Wednesday, April 15, 2015

Indiana Judge Thomas Newman chided by Court of Appeals for denying parenting time to father in order issued “Because I said so”

Madison Circuit Court Judge Thomas Newman, who gained international attention by terminating a father’s custody of his children because “Petitioner/Father was agnostic”,[en1] is back at it again. This time it involves the case of R.S. v A.S. decided 13 April 2015. The panel of the Indiana Court of Appeals noted that “[T]he trial court ignored the wishes of the parents, penalized the Children and extended family members, contravened relevant statutory authority, and ignored Father’s Constitutional rights.” [emphasis added]

To get to the Court’s rebuke of Newman we shall start with the background of the case. Mother and Father were divorced on 24 May 2012. The dissolution decree incorporated their agreement that Mother would have custody of the Children and Father would exercise parenting time according to Mother’s wishes. On 21 June 2013, Father filed a Petition to Modify Support and to Establish Parenting Time. Mother filed a petition for contempt.

On 05 December 2013 the court held the first day of the hearing on this matter. Mother testified that Father had appeared to be under the influence of alcohol during some prior exchanges of the Children. After the hearing, Mother successfully sought a change of judge. The hearing resumed on 02 May 2014, with the parties agreeing that the new trial court judge would also review the evidence presented on 05 December 2013. Mother testified that some of her concerns had been obviated and she assented to Father having Indiana Parenting Time Guideline-based parenting time. Mother sought certain deviations such as Father was to transport the children, not consume chemical substances, and that she would exercise Father’s parenting time during the summer if he was working a long day as a landscaper.

During Mother’s testimony, the trial court made inquiries and ascertained that Father had not recently completed a parenting class called Children in the Middle. Father professed to have completed this program during his prior divorce. However, Mother testified that she and Father had not agreed that this was sufficient.

At the conclusion of the testimony, the trial court announced:
[B]efore we close the records I want to make a ruling. Because the father has not taken nor completed the Children in the Middle Program the Court suspends his visitation until he completes the Program two times, and further writes an essay which shall be presented to the court. In which should cover the following areas: behaviors that I was engaged in that were detrimental to the well being and proper development of the children and facilitating visitation; what changes I have made regarding my behavior and attitude towards my children and relationship with the children’s mother. After the Court reads the essay from the father a hearing will be set to determine an appropriate visitation if any. [emphasis added]

Father’s counsel sought to clarify the order and the basis for repetition of the class, to which Newman responded: “Because I said so.” Toss the requirement that a judge shall be patient, dignified, and courteous to lawyers and others out the window.[en2]

Wisely, at least one of the parents sought findings and conclusions[en3] which requires the Court to apply a two-tiered standard of review for clear error; that is, first, it must determine whether the evidence supports the findings, and second, whether the findings support the judgment. When findings are not requested the Court will uphold the trial court if it can find any legal theory to do so. Judge Newman in the order provided that Father’s parenting time was suspended “pending further hearing.” It is important that the parent-child relationship be maintained in some form as the Court has found that “[i]deally, a child should have a well-founded relationship with each parent.”[en4]

Restrictions on parenting time is controlled by statute. “The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent’s parenting time rights unless the court finds that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.”[en5]

Although the statute uses the word “might,” th[e] Court has interpreted the language to mean that a court may not restrict parenting time unless that parenting time “would” endanger the child’s physical health or emotional development.[en6]

When issuing its sua sponte order the trial court articulated no specific finding that parenting time with Father would cause harm to the Children. The trial court did not address the impact upon the children of the abrupt and indefinite suspension of time with Father which included depriving them of a relationship with their older sibling. This restriction is tantamount to finding that Father had sexually molested the children.[en7]

The Court was curt in its rebuke of Judge Newman which did not include an offer of allowing Newman to articulate his reasoning for the indefinite parenting time suspension. Rather, the Court stated that “[O]ur parenting time statute does not provide for the elimination of parenting time because the trial court has decided ‘I say so.’” I will not be so reserved in my rebuke of this blemish upon the judiciary.

If you are familiar with the grace and formality upon which the Court typically addresses issues of errors or poor judgments rendered by the lower court judicial officers then it is clear that Newman just took a kick to the groin and is feeling those two nuggets all the way up to his tonsils.

I understand that basis for Newman’s contempt for Father. He may have not been fully focused on the children and he challenged Newman. While the concept of the Children in the Middle program seems laudable these types of programs have often been woefully deficient in providing meaningful instruction to parents and have been facilitated by persons holding biases about parenting roles. The best that I have found is Up To Parents. Some of these programs are not presented frequently. Thus, participating twice could take months.

Newman’s spontaneous ruling, his response to counsel, and his subsequent order demonstrate that his self-righteous attitude, which contributed to his bigoted denial of custody rights for Craig Scarberry based upon him being agnostic, clearly has not waned. Newman is someone who should not be on the bench. His prior harm to children and his deliberate continuation of harming children is deplorable and should be reflected in the people of Madison County feeling shame for re-electing such a classless tyrant.

The Court concluded with this ruling and these instructions; “We reverse the parenting time suspension. We remand the matter to the trial court for an order of Guideline-based parenting time, as contemplated by the parents, and for consideration of the admonitions requested by Mother.”

[1] Finding 10, Order on Parenting Time and Child Custody, 08 November 2010, Scarberry v Porcaro Cause Number 48A02-1012-DR-1278
[2] Indiana Code of Judicial Conduct Rule 2.8(B)
[3] See Indiana Trial Rule 52(A)
[4] Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct. App. 2003)
[5] Indiana Code Section 31-17-4-2
[6] D.B. v. M.B.V., 913 N.E.2d 1271, 1274 (Ind. Ct. App. 2009)
[7] Duncan v. Duncan, 843 N.E.2d 966, 972 (Ind. Ct. App. 2006), trans. denied.

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