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Split COA reverses mother's contempt finding over parenting time sessions

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A mother’s appeal of the order finding her in contempt for not bringing her child to supervised parenting time sessions at a facility drew three opinions from a panel of the Indiana Court of Appeals Friday. The majority agreed to reverse after holding the parenting time order improperly delegated parental authority to the facility.

Mother B.D. had daughter J.W. in 2009, and father J.P.’s paternity was established in 2012, when he was in prison for battery upon B.D. When he was released from prison, father sought parenting time. Mother had full custody and argued if he was granted parenting time, it should be under supervision. A May 2016 order granted father limited parenting time under the supervision and control of the Community Anti-Violence Alliance Family Ties program in Angola. His supervised visits were outlined in the order, which also allowed the parties by mutual agreement to alter the days and times.

Father had therapeutic sessions with Family Ties therapist Jeff Lewis, with which daughter J.W. participated. At some point, mother did not agree with her daughter receiving therapeutic sessions at Family Ties and wanted a different person to supervise the visits. She also asked the court to have parenting time relocated to the Children First Center because neither party lived in Angola anymore and it was a two-hour round trip to Family Ties.

Family Ties tried to reschedule the times, but mother said they conflicted with daughter’s exiting gymnastics practices or for other reasons. That’s when father filed a petition for contempt. The court denied mother’s motion to move the parenting time location, and found her in contempt for denying parenting time. She was ordered to serve 30 days in jail or pay a portion of father’s attorney fees.

In her appeal, in which father did not file an appellate brief, mother maintained the court infringed upon her parental rights to decide as to what type of parenting sessions would be conducted, who would conduct the sessions and when they would occur.

 Judges L. Mark Bailey and Margret Robb voted to reverse the contempt order, but cited different reasons. Bailey cited Matter of A.R.R., 634 N.E.2d 786 (Ind. Ct. App. 1994), a parenting time order reversed by the COA that gave a service agency authority that properly resided with the parent. The majority also pointed out that the court ordered the father to participate in therapeutic counseling, not the child, so Family Ties had no authority to impose that element on the parenting time session.

Chief Judge Nancy Vaidik in her dissent maintained that if mother was unhappy with the trial court allowing Family Ties the discretion to decide if the supervised visits should be therapeutic in nature, she should have appealed within 30 days, but did not. To this point, Robb in her concurring opinion with Bailey, said the order as written did not put undue burdens on mother and therefore she had nothing to appeal. It wasn’t until Family Ties began exercising its limited discretion that was outside of the bounds of the order that the issue arose.

Vaidik also maintained that even if mother disagreed with the court order, it was still in effect when she petitioned to change locations and should have abided by it until the court ruled on her motion.
 

The case is In the Paternity of J.W., 76A04-1610-JP-2476.

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  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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