Saturday, February 26, 2011

The Extraordinary Efforts of DCS: Department of Child Services

Recently I wrote about Christine Porcaro abusing and neglecting her children and how pursuant to the obligation by law imposed upon me I made a report to DCS. In that case DCS took the guided tour and found the allegation to be unsubstantiated. Of course Porcaro lied and the abuse and neglect intensified.

So then what is the basis for the horror stories we hear about DCS taking children from good parents and subjecting the children to actual abuse and neglect?

In the Matter of B.M., Indiana Department of Child Service and Child Advocates vs. Me. M and P.M., a memorandum opinion of 24 September 2010 provides what I feel is a good example of the motivation that leads to such a reputation. Although it is usually the parents who appeal the decision of the court, in this case it was the Indiana Department of Child Services using Hoosier taxpayer dollars.

Appellant/Petitioner Indiana Department of Child Services (“IDCS”) and Appellant Child Advocates, Inc. (“Guardian Ad Litem”) appeal the juvenile court's determination that the evidence was insufficient to prove that B.M. was a Child in Need of Services (“CHINS”). B.M. is the minor child of Me.M. (“Mother”) and P.M. (“Father”).

The family, which included B.M's sister M.M., took a canoe trip on a river. As the family was nearing the end of their canoe trip, their canoe became stuck in a log jam and was overturned. Father and Mother were able to rescue B.M. but M.M.'s body was not located until three days later. IDCS then initiated a CHINS action on B.M.

The juvenile court heard conflicting evidence regarding whether B.M. and M.M. were wearing life jackets during the canoe trip. The juvenile court also heard conflicting evidence relating to the level of attention and care with which Mother and Father provided the children during the canoe trip. The juvenile court also heard substantial evidence depicting Mother and Father as caring parents who always adequately cared and provided for their children. The juvenile court issued an order finding that B.M. was not a CHINS. IDCS then appealed arguing that there was insufficient evidence to show that B.M. wasn't a CHINS and that the court should not have allowed the parents to invoke their Fifth Amendment right.

The children were seen wearing life jackets by three witnesses at various points of the canoe trip. The children also used other flotation devices such as arm floaties and seat cushions that float. [Mother] told DNR 1st Sergeant Jeff Barker that the children were wearing life jackets that day.

None of the witnesses had any concerns about [Mother]‟s parenting ability. She is described as loving, patient, kind, and attentive to her children‟s needs. FCM Silver listed [Mother]‟s strengths as being available for [B.M.], providing for her needs, empathetic, compassionate, able to communicate effectively, having support from family, employed, and a loving person. Ms. Butler, the home based counselor, had no concerns with how [Mother] raises her child and does not think there is anything [Mother] could do that she has not been doing.

There were about 20 findings total. They were not supportive of finding B.M. to be a CHINS. Upon review the panel concluded that the evidence most favorable to the judgment and the reasonable inferences flowing therefrom show that each of the challenged finding is supported by ample evidence in the record.

Fifth Amendment
In this case the parents invoked their Fifth Amendment right and refused to testify. DCS objected but the court rightly allowed the parents to remain silent. The U.S. Supreme Court “has long held that the privilege against self-incrimination not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Allen v. Illinois, 478 U.S. 364, 368 (1986) (quotations omitted).

The Indiana Department of Child Services knew that authorities in Bartholomew County were still considering bringing criminal neglect charges against Mother and Father. Yet, they tried to question the parents at the CHINS hearing and argued on appeal that no right to refuse to testify in a civil proceeding related to a criminal action exists.

Where is the medical neglect?

In Boone County DCS is currently alleging a child to be a CHINS based upon a medical condition. This status may be conferred upon a child who has exceptional medical needs or is not receiving care. In this case the young child had seizures and managed to bang his head around and get some bruising about the face. He also had a blood condition called thrombopoietin (TPO) which contributed to the bruising. Additionally, the child had an allergic reaction to the Ibuprofen given to him.

His parents took him to Witham Hospital in Lebanon who turned them away saying there was no problem. Doctors at Payton Manning Hospital determined that the child had a seizure and prescribed Kepra for treatment, which has been effective.

In this case the parents had not denied or failed to seek medical care. It was actually the medical care provider that made the report to DCS. Under Indiana Code 31-33-5 anyone suspecting abuse or neglect of a child is responsible to make a report to DCS or law enforcement authorities.

The amazing part of this case is the court's reliance upon the incompetent medical staff making the report whose claims are directly contradicted by other medical authorities. By denying that the child's injuries are a result of the diagnosed and treated seizures the reporting person and the court is concluding that the injuries are the result of abuse.

This is simply DCS again trying to make a case where one does not exists.

Needed Intervention

Some of the most heart-wrenching and appalling cases I see are CHINS cases. There are times when the involvement of DCS is necessary. Some of these cases are appalling not because of the actions of the parent but because of the inaction of DCS.

I was involved in a case in Marion County in 2008 where the FCM's report indicated that the only food that mother had available for the children was what the baby was picking off the floor. There was animal feces throughout the home and that it was generally trashy. The adolescent girls complained that they could not be in the bathroom unless accompanied by mother's live-in boyfriend and the oldest child, age 15, had not been seen for a week.

One week after the children were removed from the home the supervisor of the FCM was recommending reunification with Mother over FCM's objection.

Although the Indiana Department of Child Services has a legitimate task to perform it should not be done in a way that abuses parents and neglects the very children they are charged with protecting.

If you need assistance with a DCS [aka Child Protective Services] action please contact my scheduler for details.

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

Thursday, February 24, 2011

Why the health of you and your attorney is important in child custody litigation

I've seen it said that the traits necessary for becoming a successful lawyer are education, concentration, logical thinking, and persuasive writing and speaking. I agree with all of these and contend that there is one additional that applies to the litigants also; good health. Nowhere do I feel this is more important than in a contested child custody action.

Not all attorneys and litigants can be blessed, or maybe cursed, with Obsessive Compulsive Disorder. In an area where the stakes are so high and the divergent paths so vast it is necessary to have every available resource in your arsenal. Sharp thinking and the ability to concentrate on multiple disciplines, especially during trial, is a must.

While examining his witness, a litigator must be focused on eliciting the desired testimony while limiting the testimony for cross-examination. Conversely during cross-examination he must focus on correcting or reshaping the testimony and getting the witness to stumble if that witness is not favourable to his case. During all times he must be aware of the Rules of Evidence and be prepared to and make objections which will preserve the issue for appeal.

I have had trials where the entire day was spent questioning witnesses. In one case that should have gone quickly the opposing attorney kept complaining that I had the witnesses on for exhaustive periods of time. But that was an interrogation technique. Tire the witness and lull him into a comfort zone with almost mundane boring questions. Each of those questions contained a small element of the desired information which was asked in such a way as to not expose that desire. At the last moment the decisive question is asked and a response that contradicts the way it was answered when asked in other subtle ways earlier is given. In the end I got a police officer to commit perjury and revealed it in the line of questioning. It takes a sharp and alert mind to do that.

I am a runner and can equate it to running a marathon. Trial work is exhaustive. As the fifth, sixth, seventh hours roll by the body can tire and the brain can start to lose its focus. The two are intertwined. In the eighth hour it is just as important to be sharp and focuses as in the first. Anyone can take off from the starting line with a full burst of energy but its getting across the finish line with that same vitality and gusto that counts.

There are many health conditions that can impede the litigator. COPD, ARDS, emphysema, chronic bronchitis, pulmonary fibrosis, congenital heart disease and congestive heart failure. Additionally, some medicines can cause excess fluid in the lungs thereby reducing oxygen intake. Simply put, to function at its peak level the brain needs to be fully oxygenated.

But beyond just the moment of trial there are other considerations. A person who is not in peak condition is more susceptible to sickness or temporary infirmity from having a lowered immune response. This can result in delays in your proceedings or lack of adequate trial preparation.

People who have chronic health conditions may have medical appointments or flare-ups that can interfere with court schedules. These conditions may also be of such concern to the sufferer that they result in excessive worry which can interfere with the ability to concentrate on your case. Finally, the protracted existence of such conditions could lead to depression which could result in severe damage to your case.

Indiana Code 31-17-2-8 list one of the factors that a court must consider in a child custody decision which is the mental and physical health condition of the parties. Since it already must be considered by the court that is just another reason why you should be in optimum health when going into a child custody battle. If you have an attorney it is also important that he or she also be in optimum health.

To be effective you must have an advocate that is knowledgeable about child custody law such as myself. I take it further though. I also provide wellness training for clients both in and out of child custody litigation, am available 24 hours a day to calm those who are overwhelmed by anxiety, and shape the public persona for clients who will be appearing in court. Your life and that of your children are too important to not have you in optimum health.

If you would like assistance with your case, finding an attorney or even need comprehensive personal management of any or all aspects of your life that could affect child custody then please contact my scheduler to arrange an appointment.

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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.

Tuesday, February 15, 2011

Indiana Court of Appeals issues Stay in Scarberry Child Custody case

The Indiana Court of Appeals today issued a Stay in the child custody case of agnostic father Craig Scarberry. The case gained worldwide attention because Madison County Superior Court Master Commissioner George C Pancol and Judge Thomas Newman found that Scarberry was unfit to parent his children because he had changed his religious preference from Christian to agnostic. He was stripped of custody of his children in November 2010.

These are the two issues which I initially brought before the appellate panel:
1) Whether the trial court's order modifying Petitioner/father's joint legal custody of the parties three (3) minor children to awarding Respondent/mother full legal custody of the children based upon father's change in religious preference from Christian to agnostic and his religious practices, or lack thereof, which did not in any way actually harm or pose a substantial threat of harm to the children creates an establishment of religion or impinges upon father's freedom of religion inviolate of the establishment of religion clause or free exercise of religion clause of the First Amendment to the United States Constitution made applicable to the individual states by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
2) Whether there existed evidence to support the facts and whether the facts supported the findings that there had been a substantial change in one or more of the factors provided for by IC 31-17-2-8 and that a modification of custody reducing father's parenting time was in the best interest of the children.

Since the trial court's ruling in November the children's mother, Christine Porcaro, has discontinued medical treatment for the children including psychological counseling and the youngest child's treatments for Cerebral Palsy. The Madison County Department of Child Services concluded one investigation of Porcaro in December. Porcaro lied to DCS during their investigation which has been shown through subsequent documentation sent to DCS. Porcaro is now the subject of another DCS investigation.

Today's ruling returns legal decision making authority to Scarberry which will now allow him to resume the children's necessary medical treatments without interference from Porcaro. The next step in the process will be for the submission of appellate briefs. I will post additional information about this case as it becomes available.

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Make a suggestion for me to write about.

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.

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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.

Thursday, February 10, 2011

The Safety in Texting While Driving

Today's posting is a long one but contains valuable information that if you put into practice can make driving safer for all of us and possibly save your life. Much of it goes against the conventional "wisdom" that leads to wrecks and death. So, please read what was initiated by the recent flux of anti-texting while driving legislation.

Senate Bill 18 is coming on for hearing on Friday 11 February 2011 before the Committee on Public Policy of the Indiana Senate. This bill seeks to remedy the latest buzz about vehicular collisions; distracted driving and texting while driving.

However, distracted and inattentive driving is not any particular action but a phenomena.

A few years ago drowsy driving was the poster child accompanying alcohol as the root of vehicular mayhem. According to the National Sleep Foundation’s 2005 Sleep in America poll, which was widely quoted, 60% of adult drivers – about 168 million people – say they have driven a vehicle while feeling drowsy in the past year, and more than one-third have actually fallen asleep at the wheel!

I contend that it is not an action but instead a mindset that leads to such carnage. People simply don't care or give due diligence to the seriousness of or the need for extensive study, training and practice for operating a motor vehicle on the public roadways.

A month before I got married my wife rear ended another car in Castleton [a section of Indianapolis] during rush hour traffic while she was talking to her sister. Her sister was in the passenger seat, not elsewhere on a phone. But for some reason my former wife felt the need to look at her sister while talking instead of at the road and bumper-to-bumper traffic ahead of her.

During the most recent Christmas break I was driving through Lebanon nearing a school and saw a school speed limit sign with flashing lights. It was about 600-700 feet ahead of me. I wondered why it would be flashing when school was not in session so I tried to read it but was too far away. I became mesmerized by the flashing lights though. Suddenly I snapped back, slammed on the brakes and slid to a stop a few feet into the four-way stop intersection as the other drivers, one in each direction, patiently waited.

Recently much of Indiana has been under snow emergencies. On those days I drove more than ever. I am regularly called upon to take passengers when they entrust no-one else to drive in those conditions. I do it fastest and while texting at times. My passengers can attest to this and their sense of increased safety while I am driving.

There is good reason why I go faster. Primarily it is a result of being hyper focused on driving. As information pours into the brain the body is able to react to that stimulus and process those results. During typical driving experiences the operator is often focused on other things in addition to the forward view of the road; conversation with passengers, scenery, signs, in-car controls and gauges, and etc. Think of it as running through a room with a strobe light on. If you double or triple the number of flashes you could naturally go faster because you would be receiving more visual stimulation [the changing view of the room] and be able to react quicker. Hyper-focusing is like turning up the rate of flashes.

There is another reason to go faster. This has to do with Newton's laws of motion. Mass will continue to move in a straight line unless acted upon by another force. Think of walking through light fluffy snow with one foot suddenly encountering chunks of ice. The resistance against that foot will cause your body to turn in that direction. Increase the resistance and the degree of the turn will increase proportionally. To combat this your body reacts by increasing the force, pushing harder using the muscles in that leg. You may not even be aware of this. A car can't do this though.

Force equals weight times rate. I have personally witnessed the occurrence of slow moving vehicles suddenly veer off the road as they either lost traction on one side or encountered resistance. By increasing the rate of speed the force of the vehicle is exponentially increased. The effect of the resistance, which remains static, is then exponentially decreased. What would have sent a car into a ditch at low speed now becomes a bobble. By keeping a loose grip on the steering wheel the vehicle is able to react to the resistance and self-correct.

I likely have a greater knowledge of physics and vehicle mechanics than most drivers. I also am not your ordinary driver in other ways. I have extensive driving experience and know my vehicle well and others. I worked as a repo agent for years and was often called upon to "steal" a vehicle. I had to know where shifter and various controls were, whether front or rear wheel drive and handling before fleeing in the vehicle.

Whenever I get a new vehicle I take it to a skid pad, gravel lot or other suitable location to feel the vehicle out. I practice losing and regaining control in a controlled environment. In some situations I may make steering adjustments at a rate of about 200 times per minute. When I am on the road I concentrate on the mission of driving. I can, at times, do other things without hazard such as texting.

Not all people possess this skill. I know some IndyCar drivers who manage to drive those cars at very high speeds weaving among traffic, checking mirrors, talking to their team, adjusting controls in the vehicle and doing so with exacting precision all simultaneously. Although not in their racing position I have driven one of those IndyCars at an off-track location, gaining must respect for the skill they must possess to operate those cars from such a low vantage point. One of the things I have learned from racing that I believe most people don't practice is extending the range of forward view.

When I am driving in town I am often looking ahead about 600 feet. On the interstate around 1100-1300 feet. This gives me added time to respond to any unusual circumstances. I also glance at each mirror about every three seconds under normal conditions. Most people have a forward view that extends little, if at all, beyond the car immediately in front of them.

I have done so much in vehicles and yet never had an at-fault collision. I estimate 500,000 miles. One time I was out running around with one of the town cops. I was in my police car about two feet off his bumper as we went through a curve at 90mph. After we stopped he asked what I would have done had he brake-checked me. I said, "Watch you try to explain to the chief why I punted your car into a field at 90mph." Actually I would have braked also while adjusting my steering to keep my bumper flat against his so as not to "pit" him. I drive double footed, that is one foot hovering above the brake pedal while the other is on the accelerator, which allows for more immediate reaction.

One time in downtown Indianapolis a driver failed to yield at a red light until he was motionless completely blocking my lane. I smashed the brake pedal before even releasing my foot from the accelerator and slid to a stop within one foot of his door. I could actually see his eyes close and body brace for impact. In another instance I changed lanes immediately without checking mirrors. Because I normally check mirrors so frequently my mind had already processed where the approximate location of each trailing vehicle would be based upon their various speeds and location since last view. I was also very familiar with that road. Combining short and long-term memory allowed me to avoid a collision.

Unlike some areas which may have regular snow cover on the roads we do not have overhead lane markers. I don't think it is asking too much of a driver to then memorize the relationship between the position of stop-n-go lights or overhead signage to the lane markings on the road so as to know where the lanes are when the roadway is snow covered. On the roads I regularly travel I do have these memorized. I could go on about the other things I do to ensure that I am a competent and efficient driver but I think you get the point. I take it very seriously and spend additional time ensuring I maintain or improve my driving skills.

Officer John Carney of the Fairfax County Police says, "Rubbernecking is the most dangerous distraction, in my experience." "I've had as many as three accidents at one scene, at one intersection." I have had the same experience. I have also found that the flashing lights on emergency response vehicles are a distraction. Maybe we should legislate that these vehicles must turn off their lights so as to not distract drivers on the interstate heading in the opposite direction.

An across the board electronic communication ban fails to acknowledge that people do not all possess the same skills and some are quite superior while others are woefully inferior. I could make an analogy to plumbing. If I walk into 100 houses and bust pipes there will be some people who won't even know to shut off the main. Others will look at the tools in bewilderment yet some will manage to make the needed repairs quickly and properly. Should we then ban all homeowners from doing plumbing because of the inferiority of most?

You can counter that plumbers are trained and licensed and therefore the average homeowner shouldn't be expected to perform to the same standard. Well then what are drivers, neither licensed nor trained? I think we need to make reforms at the first contact level. Driver education programs and the standards for receiving an operators permit which I think now is 3 or 6 proofs of purchases from Lucky Charms because you are relying on luck when you hit the road. In the 2002 Sleep in America poll, nearly all respondents (96%) agreed that information about driving while drowsy should be included in tests for a driver’s license. Driving classes and tests should include elements of real life.

There should be a closed course driving test that includes distracting passengers, asking the operator to text, and other real-life scenarios. If not for the purpose of evaluating the drivers reaction then to at-least let the driver know his competence level.

I have another problem with prohibitions. They are not effective. I could muster some support for this bill if I thought prohibition would achieve the desired results. It may be too early to use this as a comparison because people may not be aware of the prohibition on possession or use of marijuana. But I do know it is a fact that people are using, possessing and selling marijuana in violation of that prohibition.

Is it logical to think that a prohibition on electronic communications while driving will be respected? I contend that what will happen is that people will begin lap texting rather than wheel texting creating an even greater danger as their heads and eyes are pointed downward instead of still forward.

Here are just a few things that take the drivers eyes off the forward view of the road longer than typing text; adjusting mirrors, looking in mirrors, turning on windshield wipers or lights, and adjusting temperature controls. That is not getting into the non necessary actions for operating a motor vehicle which people often engage themselves.

I have had people tell me, wrongly, that it is never safe to use a cell phone or text while driving. I have seen numerous PSA's which convey the same message. If so, then why have exemptions such as those in this bill for emergency responders?

A student driver friend of mine told me it was a Sheriff's deputy who recently pulled out from KFC onto Highway 32 in Lebanon, drove half the speed limit and then drifted into her lane before correcting. What did she notice when she passed him; he was messing around on his computer. What do the data records show Officer Bisard was doing when he crashed into and killed two motorcyclist? Are these the actions that this bill implies are safe, I believe so.

I believe that the use of electronic communications while driving is not an absolute danger but adds an element of safety to drivers on the road. Cell phones and texts have been used to warn other drivers of delays or wrecks on roadways. I know because I have received and sent them. Drivers who avoid delays are less likely to be in a hurry or engage in other activities to save time that may cause further danger. Another thing electronic communication while driving allows is notice of running late so one does not feel the need to speed, run lights or otherwise drive aggressively.

When I write legislation or amendments I give very careful consideration to the intended and possible consequential effects as I believe there is no greater matter for consideration than the custody and well-being of children. It is often a precarious balancing act as those involved in family law know.

I would like to see legislators giving equal weight to all legislation. Is it their purpose and obligation to legislate what individual actions or distractions may be made illegal or is proper to set a performance expectation and hold people accountable to that instead? We already have a reckless driving statute. We already have a superficial operators permit test. I believe it is their purpose to set a standard of acceptable outcomes but now how to particularly achieve that outcome.

Where does it stop? Are Christmas lights, well-sculpted pedestrians with form fitting clothing, talking passengers, road signs at intersections or the trees in Brown County in Autumn a distraction?

I hope legislators and proponents of prohibitions laws such as this give serious consideration to whether it is government's prerogative to micro-manage people's lives, drivers in particular, or set universal standards consistent with logic and reason.

Ultimately, it is up to individual drivers to know their vehicles, their skills and their ability to function at higher performance levels such as those needed for engaging in additional tasks while driving. Just because some people can't perform well doesn't mean that no one should be allowed to.

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Make a suggestion for me to write about.

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.

View Stuart Showalter's profile on LinkedIn

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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.