Divorce Law Journal

A.P. v. Commonwealth, Ky COA, Termination Of Parental Rights, Due Process Right To Counsel

A.P. V. COMMONWEALTH OF KENTUCKY, CABINET OF HEALTH & FAMILY SERVICES, B.M.P.
2008 WL 4601312
2008-CA-000730,
PUBLISHED: VACATING AND REMANDING
PANEL: CLAYTON PRESIDING; ACREE AND KELLER CONCUR
COUNTY: TRIMBLE
DATE RENDERED: 10/24/2008
ISSUE:
Mother appealed TC’s judgment involuntarily terminating her parental rights to Child, contending that her due process rights were violated, that her counsel’s assistance was ineffective, and that the findings of fact were not supported by clear and convincing evidence. CA agreed as to the due process issue, and therefore, vacated and remanded.

FACTS:
Cabinet filed DNA petition which alleged that Mother’s Stepfather had abused the child while Mother and Child were living with him and Maternal Grandmother. Mother subsequently permitted contact between Child and Mother’s Stepfather in violation of safety plan. After hearings, Child was placed with Father and then at the Home of the Innocents and Father’s parental rights were terminated. At a permanency hearing, TC ordered that the goal be changed to adoption. Cabinet filed an involuntary termination of parental rights against Mother and a GAL was appointed and Mother was appointed an attorney. A bench trial occurred over two days. On the first day, all the parties including Mother appeared, but her counsel was not present due to inclement weather in Northern Kentucky. TC tried unsuccessfully to reach him. TC then allowed clinical psychologist to testify, though Mother did not have attorney present, because the psychologist traveled from Frankfort to be there. TC provided that Mother’s attorney would not be limited in his cross-examination of the psychologist. Mother was never questioned about whether or not she wished to proceed with the hearing without her counsel present.
At the conclusion of psychologist’s testimony and cross-examination by GAL, TC again attempted to contact Mother’s attorney to ascertain whether the trial could be resumed later in the day. When TC could not reach Mother’s attorney, it allowed Child’s therapist to testify because she would not be able to testify at second trial date. During therapist’s testimony, Mother’s attorney called TC and advised that he would be unable to make the hearing that day due to the road conditions but that it was fine for the court to continue without him.
On the second day of trial, Mr. Adams had no questions for either psychologist or therapist both witnesses were released. CA record did not demonstrate whether or not Mother’s attorney had reviewed the tapes from first day of trial. The Cabinet called five more witnesses. The only witness called by Mother’s attorney was Mother. At the conclusion of the trial, TC called upon CASA volunteer. Although she was not sworn in, she was asked by TC to give a 90-second synopsis of her involvement and recommendation for the child to the court. In fact, CASA volunteer was present during the entire trial, having not been asked to leave during the testimony of the other witnesses.

ANALYSIS:
On appeal, Mother contended that as her counsel was not present during the first day of the termination hearing, her due process right to a fair hearing was violated. CA agreed.
Kentucky’s statutory scheme to protect children and to adjudicate parental rights provides for the appointment of counsel throughout all the proceedings. CA found that the failure of Mother’s counsel to be present on the scheduled day of the trial during the testimony of the first two witnesses could have made a difference in the family court termination proceeding. CA found that the judge, the Cabinet’s counsel, and GAL all indicated uneasiness with the proceeding since Mother’s counsel was not present. Unfortunately, the focus seemed to be on the witnesses’ convenience rather than the mother’s fundamental right to be properly represented during the trial.
Upon remand, TC was to conduct another termination hearing under KRS 625.080, and Mother shall be represented by counsel during the entire proceeding. CA held that such a serious matter, possible loss of this elemental societal relationship between parent and child, requires complete deference to providing for all the parent’s due process rights.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Grant v. Lynn, Ky COA, Grandparent Visitation, Pro Se Litigant

GRANT V. LYNN
2007-CA-002193
PUBLISHED: AFFIRMING
PANEL: NICKELL PRESIDING; MOORE, STUMBO CONCUR
COUNTY: CHRISTIAN
DATE RENDERED: 10/17/2008

Dad, pro se, appealed TC orders awarding grandparent visitation to Maternal Grandmother with Dad’s children, based on the best interests of the children. Mother is deceased.

The case had been at TC level on remand from last CA opinion in the case, in which CA vacated and remanded TC’s judgment denying visitation because Maternal Grandmother failed to prove the children would be harmed if they could not visit her under the standard of Scott v. Scott. CA remanded because the “harm” standard of Scott had been replaced with the “best interests of the child” standard of Vibbert v. Vibbert. On remand, TC found that it would be in children’s best interests to see Maternal Grandmother one half day each month and to speak with her on the telephone one half hour each week.

In response to Dad’s first argument that as a fit custodial parent, he should be permitted to raise his children without contact with or interference by his former wife’s family, CA stated that there was no argument as to Dad’s fitness as a parent; TC simply found it would be in the best interests of the children to have contact with the family of their late mother. CA found TC’s findings were supported by substantial evidence and the visitation terms were sufficiently tailored to preserve Dad’s desire to raise his children as he sees fit but to also allow the children to renew contact with their late mother’s family.

Dad next argued that KRS 405.021, which authorizes a court to award visitation to a grandparent when it is in the child’s best interest to do so, is unconstitutional. CA found that Dad “combed dozens of legal opinions and strung together a jumble of sentences that do not warrant striking down a statute that has previously withstood constitutional muster, especially when Dad offer[ed] no explanation as to how KRS 405.021 supposedly violates any of the quoted constitutional provisions. While we are willing to overlook inartful pleading by a pro se litigant, we are not willing to create an argument for him. A shotgun blast of random legal jargon and indiscriminate reference to a hodgepodge of legal authority does not a focused or articulate argument make, and such abusive practice misses any reasonable appellate mark or purpose.”
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

New Jersey Magistrate Rules Against Ghostwriting Lawyer

'Ghostwriting' Lawyer Effaced From ERISA Case on Ethics Grounds by Charles Toutant, New Jersey Law Journal, March 21, 2007 is online here at Law.com.

Ghostwriting pleadings for a pro se litigant violates a lawyer's ethical duty of candor to the court and may amount to a violation of federal court rules, a U.S. magistrate judge holds in a case of first impression in New Jersey.

U.S. Magistrate Judge Tonianne Bongiovanni barred a lawyer from informally assisting a widow in her ERISA suit against Merck & Co.'s pension program, finding "undisclosed ghostwriting is not permissible under the current form of the [Rules of Professional Conduct] in New Jersey."

The opinion, in Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck & Co. Inc., 04-3009, offers guidance for attorneys who offer "unbundled" services, by which a lawyer performs succinct legal tasks but does not provide traditional full-service representation.

Bongiovanni said the practice -- which proponents say increases access to justice for the poor and promotes efficiency in pro se matters -- has created an ethical conundrum, since the Rules of Professional Conduct

Bar Represents Man Who Went Online to Arrange Divorce

Bar Represents Man Who Went Online to Arrange Divorce
Posted on January 15, 2007 by Grant Griffiths at Kansas Family Law Blog.

The North Carolina State Bar is taking up the case of a man who went online to try to arrange his divorce, only to find court officials wouldn't accept the documents he downloaded from the Web site.
Joe Bruno got the documents from Law Online Incorporated and took them to the Gaston County Courthouse. Officials there told him that the documents weren't legal and that they wouldn't take them.
The state Bar wants to stop Law Online from doing business in the state, and accuses the company of offering legal advice without being licensed as attorneys in the state. The bar filed a lawsuit in Wake County.
The company says it did little more than offer people a way to handle a divorce on their own, and shouldn't be singled out by the Bar.
Bruno eventually got his divorce by hiring an attorney and paying half the 600 dollars Law Online asked for.

Grant does a very nice job with his blog. Sometimes I assume everybody already knows about the great family law blogs out there, so I have posted stories from them less frequently of late. Since I know I have many new readers, I will link to these other good blogs for awhile, so the newcomers can see the fine things going on online in family law.