s sex. In such circumstances, grantees may meet the requirements of this paragraph by providing comparable services to individuals who cannot be provided with the sex-segregated or sex-specific programming.

Note that the legal definition of discrimination includes providing a lower level of service. Thus, the “comparable services” clause in VAWA must be construed as providing similar services that do not in any way represent a lower or inferior level of service. In addition, most provisions in the 2013 VAWA reauthorization now use gender-neutral terms, e.g., “victims” instead of “women.”

In Indiana we do not have specific language in statute that requires providers receiving grants to be truthful about who are the perpetrators of Domestic Violence as well as those targetted. One provider, the Indiana Coalition Against Domestic Violence, has only recently started using some gender neutral language in printed materials that they distribute but overwhelmingly the ICADV still views female and male as synonymous with victim and perpetrator respectively.

A provision of this bill which elicits some objection is removing judicial discretion from ordering GPS monitoring for those found to have violated a DVPO. A benefit that I have seen in an actual court case I attended was when a man had been accused of violating a DVPO while he was on probation. However, records of the GPS tracking from the probation office indicated that he was not where he was alleged to have been violating the order. In that case it was to his benefit.

Domestic Violence is an unfortunate effect of combination of complex factors that must be addressed as an integrated system if it is truly to be ameliorated.

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2015 Indiana House Bill 1261 Termination of Parent-Child Relationship in Alleged Rape Cases

Indiana HB1261 has been introduced by Representative Slager. This bill would add a new section, IC 31-35-3.5, to Article 35 of the Family Law and Juvenile Law code under Title 31 which provides for the Termination of the Parent-Child Relationship. This new section would allow for the Termination of Parent-Child Relationship with an individual who committed an act of rape.

If a child was conceived as a result of an act of rape, the parent who is the victim of the act of rape may file a verified petition with the juvenile or probate court to terminate the parent-child relationship between the child and the alleged perpetrator of the act of rape. The verified petition must include three allegations; [1] that the alleged perpetrator committed an act of rape against the parent who filed the petition to terminate the parent-child relationship; [2] that the child was conceived as a result of the act of rape described under clause [1]; and [3] that the termination of the parent-child relationship between the alleged perpetrator and the child is in the best interests of the child.

There is no requirement that there be a conviction or admission of rape but instead there must be a showing by clear and convincing evidence that; [1] the alleged perpetrator committed an act of rape against the parent filing the petition; and [2] the child was conceived as a result of the act of rape. Satisfaction of those two requirements is prima facie evidence that termination of the parent-child relationship between the alleged perpetrator and the child is in the best interests of the child. That termination is in the best interest of the child may be refuted even if both other provisions are satisfied.

The court shall terminate the parent-child relationship if the court finds; [1] by clear and convincing evidence that the allegations in the petition are true; and [2] that termination of the parent-child relationship is in the best interests of the child. If the court does not find that all three conditions have been satisfied then the court shall dismiss the petition. The court may appoint a guardian ad litem [GAL], a court appointed special advocate [CASA]; or both a GAL and CASA for a child in a proceeding under this chapter.

Now that all seems well and good but here come my concerns and admonitions. First, is that there is no language addressing child support payments which are terminated along with parental rights. If a woman is willing to raise a child conceived as a result of rape that is one of the most laudable acts she could do. She shouldn’t be required to be solely financially responsible just because she doesn’t want to continue to interact with her rapist.

My second concern is the possibility for abuse of this statute. There have been well documented examples, including admissions by and criminal convictions, of false allegations of Domestic Violence to obtain free housing, other services, or to deprive the other parent of a parent-child relationship. Therefore, I would like to see a clause added that the alleged rape must have been reported to a law enforcement agency or medical provider within a reasonable time after the alleged rape that would precede knowledge of the pregnancy. The ‘clear and convincing’ standard, while better than the ‘preponderance of the evidence’ [51%] standard, is not as high as the ‘beyond a reasonable doubt’ standard. I believe the potential for abuse is a legitimate concern and that something in addition to the ‘clear and convincing’ standard, which is generally thought to be around 75% likely, needs to be added to this bill. The Innocence Project has been responsible for gaining the freedom of hundreds of men falsely convicted of rape under the 'beyond a reasonable doubt' standard.

By ensuring that a mother who chooses to raise a child on her own conceived by rape is not financially burdened and that a prior reporting provision be added to reduce potential for abuse I would support this legislation.

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Why the Indiana Court of Appeals rejected a proposal by therapist Theresa Slayton and the hazard of incompetent MHPs in child custody proceedings

The 19 February 2015 decision in Paternity of Snyder, M.S., v D.A., by the Indiana Court of Appeals held that the trial court erred when it ordered that Father could not identify himself as such to his daughter who was age six years at the time. This proscription, induced by a mental health professional, goes against public policy established in the state of Indiana.

Considered to be an essential goal of parenting time disputes is seeking an environment in which a child can have a well-founded relationship with each parent.[en1] This goal recognizes that the right of non-custodial parents to visit with their children is a sacred and precious privilege.[en1] The rights of non-custodial parents is not absolute and may be restricted as necessary to protect the welfare of the child. In paternity cases parenting time can be restricted if the court finds that would endanger the child’s physical health and well-being or significantly impair the child’s emotional development.[en2]

Although Father and Mother cohabitated for the first few months of Daughter’s life, Father relocated to Texas and had infrequent contact with Mother or Daughter. Father eventually establish his paternity of Daughter, was granted parenting time, paid child support, and, as part of a reunification plan with Daughter, had parenting time supervised by therapist Theresa Slayton.

Once Father established paternity he became Daughter’s birth parent and as such received certain rights and undertook legal obligations.[en3] Parental rights and responsibilities are considered so important that once paternity is established it may not be disestablished, unless fraud, duress, or a material mistake of fact is shown to have existed at the time the paternity affidavit was executed.[en4] I have recently written about rescinding paternity.

In this case, the record reveals that Father’s paternity was established, and a support order was entered. In addition, Father’s parenting time was initially restricted because of an allegation of Domestic Violence against Mother. Mother later withdrew her attempt to perpetuate the DV protective order. Following the trial court’s initial order, Father has exercised infrequent visitation that is supervised by therapist Theresa Slayton. Slayton devised a novel approach in an effort to coerce Father to exercise greater parenting time under her supervision.

During the modification hearing Slayton testified that she believes that Father has not “earned the title” of “dad” and that revealing this to Daughter would result in her “spending more time trying to figure out who everybody is at her age” which was six years at the time. Further Slayton felt that Father’s desire to inform his daughter of his status as her biological father should be used as leverage to induce him to engage her professional services for more frequent visits. The trial court apparently bought it. The Court of Appeals didn’t and correctly found that Slayton’s plan was not a legally sufficient basis for denying to a child the knowledge of who is his or her Father.

In reversing the trial court’s decision the Court of Appeals found that “[t]here is no evidence in the record suggesting how [Daughter's] physical health or emotional development would be impaired by telling [her] that Father is her biological father.”[en5] And further “[a]s such a finding is required by statute, the trial court erred when it denied Father’s request to tell [Daughter] he is her father, and we accordingly reverse that portion of the trial court’s decision.”

While this panel of the Indiana Court of Appeals correctly found that Slayton’s plan and the trial court’s subsequent order were contradictory to law it did not address that it was wrong. Slayton’s plan to use the child as a hostage or leverage to compel a desirable performance out of Father is abusive to the child and evocative of decadence in the MHP field.

Slayton’s plan is ethically questionable as it holds the mental well-being of the child in limbo contingent upon a quid-pro-quo in which Slayton stood to financially benefit. This is not to say that all treatment plans devised by MHPs are unethical because the plan designer would stand to profit. Clearly I profit from the use of my services but I always design my plans to terminate as quickly as practical so I may assist other parents or attorneys. However, parents, practitioners, and courts should view any plan related to ongoing services askew and demand compelling evidence supporting the plan. Overburdened courts rely heavily on the input of ancillary witnesses. If the demeanor of the court is not reticence to accept such input then it is incumbent upon parents to expose these pitfalls.

notes
[1] Hatmaker v. Hatmaker, 998 N.E.2d 758, 761 (Ind. Ct. App. 2013) (quoting Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct. App. 2003)).
[2] Indiana Code § 31-14-14-1(a). Although the statute uses the term ‘might’ reviewing courts have interpreted the statute to require a finding that the child “would” be endangered. D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct. App. 2009)
[3] Ind. Code § 31-9-2-10 and Ind. Code § 16-37-2-2.1.
[4] In re Paternity of T.M., 953 N.E.2d 96, 98 (Ind. Ct. App. 2011), trans. denied; See also Ind. Code § 16-37-2-2.1(l).
[5] See Ind. Code § 31-14-14-1(a); Farrell v. Littell, 790 N.E.2d 612 (Ind. Ct. App. 2003) (statute requires specific finding of physical endangerment or emotional impairment prior to imposing restriction).

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2015 Indiana House Bill 1132 - Juvenile Justice Evaluation Commission

Indiana HB1132 has been introduced by Representative Cherrish Pryor to create the Juvenile Justice Evaluation Commission. The first section of this bill would amend IC 2-5-2.1-1 by adding the Juvenile Justice Evaluation Commission to the list of committees established under IC 2-5 which also include the Youth Advisory Council [IC 2-5-29] and the Commission on Improving the Status of Children in Indiana [IC 2-5-36]. The Juvenile Justice Evaluation Commission would be established under a new section, IC 2-5-37, which is the second section of the bill.

The purpose of the Juvenile Justice Evaluation Commission is to evaluate the juvenile justice laws of Indiana and make recommendations to the Indiana General Assembly for modification of the juvenile justice laws, if the commission determines that changes are necessary or appropriate.

The progenitor for the proposed commission is the Children's Policy and Law Initiative. This is a collective of individuals, policy-makers, and various stakeholders associated with juvenile justice and well-being matters. The commission would be similar in structure and process to the Commission on Improving the Status of Children in Indiana but is attuned to the etiology of children entering the juvenile justice system.

http://www.cpliofindiana.org/ As will be possible, and as I have done with the Commission on Improving the Status of Children in Indiana, the proposed Juvenile Justice Evaluation Commission will provide opportunities for members of the public to provide their input. Although not provided for in the rubric of the commissions, attendance at the commission meetings provides the atmosphere for informal discussion on relevant issues.

I laud Representative Pryor for her past efforts to ameliorate the adversities youth in Indiana face and support this legislation which she has proposed.

The commission shall submit a final report of the results of its study to the legislative council before November 1, 2016. The sunset clause in this bill provides that this chapter expires December 31, 2016.

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