Monday, April 13, 2015

Getting M.C. Hammered by Incompetent Attorney in Child Custody Proceeding: Appealing a Parenting Time and Custody Order

Occasionally I read an opinion from the Indiana Court of Appeals or the Supreme Court that I set aside to write about at some future time. Recently my ire was raised by reading someone’s bitch rant on Facebook, all the “likes,” and the platitudes laid upon them in the comments that followed. That person’s unwillingness to accept responsibility for himself and the corresponding assessed by the commenters which extenuate attributions to everyone except to whom it should be properly leveled against was sickening. So, in a manner of speaking, here is my responsive therapeutic rant precipitated by the audacity of a parent a year ago.

When someone, through their own neglect, basically throws away all their advantages by making poor decisions in selecting their representatives, advisors, and handlers I call that getting M.C. Hammered. For those of you not well acquainted with 1980’s pop culture, M.C. Hammer was a video music superstar whose hit U Can’t Touch This catapulted him to stardom and wealth. But it was his naivety and just plain idiocy that resulted in him being in financial ruin and basically having no assets by 1996 as his once estimated $33 million in wealth declined to a $13 million debt level. As he put it to Ebony magazine, "My priorities were out of order."

I use his situation because it is congruous with so many child custody and parenting time cases where a parent’s priorities are out of order. You have likely at some point observed that an individual “doesn’t appreciate” or “takes for granted” the favours that have been bestowed upon him or her by way of family money or reputation. These people didn’t struggle for or “deserve” what they have and thus they have a tendency to neglect their obligation to foster and maintain their good fortune. Like M.C. Hammer’s fortunes, which arrived through being handled by others, so to does custody of one’s child arrive. Either bias, effective representation, or lack of an adversarial process can be the contributing factor which results in a parent obtaining custody. Thus, these parents may not have experienced the personal commitment and struggle dedicated to the actualized parent-child relationship and may “take for granted” its endurance and be remiss in properly tending to it.

Today I use the case of the Paternity of R.M., Chivers v Marquardt in which mother essentially tossed away custody but found one of the most incompetent attorneys to tender her purported appeal of the trial court’s grant of Father’s Petition to Modify Custody. I address the issues of Mother’s misgivings and her attorney’s incompetence separately.

The Courtney Love of Parents

Mother asks three questions of the Court;
1. Did the trial court abuse its discretion by modifying custody?
2. Did the trial court err by failing to make required findings to support its decision to restrict Mother’s parenting time to four supervised hours per week?
3. Did the trial court abuse its discretion by denying Mother’s request to submit Child’s counseling records following the close of evidence?
No, no, and NO are my initial thoughts.

Mother in the immediate case is a classy piece of work. Mother gave birth to Child in December 2001. Paternity was established in Father in January 2005, and Mother was awarded sole legal and physical custody of Child. Appears typical thus far but, on January 12, 2011, Father filed a petition to modify custody, support, and parenting time, in which he requested sole legal and physical custody of Child.

About a year later, on February 16, 2012, Mother overdosed on Xanax. Although Mother claims that the overdose was accidental and denies any suicidal intent, there is evidence in the record indicating that on the day of her overdose, Mother called her father and told him that he would not see her again. On February 17, 2012, Father filed a petition for emergency temporary custody of Child based upon Mother’s sister reporting that as a result of a telephone conversation she had with Mother, she feared that Mother would harm herself or Child. A hearing was held before a judge pro tempore on the same day the petition was filed. Father appeared at the hearing with counsel, and although Mother did not appear, counsel appeared on her behalf. At the conclusion of the hearing, the trial court awarded emergency temporary custody to Father.

Now for a little background on Mother. In 2009, she began treatment with a psychiatrist, who diagnosed her with an anxiety disorder and panic attacks, then prescribed .5 milligrams of Xanax to be taken twice daily as needed. Mother’s apparent disquietude appears to be more of a ruse than a legitimate condition. On the day emergency responders transported her to a hospital Mother apparently told medical personnel that she had been prescribed the Xanax just three days earlier, apparently mistaking days for years. She also said that she “only takes Xanax once or twice a month” and that she “has various bottles around the house that have a little bit of Xanax in each of them, so she is never lacking for pills to take when she needs them.” If you weren’t aware of the signs of pill poppers you are familiar with some now.

The trial court held a de novo hearing on the issue of temporary custody on 08 March 2012, at which Mother and Father both appeared in person and with counsel. Following the hearing, the trial court ordered that Father retain temporary custody of Child and that Mother have weekly four hour periods of supervised parenting time at a local facility called Family Connections. The order specifically provided that Mother’s parenting time was “subject to Family Connections’ reasonable conditions and rules for supervised parenting time” and that “[b]oth parties shall fully cooperate with the parenting time supervisor.”

Supervised parenting time did not go well. Mother and Child argued about phone calls. Child stated “I don’t want to call you. Dad makes me!”. The parenting time supervisor intervened and stated that they were not to talk about phone calls any longer. Child also stated that Mother had intentionally overdosed and told Mother “I don’t want to live with you. Why do you keep trying to get me? I don’t want to live with you. I like it at dad’s house. I’m healthy at dad’s house. I’m happy at dad’s house. I don’t get sick anymore.” [emphasis added] Mother became angry and defensive, and the parenting time supervisor removed Child from the room. While Child was outside the room Mother was provided with ideas on how to redirect Child to more positive subjects. Mother was told that if she became combative, defensive, or angry with Child, the visit would be terminated. Mother stated that she understood, but that she was extremely angry with Child. Child was then brought back into the room whereupon Mother was distant and gave curt responses to Child for the rest of the visit. Sounds as though someone was pouting in response to a reprimand.

On the next visit when Child was brought into the room, Mother was writing in a notebook and did not acknowledge Child. Child then sat down and began reading a book. When Mother asked Child what she was reading, Child responded “Nothing.” Mother then told the parenting time supervisor that she was “not going to engage [Child] in conversation. I’m not going to make her talk. It’s obvious she doesn’t want to see me.” The parenting time supervisor responded that the visit was over and took Child back to Father. The entire visit lasted seven minutes. To requite the Childs’ disinterest is a stellar achievement in adroit parenting.

Upon next visit when the parenting time supervisor went to get Child from the waiting room, Child was visibly distressed. Child was curled up in a fetal position, shaking, and clutching a book so tightly that her knuckles were white. When the parenting time supervisor asked Child what was wrong, she responded that she did not want to see Mother. The visit was cancelled due to Child’s emotional state.

Dr. Ross, the custody evaluator, testified at the hearing and his custody evaluation was admitted into evidence. Dr. Ross had spoken to the parties and Child both before and after Child was placed in Father’s custody on a temporary basis. Child told Dr. Ross that there were frequent arguments in Mother’s home and that she had observed Mother taking pills. Child reported that on one occasion the mother of a friend had to drive Child home from a music lesson because Mother had taken medication. She also stated that Mother often had difficulty waking up in the morning, which caused Child to be late to school several times. Dr. Ross noted that Child had told her counselor that she did not feel safe with Mother because Mother “takes a lot of medicine” and “acts funny.” Well there is some caring and nurturing behaviour.

A police report indicated that Mother had caused a disturbance at her former attorney’s office by “yelling and throwing things.” Additionally, Child’s elementary school teacher reported that Mother had “verbally attacked” her at a parent-teacher conference in the presence of Child and many other students and parents. On another occasion, around the time Father was awarded temporary custody, Mother tried to pick up Child from school. By her own admission, Mother became “extremely angry and out of control” when told she could not leave with Child.

Clearly this is a person with a violent predisposition who tries to use coercion, force, or violence to get her way. Obviously she has a preference for popping pills rather than tending to her child who ranks quite low on Mother’s priority scale. Her presumption that because she gave birth to Child and is therefore entitled to retain custody in perpetuity was misplaced. More disturbing though is that instead of discerning the court’s implications she chose to assess blame elsewhere and attack the very foundation of the ruling that would likely have helped guide her toward a positive parent-child relationship instead of the negative one she created. Although misguided in her quest she no doubt gave as much care and consideration to selecting a competent attorney to undo the order in which she perceived was used to inculpate her as she does tending to the well-being of her child.

Claiming to be an Attorney

One can say “I am an attorney” and implicit in that utterance is that the speaker is competent in the field of law. Likewise, I may say “I wrote the brief which resulted in this published opinion” which carries the same implication. I am competent in the field of law, particularly child custody and support appeals. Yvonne M. Spillers, however, is not competent in the field of law, particularly child custody and support appeals, although a licensed attorney in good standing. Conversely, I have never been enrolled in law school, nor passed the bar, and am not an attorney.

When I conduct the initial interview process of my prospective clients I ask a series of questions to reveal their perceptions and thought processes. One question I ask is this; “If you had a steam radiator heating system that sprung a leak who would you call to repair it?”. Sometimes I get the response of “an HVAC repairman” but most often it is “a plumber.” This demonstrates a preference for form over substance. Understand that the Indiana State Bird is not a Cardinal. Instead think that the bird is about eight inches in length. It has a black mask on its face, a crest on its head and a short cone-shaped bill. The mask on the female is usually lighter than the mask on the male. They are known for their bright red color but only the male is red. The females is a dull brown or olive color with dull red on her wings and tail. That describes the Indiana State Bird to which the label “Cardinal” has -- as a means of shorthand -- been applied. But those are physical attributes. What about one we call a “school teacher”? This is someone who facilitates learning. Learning requires comprehension. Thus, a school teacher is “one who is competent in helping children understand the presented material.” We know however that not all “school teachers” are proficient in helping children understand the presented material. So, this placeholder or label is sometimes misapplied. Like the corporeal descriptors applied to a cardinal the descriptors of a school teacher fare also delineated. However, for school teachers these are abstract and dependent upon an action and outcome. Similarly, people who have been inculcated by labels would likely respond to my query by stating “plumber” rather than “someone proficient in repairing steam radiator heating systems.”

Mother in this case made a fatal error in choosing “an attorney” for her appeal. I begin with what the Indiana Court of Appeals had to say about Yvonne M. Spillers, whom I will politely say masquerades as an attorney. In dissecting the Court’s opinion I find numerous errors implicit and clearly noted by the Court in quotations.

On 10 September 2013, the trial court entered an order awarding custody to Father and ordering Mother to participate in therapeutic supervised parenting time for a period of six months. The trial court also scheduled a status hearing for 10 March 2014, at which time it would “determine a permanent order for parenting time.” Mother appealed following that hearing.

Mother first argued that the trial court relied upon isolated incidents which do not warrant modification under IC 31-14-13-2 and that the Court should examine the evidence and instead “assign greater weight” to other evidence in Mother’s favor. Is this a joke? An attorney actually asked the Court to “assign greater weight” to other evidence. Well here is a newsflash - “We will not reweigh the evidence or judge the credibility of witnesses.” Kondamuri v. Kondamuri, 852 N.E.2d 939, 945–46 (Ind. Ct. App. 2006) See also Harrington v. State, (1984) Ind.App., 466 N.E.2d 1379, 1381. Shall I provide something older to establish that this is a long held standard?

Mother also argued that she should have retained custody because Father created the conflict and should not benefit by it. But straight from the opinion is this. “It appears that much of Mother’s argument is based on the unsupported proposition that when Family Connections suspended Mother’s supervised parenting time and prevented Mother from discussing certain subjects deemed inappropriate for Child, it was ‘follow[ing] the direction of the Father[.]’ Appellant’s Brief at 13. There is simply no evidence to support this claim.”

The Court goes on, “In further support of her claim that Father committed misconduct, Mother notes that Father took Child to Disneyland shortly after he was awarded temporary custody and that Father spent a substantial percentage of his income on attorney fees and other litigation expenses related to this matter. The relevance of this information to Mother’s claim of misconduct is not readily apparent.” Hello Ms. Spillers, it is called cogent reasoning -- your evidence must support your claim.

The mindless dribble continues. The 10 September 2013 parenting time order from which Mother has appealed specifically provides that it would be in effect for six months. The order provided further that a status hearing would be held on 10 March 2014, at which time the court would “determine a permanent order for parenting time.” The parties agree that this temporary parenting time order was superseded by a permanent order entered on 27 March 2014. Because the parenting time order set forth in the trial court’s 10 September 2013 order expired by its own terms on 27 March 2014 it is now moot. Mother should have filed an interlocutory appeal by 26 April 2014 if she didn’t like the 27 March 2014 order. Here is something else that is longstanding and understood in the legal community; Temporary orders expire upon the issuance of a permanent order. To appeal an expired order is idiocy.

Next is Mother’s continuation of stupefying arguments. In this hollow disputation Mother argues that the trial court abused its discretion by excluding Child’s counseling records. That is contrary to the record though. The trial court did not exclude the counseling records, as they were never offered into evidence. Instead, the trial court declined Mother’s request to submit the counseling records after the conclusion of the hearing. Mother cited no legal authority whatsoever to support the argument that the trial court’s decision in this regard was error. Her argument is therefore waived for failure to make a cogent argument.

Finally, the Court’s ending rebuke in the text of the decision includes “Mother makes a number of additional arguments that are difficult to understand and, at best, tangentially related to” the argument; and, “These arguments are too poorly developed to be fully understood and Mother cites no authority to support them.” Next I provide the Court’s various reprobations of Mother’s counsel.

“At the outset, we note that a number of deficiencies in Mother’s statement of the facts have significantly hampered our review of this matter. For example, Mother often fails to support her factual assertions with citations to the record and relies upon evidence and testimony not favorable to the judgment. See Ind. Appellate Rule 46(A)(6) (providing that a statement of facts “shall be supported by page references to the Record on Appeal or Appendix” and “shall be stated in accordance with the standard of review appropriate to the judgment or order being appealed”); Green v. Green, 843 N.E.2d 23, 26 (Ind. Ct. App. 2006) (explaining that when reviewing custody modification decisions, this court will “consider only the evidence most favorable to the judgment and any reasonable inferences from that evidence”). As a result of these deficiencies, Father has filed a motion to strike portions of Mother’s brief. Although we would be within our discretion to strike portions of Mother’s statement of the facts, we decline to do so in this case.”

“The parties have not provided us with a transcript of the February 17, 2012 hearing. Mother has included in her Appellant’s Appendix a single page that she asserts was taken from the transcript of that hearing. Due to the lack of a title page or certification from the trial court reporter, we are unable to confirm whether the excerpt was in fact taken from the transcript of that hearing. Moreover, the excerpt begins and ends mid-sentence, and the speaker is never identified. Thus, its import and relevance is difficult to discern.”

“Again, the parties have not provided us with a transcript of this hearing. Mother has included in her Appellant’s Appendix various pages purportedly taken from the transcript of the March 8, 2012 hearing, but she has again failed to include a title page or certification from the trial court reporter. Additionally, it is often unclear who is speaking, and many undoubtedly relevant portions of the hearing have been omitted.”

“Mother complains that the March 27, 2014 order suffers from the same deficiencies as the previous temporary order. We note, however, that Mother has apparently not appealed that order.”

“The only authority Mother cites in this section of her brief is a local rule providing that “[i]f a case pending before the Court involves parenting time issues, the Indiana Parenting Time Guidelines require mediation unless otherwise ordered by the Court.” Allen County Local Rule 733. According to Mother, the trial court violated this rule by waiving mediation in this case. We find Mother’s argument puzzling, given that the rule specifically acknowledges that trial courts may order that mediation be waived.”

“We also note that in her reply brief, Mother argues for the first time that “the totality of the circumstances in this case yields a manifest abuse of discretion by the trial court.” Reply Brief at 4. Because Mother did not raise this issue in her principal appellate brief, it is waived. See Showley v. Kelsey, 991 N.E.2d 1017, 1021 n.2 (Ind. Ct. App. 2013) (noting that “it is well settled that grounds for error may only be framed in an appellant’s initial brief and if addressed for the first time in the reply brief, they are waived”), trans. denied. In any event, we note that under this issue heading, Mother generally rehashes the arguments set forth in her principal appellate brief under the issue heading relating to the “exclusion” of Child’s counseling records. Although Mother has added a handful of case citations, the effort comes too late and, in any event, is not enough to render her arguments cogent.”

In the words of David Spade in the movie Tommy Boy, “It's called reading! Top to bottom, left to right... a group of words together is called a sentence. Take Tylenol for any headaches... Midol for any cramps.” Xanax just to zone out with mom. Spade’s statement, which must have been flowing through the minds of the justices, would have been apropos from this panel to Mother.

But maybe it was just that Ms. Spillers worked on the appeal while at Mother’s home and she mistakenly thought that some of those pill bottles strewn about the house were Pez dispensers, the contents of which she compulsively consumed. Anything short of that and Ms. Spillers should immediately withdraw herself from the roll of attorneys and seek employment in a field more suited to her intellectual capabilities such as being a seeing eye dog. That may end up getting someone killed though.

Spiller’s ridiculous circuitous brief was likely an attempt to appease the irrational contentions of Mother but still, it is ultimately the attorney who signs his or her name to the brief and is responsible for its content. I have seen some poorly written briefs in my years and often encounter arguments that are flagrantly lacking in cogent reasoning but rarely -- which is a good thing -- do I come across a decision based upon a brief like Spiller’s that, quite bluntly, sucks.

The key to improving the parent-child relationship is not found in someone pretending to be an appellate attorney or any other representative, advisor, or handler but in the parent himself or herself. Appeals are generally initiated by parents who reject the maxim that they are responsible for their state of being. Instead they continue seeking someone else to take responsibility for what they should have already been doing. It is imperative that parents get proper counsel when considering an appeal. I have counseled more parents out of wasting their resources and deflecting responsibility from themselves and to instead focus on the proper modification -- their perceptions and actions.

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