Thursday, January 20, 2011

My Top 10 Priorities

While engaged in a daily workout at the gym I overheard a conversation that was replete with the term 'need' while peppered with a sporadic want. This induced my thinking about what needs people have in general and what my needs are in particular. I feel that often the term need is strewn about without due consideration for what is actually a need. As if the bare essence of being can be fancied by a daily whim or the onslaught of persuasive campaigns which purvey popular media.

If you are looking for a connection to law you won't be disappointed. I will make it.

I believe that need is innate. The manifestation of which is exposed through the purely biological processes and the inherent desires which collectively bond us as humans. From those I have identified my top 10 priorities which are all need based. I have juxtaposed the biological processes as the first five. So, here they are in order of priority.

1. oxygen - I'll never get over the irony associated with the phrase "I need a cigarette." The importance of oxygen is often overlooked. Try doing without it though. My underwater limit is about three and a half minutes which I will work on increasing this Summer. Considering the extremely limited duration for which I can survive without it, oxygen is my primary need.

2. water - Any athlete understands this. Water plays a vital role in cell functioning. It is necessary to dissolve sodium molecules and process sucrose that provides the energy our bodies need to function. We can go much longer without food than water, a couple days max depending on activity level and climate. In a challenge to your depth of thinking I also include, without separate enumeration, the complimentary need to expel said water from the body which is done through evaporation, breathing and urination.

3. food - Although clearly necessary a look around said gym tells me that this is overrated by many. In another point of irony similar to that associated with cigarettes I have often heard people express the feeling of a need for a so-called food item which is nothing more than reformulated garbage enveloped in a colourful, often whimsical, wrapper which leaves a detectable odor on the package contents but contains few beneficial nutrients or any that qualify as needs. Again, inclusive with this need is the associated need to expel such food. Foregoing this can be quite damaging to the body including sepsis and eventual death. Even doing so on a temporary yet regular basis increases the likelihood of colorectal cancer. So, from this could be extrapolated that a high fiber diet is the more precise need.

4. sleep - Some intellectually challenged individuals think that lack of sleep is a display of manliness. Sleep deprivation actually damages the brain and can lead to death. Thus, it's use as an effective torture technique has not been overlooked by interrogators and agents of government engaged in conflict. I have never attempted to measure the limits of which I can endure sleeplessness. Quite to the contrary I sleep when needed and wake after I am rested except for brief interludes to tend to needs two and three. Sometimes it is simply a bout of a restless mind that terminates my slumber during the darkened hours for which I then nap later in the day. A rather refreshing habit.

5. shelter - This is relevant to time and place. This week in Indiana it is high up there on the priority list. During the Summer in Florida on the beach I can see myself going for quite a long time with nothing more that a beach umbrella. Regardless of atmospheric fluctuations shelter provides a refuge from predators be they invertebrate, the winged variety or the creepy-crawly variety any of which, while risking death at our hands while seeking to satiate one of their needs using us as hosts, may leave behind a viral or bacterial attacker.

6. my son - In making the transition from the purely biological, the first step into the foray of priorities which are not absolute needs is my son. This was well established long before he was born. Actually well back into my teen or pre-teen years when I determined that I would ensure that I was financially secure and capable of supporting a child before conceiving one. 15 years ago that happened and since then it has been a pleasure to be the parent who has sacrificed his own personal wants and needs to instead fulfill that of his progeny. I include this as the first desire based need due to the inherent nature of all livings beings, whether consciously perceived or functional, which is to procreate. The desire to procreate is so necessary and strong that it must be included as a need. True death occurs upon the termination of a bloodline. The need to procreate and continue the genetic string is apparent in the protective nature of a parent and the efforts put forth in securing or defending a mate.

7. athletics - I've never known of intellectual on his death bed who said he is so happy to be dying and wouldn't have sacrificed money, career advancement, schooling or a home theater to instead have good health. Since I was a young child I had one driving ambition; to be a professional cyclist. I achieved that only momentarily before a collision with a motor vehicle that nearly killed me. Now I play futbol and am a competitive runner. My workouts, practices and competitions comprise about 3-4 hours of my daily activity, sometimes more. Evidence appears to be mounting on a daily basis that our modern lifestyle with remote controls, motor-powered accessories and a mind-numbing box placed parallel to the plush resting modules is resulting in a physically damaging sedentary state that can have lethal consequences.

8. other children - No child sought to be conceived. It is therefore our responsibility, as a society, to ensure that we provide a safe, loving and nurturing environment for all children. Even if we have to stand-up and do battle against the profiteers who seek to harm children for profit. Collectively, as a specie, we are in constant battle with forces around us for resources, space and ultimately dominance. While not to the level of need of passing on one's own genetic material and ensuring its survival there is a need for everyone to strive to ensure survival of the specie.

9. learning - I believe that a quest for knowledge and understanding of the world in which we live is a natural motivation which must be satisfied. This is something that has also been a priority of mine since childhood. I was not an avid reader but more of an explorer of the world in which I lived and the minds of the people I encountered. I still dedicate time each day to areas of study, particularly the law. Beyond the academics though is study of people, environment or simply the physical world and how to survive in it.

10. introspection - Descarte summed it up well with "Cogito ergo sum" which is 'I think, therefore I am.' I feel that it is important to know one's self. I do as I feel everyone should and look at myself to see if I did something good for myself and the world around me at the end of each day. I explore my purpose for being and seek to align myself on a course that shall guide me to fulfillment of my purpose for being. This enlightenment leads to a healthier mind and subsequently body.

An addendum to this list.
It was while cruising around one evening with Rupert Boneham that the topic of needs came up and I mentioned those preceeding first five. Rupert mentioned that fire, or heat, was a need. Coming from someone who had been on the show Survivor multiple times I give his addition of heat as a need full weight and include it herein as my sixth need.

If you have examined my priorities this far then you have likely observed that I give little weight to the institutions of life. School was a place that I discarded at age 6 as any type of need. It was apparent to me that institutionalized education was not about learning but instead about controlling thought, limiting knowledge, and training. My time there was generally a waste although I did manage to make social connections, conduct sociological experiments and satisfy need number four.

Commercial institutions leave much to be desired for me. I have a checking account but find it much more appealing to buy houses by handing over a pile of cash or writing a check so as to reduce my banking interactions. I did make use of the hospital when nearly killed but beyond that I have had no desire to partake of the traditional medical institutions.

The idea of being an employee, subjecting myself to someone else's rules, schedule and procedures which may conflict with my essence is unappealing and unnecessary. I certainly do not subscribe to the expectation that one should be in the employ of another for eight hours per day. I find one or two hours per day, at my leisure, to be satisfying.

I accept responsibility for my short-comings and also exalt myself for my achievements. I need no other to determine my mores for me but instead rely upon myself to determine which actions are acceptable. I do not succumb to the supposed directives of any imaginary mythological beings handed down to only particular representatives endowed with the power to hear the message of the great creator for which only they can pass along to the subject masses.

If you have made it this far then I hope you have found something that may spur you to give consideration to what your needs actually are and what you value. But now for your reward. My list is not so trite as to include such things as the latest electronic gizmo. Although it is likely that many people would answer affirmatively that food and water are needs would their thoughts also take them to the conclusion that expelling the waste product of that consumption is also a need?

For most people, citing the biological needs I have indicated are usually just a regurgitation of something they have previously been told. Much in the way that attorneys and litigants operate in child custody proceedings.

The determination usually hinges upon the oratories of the parties attorneys which are prescribed through rote memorization of law, procedure and standard practices without innovation or original thought. Each child custody case presents unique circumstances which must be balanced in reaching a determination that is in the best interest of the child. I.C. 31-17-2-8 list the eight factors that a court must consider. However, that list is not exhaustive and the depth of those factors is not often fully explored.

So, I hope that you are spurred to evaluate not only what is an actual need but also to ensure that litigants, practitioners and judges divest themselves from a cookie-cutter approach to child custody and parenting time matters. Innovative thinking should not be an exception in this arena but should be a mandate. Unfortunately for the children too many attorneys do not possess the necessary skills and too many litigants, not familiar with the process, entrust the future of their children to these unqualified attorneys.

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Monday, January 17, 2011

Equality, Martin Luther King and Child Custody

It's Martin Luther King Day and throughout the country there are memorials, celebrations or other events honoring him. A recurring theme is that of equality and the pursuit of it. As some have sought equality based upon race others seek it based upon gender in child custody cases.

Some advocates of mandated 50/50 custody, joint custody, Shared Parenting or whatever name one wants to apply to two parents having equal parenting rights and time with a child seek an Affirmative Action approach.

I have always opposed Affirmative Action based upon what I see as an error in the approach to racial justice. Affirmative Action seeks to mandate an outcome in employment or contracts awarded based upon the idea of a representative sample of the general population. Thus if a community is twenty percent of a particular minority then the representation of that race shall also be twenty percent in employment or contracts awarded.

The problem I have with Affirmative Action is the mandate. As I play Bringing Out the Dead in the background while writing this I think of emergency services personnel; police and firefighters. To achieve equal racial representation units of government established two different measures of qualification; one for whites and one for minorities.

When it comes to the safety of my community I want the best personnel hired who has applied for the job. Affirmative Action had a different goal. If the positions can be filled by the most qualified applicants, who all happen to be white, then so be it I say. But Affirmative Action says that since the community is, for example, twenty-five percent minority then the most qualified candidates may be all white but only fill the first three-fourths of the positions. Then other higher qualified white candidates are skipped over until the remaining one-fourth of positions are filled by the most qualified minority candidates.

This left many municipalities with hiring quotas that had a two-tiered scale for qualifying candidates. Whites may be required to score ninety percent on a proficiency exam while minorities may only be required to score eighty percent. I firmly believe that is wrong and goes against the message of Martin Luther King which has been perverted by those seeking equality.

In the realm of gender politics I find outcome based standards no less reprehensible. This is where I have run afoul of the so-called father's rights movement. I have debated this issue ad nausea with some of the group leadership which I am convinced will achieve nothing in their quest but a blemish upon the efforts of those of us who advocate, sensibly, for the best interest of the children.

Their ardent position is that the judiciary should be encumbered from awarding child custody to parents in a dissolution proceeding in a manner other than that which would provide equal custodial rights and nearly equal parenting time with the children. This would presumptively remove judicial discretion, the variable by which they claim mothers have unjustly been awarded sole custody of children in about eighty-five percent of cases.

Do I agree that mothers are disproportionately awarded sole custody of the children and that this is fundamentally wrong? Absolutely. Should this be remedied by an Affirmative Action approach? Certainly not.

House Bill 1119 introduced to the Indiana General Assembly by Representative Phyllis Pond provides the framework to ensuring a more equitable approach to awarding legal custody of children in a dissolution proceeding. The bill provides that "[t]here is a rebuttable presumption that an award of joint legal custody is in the best interest of the child."

This does not go so far as saying that both parents are entitled to equally share legal custody of the child but it does elevate the current standard that there is no presumption favouring either parent. In the simplest terms it says that both parents walk into court on equal standing.

This bill does not change the amount of discretion that a judge possesses. What it changes is the legal custody standard towards that of a modification where a showing must be made that the current custody arrangement is not in the best interest of the child.

Although the law says there is no presumption favouring either parent the existing standard practice appears to be otherwise. The mother is cloaked with the presumption that she is best suited to be the custodian of the children and a father must prove his ability to be a valid decision maker for the children.

Following dissolution men have been denied the continuing custody of their children that they had prior to the dissolution based upon this prejudice. Some men's rights advocates seek a remedy in a mandate that the parents will continue to share custody following a dissolution.

Herein lies the correlation to racial injustice and the inequities in seeking an equitable resolution. Just as Affirmative Action says a contract will be awarded or a person hired regardless of qualifications so does a joint custody mandate.

I am an avid supporter of equal opportunity, equality before the eyes of the law but not mandated equality in position or outcome. To mandate that a court give decision making authority over a child to a father or mother who may be a very poor decision maker, whose previous decisions may be the root of the dissolution, could very well go against the best interest of the child. That is something that cannot be allowed.

This is where HB 1119 reconciles the two conflicting standards. It provides the equitable solution to the longstanding inequities in child custody decisions that ensures equal opportunity. It provides that the parents are entitled to maintain custody of the children unless that is refuted by presentation of the evidence. It maintains the judicial discretion necessary in ensuring the best interest of the children. So long as one of the parties makes a Trial Rule 52 request then the judicial officer must make specific findings as to why joint legal custody would not be in the best interest of the children.

HB 1119 must be put into law to ensure that the best interest of children are protected in dissolution proceedings.

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Wednesday, January 12, 2011

Parental Notification of Child Crime Victim

Over the weekend I was called upon by a parent in southern Indiana for assistance in getting a piece of draft legislation introduced as a bill. The synopsis of the draft reads:
Notice to parent, guardian, or custodian. Requires a law enforcement agency that is actively involved in investigating a report of child abuse or neglect or a crime in which a child has been named in the written report of the crime as the perpetrator, victim, or witness, to: (1) make a reasonable attempt to notify the parent, guardian, or custodian of the child about the report; and (2) send a copy of the victim rights statutes to the parent, custodian, or guardian of the child; unless the parent, guardian, or custodian is the alleged perpetrator. Requires that, after the department of child services receives a report from a law enforcement agency that a child may be a victim of child abuse or neglect, the department contact the law enforcement agency to confirm that the department received the report.

Following meetings on Friday the legislation had been orphaned based upon significant opposition from law enforcement and prosecutor interests. Particularly it was felt that "a child is named in a written report of a crime" was too broad and 'report' should be more clearly defined. Also, that notifying parents of a child 'perpetrator, victim, or witness' of a crime would impair investigatory efforts. Finally, that 'reasonable attempt' did not clearly identify what attempt shall be made.

The good news was that the Legislative Services Agency had already drafted the legislation for the House of Representatives and a fiscal impact study has been completed which provided that there was no financial cost for the bill. However, I was quickly presented with two problems. The first being that House members had to submit their bills for the 2011 session by Tuesday 11 January at 2:00 pm. The second, that each member is limited to 10 bills.

Step number one was to meet with the representative who had the legislation drafted and get all the background information on it. I then rewrote it as an amended version which I felt would satisfy the interested parties.

While in meetings Monday with Representatives on other issues I floated the idea and got a favourable response although my usual members that carry legislation for me had, as suspected, already reached their submission limit. In addition I began seeking a possible sponsor in the Senate. The Senate was not required to have its bills submitted until Thursday and the Senators had no limit other than two bills per day.

Monday evening I was still working with legislators and staff. By midnight I had sent out the last of the emails to the Legislative Assistants of the freshman Representatives that I already knew from the campaign trail and meetings on Organization Day. These dedicated LA's started responding by 6:00 am and during my drive to the State House I received three calls setting up meetings from 9:00-9:30.

My first meeting was with a Senator where I encountered the potential problem that their bills had to be drafted by LSA no later than last Thursday. That left less than five hours to get a House sponsor, have LSA reprint the draft with the new sponsors name and get it submitted on the floor of the House.

My second meeting was with Representative Steve Davisson and his LA Adam Doerr. As we were greeting each other the originating sponsor happened to walk by and joined us. Davisson was very supportive of the idea and agreed to carry the bill. The bill was submitted as originally drafted and then will be immediately amended in committee.

My next step is to present the amended bill to the law enforcement and prosecutor interests and ensure I have their support before it is set for hearing.

If you have any interest in participating in this process or have an idea you would like to have made into law please contact me.

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Saturday, January 8, 2011

HB1040 - Prohibition on Child Support Abatement During Incarceration

Indiana House Representative Bob Cheatham his introduced HB1040 which seeks to remove from judges the discretion, or rather the obligation, to consider a parents' actual financial resources while incarcerated when hearing a petition for a child support payment modification. Cheatam seeks to overturn the ruling by the Indiana Supreme Court in Lambert v Lambert (2008).

In my analysis of this bill I will demonstrate to you not only why this bill is bad public policy but why it is against the best interest of children.

There is one state that disallows the imputation of pre-incarceration income. That is Nebraska where their Supreme Court concluded that imposing pre-incarceration income on a felon would conflict with the state’s child support guidelines precisely because an imprisoned individual had no “earning capacity.” It likened the situation to other cases in which it had approved the use of earning capacity instead of actual earnings in an initial determination under the guidelines and concluding that in those cases, “there has been evidence that the parent had the present ability to achieve his or her earning capacity.”

I would argue that the Nebraska Supreme Court was wrong. I think that the presumption that a prisoner has no earnings capacity is gross error. Some prisoners retain royalty rights from musical, literary or other works while some own rental property or businesses that are still maintained.

I think re-evaluating Nebraska's decision is superfluous though because of the difference in our child support guidelines. Initially I observe the presumption; "In any proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded."

Currently, in applying Lambert and the Guidelines, judges are issuing child support payment obligation orders of $1 or no amount based upon an incarcerated individuals actual income. In Indiana we use a standard for application of potential income that is based more upon real rather than imagined circumstances.

Our Guidelines provide that "[a] determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor's work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community." For incarcerated individuals the prevailing job opportunities are often limited to low paying prison industry or lower paying operational jobs. Lambert has stipulated that this is the earnings level which must be used in making the calculation.

A number of states have concluded that it is appropriate to impute pre-incarceration income to the non-custodial parent. The general basis for using pre-incarceration income in determining child support payment obligations is that an individual chooses to break the law and therefore any resulting loss of income based upon that choice is voluntary. I have great doubt as to the veracity of the claim that there exists a nexus between committing a crime and choosing incarceration.

Quite to the contrary there are numerous individuals who have subsequently been charged with fleeing, resisting arrest or in extreme cases even killing a police officer to avoid apprehension. It is also well settled that the death penalty has not proven to be an effective deterrent to crimes for which that penalty is an option. The choice to commit a crime and the resulting punishment are not a conscious linear process. Thus it is inappropriate to consider crime as voluntary unemployment because committing a crime is so far removed from the decision to avoid child support obligations that it is inappropriate to consider them as identical.

Next, I note the portion of the preface which includes the basis that the purpose of the guidelines is to place a "duty for child support upon parents based upon their financial resources and needs, the standard of living the child would have enjoyed had the marriage not been dissolved or had the separation not been ordered". I note this for the purpose of acknowledging that there are children of intact families that are living within the financial means provided while a parent is incarcerated. However desirable it would be to have these children maintain the same standard of living had a parent not been incarcerated that is simply not the reality.

We are then left with what is becoming normalized and is the Indiana standard based upon Lambert. The Absolute Justification Rule used in seven states at the time of Lambert considers imprisonment absolutely sufficient grounds to justify modifying or suspending child support.

There is a great likelihood of this proposed legislation being struck down if it becomes law. The state supreme court has made it very clear in Lambert that pre-incarceration income cannot be imputed during the time a parent is incarcerated unless available to that parent during incarceration but does allow resumption of that amount following release. I still believe that income potential is reduced following incarceration but that is not germane to our discussion now.

What I do see happening, should this legislation become law, is a flood of appeals based upon the ruling in Lambert. Considering that many of the individuals who will be proceeding on appeal will be incarcerated individuals with negligible assets and little to no income they will be proceeding in forma pauperis.

Thus, every county where these cases will be proceeding will be paying for transcripts from these cases and will recover nothing.

Quite to the contrary of the possible goal of this legislation is that it will reduce the state's federal Title IV-D incentive payments. I will defer to Cynthia Longest for a complete explanation of this but in short this legislation will increase the percent of unpaid support and damage our standing in support compliance.

A heavy debt burden on a parent following incarceration does affect future support compliance and parenting time. Parents with high child support payment arrears are faced with continuing legal battles where some become fearful of arrest and thereby avoid exercising parenting time.

Additionally, the arrears, which trigger a higher percentage of a wage that may be withheld for child support payments, result in more parents moving into an underground economy where no support payments can be withheld from earnings. Generally the entire earnings of these lower paying jobs provides little more than sustenance for the earner and thus nothing goes towards child support payments.

The excessive arrears creates animosity between parents with the obligor feeling an injustice from an order to pay something that he or she is unable to while the receiving parent is feeling deprived of a payment due. At a time when these parents need to be cooperating to ensure a smooth transition to reintroducing the formerly incarcerated parent into the children's lives they are instead feeling embittered towards each other over a financial issue. This is not best for the children.

Considering the existing sociological evidence, it seems apparent that imposing impossibly high support payments on incarcerated parents acts like a punitive measure, and does an injustice to the best interests of the child by ignoring factors that can, and frequently do, severely damage the parent-child relationship.

Participants at the Child Support Arrears Management meeting on September 22, 2002, in Crystal City, Virginia unanimously agreed that the key to successful arrears management is the avoidance of arrears accumulation.

The Massachusetts Department of Corrections offers a grant based program to inmates at the time of inmate processing that encompasses a IV-D presentation with focus on order modifications. Thus, that state is using incarceration as a basis to seek support payment modifications and is actually taking a proactive step to help the inmates achieve modifications and thereby reduce or prevent arrears.

In 2003 the Connecticut Title IV-D enforcement office proposed legislation that mandates the automatic suspension of the support obligation if the NCP's sentence is in excess of six months. The automatic suspension would not apply if an interested party can provide evidence that the NCP has sufficient assets with which to pay support.

Research shows that children benefit from positive relationships with both parents
resulting in better school performance with fewer problems, lower chances of suspension, expulsion from or dropping out of school, and decreased likelihood of risky behaviors including use of drugs and alcohol and early sexual involvement.

Children of an incarcerated parent are already at increased risk of problems. I am confident that placing an additional barrier between a child and a formerly incarcerated parent will lead to greater harms to these children. That is what this legislation will do.

Ultimately the best interest of the child standard must guide our policy and laws. The Indiana Supreme Court has concluded that the best interest of the child is frequent and meaning contact with both parents. Creating a financial barrier to facilitating parenting time is not best for children and is contrary to policy and case law in the State of Indiana.

The Indiana Supreme Court has concluded that "[n]ot imputing income is the best solution" by observing that "[u]ltimately, adoption of the non-imputation approach preserves the traditional rule imposing support without ignoring the realities of incarceration. Unlike the absolute justification rule, the non-imputation approach allows courts to comply with the Guidelines by imposing at least the minimal support order as provided by Ind. Child Support Guideline 2 [now 3]. This serves the child support system by ensuring that all non-custodial parents remain responsible – at least to some degree – for the support of their children."

To comply with the mandate of the Indiana Supreme Court, reduce the costs to counties, increase compliance with child support payment orders, and, ultimately serve the best interest of children this legislation must be rejected in whole.

Follow this bill here.

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Thursday, January 6, 2011

Judge David Certo and Judicial Integrity

When a judge abuses the position, knowingly violates the law, deprives parties of their rights, is disrespectful to litigants or just makes bad judgments I will attack the integrity of that judge and do so vigorously. Often times with a ferocity that would make the most accomplished and successful businessmen, athletes of artisans jealous. I am a passionate person.

I do feel that in life we often point out or focus on the negative far too often. I suppose much of that comes from working within the adversarial system involving child custody battles where day-in and day-out recitations of a plethora of the worst traits, actions and abuses of children that a parent can possess are presented to me.

Congruous with that are the opinions about the judges whose decisions generally fall outside the realm of that wished for by the complaining party. Often times though those complaints are meritorious and I have been successful in achieving corrective action.

But, for a moment, I want to focus on the good. It's a new year, the legislature has just reassembled and in a week where I am meeting with four clients who have some of the most contentious cases I need a respite from the negativity that swirls about my head.

Yesterday, during the day, I attended the prayer session offered by the Capitol Commission which was followed by a lunch provided by the Circle Center Chik Fil-A. While enjoying this delicious meal, sans-chicken sandwich for this vegetarian, I had the privilege to meet and briefly converse with a legal mind for which I have great respect, Justice Dickson of the Indiana Supreme Court. I also met his wife who had made special mention in her prayer of the children affected by divorce.

Onto last night when I attended the Monthly Meeting of the Downtown Republican Club. Samantha DeWester had just become the new president of the club. I first met her when she was representing a client of mine in a criminal case related to a custody battle. We were in the Marion County Superior Court where Judge David Certo was presiding.

The Marion County Superior Court system operates a little differently than those in most of the smaller jurisdictions. There is a confluence of characters arriving for cases assigned to a 9:00 a.m. hearing. It was a real hodge-podge of cases that I got to sit through in no discernible order until our mid-afternoon bench trial.

What that system lacks in efficiency is made up for by Judge Certo who displays a patience and acceptance of the parties that come before him of which all people should be envious. At my best I would only be able to tolerate some of the parties that appeared that day. Certo, I felt, went beyond the call of duty in making everyone feel welcomed in their appearance and thoughts, especially pro se litigants who I feel are often slighted by judges.

So back to the Monthly Meeting. As one of the early arrivals, the fourth person actually, I received the customary welcome from Judge Certo who made an attempt to greet everyone until the crowd became overwhelming. Joining him this time was both of his children and his wife.

Over the past year it has been common to see his infant daughter at his side, or more often in his arms, as he attended various functions. Last night was no exception, his eyes occasionally drifting across the room to catch a glimpse of his children. At one point when I heard the faint cries of "daddy, daddy" over the raucous clamoring of a crowd that must have exceeded one hundred I made my way to a teary-eyed girl navigating her way through an unrecognizable field of knees.

I led her through the crowd until she came upon daddy who severed himself from the conversation in which he was engaged as though he had been waiting on a porch stoop with outstretched arms to welcome home a child from the first day of school. This display of affection, the demonstration that children and family come first are reflected through Certo's general demeanor and are apparent from the bench.

The children of Indiana would each be well-served by having a father like David Certo. In reluctantly accepting the reality that this is a desire that will forever remain unfilled it is comforting to know that some, who lacking a significant father figure, will be touched by the wisdom, compassion and understanding that Judge Certo displays in life and from the bench.

I hope all of our judicial figures can have an epiphany today and display the qualities of or emulate Judge Certo in leadership not only from the bench, but in life, through their interactions with the public outside of the courtroom setting.

If you know of another member of the judiciary that demonstrates similar qualities please let me know.

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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.

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©2008, 2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Wednesday, January 5, 2011

Due Process requirements to Fathers in Termination and Adoption Proceedings

On Friday 07 January 2011 members of the Indiana Custodial Rights Advocates will be at the Madison County Courthouse for an adoption hearing. Madison County is the worldwide focal point of due process and constitutional right violations recently. This case will bring together two of the best; Judge Thomas Newman who feels that agnostic parents are not fit to have custody of children and the document forging, thieving attorney Jane G Cotton who will begin serving her suspension in February 2011.

This got me to thinking about the due process rights of parents, particularly fathers, in adoption proceedings and also termination of parental rights proceedings. I have found an outstanding case to examine for this. First, some of the rulings by reviewing courts related to these due process rights.

The long held standard for due process in child custody proceedings is found in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, (1976). Tantamount to due process is the opportunity to be heard at a meaningful time in a meaningful place.

No where are due process rights more important than in child custody proceedings, especially those seeking to terminate a parent's rights be it through a DCS action or adoption. The United States Supreme Court has long held that parents have a constitutionally protected right to “establish a home and bring up children” pursuant to the Due Process clause of the 14th Amendment to the United States Constitution. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

The Indiana Supreme Court has also recognized that a parent's interest in the care, custody, and control of his or her children is arguably one of the oldest of our fundamental liberty interests. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).

The involuntary termination of parental rights is the most extreme sanction that a court can impose on a parent because termination severs all rights of the parent to his or her children. Involuntary termination should therefore only occur as a last resort, available only when all other reasonable efforts have failed. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.

It is also well settled that the right to raise one's child is an “essential, basic right that is more precious than property rights.” In re C.C., 788 N.E.2d 847, 852 (Ind. Ct. App. 2003), trans. denied.

For an adoption to take place without parental consent, statutory exceptions for abandonment or failure to communicate with or support the child must be shown by clear, cogent, and indubitable evidence. McElvain v. Hite, 800 N.E.2d 947 (Ind. Ct. App. 2003); In re Adoption of J.P., 713 N.E.2d 873 (Ind. Ct. App. 1999); and In re Adoption of Subzda, 562 N.E.2d 745 (Ind. Ct. App. 1990).

Termination of Parental Rights

The case I have for you, the Involuntary Termination of the Parent-Child Relationship of J.S.O., S.O. v Indiana Department of Child Services, comes from Mary R. Harper, Judge of the Porter County Superior Court. It was decided by the Indiana Court of Appeals on 07 December 2010 in a ruling that reversed the trial court.

S.O., the father, claimed that he was denied procedural due process when the Indiana Department of Child Services, Porter County (PCDCS), failed to provide him with notice of all hearings and copies of all orders and other documents issued during the child in need of services (CHINS) proceedings despite PCDCS's actual knowledge of his name and whereabouts.

J.O. was born in Oklahoma in May 2008. S.O. signed a paternity affidavit at the hospital and was listed as J.O.'s father on the J.O's birth certificate.

In July 2008, local law enforcement officers responded to the scene of a reported car wreck. Upon their arrival, police officers discovered Mother and then six-week-old J.O. in a vehicle that was in a ditch off the side of the road. While assisting Mother, the responding officers observed crack cocaine and drug paraphernalia inside Mother's vehicle. Consequently, Mother was arrested on D felony possession of cocaine and possession of paraphernalia charges, and J.O. was taken into protective custody.

The following day, PCDCS investigating case manager Michael Fiala (Fiala) spoke with Mother at the Porter County Jail. Mother admitted to Fiala that she had bought and used crack cocaine prior to getting into the car and driving with J.O. the previous night. Mother also provided Fiala with Father's name, stated he was J.O.'s biological father, and provided information as to his whereabouts. Fiala included this information regarding Father's name and whereabouts in his “Detention Hearing Report to the Court” filed on July 10, 2008.

On July 16, 2008, PCDCS filed a verified CHINS petition which did not name S.O. as J.O.'s biological or alleged biological father, but instead contained the following language: “Paternity of [J.O.] has not been established . . . .” PCDCS then sought to terminate the parental rights of J.O.'s parents.

So now that you know, as did the PCDCS and the court, that S.O. is J.O's biological father, listed on the birth certificate and his whereabouts are known let's examine the statutory requirements for the termination proceeding.

Pursuant to Indiana Code section 31-34-3-4, notice that a child has been taken into custody under Indiana Code chapter 31-34-2 “must” be given “to each of the child's parents as described in sections 1 through 3 of this chapter.” Ind. Code § 31-34-3-4(2).

Indiana code section 31-34-3-2 requires PCDCS to “make a good faith effort, not more than six (6) hours after the child has been taken into custody, to leave written notice at the last known address of the child's [] parent . . . that the child has been taken into custody.”

Indiana Code 31-34-10-5 provides that the trial court has duty to inform parents that if a child is adjudicated a CHINS that they may be required to participate in program of care, treatment, or rehabilitation for child, be held financially responsible for services rendered to child, and may controvert any allegations made during dispositional or other hearing concerning their participation.

Here are a few more of the procedural requirements. I. C. § 31-34-16-4 trial court shall advise parent that failure to participate in services as required by dispositional order of court can lead to termination of parental rights. I. C. § 31-34-5-1 notice of time, place, and purpose of detention hearing shall be given to child's parent if the person can be located; I. C. § 31-34-10-2 summons to attend initial hearing on CHINS petition shall be issued to parent of child; I. C. § 31-34-18-6 copy of pre-dispositional report and/or factual summary of report shall be made available to parent before dispositional hearing.

It should be clear now that there are extensive statutory requirements for providing notice, reports and an opportunity to parents for their participation in a CHINS proceeding and subsequent termination proceeding. So with this same knowledge here is what the PCDCS and the court did, or maybe didn't do.

A review of the record confirms Father's allegations that PCDCS was well-aware of his name, place of residence, and alleged paternity of J.O. throughout the entirety of the CHINS proceedings. However, Father was left5 out from the start. He was not provided a copy of the CHINS petition, nor informed of the CHINS initial hearing date.

On July 19, 2008, following the initial CHINS hearing, the trial court issued an order adjudicating J.O. a CHINS. Father was not present at the CHINS hearing and was not represented by counsel. The CHINS order again indicated that paternity of J.O. had not been established and did not contain Father‟s name as either the biological or alleged father. In addition, PCDCS did not provide Father with a copy of the CHINS order.

On August 6, 2008, PCDCS filed its pre-dispositional report with the trial court, which indicated under the sub-heading “Parental History” that “paternity has not yet been established for [Father].” Father was not made a party to the CHINS proceedings, he was not offered and/or referred for reunification services, he was not provided with a copy of the pre-dispositional report, and he was never advised that a dispositional hearing had been set for August 19, 2008.

PCDCS never attempted to contact Father, notify Father of the dispositional hearing or any other periodic case review hearing, provide Father with any copies of the case plans, or mail Father any copies of the trial court's orders. Finally, in March 2009, PCDCS ambushed Father with a petition seeking the involuntary termination of both Mother's and Father's parental rights to J.O. This time, however, PCDCS named Father as a party to the proceedings and mailed a copy of its termination petition to him.

During the termination hearing, Father repeatedly, yet unsuccessfully, objected to the termination proceedings, claiming his due process rights had been violated when PCDCS and the trial court failed to comply with the CHINS statutes by not making him a party in the underlying CHINS proceedings, not providing Father with notice of any CHINS hearings, not advising Father of the conduct he needed to perform in order to gain reunification with J.O., and not providing Father with any of the trial court‟s orders.

PCDCS case manager Amy Hilzley-Pittman (Pittman) repeatedly acknowledged during the termination hearing that although she was given his name and discovered his whereabouts shortly after J.O. was initially removed from Mother's care, Pittman did not attempt to contact Father but instead filed “paternity paperwork with the Child Support Prosecutor.”

At this point anyone should be very disturbed about the blatant disregard by PCDCS for the rights of Father or the rights of the child to maintain familial bonds. What should really do it for you though is that the supposed impartial tribunal was anything but and actually colluded with PCDCS to keep Father from becoming aware of the proceedings.

Our Indiana Court of Appeals concluded that "the trial court's blatant disregard of statutory law mandating that Father be provided with notice of all CHINS hearings and copies of all CHINS orders and case plans, resulted in a violation of Father's right to due process."

Adoption

The case I have for you, In re the Matter of the Adoption of D.C., H.R. v R.C., comes from J. Terrence Cody, Judge of the Floyd County Circuit Court. It was decided by the Indiana Court of Appeals on 29 May 2008 in a ruling that reversed the trial court.

Following a 1994 divorce, in July 1997, Biological Mother lost her place of residence, and the trial court subsequently awarded D.C.’s custody to Father. Biological Mother was granted visitation rights and ordered to pay support.

On November 22, 1998, Father married Adoptive Mother. In February 1999, Father joined the military and was stationed at Fort Campbell, Kentucky, near Hopkinsville. He did not notify the divorce court of his move to Kentucky. In August 2001, Biological Mother, who was unaware of Father’s move, was notified that her support was to be paid in Christian County, Kentucky. Biological Mother subsequently learned from Father’s former neighbor that Father had joined the army and moved to Hopkinsville. Biological Mother registered with and made child support payments through Friend of the Court in Hopkinsville. Biological Mother’s payments satisfied only a small part of her full support obligation. Biological Mother visited D.C. in Hopkinsville. According to Biological Mother, Father denied some of her efforts to exercise her parenting time.

Father relocated again and did not notify the trial court of his new address. In December of 2002 Father returned to Indiana where Mother again had parenting time with D.C. However, she did not continue with parenting time but did pay support although not in full.

In June of 2003 Biological Mother sought a modification of her parenting time. Biological Mother did not contact Adoptive Mother or Father in the years 2004 or 2005.

On January 27, 2005, Adoptive Mother petitioned the court to adopt D.C. At the time of the 2005 adoption petition, Biological Mother was over $14,000 in arrears on her support obligation and had not contacted D.C. or Father in over a year.

For an adoption to take place without parental consent, statutory exceptions for abandonment or failure to communicate with or support the child must be shown by clear, cogent, and indubitable evidence. McElvain v. Hite, 800 N.E.2d 947 (Ind. Ct. App. 2003); In re Adoption of J.P., 713 N.E.2d 873 (Ind. Ct. App. 1999); and In re Adoption of Subzda, 562 N.E.2d 745 (Ind. Ct. App. 1990).

The evidence appears clear in this case that Biological Mother did not communicate with D.C. for a period of two years which meets the statutory requirement. However, Biological Mother continued to make child support payments sporadically including three days prior to the adoption hearing and for two years afterward.

What Biological Mother did do, which this case hinges upon, is keep the child support payment office appraised of her current address. What the attorney for Adoptive Mother did do was send notice to an old address and when it was returned as undeliverable the attorney made publication in a local newspaper. Unfortunately this is not an uncommon tactic used by adoption attorneys who want to fulfill adoptions without a battle.

When Biological Mother did not appear for hearing the court granted Adoptive mother's petition to adopt. It wasn't until 18 months later that Biological Mother learned of the adoption.

Biological Mother filed her motion for relief from judgment alleging, inter alia, that the judgment was void for lack of personal service. In denying Biological Mother’s motion, the trial court determined that the adoption proceedings had been defective for lack of personal notice but that pursuant to the terms of Indiana Code section 31-19-14-4, the time period to challenge the adoption due to any such defect had expired. Biological Mother then appealed.

Biological Mother argues that the trial court lacked personal jurisdiction over her in the instant case and that the adoption decree is therefore necessarily null and void. Ineffective service of process prohibits a trial court from having personal jurisdiction over a respondent. Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 659 (Ind. Ct. App. 2001). A judgment rendered without personal jurisdiction over a defendant violates due process and is void. See Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998). Because a void judgment is a complete nullity and without legal effect, it may be collaterally attacked at any time, and the “reasonable time” limitation under Indiana Trial Rule 60(B)(6) does not apply. Stidham v. Whelchel, 698 N.E.2d 1152, 1154, 1156 (Ind. 1998).

Indiana Trial Rule 4.1 requires that service be made by certified or registered mail and that a written acknowledgment of receipt be received. If service cannot be made in this manner then Indiana Trial Rule 4.13 provides that service can be made through publication and that must be submitted to the court along with supporting affidavits that a diligent search has been made that the defendant who cannot be found.

In this case no diligent effort was made to find Biological Mother. If fact, a simple phone call to the child support office would have provided Adoptive Mother with the current address of Biological Mother but no such simple effort was made.

The Court of Appeals concluded that Adoptive Mother’s efforts at service were not reasonably calculated to apprise Biological Mother of the adoption proceedings and therefore did not comport with due process. Accordingly, the trial court did not have personal jurisdiction over Biological Mother, and the adoption proceedings terminating her parental rights were therefore void. Stidham v. Whelchel, 698 N.E.2d 1152, 1154-1155 (Ind. 1998).

Thus, because personal service had never been perfected upon Biological Mother the adoption was void and subject to collateral attack at any time. However the trial court relied upon Indiana Code 31-19-14-4 which provides that a person whose parental rights are terminated may not lodge an untimely challenge to an adoption decree even if, under subsection (1), the putative father did not receive notice; or, under subsection (2), the proceedings were in any other manner defective.

IC 31-19-14-4 does not contemplate a challenge by a biological mother and thus a biological mother is not time barred by that statute. In Stidham v. Whelchel, 698 N.E.2d 1152, 1154-56 (Ind. 1998), the Indiana Supreme Court, interpreting Indiana Trial Rule 60(B)(6), clarified that a default judgment rendered without personal jurisdiction over a defendant violated due process, was null and void, and could be set aside at any time. Therefore, the trial court's ruling that Biological Mother's Rule 60(B) motion was time barred was in error.

In essence, a putative father has one year after the adoption decree was entered to challenge it even if, like Biological Mother in this case, he was never provided notice and did not learn of the adoption until more than a year later. Thus, mothers are given more parental rights protections than fathers.

This disparate treatment has been acknowledged by the courts. Such statutorily distinct treatment for putative fathers does not run afoul of the Constitution. In Lehr v. Robertson, 463 U.S. 248, 261 (1983), the United States Supreme Court determined, with respect to fathers, that their substantial due process protections arose out of their commitment to the responsibilities of parenthood rather than from any biological link to the child. The Court additionally determined that, to the extent one parent had established a custodial relationship with the child and the other parent had not, a State’s according different rights to each parent did not violate the Equal Protection Clause of the Fourteenth Amendment. Lehr v. Robertson, 463 U.S. 248, 267-268 (1983).

It then becomes a legislative issue as to whether we provide equal rights to parents regardless of gender.

Conclusion

With gender discrimination built into the law it is no surprise that judges will expand that to their general rulings, especially in awarding sole custody of children to the mother as so often happens. In the matter of due process and the right to be notified, however, there is no distinction among gender.

Judge Cody did find that due process had not been afforded to the responding party in this adoption case. However, Cody made an error in judgment through the misapplication of the statute which, had it been applied to a putative father, would have not been error. This case provides a great example of why we need the reviewing courts. I have no such gentle treatment for Judge Harper though.

Judge Mary R. Harper should be ashamed of her conduct. As with Judge Newman she should also remove herself from the bench because of the intentional violation of the constitutional rights of parents in child custody proceedings. Lumping these despicable judges in with those who truly care and seek to serve the true best interest of children does a disservice to the judiciary.

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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.

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Tuesday, January 4, 2011

Ex Parte Communication and pro se Litigants

I recently wrote about Pro se Litigant Child Custody Appeals in Indiana in which I cautioned readers as to the need for assistance in appeals and also at the trial court level. Additionally, I warned against being complacent in their cases after hiring an attorney.

Here it is my purpose to again caution readers about the dangers of proceeding without assistance or through complacency following the hiring of an attorney. When I say 'assistance' I am adamant that you do not interpret this to mean an attorney.

I bring to you a case from Clark Superior Court decided on appeal by the Indiana Court of Appeals in a published opinion issued 22 November 2010. This case revolved around a pre-trial conference between Magistrate William Dawkins, Andrew Steele, a Clark County Deputy prosecutor, and the attorney for Respondent. Petitioner, pro se, was barred from attending the pre-trial conference.

The Court of Appeals found "the trial court's legal conclusions erroneous and the ex parte proceedings extremely troubling." [emphasis added]

Black's Law Dictionary defines ex parte communications as “a generally prohibited communication between counsel and the court when opposing counsel is not present.” Black's Law Dictionary 597 (7th ed. 1999). As this definition suggests, ex parte communications most often become an issue if a judge communicates outside the courtroom without disclosing those communications to everyone involved. These communications are prohibited. See Ind. Judicial Conduct Canon 3(B)(8).

It has long been held that pro se litigants are an attorney in form and are held to the same standards as an attorney and retain the same rights. Thus, in a conference among the attorneys and judge a pro se litigant must be included.

The pre-hearing conference took place in the judge's chambers. The conference lasted for thirty-six minutes—just eleven minutes shorter than the hearing itself. Evidence was discussed and documents changed hands that were not formally made part of the record. The prosecutor admits that he was an adverse party to the Petitioner. Thus, for all intents and purposes these 36 minutes were the first part of the hearing, which took place without anyone representing Petitioner or Petitioner having an opportunity to be heard or object to the presentation of evidence.

The appeals court noted that "[i]t would be difficult to imagine a clearer example of prohibited ex parte communications[.]"

On appeal Attorney General Gregory Zoeller and Deputy Frances Barrow did not dispute the fact that the prosecutor was not representing Petitioner's interests in the proceeding but instead argued that the violation was harmless “because this appeal has cured any deficiencies that occurred in the trial court at the hearing.”

The appeals court found that notwithstanding this "astonishing argument" they agree with Petitioner that “[b]eing deprived of the procedural due process rights of a meaningful opportunity to be heard is the 'prejudice' that a party must show for purposes of the harmless error doctrine.”

The appeals court concluded with, "We hereby order that upon remand . . . that a judicial officer other than Magistrate Dawkins continue to handle the case."

In this case an alert and knowledgeable litigant appealed the court's ruling and got the case remanded and assigned to a new judge. However, most pro se litigants, without sufficient education and assistance, are not as deft to court procedures.

It is not unusual for attorneys to meet in chambers with the judge and negotiate agreements without the actual parties in attendance. Most people allow their attorney to do this without challenge. Yet, this is the source of many of the complaints that I receive; that cases are treated as a pre-packaged product with pre-determined results where attorneys do not invoke all possible arguments to ensure the best interest of the children.

The error here was that the pro se litigant was barred from participating. I have often been presented with cases where pro se litigants were deprived of due process. In one such child support case the obligor was jailed on contempt without being informed of his right to counsel and other due process rights. Interestingly, when I appeared with him a year later on another contempt citation he was informed of his procedural rights by the same judge.

He was assigned counsel, the hearing was rescheduled and, ultimately, he was not jailed this time. This is the power that having a recognized figure in court with you provides.

Attorneys are less likely to arrange deals to the detriment of your children and judges recoil from the predisposition to deny pro se litigants their substantive due process rights.

Whether you are a self-represented litigant or you have hired an attorney to represent you in a child custody proceeding it is important that you be allowed to and do present valid argument. To do any less is not to act in the best interest of your children. Initial custody determinations are difficult to overcome when seeking a modification. At either stage a meaningful hearing must be held.

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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.

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©2008, 2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.