In my last posting I elucidated formulating a response to a report of child abuse or neglect. Like there, when confronted with a Motion to Restrict, Terminate or have Supervised Parenting Time a response should be formulated while in a calm, rational state of mind. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Step one is to always stay calm. Easier said than done you may think. But think of it this way. Your child has not just fallen into a river. There is no need to activate your limbic system, increase your heart rate, cut off blood to the intestines and rush to aid your child. When you get the Motion the court is a stop light and you are sitting there in neutral waiting. It’s going to be a long light. You are wasting energy and will burn yourself out if you sit there with the pedal to the floor at 6000 RPMs. Instead, you want to shift your response from originating in the Amygdala [emotional] to the Cerebral Cortex [logical thinking].
Once you have settled yourself somewhere on the mental spectrum between pensive thought and nirvana, review the allegations. Next review the relevant statutory provisions. The court is statutorily bound when considering restricting parenting time. Also, familiarize yourself with the Indiana Trial Rules. Particularly TR52(a) - Findings and Conclusions.[fn1]
In the case at hand the attorney for Mother filed the Motion concurrent with the ongoing CPS investigation. In Mother’s purported June 20, 2019 motion to cease parenting time or for supervised parenting time, she alleges, among other things, that father failed to cooperate with the CPS investigation. She bases her motion upon allegations made to CPS and that “Your children are afraid of you and do not want to go to your house.”
Mother fails to grasp the meaning of the term “cooperate” though. Father voluntarily met with the CPS caseworker assigned to investigate the malicious allegations. However, he did first question the caseworker as to who made the report and what could be done against that person for making a false report. The caseworker told Father that she could not disclose who made the report but attorney Niehaus later confirmed that it was the children’s pediatrician Dr. Meredith Potrzebowski, a member of Community Physicians Network. It was her practice to which Father made a complaint to the Medical Licensing Board of Indiana last year for failing to comply with statutory requirements relating to the children’s medical records.
On Friday June 21, 2019 Father spoke with Shannon Pickering at DCS who is the supervisor of Channing Reed, the case worker who did the investigation. Pickering stated to Father that this case will be closed on Wednesday June 26, 2019 as “unsubstantiated.”
Mother’s Motion was based upon two prongs. The first, she alleges that the children do not want to go to Father’s house. The Indiana Parenting Time Guidelines [IPTG] at Section I(C)(1) states that the children should not be allowed to decide parenting time. This is because it can put them in the middle of conflict. The Commentary to this section specifically states that parenting time may not be justifiably denied because, “The child unjustifiably hesitates or refuses to go.” Mother has unilaterally terminated Father’s parenting time and also insists that Father enroll in a parenting class before parenting time may resume. The same Commentary additionally provides that parenting time may not be justifiably denied because, “The other parent failed to meet preconditions established by the custodial parent.”
Her second basis for her Motion is the unsubstantiated abuse and neglect allegations apparently made by the children’s pediatrician in retaliation for Father’s complaint against her last year. These unsubstantiated allegations do not rise to the level of that which would clearly show that Father’s continued parenting time would endanger the children. That is the standard for restricting parenting time. I will repeat it - would clearly show that Father’s continued parenting time would endanger the children.
Restriction of parenting time is governed by Indiana Code 31-17-4-1(a), which provides: A parent not granted custody of the child is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time by the noncustodial parent might endanger the child’s physical health or significantly impair the child’s emotional development. Even though the statute uses the word “might,” the Indiana Court of Appeals has previously interpreted the statute’s language to mean that a trial court may not restrict parenting time unless that parenting time “would” endanger the child’s physical health or emotional development.
D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct. App. 2009).
Note that, under this statutory framework, parenting time may not be restricted until “after a hearing”.
In making a ruling on this matter a court must make a specific finding. That is, a general decision finding in favour of the Movant [person seeking to restrict parenting time] is not acceptable. "By 'its plain language,' [the statute] requires a court to make a specific finding 'of physical endangerment or emotional impairment prior to placing a restriction on the noncustodial parent's visitation.'" Farrell v. Littell, 790 N.E.2d 612, 616 (Ind. Ct. App. 2003) (interpreting Ind. Code § 31-14-14-1) (quoting In re Paternity of V.A.M.C., 768 N.E.2d 990, 1001 (Ind. Ct. App. 2002).
In all parenting time hearings I suggest that parties request TR52(a) - Findings and Conclusions. What this does is give the parties an opportunity to brief the court on the facts and law of the hearing. It also creates a lower standard for a reviewing court [fn2] to reverse the judgment unlike the general judgment standard[fn3] which requires deference to the trial court and must be supported on any theory.
Mother has, by basing her motion upon allegations which were found by CPS to be “unsubstantiated”, clearly failed to demonstrate a prima facia showing that continuing Father’s parenting time “might” or, more importantly, “would” endanger the children’s physical health or emotional development.
Finally, I note that Father did not receive a copy of the purported filing by Mother but was only given a synopsis from her by email in which she sought to amicably reach a settlement agreement prior to hearing. I doubt that any agreement will happen.
For all of these reasons it is apparent to me that Mother’s motion will be denied by the court without hearing. Father plans to file a response soon as he calmly reviews the sparse information that was given to him and marshals relevant evidence.
Footnotes
[1] Rule 52. Findings by the Court
(A) Effect. In the case of issues tried upon the facts without a jury or with an advisory jury, the court shall determine the facts and judgment shall be entered thereon pursuant to Rule 58. Upon its own motion, or the written request of any party filed with the court prior to the admission of evidence, the court in all actions tried upon the facts without a jury or with an advisory jury (except as provided in Rule 39[D]) shall find the facts specially and state its conclusions thereon. The court shall make special findings of fact without request
(1) in granting or refusing preliminary injunctions;
(2) in any review of actions by an administrative agency; and
(3) in any other case provided by these rules or by statute.
On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a master, and answers to questions or interrogatories submitted to the jury shall be considered as findings of the court to the extent that the court adopts them. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions appear therein. Findings of fact are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(B) (dismissal) and 59(J) (motion to correct errors).
[2] Where the trial court enters findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), our standard of review is well-settled. First, we determine whether the evidence supports the findings and second, whether the findings support the judgment. Kwolek v. Swickard, 944 N.E.2d 564, 570 (Ind. Ct. App. 2011), trans. denied. In deference to the trial court’s proximity to the issues, we disturb the judgment only when there is no evidence supporting the findings or the findings fail to support the judgment. Id. We do not reweigh the evidence, but consider only the evidence favorable to the trial court’s judgment. Id. Challengers must establish that the trial court’s findings are clearly erroneous. Id. Findings are clearly erroneous when a review of the record leaves us firmly convinced a mistake has been made. Id. However, while we defer substantially to findings of fact, we do not do so to conclusions of law. Id. Additionally, a judgment is erroneous under Indiana Trial Rule 52, if it relies on an incorrect legal standard. Id. We evaluate questions of law de novo and owe no deference to a trial court’s determination of such questions. Id.
[3] Where there are no specific findings, a general judgment standard applies and we may affirm on any legal theory supported by the evidence adduced at trial.” Trust No. 6011, Lake Cty. Trust Co. v. Heil’s Haven Cond. Homeowners Ass’n, 967 N.E.2d 6, 14 (Ind. Ct. App. 2012).
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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Tuesday, June 25, 2019
Motion to Restrict, Terminate or have Supervised Parenting Time - Indiana Code 31-17-4-1(a)
Monday, June 24, 2019
Responding to a CPS Child Abuse complaint and identifying who reported
Receiving notice from the Department of Child Services [DCS] that a report has been filed alleging that you have abused or neglected your child can evoke anxiety in even the most mentally tough individuals. Knowing the laws and preparing for the interview can reduce this strain and ensure a better outcome for you and your child. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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I was contacted recently by a father who had received such a notice and was clearly anxious. In counseling we discussed the nature of the allegations and his responses. Interestingly, a substantial portion of the allegations were stale; they related to situations occurring five to ten years earlier.
The father agreed to meet the caseworker to discuss the allegations. As there had been some recent activity by him against ancillary parties to the custody case between he and Mother we suspected that it was a retaliatory complaint.
During the interview Father remained calm and poised, answering questions as presented. But first he had a few questions of his own. Particularly, he asked if the caseworker knew who made the complaint and if there were any actions that could be taken against somebody for making a malicious report. The answers were that the caseworker did know who made the report but could not disclose because of confidentiality requirements.
Confidentiality can be broken though which I will get around to revealing.
The father was told that the county prosecutor can take action against individuals making false or malicious reports of child abuse of neglect to CPS. In this case the prosecutor may be asked to do so.
In the custody case the parents share joint legal custody. The child’s primary pediatrician is Dr. Meredith Potrzebowski, a member of Community Physicians Network, who has been so for three years. This doctor has been reluctant, at best, to comply with the law[fn1] allowing father access to the child’s medical records.
Due to the obstructive nature of Dr. Meredith Potrzebowski toward Father on multiple occasions he filed a complaint with the Medical Licensing Board of Indiana against her records keeper, Keri Fisher, R.N., last year. The crux of his complaint was that he sought clarification as to dosage levels prescribed for the children when mother provided an ambiguous response. Mother is the former IPS school teacher who testified that there are 56 weeks in a year. Nurse Fisher replied, "legally we are only allowed to discuss (daughter's) medical care with her mother." When pressed by Father to comply with the law by providing records or he would make a complaint Fisher ignored the request.
The Office of the Attorney General of Indiana released its conclusions in this matter [18-CP-56319] on 26 April 2019. This was just three days before the complaint to DCS was filed by Dr. Potrzebowski. The AG concluded, "We reviewed all available evidence and submitted our findings to the governing Board. It was determined that we cannot conclusively prove that a violation of the statutes and rules governing licensed professionals has occurred." [emphasis added]. The AG didn’t state that there wasn’t a violation but basically said there was no smoking gun that made it a clear cut winnable case.
Going back to the current CPS case, recall that I said the allegations were mostly stale. In thinking about the allegations, who would have known that years ago the father had moved business materials into the home and that it filled the living room for awhile? Who would have known that the children were not allowed to have free access to all foods in the house?
Logically, one could certainly speculate that someone who had regular interactions with the children and may have regularly questioned them about their home environment or other factors which may contribute to allergies would know this history.
Father and I suspected that it was the children’s pediatrician, Dr. Meredith Potrzebowski. We didn’t have to wait much time for confirmation. In an email from attorney Robin Niehaus, which I received shortly after our discussion of who made the malicious allegations, she stated, “It is my understanding the children’s pediatrician turned in a complaint to CPS”. Well it doesn’t take a big logical leap to conclude that Potrzebowski made a false, malicious report to CPS in retaliation for Father’s valid but not conclusively provable complaint to the Medical Licensing Board of Indiana.
Three days after the Attorney General makes a decision to not prosecute comes an allegation to CPS from a doctor who got the information up to three years earlier. Clearly sounds like a vindictive abuse of the system by Dr. Meredith Potrzebowski to me.
Neihaus additionally stated that it was also her understanding that Father had refused to cooperate with the CPS investigation.
I found it interesting that Neihaus was told that the father had not cooperated, but I do not know to whom she spoke. Shannon Pickering, the supervisor of the case worker who conducted the investigation, indicated that Father did cooperate and that by Wednesday of this week the case should be closed as “unsubstantiated”. However, she did state that father demanded that the investigator obtain a warrant/court order to enter and inspect the house.
Fourth Amendment rights apply to CPS investigators just as they do law enforcement agencies. If a police officer knocks on your door and says, “someone told us you were dealing drugs out of your home ten years so I just want to come in and have a look around” then you are well within your rights to refuse. That refusal may not be considered anything other than a neutral response and cannot be the basis for probable cause. Similarly, Ms. Pickering stated that it is not considered "non-cooperation" for a parent to not allow an impromptu inspection.
If you are contacted by CPS and told that an allegation of abuse or neglect has been made against you the first thing to do is stay calm. Review the allegations. Review the relevant statutory provisions. Keep in mind that the case-worker is performing a job to protect children and doesn’t know you until you make yourself known. So, be polite and cooperative. Cooperative can be as simple as returning a phone call and stating that you will make yourself available to comply with any court order related to the investigation. Cull clues from the allegations that may lead you to the identity of who made the report to CPS. This can help you formulate any responses you may make.
Finally, have confidence in the system. This father was anxious and was sure he was going to “get screwed” by CPS. By following the advice I just provided we were able to make a likely conclusion as to who made the report [which was later confirmed by attorney Neihaus] and formulate a plan based upon that conclusion. At the onset of the interview he immediately asked about the repercussions for a doctor making a false, malicious allegation in response to a complaint by him against the doctor to a regulatory agency. That set the tone for the investigation. As I learned late last week our suspicion was apparently correct. On Friday I was then told the case would be closed two days from now as “unsubstantiated.”
Footnotes
[1] Indiana Code 16-39-1-7 stipulates the circumstances under which parenting time may be restricted. It provides as follows;
(a) Except as provided in subsection (b), a custodial parent and a noncustodial parent of a child have equal access to the parents' child's health records.
(b) A provider may not allow a noncustodial parent access to the child's health records if:
(1) a court has issued an order that limits the noncustodial parent's access to the child's health records; and
(2) the provider has received a copy of the court order or has actual knowledge of the court order.
(c) If a provider incurs additional expense by allowing a parent equal access to health records under this section, the provider may require the parent requesting the equal access to pay a fee to cover the cost of the additional expense.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Tuesday, June 11, 2019
Instilling respect in your child and effective discipline
When hearing about respect my thoughts go back to early childhood in which I saw a poster that read, “To get respect, show respect”. Although that advisory axiom is well reasoned I feel it is insufficient or ambiguous. Rather, I would say, “To get respect, show respect for yourself then others”. It is my proposition that the lack of regard for respectful behaviours which proliferate through our society is due to a lack of respect for self.
To elucidate I will recount a recent event involving a neighbor and her son. Through this anecdote you will observe the missed opportunities of this parent for instilling the respect in her child which she desperately seeks. More important though is that you will notice that she actually inculcates her son with a disrespectful attitude. This is due largely to her lack of respect for herself. First, I will give you some relevant background information for you to draw upon to give these events adequate context.
I ride bicycles frequently and have numerous ones about the house, sidewalk, deck, and yard - two dozen or so in total. There is apparently about the same number of children around here within a stone’s throw.
It’s no surprise that some children have asked to use my air pump, a wrench, or for help with repairing a bicycle. As these requests increased I simply placed those items on my porch and told the children they were welcome to use them. Of course such usage was contingent upon the standard rule when borrowing something.
Recite that to yourself now. If you don’t know it then read on for sure.
It takes a village to raise a child
Or does it?
My neighbor’s son was aware of this rule about borrowing items which is part of the social contract of the members of most societies. His awareness of rules is not concurrent with compliance though which led to her seeking my assistance the week before school concluded for this year. On one evening she came out to where children, including her son, and I were playing and explained that it takes her from 8:00 pm to midnight to get the children inside, ready for bed and in bed each night. She then told me that if her children are out after 8:00 that I am to get them inside. Or to come tell her.
The incident
It was two days later that he was on my porch getting the air pump in the mid-afternoon. The next morning as I walked past their house I stepped over my pump which had been discarded on the sidewalk.
Later in the day I saw the boy and asked him what is the rule about borrowing items. His reply, “It wasn’t my fault.” Not satisfied with the reply I repeated my question. He then stated that he didn’t know. Numerous other people I have spoken with about that rule have stated it verbatim. This included other children. Apparently this boy knew enough of it to attempt to defend himself or diffuse blame by stating it wasn’t his fault.
I then told him that because he no longer knows it that he just won’t be able to take stuff any longer this year. He then proceeded to say that he didn’t care, he can get another one, that his mom made him leave it on the sidewalk and whatever else as he was walking away. I then told him to stop sassing me which was followed by some other insolent comment of his. With that I told him not to talk to me for the remainder of the year. My feeling was that if he wanted something again we would be going through the same argument. But, if he wanted to take some time to ruminate on the issue and then write something demonstrating contrition then we could discuss re-establishing the privilege of borrowing things from me at will.
Mom steps in
Later in the afternoon after his mother returned home from work she came marching over to my house and stood out on the sidewalk and yelled, “Hey Stuart! What is this about you grounding my son for a year?” As I started to explain that he had borrowed the bicycle pump and then let it be on the sidewalk for a full day afterward she interrupted by barking that her son is only seven years of age, that its a year, and that I cannot tell her child that.
I attempted to counter her contentions, particularly that her son has a right to borrow and not return my items, but she walked away continuing to talk over me by furthering her tirade and insults. Sound familiar?
As she got back to her yard I unloaded on her with my typical manner of dealing with irritants. I told her, “Goodbye!” repeated it and, as she continued to sass me, gave her a double dose of the big FU. That should eliminate that irrant from my life and I should not have to hear from her again how I can’t tell her son not to use my items at his will.
No person that I have counseled has demonstrated such a clear case of how to indoctrinate lawlessness into a child.
Speaking to me already?
A few days after this when, out in the roadway where we are playing, a friend asks me about the incident. As I was explaining to her the boy started listening in and came over to plead his case. This is precisely what I did not want happening. I had made my decision that, for the remainder of 2019, he had lost the privilege of taking items from my porch without asking. Further, because I didn’t want to hear him try to argue his way out of taking responsibility for the matter I told him to not speak to me for the remainder of the year.
What both he and his mother had pleaded has been soundly rejected by civil and criminal courts. Their argument is analogous civilly to liability by contractors or auto manufacturers who use subcontractors or suppliers. It would be that if they built your vehicle using a defective part from a supplier which resulted in malfunction and injury to you that they have no liability. Or, similarly, that if they hired an incompetent subcontractor to install the electrical service in your new home and that sub did so incorrectly resulting in electrocution to you or a fire, that it is a matter between you and the sub and as a general contractor they would have no liability.
That is just not the way it is.
As the person who came and took the bicycle air pump from my porch, the boy is responsible for it, including who uses it, and its return to my porch. If he entrusts another with the responsibility of returning it he is still, ultimately, responsible for seeing that it was returned.
However, he had the audacity to walk past it the next day and let it remain on the sidewalk because, as he pleaded, someone else use it after him and it wasn’t his fault that one of the other users didn’t return it.
Integrity
This is a matter of integrity. Integrity, being a substantial portion of the personal worth calculus, is critical for a child’s development and self-regard. Fortunately for this lad he does possess an organic sense of integrity.
A week following the initial incident he had a visiting friend who came over to my house. The friend asked if he could borrow the pump. He did so on the sidewalk in front of my house then returned it to the porch. The offending lad who was on his bicycle nearby said, “Thank you Stewie for letting him use your air pump.” I responded that he was quite welcome so long as it gets returned.
In the few days following he saw me at the swimming pool when I had taken other children there. When I acknowledged him he greeted me and was cordial.
He is now respecting himself by showing respect to me. Integrity in a person demonstrates that he or she feels a sense of self-worth. Those who don’t have this esteem don’t feel that their character can be damaged and, thus, they do not honour commitments, respect others, or demonstrate the various attributes of integrity.
Conclusion
This boy may insist that he has free-will and that his actions are a result of his decisions. However, the behaviour of this boy, as with many people, follows a pattern and is quite predictable.
His initial response was to ape his mother when faced with a conflict. As predicted, he sought to restate his excuse for his failure to return the pump which was totally ignored by me. Hence, the admonition not to speak to me. Upon the passing of time to reflect his attitude changed and he showed contrition. Following that he has re-established his cordial relationship with me and again earned respect from me.
He still has to ask my permission on an individual basis to use anything of mine for the remainder of 2019. To not demand such would indicate that I lack integrity.
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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
