Tuesday, May 19, 2020

I.C. 31-17-4-1(a) Restriction of Parenting Time - Rule 1.1 of the Indiana Code of Judicial Conduct - Is Marion County Superior Court Judge John M.T. Chavis II competent to sit on the bench?

Sometimes the bigger story comes when looking at another issue. Such is the case here. I happened upon this bigger issue when a litigant told me that Marion County Sheriff’s Deputies would not allow him to tender a filing to the Marion County Clerk of the Courts.

The immediate matter for consideration is whether Marion County Superior Court Judge John M.T. Chavis II has violated the Judicial Canons by knowingly issuing, defending, and maintaining a child custody order contrary to law.

The underlying cause is Moore v Moore 49D05-0810-DR-044790.

The immediate matter originated upon a Petition to Modify Parenting Time filed by Kristy Moore [Mother] on 25 June 2019. Mother alleged, as a basis for her unilateral termination of Father’s parenting time earlier that month, that Father had refused to cooperate with an investigation conducted by the Indiana Department of Child Services pursuant to an anonymous allegation of abuse made against Father. Mother sought to “cease parenting time” or for Father to have “supervised parenting time” until such time as Father would “cooperate with CPS.”

A hearing on Mother’s Petition was held on 23 July 2019. Father requested, in writing prior to the hearing [26 June 2019], findings pursuant to Indiana Trial Rule 52(A). Father additionally provided the relevant statute [I.C. 31-17-4-1(a)] and noted case law citations during the hearing, [D.B. v M.B.V., 913 N.E. 2d, 1271, 1274 (Ind Ct App 2009), Farrell v Littell, 790 N.E. 2d, 612, 616 (Ind Ct App 2003), Hatmaker v Hatmaker, 998 N.E. 2d, 758, 762-63 (Ind Ct App 2013)] indicating that a finding of endangerment was required before parenting time could be restricted, to Judge Chavis. DCS Family Case Manager Channing Reed testified that the allegations were “unsubstantiated”, that Father had cooperated throughout the investigation, that the children feel safe with Father and in his home, and that both initially and subsequently the children “were found to be conditionally safe.” Based upon the testimony of Ms. Reed the relief Mother sought had been satisfied -- that Father cooperated with the DCS investigation. An investigation which determined the allegations to be “unsubstantiated.”

However, a CCS entry of 23 July 2019 stated “Court will evaluate reduction of parenting time restriction after 30 to 45 days.” Judge Chavis reduced his order to writing which was entered on 25 July 2019. It stated that Father’s parenting time is to be restricted to supervised as determined by a third-party which came to be three (3) hours per week. Father was ordered to bear all of the costs. The opening paragraph of that order concludes, “Witnesses were sworn, testimony was heard, and evidence was considered by the Court, which now enters the following Order:”

The order consists of 16 enumerated paragraphs, the first 14 of which are instructions and the final two being administrative matters. Nowhere in the order does the phrase “the Court finds” or any similar wording appear nor are there any statements which could be construed to be findings. All 16 paragraphs are prospective in nature. Of particular note, that opening paragraph does not mention that the relative statute for restricting parenting time [I.C. 31-17-4-1(a)] was considered.

Father filed a Motion to Reconsider on 18 August 2019 which requested that the Court issue a revised order which included findings. The Court issued a Sua Sponte Interim Order on 18 September 2019 which, again, did not include findings. Father filed a Motion to Correct Errors in the Sua Sponte Interim Order on 15 October 2019 in which Father, again, noted the statutory and case law requirements regarding restricting parenting time. In a subsequent hearing Father handed the previously cited cases to Judge Chavis with relevant wording highlighted.

In the Sua Sponte Interim Order of 18 September 2019 Judge Chavis raises the issue of Father not signing a contract for supervision of parenting time which required Father to submit the “current Court Order outlining the Court’s specific findings regarding the supervised parenting time to be conducted”.[emphasis added] Father stated that he did not sign the contract because he did not have a court order with statutorily required findings as to the basis of restricting parenting time which he could submit. Judge Chavis countered that Father “misconstrued the meaning and intent of the Contract” which “only required Father to bring a copy of the Court’s July 25, 2019 Order with him”. If that was correct then the language of the contract as to findings regarding supervised parenting time, such as whether it is based upon emotional abuse, physical abuse, or neglect, would be superfluous and clearly poor contract draftsmanship. Judge Chavis was, again, simply trying to obfuscate the requirement that specific findings of endangerment, as required by I.C. 31-17-4-1(a), be included in an order restricting parenting time.

On 26 August 2019 Father filed a Motion to Certify Order for Interlocutory Appeal. Judge Chavis denied the motion on 28 August 2019. During the 23 July 2019 hearing Judge Chavis stated, “That Order that you will get will be my best effort from what I believe the evidence shows, and my decision will be based upon applying the evidence, the law. After that, it would matter, if little, what folks do. They can appeal, they can go as high as they want to.” [emphasis added] I Judge Chavis believes that it matters little if a party appeals then why refuse to participate in the process of allowing an appeal? Lack of integrity possibly?

The next hearing in this matter is scheduled for 02 September 2020. In the past near year Father has only been allowed to exercise parenting time with his children, supervised, for less than one hundred hours. All without a finding that he would endanger the physical well-being of his children or endanger their emotional development. And all for one reason; John M.T. Chavis II did not comply with Rule 1.1 of the Indiana Code of Judicial Conduct which is quite succinct -- “A judge shall comply with the law”. It is so succinct and precise that there is no commentary for this rule as there is with the 40 other rules, save the prohibition on broadcasting court proceedings.

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Sunday, May 17, 2020

Time limitations for Indiana court to rule on a motion during a SARS CoV-2 / Covid 19 pandemic - Trial Rule 53.1

During this latest moderate viral outbreak you will be provided with numerous opportunities to judge the various ethical attributes of businesses and people. Menards has been treating their customers [many now former customers] like lepers; requiring them to stand in line to buy a facemask before conducting business. Other businesses and people are not conducting business or not meeting deadlines. In short, a measure for integrity, a separation of failure and success, a demarcation between winners and losers has been established.

As a staunch advocate of free will I am all for allowing people who are failures to choose to fail and for losers to choose to lose. However, when it comes to the pressing matters of child custody cases failures should not be tolerated. That is precisely the intent and wording of the Indiana Supreme Court in crafting Indiana Trial Rule 53.1 which establishes the time limits for a judge to entertain a motion.

TR53.1(A) Time limitation for ruling.
In the event a court fails for thirty (30) days to set a motion for hearing or fails to rule on a motion within thirty (30) days after it was heard or thirty (30) days after it was filed, if no hearing is required, upon application by an interested party, the submission of the cause may be withdrawn from the trial judge and transferred to the Supreme Court for the appointment of a special judge. [emphasis added]

Not all motions are required to be set for hearing or ruled upon within 30 days. The rule does make some exceptions. Primarily is that the matter has been set for alternative dispute resolution [ADR] or that the court is awaiting a report on ADR. There are four additional exceptions delineated under subsection B;
(1) The Court, within thirty (30) days after filing, orders that a motion be considered during the trial on the merits of the cause; or
(2) The parties who have appeared or their counsel stipulate or agree on record that the time limitation for ruling on a motion shall not apply; or
(3) The time limitation for ruling has been extended by the Supreme Court as provided by Section (D) of this rule; or
(4) The ruling in question involves a repetitive motion, a motion to reconsider, a motion to correct error, a petition for post-conviction relief, or a ministerial post-judgment act.

Exceptions 1 and 2 are self explanatory therefore I will not elaborate. Exception 3 warrants greater attention and detail.

First though is the rule for calculating the time;
TR53.1(C) Time of ruling.
For the purposes of Section (A) of this rule, a court is deemed to have set a motion for hearing on the date the setting is noted in the Chronological Case Summary, and to have ruled on the date the ruling is noted in the Chronological Case Summary.

For purposes of the rule the motion is not required to be heard within 30 days but only that within 30 days a hearing date is to be set for some time. Under subsection D a judge may apply for an extension of the time in which to rule upon a motion or set it for hearing by making an application to the Indiana Supreme Court to extend the deadline for the particular motion. The application must first meet certain requirements. It must be filed with the Clerk of the Indiana Supreme Court prior to the time an interested party seeks enforcement of the deadline. It must set forth the nature of the motion, the circumstances warranting the delay, and the amount of additional time requested in which to set the matter for hearing or to rule upon the motion. Additionally, the application must be verified, and must be served on the Clerk of the Courts where the matter is pending and all parties of record.

During the SARS CoV-2 panic the trial courts may delay setting motions for hearing or ruling upon them if the judge follows the requirements of TR53.1. Pursuant to the Indiana Trial Rules there is no automatic extension of time allowed. For greater detail about the current constitutional violations by Marion County Indiana trial courts read Arbitrary Denial of Due Process in Marion County Indiana courts / Judge Chavis and an Open Petition to the U.S. Attorney to enforce Constitutional Rights .

Motions which are not available for remedy under TR53.1 include a Motion to Reconsider, A Motion to Correct Error, or any repetive motion of matters pending. Motion to Modify Parenting Time, Motion for Rule to Show Cause, Motion to Compel, Motion for Discovery and other common motions associated with child custody matters are to be set for hearing or ruled upon within 30 days. These types are available for remedy through TR53.1

An interested party may petition for the appointment of a new judge to entertain the motion when the presiding trial court judge has failed to do so. The requirements for a party to apply for a motion to be withdrawn from the trial judge is to file a praecipe [Praecipe for Withdrawal of Motion from Trial Court Judge pursuant to Trial Rule 53.1] specifically designating the motion or decision delayed. The praecipe should note the date of filing of the motion as entered in the CCS as well as the date on which the motion should have been set for hearing or ruled upon. The praecipe should be signed and served on all other parties as would any other filing. A copy for self should also be made which will be file stamped and returned.

Upon receipt of the praecipe the Clerk of the trial court shall enter the date and time of the filing on the praecipe, record the filing in the CCS under the cause, which entry shall also include the date and time of the filing of the praecipe, and promptly forward the praecipe and a copy of the CCS to the Chief Administrative Officer [CAO] of the Indiana Office of Judicial Administration [IOJA].

If the CAO determines that a ruling or decision has been delayed beyond the time limitation set forth under TR53.1 or 53.2, the CAO shall give written notice of the determination to the judge, the Clerk of the trial court, and the Clerk of the Supreme Court of Indiana that the submission of the case has been withdrawn from the judge. The withdrawal is effective as of the time of the filing of the praecipe. The Clerk of the trial court shall record this determination in the CCS under the cause and provide notice to all parties in the case. The CAO shall submit the case to the Supreme Court of Indiana for appointment of a special judge or such other action deemed appropriate by the Supreme Court.

In one case I had a judge denied a motion the day after a praecipe was filed. That judge didn’t understand the rule though as his jurisdiction was suspended at that point the Praecipe was filed with the Clerk of the trial court.

One other matter to consider during this time is continuances. Pursuant to TR53.4 a trial or hearing may, upon the filing of a motion or by sua sponte order, be postponed or continued in the discretion of the court, and shall be allowed upon a showing of good cause established by affidavit or other evidence.

While court congestion or limitations, such as panicked people failing to do their jobs, may be an excuse which is used to justify a delay the judge must state the reasons in a petition as continuances are not automatically granted. In filing a praecipe it may be wise to anticipate these lame excuses and cite the constitutional requirements and directives of the US Department of Justice which are available here.

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Saturday, May 16, 2020

Arbitrary Denial of Due Process in Marion County Indiana courts / Judge Chavis and an Open Petition to the U.S. Attorney to enforce Constitutional Rights

The United States Constitution at Article V, VI, and VII of the Bill of Rights provides that citizens are entitled to due process in matters of law. The USSC has interpreted this to mean that litigants are entitled to be heard at a meaningful time and in a meaningful manner. [Mathews v. Eldridge, 424 U.S. 319 (1976)]

While some may contend that viral contagions are a recent phenomena, superseding the drafting of the United States Constitution, the wider intellectual community knows otherwise. Although the framers of the Constitution were aware of human borne pathogens no provision was made for the suspension of the rule of law during any viral outbreak. It is incumbent upon local and state courts to maintain their continuity of operations during a viral pandemic so said the United States Department of Justice [DOJ] long before the eruption of the SARS CoV-2 pandemic panic.

It was the DOJ which over 13 years ago held a symposium on maintaining the rule of law during a period of a SARS pandemic. Subsequently the DOJ published a paper identifying areas of concern during a SARS pandemic. This document, titled Guidelines for Pandemic Emergency Preparedness Planning: A Road Map for Courts, March 2007 from the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice, [The Road Map] identified the constitutional rights of the citizenry and how paranoid government actors may trample upon those rights by implementing arbitrary and capricious policies such as quarantines or denial of access to courts.

The Director of that office, Domingo S Herraiz, stated in the opening letter of the documents that it was of “critical importance” that state and local justice systems “uphold the rule of law throughout any crisis.” He further stated that the document was prepared “to encourage court planners throughout America to consider possible issues the court may face and how to solve them -- in advance of a pandemic.” [emphasis in original]

In the opening paragraph of the body of the Road Map titled Nature of the Challenge the DOJ identifies a pandemic of Severe Acute Respiratory Syndrome [SARS] as possibly having a “tremendous impact on the administration of justice.” The USDOJ recognized that accommodations may need to be made, such as holding court sessions “in movie theaters”, to ensure that the rule of law was maintained.

The DOJ was well aware in 2006 what the challenges to court administration would be during, specifically, a SARS pandemic and in response developed a guide for local and state justice administrators to use in establishing protocols in advance of a SARS pandemic. The stated goal was to ensure that the rule of law was maintained during the upcoming SARS pandemic. Yet government actors in Marion County Indiana who knew, or through the exercise of due diligence should have known, of this document and their constitutional mandates, failed to provide the citizenry with due process under the rule of law. In The Road Map it was stated that courts would be charged with “[p]reserving constitutional protections—including those relating to due process” as well as hearing challenges to government mandates like “quarantines”, “sequestrations”, or control over “resource distribution and consumption”.

Although beholden to the people from these advanced directives, the Marion County Sheriff’s Department, the Marion County Clerk of the Courts, and Marion County District Court Judge Chavis, among others, have, with deliberation and capriciousness, failed to develop an adequate continuity of operations plan or hold court proceedings thereby denying the citizenry of Marion County or those having a cause of action arising there the rights under the Constitution of the United States of America to due process of law.

On 16 March 2020 one such citizen who expressed a desire and attempted to file a document in a domestic relations case with the Marion County Clerk of the Courts was refused admittance to the courts building by Deputies of the Marion County Sheriff’s Department. However, the deputy stated that marriage license applicants would be admitted. Apparently the way to avoid catching the SARS CoV-2 virus is to make a connubial commitment. This particular litigant’s right to access the courts was arbitrarily denied. Ironically, the courts formerly require marriage license applicants to get a blood test to examine for the presence of virus antibodies.

The right to due process in denial of a parent’s right to parent children is fundamental. In Marion County Indiana Judge Chavis denied to a parent the established parenting time without findings that the children were endangered. Indiana Code 31-17-4-1(a) provides that “Subject to subsections (d) and (e), a parent not granted custody of the child is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time by the non-custodial parent might endanger the child’s physical health or significantly impair the child’s emotional development.“ The Indiana Court of Appeals interpreted this statute to mean that parenting time could not be restricted unless the parenting time “would” endanger the child. [D.B. v M.B.V., 913 N.E. 2d, 1271, 1274 (Ind. Ct. App. 2009)]

In the immediate case on 07 November 2019 the court scheduled a status conference for 06 December 2019 to be conducted by electronic means without the parties being present in the courtroom. Clearly, the court had the means to take testimony from witnesses and make a decision based upon that testimony.

The court noted, in writing through a sua sponte order, on 03 April 2020 that because of a perceived risk of transmission of the SARS COV-2 virus and resulting COVID-19 ailments that the corresponding low risk of viral transmission outweighed the constitutional mandates that the court owed to the litigants and thus the court proceedings scheduled for 15 April 2020 would not be conducted. This was done despite the full knowledge that the judicial staff had a constitutional obligation to the citizenry to uphold the rule of law rather than suspend it and invoke anarchy.

Particularly the court issued findings that Indiana Governor Holcombe and U.S. President Trump [through their vacuous decisions] had declared health emergencies and ordered various shutdowns. However, the Road Map list some priorities for courts which include, “(1) preserving the continuity, integrity, and independence of the judicial process during a pandemic emergency.” Apparently Judge Chavis is not knowledgeable about the constitutional separation of powers and that Holcombe and Trump do not hold sway over the operations of the courts. Hence that word “independence” that the DOJ specifically used in the Road Map.

At the time Judge Chavis vacated the hearing the SARS CoV-2 official death count was only 30% of the level needed to enter the CDC’s five tier Pandemic Severity Index at Category I. Although Judge Chavis was able to enter findings to cancel a parenting time hearing he did not have any problem in not issuing findings, as required by law [Indiana Code 31-17-4-1(a)], when denying parenting time in the immediate case.

It is obvious that the Indiana Supreme Court demonstrated no interest in preserving the rule of law or they would have developed a continuity of operations plan to which Judge Chavis could have referenced or followed. Domingo S Herraiz was ignored when he asked them to “uphold the rule of law throughout any crisis” by “consider[ing] possible issues the court may face and how to solve them -- in advance of a pandemic.”.

The Road Map identified a special consideration for courts in stating that there would be a “[l]ikely need for the court to develop alternative strategies for face-to-face contact by courthouse staff with the public, people under probation supervision, and others involved with the court’s day-to-day operations.” Subsequent to holding a hearing that minimized face-to-face contact and following the first wave of the SARS CoV-2 pandemic the Judge Chavis opted to dispense with such a method and instead failed to conduct a hearing.

The citizens of Marion County Indiana have a right to access the courts. They have a right to have their grievances heard in a court of law. They have the right to have access to their children and to be parents to their children absent some abuse of that right. They have the right to challenge a violation of that right unless they live in Marion County Indiana, because there Judge Chavis refused to allow them to challenge these violations. In short, the rule of law has been unconstitutionally and unconscionably usurped by people who do not observe or honour their oath of office and do not respect the rule of law.

These actors should be compelled, by law and under threat of imprisonment, to uphold the rule of law and conduct court proceedings to effect the rights of parents within, all citizens of, and those people having a cause of action arising in, Marion County Indiana.

In the interest of preserving the rule of law and upholding the constitutional rights of all people the United States District Attorney for the Southern District of Indiana should seek a Writ of Mandamus in addition to all other forces which may be exercised by him to compel the offending actors to perform their constitutional obligations to the people whom they are duty bound to serve.

The United States Department of Justice did not mince words in the Road Map as to the priorities and obligations of the state and local courts during a SARS pandemic;
“1. First Things First—Reality Check
Courts are not like ordinary businesses, as they must continue operating to maintain the rule of law and ensure an orderly society under any circumstances. Criminal laws must continue to be enforced, personal rights and liberties must continue to be protected, cases must be adjudicated, and controversies resulting from pandemic conditions must be addressed.” [emphasis added].

Related articles

SARS CoV-2 / Covid-19 Quarantine Efficacy and Civil Rights

Demanding a Speedy Jury Trial during SARS CoV-2 and Covid-19 outbreak

Coronaviruses, SARS CoV-2, Covid 19, and a Social Responsibility

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©2008, 2020 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in its’ entirety with credit given.

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