Sometimes the bigger story comes when looking at another issue. Such is the case here. I happened upon this bigger issue when a litigant told me that Marion County Sheriff’s Deputies would not allow him to tender a filing to the Marion County Clerk of the Courts.
The immediate matter for consideration is whether Marion County Superior Court Judge John M.T. Chavis II has violated the Judicial Canons by knowingly issuing, defending, and maintaining a child custody order contrary to law.
The underlying cause is Moore v Moore 49D05-0810-DR-044790.
The immediate matter originated upon a Petition to Modify Parenting Time filed by Kristy Moore [Mother] on 25 June 2019. Mother alleged, as a basis for her unilateral termination of Father’s parenting time earlier that month, that Father had refused to cooperate with an investigation conducted by the Indiana Department of Child Services pursuant to an anonymous allegation of abuse made against Father. Mother sought to “cease parenting time” or for Father to have “supervised parenting time” until such time as Father would “cooperate with CPS.”
A hearing on Mother’s Petition was held on 23 July 2019. Father requested, in writing prior to the hearing [26 June 2019], findings pursuant to Indiana Trial Rule 52(A). Father additionally provided the relevant statute [I.C. 31-17-4-1(a)] and noted case law citations during the hearing, [D.B. v M.B.V., 913 N.E. 2d, 1271, 1274 (Ind Ct App 2009), Farrell v Littell, 790 N.E. 2d, 612, 616 (Ind Ct App 2003), Hatmaker v Hatmaker, 998 N.E. 2d, 758, 762-63 (Ind Ct App 2013)] indicating that a finding of endangerment was required before parenting time could be restricted, to Judge Chavis. DCS Family Case Manager Channing Reed testified that the allegations were “unsubstantiated”, that Father had cooperated throughout the investigation, that the children feel safe with Father and in his home, and that both initially and subsequently the children “were found to be conditionally safe.” Based upon the testimony of Ms. Reed the relief Mother sought had been satisfied -- that Father cooperated with the DCS investigation. An investigation which determined the allegations to be “unsubstantiated.”
However, a CCS entry of 23 July 2019 stated “Court will evaluate reduction of parenting time restriction after 30 to 45 days.” Judge Chavis reduced his order to writing which was entered on 25 July 2019. It stated that Father’s parenting time is to be restricted to supervised as determined by a third-party which came to be three (3) hours per week. Father was ordered to bear all of the costs. The opening paragraph of that order concludes, “Witnesses were sworn, testimony was heard, and evidence was considered by the Court, which now enters the following Order:”
The order consists of 16 enumerated paragraphs, the first 14 of which are instructions and the final two being administrative matters. Nowhere in the order does the phrase “the Court finds” or any similar wording appear nor are there any statements which could be construed to be findings. All 16 paragraphs are prospective in nature. Of particular note, that opening paragraph does not mention that the relative statute for restricting parenting time [I.C. 31-17-4-1(a)] was considered.
Father filed a Motion to Reconsider on 18 August 2019 which requested that the Court issue a revised order which included findings. The Court issued a Sua Sponte Interim Order on 18 September 2019 which, again, did not include findings. Father filed a Motion to Correct Errors in the Sua Sponte Interim Order on 15 October 2019 in which Father, again, noted the statutory and case law requirements regarding restricting parenting time. In a subsequent hearing Father handed the previously cited cases to Judge Chavis with relevant wording highlighted.
In the Sua Sponte Interim Order of 18 September 2019 Judge Chavis raises the issue of Father not signing a contract for supervision of parenting time which required Father to submit the “current Court Order outlining the Court’s specific findings regarding the supervised parenting time to be conducted”.[emphasis added] Father stated that he did not sign the contract because he did not have a court order with statutorily required findings as to the basis of restricting parenting time which he could submit. Judge Chavis countered that Father “misconstrued the meaning and intent of the Contract” which “only required Father to bring a copy of the Court’s July 25, 2019 Order with him”. If that was correct then the language of the contract as to findings regarding supervised parenting time, such as whether it is based upon emotional abuse, physical abuse, or neglect, would be superfluous and clearly poor contract draftsmanship. Judge Chavis was, again, simply trying to obfuscate the requirement that specific findings of endangerment, as required by I.C. 31-17-4-1(a), be included in an order restricting parenting time.
On 26 August 2019 Father filed a Motion to Certify Order for Interlocutory Appeal. Judge Chavis denied the motion on 28 August 2019. During the 23 July 2019 hearing Judge Chavis stated, “That Order that you will get will be my best effort from what I believe the evidence shows, and my decision will be based upon applying the evidence, the law. After that, it would matter, if little, what folks do. They can appeal, they can go as high as they want to.” [emphasis added] I Judge Chavis believes that it matters little if a party appeals then why refuse to participate in the process of allowing an appeal? Lack of integrity possibly?
The next hearing in this matter is scheduled for 02 September 2020. In the past near year Father has only been allowed to exercise parenting time with his children, supervised, for less than one hundred hours. All without a finding that he would endanger the physical well-being of his children or endanger their emotional development. And all for one reason;
John M.T. Chavis II did not comply with Rule 1.1 of the Indiana Code of Judicial Conduct which is quite succinct -- “A judge shall comply with the law”. It is so succinct and precise that there is no commentary for this rule as there is with the 40 other rules, save the prohibition on broadcasting court proceedings.
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