Reprobate in Probate?

REPROBATE IN PROBATE – A TRULY TERRIFYING THOUGHT

When I first was aghast at the sewage of snakes I found myself in, it was like a bad dream or the most terrifying surreal John Grisham book I have ever imagined. I have never had to watch anyone die as I begged and made a “well established record of throwing myself on the mercy of the court” (the AAL who condemned a woman to death said 9 days before as I begged through 3 TROS, injunctions, 3 motions to remove the guardian and 3 motions for jury trial that were ignored) as I watched just that. And then to my horror, I watched it again. I looked into the “mob boss’” eyes to see if a soul even existed because she had murdered this woman and raped her family trust and was off to the next victim, like a seriel killer. Chilling I saw no soul in her eyes and she wouldn’t look at me despite I was provoking her to force it. I was angry.

Then the term “reprobate in probate” kept coming to me as if catchy and so I researched it and I realized the scary times we are in. I never knew anyone could be deemed worthless and rejected forever or have their minds so twisted that they thought good was bad and bad was good. That explained why I felt like I was in a play but was the only person not given the script. I never understood the lawlessness.

When Willie Jo and Ruby were killed, I was devastated with my clients whom I had become so close with. I couldn’t believe what I had just witnessed and all the while they’re punishing me with $15,000 fines and trying to jail me for making too much noise. I got it soon later. I prayed in anguish one day and heard in my spirit, “They said Ruby and Willie Jo were WORTHLESS!  WELL, I THINK THEY ARE WORTHLESS!!” WHOA, GOD, I pray you never get that angry with me. I shuddered. I never thought God would call anyone that, but he did. I began to fully appreciate a condition most don’t believe exists. But I know because I live in it. I work in worse than a sewer. It’s on edge of Hell, sometimes.

So what does reprobate mean? Reprobates are those who have been condemned to hell by the decision of God to no longer allow His Spirit to convict them. While I wouldn’t test the theory and make yourself a guinea pig to see how long forever is in terms of his mercy, I feel compelled to share and you think what you like.

In Jeremiah 6:30

 men are said to be like reprobate silver because they are rejected. We can see the picture of silver being tested and discovered to be false. Therefore, it is rejected. The reprobate silver seemed to be silver. It was only after it was tested that it was found to be counterfeit and rejected.

They were to prove or test themselves. A reprobate is one who have been tested (proved) and found lacking; so he is reproved or rejected forever and beyond redemption.

They profess that they know God; but in works they deny him, being abominable, and disobedient, and unto every good work reprobate.” These men profess to know God but in their works they deny Him. They fail to pass the test of genuine faith. Those Who Are Given Up

Romans 1:21-28

And even as they did not like to retain God in their knowledge, God gave them over to a reprobate mind, to do those things they would not stop doing despite being told and convicted to stop over and over and over.

The third had to do with their minds. He did this because they did not like to retain God in their knowledge. They had God in their knowledge but did not like to retain Him. But they had changed the glory of God into an image and the truth of God into a lie. They started out with the true God and the truth of God but left it all in order to follow their own lusts. As a result, God gave them up to the practice and the fruits of their lusts. What he doesn’t say that I witnessed is that their minds became so twisted, they believed truth is a lie and a lie is truth and like stupid criminals, we watch and think how offensive and obscene and they are now blind to their condition and good luck convincing them.

These men were turned over to their lusts without the restraining hand of God. However, these people fought Him so much that He gave them over to whatever wickedness their minds could imagine to do. One of the dangers to the human race is that “now nothing will be restrained from them, which they have imagined to do”

These men have lost this gracious restraint. He has given them over to their reprobate mind. What is this? It is a mind that has been tested and found wanting. It is a mind that is reproved because of its wickedness. And now, this same mind will take them as far as it wants to go. What a terrible fate! My understanding is that the person has failed God’s test once and for all and there’s no point of redemption when you get there. It’s a slow process of corruption of the mind like rust, so they don’t see it coming, but they had a million chances.

Now you understand how someone could kidnap, murder, and sell your relatives and torture and rob you and not see how these are problematic federal and state crimes?

Webster’s 1828 dictionary defines it as “not enduring proof or trial; not of standard purity or fineness; disallowed; rejected.”

Amos 8:11-12reads:

“Behold, the days are coming,” says the Lord God, “That I will send a famine on the land, not a famine of bread, nor a thirst for water, but of hearing the words of the Lord. They shall wander from sea to sea, and from north to east; they shall run to and fro, seeking the word of the Lord, but shall not find it.”

Notice first that it does not say that it will be a famine of the word of the Lord, but a famine of hearing. God’s words will still be available, but it will be rare that those words will be heard. The truth will still be obtainable; His inspired messages will still be accessible. However, as a curse on the land, God will cause truth not to be heard.

This is an unusual curse. It is not like a physical famine, which everyone recognizes as a tragedy. Most of those who are struck by this famine will probably not recognize that it is a true calamity. A famine of hearing the truth will seem like a relief to many, because no voice is calling them into account or prompting them to think about eternity.

However, even though this famine may give the impression that a burden has been lifted, the reality is that without divine instruction, destruction is coming. Truth is a blessing, but God has every right to withhold it. The New Testament contains echoes of this type of curse. Romans 1:18-32 tells of unrighteous men who suppress the truth. Because they are not thankful for what the creation reveals of the Creator, their foolish hearts become darkened. They lose what light, what truth, they have.

God’s response to this is similar to His response to Israel. He does not contend with them or force His truth on them. Instead, Paul writes, God gave them up  to a debased mind. It is as if God gives them exactly what they seek, and they do not realize that it is a curse. God will send them strong delusion, that they should believe the lie, that they all may be condemned who did not believe the truth but had pleasure in unrighteousness.

They prefer carnal delusion to spiritual reality, so God obliges them. God gives them over to it and lets them reap the awful consequences. The Israelites in the time of Amos did not value God’s truth, so He removed it, letting them experience how miserably they fare without it. Amos 8:12 describes people wandering about in a vain attempt to regain the word of the Lord. Some of the people seem to realize that something is missing. They wander and even run “to and fro,” but they do not find it.

Now many you understand the wolves devouring your loved ones. It’s time to take this down. You may balk and that’s your right. But as for me, I cannot imagine a greater waste of human life or to be totally deceived and never know it.

 

Guardianship Obscenity! Debased minds!

moneydancegif


Raise the roof!!!! Jurisdiction anyone? As opposed to kidnapping and extortion

In re Guardianship of Leon Bloom, an incapacitated person.
MARSHALL BLOOM, individually, Appellant,
v.
DOROTHY B. BLOOM, individually, and ROBERT M. ELLIOT, as Trustee of the Leon Bloom Revocable Living Trust u/a/d, as Restated on Appellees.
No. 2D16-2985
Florida Court of Appeals, Second District
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Sarasota County; Charles E. Williams, Judge.

James L. Essenson, Barbara J. Welch, and Matthew J. Kelly of Law Firm of James L. Essenson, Sarasota, for Appellant.

Allan F. Baily of Law Offices of Baily & Baily, P.A., Sarasota, for Appellee Dorothy B. Bloom.

No appearance for Appellee Robert M. Elliott, as Trustee of the Leon Bloom Revocable Living Trust u/a/d 11/18/1988, as Restated on 10/22/2009.

LUCAS, Judge.

Marshall Bloom, a beneficiary and former personal representative of the late Leon Bloom’s estate, challenges the circuit court’s order denying his motion to recover his attorney’s fees.

The circuit court correctly construed the limits of our mandate from an earlier appeal and rejected Marshall’s[1] “common fund rule” argument for recovery of his fees but then erroneously concluded that his fee motion asserted no statutory basis for the court to consider. In fact, it did. Thus, while we can affirm most of the determinations the circuit court has thus far made, we must reverse the circuit court’s order so that the court may rule on the remaining argument presented in the fee motion.

I.

In 1988, Leon executed a trust naming his wife, Dorothy Bloom, as a secondary beneficiary and Robert Johnson as the trust’s trustee. When he began to sense that Leon’s health and acuity may have been in decline, Mr. Johnson filed a guardianship proceeding in 2014, in which he sought to have Leon’s nephew, Marshall, appointed as emergency temporary guardian of Leon’s person and property.

Both Leon and Mr. Johnson passed away in 2015 while Leon’s guardianship proceeding was still pending. At the time of Leon’s death, Dorothy had pending in the guardianship proceeding an unresolved claim for reimbursement from Leon’s trust for funds she alleged she had used to care for her husband. From this claim, a flurry of litigation ensued between Leon’s family members and their attorneys, mostly revolving around who could represent what and whom.[2]

After Mr. Johnson’s death, Marshall, as the personal representative of Leon’s estate, moved to be substituted in the guardianship proceeding as the petitioner in order to challenge Dorothy’s claim. The circuit court granted Marshall’s motion for substitution on October 23, 2015. Marc J. Soss, Esq., the successor trustee of Leon’s trust, then filed a petition for writ of certiorari with this court on November 11, 2015, seeking to quash the order granting the substitution of Marshall as the petitioner.

On March 23, 2016, in case number 2D15-4864, this court issued a per curiam order dismissing Mr. Soss’s certiorari petition. In re Guardianship of Bloom, 189 So.3d 769 (Fla. 2d DCA 2016) (table decision). In addition to dismissing the petition, our court also granted Marshall’s motion for appellate attorney’s fees in case number 2D15-4864. While granting entitlement, our order remanded the matters of the amount and appropriate source of those fees for the circuit court’s ultimate determination.

Shortly before Mr. Soss began pursuing this unsuccessful certiorari petition, Marshall, through his attorney, James L. Essenson, Esq., filed a motion in the circuit court to disqualify Mr. Soss as trustee and appoint an independent trustee over Leon’s trust.[3] The circuit court agreed with Marshall and granted the motion to disqualify Mr. Soss as trustee on April 7, 2016. Attorney Robert Elliott was then appointed in Mr. Soss’s stead as the trustee of Leon’s trust.

Thus, in these early rounds of litigation, Marshall had two preliminary successes: the first, this court’s order dismissing the certiorari petition challenging his substitution in Leon’s guardianship proceeding; the second, the circuit court’s order disqualifying the trustee of Leon’s trust.

Marshall then sought an award of his attorney’s fees for the latter victory by filing a motion and a memorandum of law in the circuit court in which he posited three bases for recovery. First, Marshall argued that this court’s prior fee award in the dismissed certiorari petition somehow constituted a finding that Mr. Essenson’s services had benefitted Leon’s estate, which, somehow, encompassed his efforts to disqualify Mr. Soss as trustee. As Marshall put it in his memorandum before the circuit court, since this court granted his entitlement to fees in the certiorari proceeding, a proceeding which enabled Mr. Essenson to maintain an objection to Mr. Soss’s service as trustee, then “a fortiori, the Essenson firm is entitled to fees and costs for prosecuting” the disqualification motion, “which [was] clearly a benefit to the trust.”

According to Mr. Essenson, our prior determination of entitlement to appellate fees in the certiorari proceeding became “the law of the case, ” so that all of Mr. Essenson’s work going forward must be deemed a benefit to Leon’s trust. Second, Mr. Essenson posited that he should be awarded his fees under the “common fund” theory of recovery, a common law claim for attorney’s fees found in equitable jurisprudence. As his third basis, Mr. Essenson argued that he was entitled to attorney’s fees under section 736.1005(1), Florida Statutes (2015), which provides that “[a]ny attorney who has rendered services to a trust may be awarded reasonable compensation from the trust.”

On June 8, 2016, the circuit court denied Marshall’s motion for fees associated with disqualifying Mr. Soss. In its order denying the motion, the circuit court dispensed with Mr. Essenson’s first argument out of hand: “the Essenson Firm’s argument [is] unavailing, as the Essenson Firm reads the Second District’s mandate much broader than the narrow issue on appeal.” In apparent reference to Marshall’s common fund argument, the circuit court “decline[d] to award attorney’s fees as a matter of equity.” Finally, the court determined that there was no statutory basis for Mr. Essenson to recover his fees.

Marshall now appeals this order.

II.

Our jurisdiction to review the probate order before us is a preliminary point we must address. On January 1, 2012, Florida Rule of Appellate Procedure 9.170 took effect. Subsection (b) of the rule begins:

Except for proceedings under rule 9.100 and rule 9.130(a), appeals of orders rendered in probate and guardianship cases shall be limited to orders that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.
The subsection continues by listing those orders that finally determine a right or obligation, which “include, but are not limited to, ” twenty-four separately described categories. Amongst the twenty-four categories of final, appealable orders listed in the rule, we find (b)(23), orders that “award attorneys’ fees or costs.”

Here, however, the circuit court’s order denied Marshall’s motion for attorney’s fees and so is, quite obviously, not one that could be fairly read to “award” anyone’s fees or costs. See, e.g., Award, Black’s Law Dictionary (10th ed. 2014) (defining the verb “award” as “[t]o grant by formal process or by judicial decree”). Other provisions within subsection (b) provide for review of orders that, for example, “determine a motion, ” or “grant or deny” a petition, making the selection of the word “award” in (b)(23) all the more conspicuous by its contrast.

Nevertheless, we are satisfied that an order denying attorney’s fees or costs for an interested person remains an appealable order following the passage of rule 9.170. Rule 9.170 generally describes appealable probate and guardianship orders as those “that finally determine a right or obligation of an interested person” under the probate code. This language mirrors the defining language that was in the rule’s predecessor, rule 9.110(a)(2), which itself was merely a restatement of former Florida Rule of Probate Procedure 5.100-a deliberate repetition, according to the Florida Appellate Court Rules Committee’s 1996 amendment note, because rule 9.110(a)(2) was “not intended to change the definition of final order for appellate purposes.” Fla. R. App. P. 9.110 committee notes (1996 amend.).

Thus, the traditional rule that a probate order is sufficiently final for appellate review when “judicial labor” has ended as to the issue the order addresses appears to remain intact following rule 9.170’s passage, just as it had when rule 9.110 was enacted. See Dempsey v. Dempsey, 899 So.2d 1272, 1273 (Fla. 2d DCA 2005) (“Rule 9.110(a)(2) ‘does not abrogate prior case law holding that a party’s right of appeal arises when there is a termination of judicial labor on the issue involved as to that party.’ ” (quoting In re Estate of Walters, 700 So.2d 434, 435 n.1 (Fla. 4th DCA 1997))); see also Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378, 1386 (2015) (“[W]hen ‘judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute’ is presumed to incorporate that interpretation.” (quoting Bragdon v. Abbott, 524 U.S. 624, 645 (1998))); State v. Losada, 175 So.3d 911, 914 (Fla. 4th DCA 2015) (applying the prior-construction canon of interpretation). While the inclusion of a list of appealable probate and guardianship orders was a novel development when rule 9.170 was enacted, it must be remembered that the list’s prefatory text, “include, but are not limited to, ” signals a nonexclusive listing. See Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC, 986 So.2d 1244, 1257 (Fla. 2008) (“[T]he term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.” (alteration in original) (quoting Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941))); Carrithers v. Cornett’s Spirit of Suwannee, Inc., 93 So.3d 1240, 1241 (Fla. 1st DCA 2012) (observing that rule 9.170 “provides a nonexclusive list of 24 categories of probate and guardianship orders that are appealable”). In itself, then, this list of categories merely illustrates the kinds of probate and guardianship orders that are considered appealable; the rule’s text leaves in place what had been the traditional formulation of finality for appealable orders in probate and guardianship proceedings.

Applying that construction of rule 9.170, we conclude that the order denying attorney’s fees here ended the judicial labor needed to adjudicate that issue. See Fabing v. Eaton, 941 So.2d 415, 417 (Fla. 2d DCA 2006) (“Generally, an order denying a motion for attorney’s fees is a final, appealable order when that order ends the judicial labor as to that portion of the case.”). And it is beyond dispute that Marshall was an interested party as defined under the probate code, both as a former personal representative at the time the fees were incurred and as a current beneficiary of Leon’s estate. See § 731.201(23), Fla. Stat. (2014); Wheeler v. Powers, 972 So.2d 285, 287-88 (Fla. 5th DCA 2008); Carvel v. Godley, 939 So.2d 204, 208 (Fla. 4th DCA 2006). Accordingly, we have jurisdiction to consider the appeal of this order, an order we review de novo. [4] See Country Place Cmty. Ass’n, Inc. v. J. P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010) (“[W]here . . . the circuit court’s determination of entitlement to attorney’s fees is based on a conclusion of law concerning the interpretation of a statute or contractual provision, we employ a de novo standard of review.”).

III.

A.

Marshall asserted three potential bases for recovery of his attorney’s fees in connection with the disqualification of Mr. Soss as the trustee of Leon’s trust. We can dispense with two of them in short order. First, with regard to this court’s prior order awarding attorney’s fees in connection with Mr. Soss’s unsuccessful certiorari petition, the circuit court put it well when it rejected Marshall’s assertion that his victory in that prior matter entitled to him to an award of fees in a subsequent matter:

Marshall simply read this court’s mandate in the prior proceeding “much broader than the narrow issue on appeal” actually was. The scope of this court’s mandate-and its award of attorney’s fees-in case number 2D15-4864 extended no further than the fees that were incurred in litigating the issues that were presented in that proceeding (which, again, revolved around the propriety of Marshall’s substitution in Leon’s guardianship proceeding). Cf. FL-Carrollwood Care, LLC v. Gordon, 72 So.3d 162, 165 (Fla. 2d DCA 2011) (“[A] trial court lacks authority to deviate from the terms of the appellate court’s instructions on remand.”). The circuit court was prohibited from extending the reach of our order and mandate beyond those issues, and so we can readily affirm that aspect of the circuit court’s order without further discussion. Cf. Marine Midland Bank Cent. v. Cote, 384 So.2d 658, 659 (Fla. 5th DCA 1980) (holding that the trial court erred by entering order awarding attorney’s fees beyond scope of mandate and stating that “[w]hen a case is appealed and the appellate court acts by issuing its mandate, the trial court must follow the dictate of the mandate and should not stray from it”).

As to the second argued basis, Marshall’s contention that he is entitled to compensation of his attorney’s fees under a “common fund” theory of recovery, here as well, we find no cause to disturb the circuit court’s ruling.[5] Whether or to what extent Marshall’s efforts removing Mr. Soss as the trustee actually conferred a benefit of any appreciable value to the trust was, as the circuit court observed in its order, “within the court’s discretion to find.” It found he was not entitled to recover his attorney’s fees on that basis. Marshall has not explained, and we fail to see, how that discretion was in any way abused here, and so we affirm that ruling in the order as well.

There is, however, one remaining basis Marshall asserted as a potential avenue for recovering his attorney’s fees in seeking Mr. Soss’s disqualification as the trustee of Leon’s trust, section 736.1005 of the Florida Statutes. On this point, the circuit court’s order stated only that there was “no statutory or contractual basis for attorney’s fees.” That is incorrect. Section 736.1005 states: “Any attorney who has rendered services to a trust may be awarded reasonable compensation from the trust.” Since the probate court assumed jurisdiction over the trust and this underlying dispute concerning the trust’s trustee, the statute was applicable here and could have provided a basis for Marshall to recover his attorney’s fees. We express no opinion about whether such an award would be proper under section 736.1005. That, of course, will be a matter within the circuit court’s discretion to first decide. Cf. Saints in Christ, Temple of Holy Ghost v. Fowler, 448 So.2d 1158, 1159 (Fla. 1st DCA 1984) (“[W]e do not imply that an award of attorney’s fees is proper in this case . . . . On remand, the trial judge shall determine entitlement as well as the amount of any attorney’s fees, subject, of course, to appropriate review by this court if sought.”). We hold only that the circuit court should have considered and ruled upon this argument before it denied Marshall’s motion. See Boykin v. Garrison, 658 So.2d 1090, 1090 (Fla. 4th DCA 1995) (“The law is well settled that a trial court must exercise its discretion where discretion has been provided . . . .” (citing Glosson v. Solomon, 490 So.2d 94 (Fla. 3d DCA 1986))). On that basis, we are constrained to reverse the circuit court’s order so that the court can now make a ruling on Marshall’s statutory argument for fees.

B.

Having concluded that Marshall’s statutory argument to recover his fees requires further consideration by the circuit court, we pause to address a notification issue concerning his motion, as there was disagreement below about this issue and some clarification may be beneficial to the circuit court and the parties on remand. Section 736.1005(1) includes the following somewhat awkwardly crafted sentence regarding notice:

The attorney [who has rendered services to a trust] may apply to the court for an order awarding attorney fees and, after notice and service on the trustee and all beneficiaries entitled to an accounting under s. 736.0813, the court shall enter an order on the fee application.
While ultimately denying Marshall’s motion for attorney’s fees, the circuit court observed during the hearing that the trustee and approximately forty named beneficiaries of Leon’s trust should have been provided prior notice of the hearing under this provision of the statute. Marshall disagreed with the circuit court’s reading. Instead, he posits that he need not have provided notice at the time he filed his motion, only sometime before the court entered its order on his motion-a view ostensibly supported by the compound-complex structure of this statute’s sentence and the presence of a dependent, adverbial clause (“after notice and service”) that, grammatically, would seem to relate only to the independent clause it precedes (“the court shall enter an order on the fee application”). Cf. Fla. Hurricane Protection & Awning, Inc. v. Pastina, 43 So.3d 893, 900-01 (Fla. 4th DCA 2010) (Farmer, J., dissenting) (“The subordinate clause functions adverbially, laying down the condition under which the independent clause will have effect.”). Thus, as Marshall would have it, the court’s entry of an order on his fee application would be the operative deadline that implicates the statute’s requirement to furnish notice of that application.

That is a rather peculiar way to read a notice provision. It also elides the real query-the precise ambiguity, if you will-that this section holds. Neither the statute’s sentence’s text, its structure, nor the rules of grammar provide a definitive answer to the temporal question: When, exactly, does notice under this statute have to be provided to these parties? We must look to rules of statutory construction for guidance. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla. 2000) (“[I]f the language of the statute is unclear, then rules of statutory construction control.” (citing Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984))). Here, the principle of reading the notice provision in pari materia directs us to other parts of this compound-complex sentence that a grammatical convention, strictly applied, would otherwise avoid. See O’Hara v. State, 964 So.2d 839, 843 (Fla. 2d DCA 2007) (observing that statutory language ought not to be read in isolation, but “taken in context, so that its meaning may be illuminated in the light of the statutory scheme of which it is a part” (citing Thompson v. State, 695 So.2d 691, 692 (Fla. 1997))); see also Wagner v. Botts, 88 So.2d 611, 613 (Fla. 1956) (“We deem it proper to adhere to what now appears to be the better rule which is to treat the rules of punctuation on a parity with other rules of interpretation.”). Within this very sentence, in the first independent clause, a precise point in time to utilize as a reference point is apparent-the attorney’s application for fees-a point that coincides precisely with when notices of hearings are ordinarily required. See Stevens v. Nationstar Mortg., LLC, 133 So.3d 628, 629 (Fla. 5th DCA 2014) (observing that the requirement that all filed pleadings and papers in court proceedings be served on each party or their counsel “is to satisfy the constitutional requirement of due process”); see also Fla. R. Jud. Admin. 2.516(a). That is how we construe this provision. Reading this statute’s sentence as a whole, in pari materia, we hold that an applicant for attorney’s fees under section 736.1005 must serve an application for attorney’s fees to the parties identified in the statute contemporaneously with the filing of the application with the court.

Accordingly, we reverse the circuit court’s order to the extent that the court did not rule upon Marshall’s statutory argument to recover his fees. In all other respects, we affirm the decision below.

Affirmed in part; reversed in part; and remanded.

KHOUZAM and SALARIO, JJ, Concur.


Notes:

[1]Solely for ease of reference, we will refer to the various Bloom family members in this opinion by their first names, rather than their common surname.

[2]It does not appear from the record before us that Dorothy’s claim has ever been resolved.

[3]There was no argument advanced below or on appeal that the guardianship proceeding was an improper forum to resolve this trust dispute.

[4]Our jurisdictional conclusion would also appear to align with recent decisions that have addressed the substantive merits in appeals of orders denying motions or petitions to recover guardians’ fees. See, e.g., In re Guardianship of Beck, 204 So.3d 143, 153 (Fla. 2d DCA 2016) (reviewing the denial of petitions to recover attorney’s fees and costs); Karr v. Vitry, 135 So.3d 372, 373 n.1 (Fla. 5th DCA 2014) (concluding that an order denying a ward her guardian’s fees was appealable under rule 9.170).

[5]See, e.g., Shriner v. Dyer, 462 So.2d 1122, 1124 (Fla. 4th DCA 1984) (holding that beneficiaries of a trust were entitled to recover their attorney’s fees and costs for successfully removing a trustee who had mismanaged the trust’s assets under the “common fund rule, ” and explaining that “[t]he common fund rule serves to award attorney’s fees

http://www.abcactionnews.com/news/local-news/i-team-investigates/florida-guardian-charges-big-bucks-to-protect-ward-with-alzheimers-living-in-hungary

Florida guardian charges big bucks to protect ward with …
www.abcactionnews.com
A grieving daughter is fighting against a system that was designed to protect her dad.

Candice Schwager
SCHWAGER FIRM
candiceschwager@icloud.com
Tel: 832.315.8489
Fax: 713.456.2453
www.schwagerfirm.com

S C H W A G E R F I R M – Family Law Probate & Civil Rights

What happens when CPS gets involved?

 

CPS Caseworker – When your child is removed from your home, you will be given a notice of removal and the name and phone number of the CPS investigative caseworker. After approximately two to three weeks, your investigative worker will transfer the case to another caseworker. The caseworker will:

Contact you to give you more information and ask you some questions;

Visit your child regularly;

Help you understand the problems that brought you to court; and

Help you work on your service plan, which lists the steps you must take tohave your child returned to you.

If you do not hear from your CPS caseworker for awhile, or if you have questions or problems, call him or her.

Your Attorney – When you go to court, the judge will ask if you have an attorney. You have the right to an attorney. If you cannot afford to pay for an attorney, and CPS

 is seeking to terminate your parental rights, you may ask the judge to appoint one for

you.

Talk with you before every hearing;
Speak for you in court;
Help you understand your rights;
Tell you about the hearings you will attend; and Tell you what to expect at each hearing.

If you do not hear from your attorney for awhile, or if you have questions or problems, call him or her. It is up to you to make sure your attorney can find you.

The Attorney for CPS – CPS also has an attorney. The attorney for CPS repre- sents CPS in court, and must prove why your child should be in CPS custody now.

Your Child’s Attorney – the Attorney Ad Litem (AAL) – Your child will have an attorney appointed by the court. This attorney is called an attorney ad litem (AAL). The attorney ad litem’s job is to meet with your child and act as an advocate on behalf of your child. Often the attorney ad litem also serves as the guardian ad litem (GAL) for your child.

The Court Appointed Special Advocate (CASA) – The judge may also appoint a special advocate. This child advocate is a trained volunteer who will meet with you and your child, as well as others involved in this case. The child advocate reports to the court about how your child is doing and what they feel is in your child’s best interest. Sometimes the child advocate may be called a guardian ad litem (GAL).

Mediators – During the case, the judge may order that your case be sent to medi- ation or family group conference. Mediation is a meeting between you, your attorney, the child’s attorney, CPS, and the CPS attorney to try to reach an agreement instead of going to court. Mediators are independent, neutral individuals who have been spe- cially trained to help people work out differences. Mediation is not a court hearing. If you wish to use a mediator to help with your case, ask if mediation is available in your area.

When will you have to go to court? You may be asked to attend several court hearings and other meetings so that the judge and others can listen to all sides and decide how to help your family. Each court hearing and meeting has a different pur- pose. Most child abuse and neglect cases have at least eight different court hearings and meetings during the first year:

Emergency Hearing

Adversary Hearing (Show Cause) or Mediation

Initial Permanency Planning Team Meeting or PPT

Status Hearing

Initial Permanency Hearing

Additional PPT meetings

Permanency Hearing

Final Hearing (Trial)

It is important for you to be on time for all these hearings. If you are not present in court at the time a hearing or trial is scheduled, the proceeding may begin without you.

Emergency Hearing – If your child has been removed from your home without a court order, the emergency hearing will be held within one working day of when the petition is filed in Child Protection Court and may take place without you being there. The hearing gives the judge the chance to find out why your child was removed from your home.

At the emergency hearing, the judge will decide if your child should stay in the temporary custody of CPS until the adversary hearing. The attorney for CPS will present information about the case to the judge. Information will include the allegations made and what the investigation by CPS has revealed so far. CPS will also let the judge know what actions have been taken to find a placement for the child, other than foster care.

Adversary Hearing (Show Cause) – The adversary hearing will be held no later than the 14th day after the date the child was removed. The Court may, for good cause shown, postpone the adversary hearing for not more than seven days to allow a court appointed attorney sufficient time to prepare and defend the suit filed. In that event, the Court will extend any existing temporary restraining order in effect until such time as the adversary hearing can be had.The purpose of this hearing is to determine whether the child’s emergency removal was proper and to get temporary orders for the protection of the child until the case is over.

The judge may decide to return your child to you, or to place the child with a family member, a family friend, or another appropriate adult who is willing to help and cooperate in this matter. You should come to the hearing with the names, addresses, and telephone numbers of people who might be able to keep your child temporarily. Finally, the judge may decide that for the safety and protection of your child it would be best that your child remain in the care of CPS.

This hearing is your chance to explain the situation from your point of view and let the judge know how you intend to protect your child now and in the future.

Permanency Planning Team Meetings – The Permanency Planning Team meeting (PPT) is usually held between 30 and 45 days after the removal of your child from your home and again in the 5th, 9th and 13th months. Although this is not a court hearing and the judge will not be present, all the people who are involved in the case, including the attorneys, the child if over 12 years of age, foster parents, parents, CPS staff and other caretakers can be there. Family members who are interested in your child are also encouraged to attend.

At the first PPT meeting (or staffing) a “service plan” will be developed and dis- cussed. The service plan will include the goal for the child that may be:

Reunification with parent(s);

Termination of parents’ rights to the child;

Placement of child with relatives;

Placement of child in foster care;

Adoptive placement.

The purpose of this meeting is to talk about why your child was removed from your home. The other purpose of this meeting is to come up with a service plan for your child and your family that will help get your family together again, or whatever is best for your child. That service plan will be presented to the Child Protection Court. Be aware that the plan may change, but it will remain in effect until amended by CPS and approved by the court.

It is very important that you attend the PPT meetings, so that your ideas about what is best for your family and what can be done to make sure your child remains safe can be heard. You will receive a letter telling you about PPT meetings: the date, time and place. You may also call your CPS caseworker to find out about your child’s next PPT meeting.

Status Hearing – You have the right to a hearing before a judge to discuss the service plan prepared by CPS. This hearing is called the status hearing. It will be held within 60 days of when your child was ordered into the temporary care of CPS.

The purpose of the status hearing is to make sure that there is a service plan in place for your child, that you are aware of this service plan and all of its contents, and that you understand that you must complete all of the requests made in this service plan (which the judge adopts) in order to have your child returned to you. At this hearing the judge may also ask about your current compliance with this plan.

You will be warned that unless you do what is asked of you in the service plan, your rights as a parent may be restricted or terminated. It is very important that you attend the status hearing.

Permanency Hearing – The initial permanency hearing must be held no later than 180 days after CPS is named as temporary managing conservator of your child.

The purpose of the permanency hearing is to evaluate the permanency plan for the child to ensure that a final order consistent with that permanency plan is rendered before the date for dismissal of the case.

The judge will review your case to make sure that the service plan is being followed. The judge will check to make sure you are doing what is ordered in the plan. The judge will check to make sure the CPS caseworker and others are doing what is ordered in the plan. If everyone agrees that the service plan needs to be changed, the judge may order those changes.

You will be told in court that your parental and custodial rights may be subject to restriction or termination unless you are willing and able to provide your child with a safe environment. If the judge believes your child will be safe, and that it is in your child’s best interest to be returned to you at this time, the judge can decide to return your child to you.

At this hearing it will be decided what plans, services, or other temporary orders are necessary to ensure final orders are rendered prior to the dismissal deadline. At the close of the hearing, the judge may set a dismissal date and give notice in open court to all parties of that date, the date of the next permanency hearing, and the date the case is set for trial.

Subsequent Permanency Hearings – If the judge decides at your first permanency hearing that your child cannot be safely returned home, another permanency hearing will be held to allow you to continue with services and determine the progress you have made, or decide if your child’s plan should be changed to adoption, or some other permanent arrangement outside of your home.

Subsequent permanency hearings must be held no later than every 120 days until entry of a final order. The court can hold the hearing at an earlier date. The requirements and procedures are the same as for the initial permanency hearing.

Final Hearing (Trial) – The court must enter a final order before the first Monday after the anniversary of the order appointing CPS temporary managing conservator, unless on or before that date the court has granted an extension of no more than 180 days.

A final order is one that:

Requires that the child be returned to the parents;

Names a relative of the child or another person as the child’s managing conservator;

Without terminating the parent-child relationship, appoints CPS as the

managing conservator of the child; or

Terminates the parent-child relationship and appoints a relative of the child,

another suitable person, or CPS as the managing conservator.

For all final hearings, testimony and evidence will be offered regarding your child’s best interest.

Hoodwinked in the House of Representatives!

What happens when the rule of law increasingly bows to the whims and violations of unaccountable public officials? Lawlessness in every branch and a system of law that caters to the elite, not the people. Our system of law is slowly being eroded by those at the top levels of our government in every branch to such egregious degrees that the law is not law anymore. Form takes precedence over substance. The appearance of legitimacy is all we have in guardianship anymore–unless you’re in a county without a “guardianship program.”

I have personally witnessed the stark contrast in crime and civil rights violations between counties that have “guardianship programs” and those who do not. In the former, it’s utter lawlessness and the Judges are hardly even in control of the bench any longer. In the latter, people are still treated like people and their civil rights are respected.

What’s the difference? Fort Bend County Judge Susan Lowry is a model Judge in guardianship, who follows the law and respects human rights because there’s no “program” in place to exploit people for profit. Harris County might as well be Guantanamo Bay–the elderly and disabled are chattel with no civil rights, if that were possible. In every Texas County with a “guardianship program,” Texas is engaged in human trafficking and it’s ugly. But it all starts in Austin.

We are witnessing the dismantling of our government. Texas was founded based upon principles of limited government and human rights, much like the United States. Our legal system was designed to serve the needs of all, but it’s being gamed by the politically powerful and elite–in violation of their duties to the people. We have become slaves to the governing elite, who enact legislation and suspend rules of law with the stroke of a pen in favor of themselves, lawyers, and corporations. The human toll is unimaginable because people have become the currency.

We are not just oppressed by our government, but owned by the governing elite like slaves, who view us as commodities to serve them, as opposed to officials serving us. No where more poignant is the message than in the Texas Estates Code, a treatise on human trafficking–where people are property and corporations are people. The end result is that corporations have more rights–if that were possible.

Guardianship started as a necessary evil and now it’s simply evil. It’s a system of human trafficking where corporations are appointed as guardians, but given limited liability when it comes to accountability for theft and harm. Where the law imposes no accountability or responsibility, but promises to protect you, beware. This suggests the standard is penal–if there is any standard at all. It also warns you that exploitation is coming and the people will be holding the bag, as usual.

We are supposed to believe Guardianship is about protection of human lives as we debate bonds, attorneys’ fees, ad litem fees, security for costs, safekeeping of an estate before someone is even in guardianship–and little else. We tolerate the REPTL Section of the Bar drafting legislation to line their pockets and Judges backing them up behind closed doors in violation of law and hardly even recognize when they are breaking the law anymore.

We pretend to have transparency where there is none. Where human rights are violated for profit, there can be no transparency. We look the other way when Judges appear hearing after hearing to testify in favor of Bills they had a hand in drafting and pretend to not know. We ignore separation of powers because it seems irrelevant until we realize a Judge is driving the Legislative process in Guardianship and runs a guardianship business alongside his Court. Lawmakers brush off violations of State and Federal Law–including treason, as inconsequential, too jaded to care anymore. It’s frightening to contemplate what is really going on.

Ethics rules are a joke when the law is tossed aside as irrelevant by public officials seeking to profit off of human beings. But common sense is sufficient for even the most naive to understand that “WE ARE BEING HOODWINKED” by public officials with a duty to protect us.

Hoodwinked!

House Bill 1438 is the product of an entire summer of collaboration between Judge Guy Herman, Laura Unchurch and Craig Hopper with Representative Senfronia Thompson, yet they can’t manage to get the “committee substitute” with 8 “controversial” bills stuffed inside to ram through the House of Representatives in the middle of the night until well after 1:00 a.m and witnesses have gone home.

Why wasnt’s the Bill ready for people to actually read, testify, and express outrage beforehand? Rep. Thompson insisted that nothing controversial was added to the Bill–omitting the 8 highly objectionable, unconstitutional Bills rolled into this veritable midnight hoist. The Bill passed in little more than 24 hours with a third reading. Why the rush? All very good questions.

Witnesses waited patiently–over ten hours to testify until after 1:00 a.m. and doubted if this Bill was ever actually going to be called because it was the last one of 40 that day–certainly no coincidence. With the number of witnesses left by the time the its proponents were apparently summoned by private invitation–Judge Guy Herman, Craig Hopper, and Laura Unchurch, between 12:30 and 1:00 a.m., few witnesses remained to oppose it. Michael Easton was one such witnesses who would have demonstrated that H.B. 1438 is anything but “uncontroversial.”

House Bill 1438 is the end result of rogue public officials who refuse to take “NO” for an answer–from the people. It legislates theft from the elderly and disabled–who cannot object to the eminent domain. H.B. 1438 was the product a “bait and switch” that literally occurred in the middle of the night and smacks of impropriety and ethics code violations–undoubtedly the reason it had to be shoved down Texas’ throat. The resulting “Bill” is so grossly illegal, it is surreal that it is being treated as legitimate–on its way to the Senate for consideration.

House Bill 1438 declares War on the Constitution–treason–purporting to nullify inalienable rights at the very heart of our Constitution without due process of law. It purports to legislatively remove civil liberties and taking of property without due process of law, while violating Article I of the Texas Constitution, which prohibits charging for access to the Courts.

The war against the elderly and disabled just got worse, if that were possible, as I contemplate Habeas Corpus to rescue a hostage of Texas’ guardianship laws because I know probate court is a losing venue before I ever file. Our elderly and disabled have less rights than terrorists at Guantanamo Bay because they are apparently no longer considered citizens under this void Code of human trafficking.

Rep. Senfronia Thompson told the committee that the committee substitute was not yet available and only rolled in “a couple” of “non-controversial” bills–knowing this was untrue–to get the Bill passed. What was not revealed were the eight prior bad bills that were “rolled in” this unconstitutional Bill on its way to the Senate. Hookwinked in the Texas House!

The highly controversial, objectionable Bills rolled into 1438 include:

House Bill 2858 (H.B. 3669 83rd Leg.): purporting to run around the Supreme Court’s authority on recusal and place all power in the hands of Judge Guy Herman on who will serve as probate judge in Texas. This did not pass last session with Elliot Naishtat pushing so proponents decided to make it pass by suspending the rules and deceiving the public.

House Bill 1333 (H.B. 2303 83rd Leg.) did not pass the first time and was not presented for public testimony this session because advocates were howling in opposition to this illegal Bill. H.B. 1333 purports to give Court court investigators, with no credentials aside from knowing the Judge, carte blanche over your federally protected banking information in violation of the Right to Financial Privacy Act of 1978. It purports to permit spying to see how much money you have–so the Court can decide if you need “protection.”

HB 2733, HB 2829, HB 2858 Senfronia Thompson’s bills- and; HB 1333, HB 1921, HB 3137, HB, 3645, and HB 4058 by Rep. Naishtat. Naishtat has written or sponsored two dozen or so of Guy Herman’s Bills-at which time Herman testifies to support the Bill. Herman is a fixture in the Legislature, as opposed to a resource witness, which should have people up in arms about the conflicts of interest and violations of the Texas Constitution on separation of powers. Herman is a Judge, but looks like a lobbyist.

HB 2829 – Mandatory security for costs, no public hearing.
HB 2733 – Compensation in guardianship proceedings shall come through management trusts. Reimbursement of costs in guardianship against ward. Management trusts are created to fund lawyers while the elderly and disabled are put on Medicaid. Elderly are put in Medicaid nursing homes while the lawyers are guardians appointed by the courts spend the money from their trusts at $400 per hour.

If any of this were legal, it would mean that you can no longer complain or get help without paying a bond for security for costs. Texas has already removed Adult Protective Services and DADS’ jurisdiction to intervene, such that wards are only protected by the probate judge financially benefitting off of their incapacitation. Thank God, Habeas Corpus is free as a remedy to free your loved ones from being unlawfully detailed by the State of Texas.

Aside from the illegality for violating federal law and the Constitution, this Bill bypasses the Finance Committee in an attempt to amend the Finance Code surreptitiously with terms that would never get out of committee if the law were followed. H.B. 1333 (was H.B. 2303 by Eddie Rodriquez of Travis County and died in committee last year and revived at the prompting of Judge Guy Herman). Advocates verified during the 83rd Legislative Session that Judge Guy Herman brought the Bill.

Craig Hopper called H.B. 1438 “innocuous,” stating it promotes the “best interest”, but he did not say whose best interest. This Bill exploits the elderly and disabled, leaving only the lawyers to benefit–as usual. The Bill mandates safekeeping of assets without even so much as probable cause for guardianship or notification-at which time the Court begins paying lawyers and the tab starts, whether you end up “incapacitated” or not.

This Bill is more of the same–more layers of protection for the guardian, attorneys, courts, and guardianship programs. It is not remotely about protecting the ward because YOU CANNOT PROTECT WHEN THE GOAL IS TO EXPLOIT. Hopper then gets to the point–it reduces costs and hassle for lawyers by lowering their bonds. Aha! Now, when the guardian hurts you or steals your estate, the bond will be insufficient to cover their liability. How does removing responsibility and accountability for harm protect anyone?

The Bill is an attempt to legislate theft with no liability– a common theme for the proponents of these Bills, who have financial interests in them being enacted. It is shameful that proponents realize guardianship involves significant liability for harm and then remove all accountability intentionally for the harm caused. Contrary to Rep. Thompson’s statements, the Bills rolled into this bad bill are highly objectionable, controversial and unconstitutional.

Were it not so, the Bills would simply have been presented for public testimony as the law requires–or they would have passed last session instead of failed. Public testimony is not optional, but a legal requirement–even if it is a mere formality because the decision has already been made in violation of the Texas Open Meetings Act. By Judge Herman’s own statements, there are ethics code violations, but are those “small potatoes” too?

There’s a reason why these “Bills” are being stuffed in a midnight Bill with no public testimony–they know the Bill would never pass if people actually got to read it, testify and vote–as the law requires. Our elected officials apparently believe that they can make the law suit their own needs, suspend the rules, and that the simple stroke of a pen renders it legal because they do not understand the penal code and higher law.

This is treason to the Constitution resulting in crimes against the people by the government “under color of State law.” 18 U.S.C. 241, 242. When public officials step outside of the bounds of the law, they cease to represent the government and are personally liable. Do they know this? At the end of the day, the ends justifies the means,? Is that the message? Then what are the ends? A cursory review of these Bills reveals the answer to that question. The goal is making money off of people the State is charged with protecting and limiting liability for the harm done and it’s illegal.

Public integrity should not have a price tag, but it does. The Federal Bureau of Investigation (FBI) won’t investigate organized crime unless the dollar amount is over $400,000. Local officials will turn you away, saying it’s a civil matter. Where is the accountability for breaking the law?

In response to questioning on Judge Guy Herman’s decision to”have his cake and eat it too”, taking a six month sabbatical instead of retiring to get retirement benefits–he said it was “small potatoes.” Whether or not violating federal and state laws to fraudulently obtain a government pension is “small potatoes” is all relative, I suppose? But, for a public official, how is any penal code violation “small”?

Have we become so jaded that we allow our public officials to commit crimes and look the other because it’s “small potatoes?” At what point does it become relevant? What does Judge Herman know that we do not? I do not consider these infractions small potatoes because the end result is lawlessness. We are already there in probate court throughout the State, where secret deals, games, and crimes are occurring daily throughout Texas and it’s business as usual. We are half way down the slippery slope.

Lawyers with an ounce of integrity left need to lead the way so everyone can cut through the legalese and red tape. Lawyers know that federal and State laws are being violated. They need to care. They know how to draft legislation, which is why the current legislation is so frightening because it shows premeditation. They have contacts and resources. It’s only a matter of more of them utilizing these powerful tools.

Being a lawyer is about much more than billable hours and being a leader is about leading. If our public officials are not interested in leading, they should step aside because the job doesn’t call for serving yourself. If you think you can build your empire off the backs of the less fortunate, consider how well this idea turned out for those before you: King Henry XVI, Marie Antoinette, Adolf Hitler, Joseph Stalin?

A lawyer’s duties extend to the vital needs of the public interest and the justice system–whether they accept that responsibility or not. Lawyers are deemed “officers of the court.” They can and should be GUARDIANS OF JUSTICE. I’ve have long understood that I am in law enforcement by virtue of those entrusted with this duty not enforcing the law.

People do not care about other people. Public Officials do not care about the public. Ron Paul coined the term “non representing representatives” which identifies the problem to a tee. Where are our representatives? Is the system only functioning to benefit the politically elite? Lawyers do not simply have a license to practice law, but a responsibility to honor the Constitutional and rule of law. Judges police the court system and should be a model for “upholding the law and Constitution,” not violating it. Leaders are not given the privilege to break the law without consequence and should not be taking it.

We are inches from complete and utter lawlessness in a system that is so corrupt and broken, it’s surreal. Will our response be complacency still? As you slumber, lawmakers are busy writing laws to take away your rights–your freedom and liberty without due process of law. We need a few good men and women to call this what it is–OFFICIAL OPPRESSION. Tex. Pen. Code 39.10.

Written by Attorney Candice Schwager in Texas.

Reposted with permission of the author

The Estates Code is Unconstitutional

As the Senate decides whether to grant wards of the State of Texas due process rights–crumbs off of the master’s table–I sit disgusted that these men and women are our leaders, wondering how we managed to elect such reprobate “non-representing” representatives. I am also beside myself contemplating how grossly incompetent the lawyers must be to draft legislation so clearly illegal, it’s not worth the paper it is written on. Does anyone know the Constitution, Bill of Rights, or even the meaning of the word “inalienable?” Inalienable means non-transferrable, yet Judge Guy Herman, Chief ProbateJudge of Texas, will tell you that a disabled person’s “rights” are not removed, merely transferred to the guardian. 

S.B. 1882 is a bill relating to providing due process to wards in guardianship. S.B. 1881 a bill mandating that alternatives to guardianship be considered first, such as supported decision making. Despite the fact that both Bills demonstrate egregious violations of the 14th Amendment with respect to the elderly and disabled–in providing them less protection than other citizens–wards need these protections to convince the reprobate that they actually have some rights.

The entire Code reveals egregious violations of federal law by intentionally depriving citizens of privileges and immunities guaranteed by the United States Constitution, constituting felonies under 18 U.S.C. 241, 18 U.S.C. 242, treason, and official oppression, but Judges are nonetheless treating citizens like chattel–purportedly stripping them of inalienable rights “under Color of State Law.” 42 U.S.C. 1983.

Until the Estates Code is declared unconstitutional via a declaratory judgment action to be filed in Federal Court, advocates have little choice but to take the crumbs lawmakers offer. There are absolutely no protections for even proposed wards under the Estates Code and with each Bill, it’s getting worse. Lawmakers and activist judges who don’t respect the Constitution are finding new ways to exploit the elderly and disabled with limited liability or none.

To the Lawmakers whose consciences have not yet been seared with a hot iron, I implore you to end this insanity by repealing this void Estates Code and amending the Family Code to provide the same protections for the elderly and disabled as would be provided any citizen of the United States. This is treason to the Constitution and absolutely intolerable.

The Fourteenth Amendment to the United States Constitution provides:

Section 1. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Relying upon the simple idea that all people are created equal with certain inalienable rights, slavery was abolished, women’s rights flourished, and discrimination was made illegal under the Klu Klux Klan Act a/k/a The Civil Rights Act of 1984, the civil statute being 42 U.S.C. 1983. The Americans with Disabilities Act of 1990 grew from this to include the disabled and elderly as a suspect class that cannot be subject to discrimination, yet it is ignored. 42 U.S.C. 12101 et seq.

Intentionally depriving citizens of privileges and immunities guaranteed by the U.S. Constitution is criminal. 18 U.S.C. 241 and 242. This necessarily means that lawmakers are committing crimes against Texas citizens “under Color of State Law” when they draft void statutes that violate their rights. The ludicrous part is that everyone acts as if this is legal when it’s not. Guardianship as instituted in Texas is illegal, rendering most wards of the State “hostages.”

The Legislature is also considering a Bill, requiring judges to appoint attorney and guardian ad litems according to what is “fair” for the lawyers, as opposed to what is in the “best interest” of the proposed ward. The idea that lawmakers would even consider forcing Judges to “spin the wheel” or appoint according to the next name on a list of lawyers, as opposed to competence is offensive. What is this? Wheel of fortune? Or Pin the tail on the donkey?

The entire determination of whom to appoint as guardian ad litem or attorney ad litem for a disabled or elderly person should not be “whose turn it is.” Instead, it should be based upon the person’s needs and which appointee can best meet those needs. This is critical in determining whom to appoint as guardian ad litem because that person has the duty to decide what is in the elderly/disabled person’s “best interests.”

Whoever decided that lawyers had the capacity to determine what is in a disabled or elderly person’s best interest was sorely misguided in the first instance. I have seen the nightmare this arbitrary system of cronyism creates for the elderly and disabled in 100% of my cases because not once has the attorney appointed by the Judge understood the person’s disability. Without this basic understanding, it is ludicrous to give an attorney the responsibility of making Life-changing decisions for a stranger.

I have seen the failure to pick a competent GAL work catastrophically in most every case. The first involved a Board Certified Probate Lawyer who wrote the Guardianship Section of the Code. This woman also writes the exam for attorneys seeking Board Certification, but was incompetent to testify under Rule 702 regarding an autistic boy’s “best interests” because she knew nothing about autism even after 2.5 years of me spoon feeding it to her.

Without question, I am the most qualified special education / autism attorney in Harris County probate Courts after working 5 years, representing special needs children in schools under 25-year Texas Education Agency Hearing Officer, James Holtz. A pre-med major with an emphasis in psychology, my understanding of disabilities common to children and the elderly is extensive. Seeking to effectively communicate with the autistic children I represent, I’ve spent countless hours with families observing my clients–most of whom were non-verbal. Despite this work, it is incredibly challenging to be confident that an autistic child understands and is responding intentionally, as opposed to exhibiting echolalia, which is random phrases autistics repeat. The challenge of simply sustaining eye contact with a person on the spectrum typically leaves uncertainty as to their level of understanding.

I am an expert under Rule 702 with respect to special education and autism, but defer hands down to the parent because he or she simply knows their child, like a mother knows a baby. The same is true of any non-verbal child or adult. Families must learn to read them–as task that requires time and investment in the person’s life–far beyond what an ad litem can give.

The decision of what is in a person’s “best interest” can be life changing in guardianship and must involve consideration of what they want. Regardless of the level of impairment, guardianship is supposed to remove only those rights that are absolutely necessary for the ward’s protection. Guardianship should rarely, if ever, deprive a person of the right to self-determination, for to do so would violate the 14th Amendment to the U.S. Constitution.

The attorneys currently appointed to make these life changing decisions for non-verbal children and adults are incompetent to make the decision, regardless of Board Certification. This is because attorney ad litem and guardian ad litem certification requires a mere 3.5 hour course in which lawyers are taught nothing about disabilities. The end result is disastrous and not once have I witnessed any GAL make the right choice.

The solution is so simple if the REPTL Committee and Judge Herman would focus on the “person” guardianship was intended to protect instead of the money to be generated. The Family Code already has Constitutional protections built into the GAL appointment process, ensuring that qualified individuals are appointed to decide the “best interest” of children–with strict guidelines on qualifications to serve, duties and permissible fees. Under Rule 173, the term “Guardian Ad Litem” includes:

(A) a volunteer advocate appointed under Subchapter C;

(B) a professional, other than an attorney, who holds a relevant professional license and whose training relates to the determination of a child’s best interests;

(C) an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child; or

(D) an attorney ad litem appointed to serve in the dual role.

The focus of the appointment is “child-centered”, not lawyer-centered. Rule 173 and Chapter 107 of the Family Code provide multiple layers of protection for children, including but not limited to the appointment of an attorney, amicus attorney, child advocate, and/or other individual deemed appropriate by the Court. The Court seeks individuals who are most qualified to decide “best interests.”

The elderly and disabled are not afforded any degree of protection by the Estates Code in violation of the 14th Amendment Equal Protection Clause. Section 1054.054 merely states:

Sec. 1054.054. DUTIES.

(a) A guardian ad litem is an officer of the court.

(b) A guardian ad litem shall protect the incapacitated person whose interests the guardian has been appointed to represent in a manner that will enable the court to determine the action that will be in that person’s best interests.

There is no standard included in this rule and most attorneys forget they are required by the Texas Rules of Professional Conduct to be competent. Per the Estates Code, Guardianship is to be handled just like “dead people’s estates.” The end result is the elderly and disabled are treated like chattel, purportedly stripped of all Constitutional rights because the concept of a “limited guardianship” is a fairy tale. This is illegal and renders lawmakers guilty of crimes against Texas citizens “under Color of State law.” 18 U.S.C. 241, 241.

You can bet if Senators and Representatives were being taken hostage and robbed of their life savings, laws would change. But like most things, the suffering of elderly and disabled victims is out of sight, out of mind. The politically elite profiting from the suffering of our elderly and disabled loved ones are unmoved by the cries of the people they represent. Judge Herman is “sick of hearing it.” At the same time, we are fed a line of bull with the absurd lie that guardianship protects.

A simple reading of the Estates Code reveals the purpose of guardianship–money. People have become property of the State to tax, place bonds on, and take their life savings to fleece the lawyers and politicians. Were this not true, you would not see Judges and lawyers bickering in the Senate, with the ludicrous suggestion that Judges should appoint guardian ad litems according to a random list. Call it the Wheel of Fortune, Texas Lotto, or Pin the tail on the donkey, it’s asinine.

Why aren’t we talking about Bills that require some level of competency for the appointees? The reason is because this is not about protecting anyone. It’s not about the elderly or the disabled aside from additional ways we can find to exploit them. If Texas deemed elderly and disabled citizens “people” rather than “property” or “chattel,” this would not even be an issue. The elderly and disabled deserve better and the solution is simple–the Family Code.

Money talks, the Disabled don’t? I don’t think so

I went to probate court and fought as hard as I could fight, working for free in some cases and reduced fee in others. I desperately cried for help but everyone died or was sold to the highest bidder. It was not a nightmare. It hasn’t ended yet and I fear for those still in guardianship.

These people died in the protection of the guardianship program, designed to protect. They were protected from medical care, an education at the lowest federal standard, neglected in criminal ways, and kept from doctors who could save their lives. They were handed over to private professional guardians who exploited them for money and isolated them from their loved ones as they drugged them to the point of death. ”

Cause No. 415959; In re Andrew Stephen Keith Guardianship; Probate Court 3, Harris County

I am a licensed Texas attorney (1998) and certified attorney ad litem (AAL) by the State of Texas. I have represented the disabled for more than five years, with some of my work under the mentorship of Texas Education Agency Hearing Officer James Holtz. James Holtz is without question on a short list of special education hearing officers. Mr. Holtz served 25 years as a mediator and Judge for the State of Texas, charged with the duty to determine whether children received a free appropriate public education (“FAPE”), the minimum required by federal law, under the Individuals with Disabilities in Education Act (IDEA). The IDEA mandates disabled students be tested every three years unless the parent waives the testing. An IEP educational plan cannot be made without testing.

Andrew’s father waived testing for 9 years after ripping him from his mother, removing him from all medically necessary therapy for autism, and warehousing him in public school, where he languished in neglect as he further retreated into himself, unable to talk. I have never seen such an egregious case of educational and medical neglect and Randall Keith did not even care that the Family Court Judge ordered him to ensure Andrew had medical help for his severe language impairment. Andrew’s father waived all testing and all therapies because he did not want the inconvenience. Andrew was taken from his loving mother for revenge and to avoid paying child support with his multi-million dollar income.

I qualify as an expert under Texas Rule of Civil Procedure 702. Ironically, Judge Rory Olsen does not qualify as an expert by virtue of his lack of familiarity with special education. During the hearing, he asked “What’s an ARD?” The appointed lawyers who were board certified were qualified by the state but not qualified in reality, but were given the authority to decide Andrew’s “best interests.” His Lawyer and Temporary Guardian were so concerned with making money off of Andrew as I worked for free that they violated all of Andrew’s rights and three him to the wolves. Andrew could be in danger. Who will help him now? WE have no right to help him and Andrew has been stripped of his rights.

I could not remove the incompetent disqualified ad litems because the Judge decided his decision would be what they recommended and they recommended that the abusive father be appointed because the father is a millionaire who could pay their bill and his expert mother had insufficient funds.

I am also a pre-med major with three years of training at the University Health Science Center after which I studied to become a psychotherapist at the University of Houston program pre-doctorate before I went to law school. I understand dementia, autism, Alzheimers, and medical / psychological conditions more than most, although my true expertise is special education. I am also an author and member of the press. With the thousand plus hours I have given to low income Texans for free or reduced fee, I have been induced in the Texas State Bar Pro Bono College. Yet, I cannot help Andrew because I cannot beat the machine–the Texas Estates Code and probate bar.

Harris County “sold” Andrew in every sense of that word by imposing an illegal cost bond on Sharon that she could not pay. Simply for making a record of the illegal bond, I was threatened with jail 10+ times and intimidated. The person on the Legislative Committee who wrote the bond was Linda Goehrs, his own temporary guardian. His lawyer submitted her bill to be paid out of the $30,000 illegal bond, which escalated to $90,000 and his guardian, Goehrs testified that Harris County had insufficient funds to pay her bill. Randall Keith did not.

We lost before we ever filed. Guardianship was awarded to a disqualified child abuser and the Judge disqualified the qualified mother, a veriable expert in autism in my professional opinion as an expert–because Harris County has insufficient funds and Randall Keith did not. His lawyers, Fatima Breland, told us up front there be no experts because Sharon had no money. Andrew was the client she was supposed to zealously represent. Harris County had no money, so no interpreter was retained so that Linda and Fatima could understand what Andrew wanted in violation of his rights. The code mandates interpreters, but we had insufficient funds and the Ad litem, Fatima, placed her duty to zealously represent on me. Andrew was denied speech therapy, deemed medically necessary for him since age three–until the time of trial, by court appointed ad litems.

Linda Goehrs wrote the bond provision in the estates code and knew in 2012 it was not effective but she petitioned the Court to pay herself $30,000 to serve as Andrew’s guardian and submitted a further bill for $90,000. Judge Olsen screamed, “you can blame Candice Schwager when you are not paid $100,000″ and I suppose you can. Linda violated the rules for indigent disabled individuals and the Harris County fee guidelines and charged $375 per hour to learn on the job as I desperately fed her autism for 2 years hoping she would understand. I was not allowed to attend the special education meetings we demanded after seeing 7 years of neglect splashed through his educational record. It’s clear to me why now. Andrew was never declared incompetentbecause Harris County refused to fund experts and his ad litems would not even talk to my expert, a man with 50 years Board Certified Experience in Special Education and Psychology who designs special education schools and charges $700/hour as an expert–but worked for Andrew for free because of Andrew.

I had to work for free because Sharon could not stay in the case if I was paid, but managed to get one speech pathologist to testify speech was medically necessary. The family court ordered that the guardian give Andrew speech therapy, which his guardian refused to allow because, as she testified under oath, “I did not understand autism.” Too bad for Andrew, I suppose. Linda ended up quashing my subpoena to violate Andrew’s right to testify about his wishes. He wanted to be with his mother and made no secret of not wanting to even see his father again.

The Judge was not competent because he asked during the hearing “what is an ARD meeting?” I was left in the position of trying to qualify a board certified lawyer in probate who was incompetent to testify as an expert with an incompetent judge who never read Andrew’s educational and medical file since age 3, and unable to remove them, while also unable to qualify them because they were all incompetent. I was the expert under Rule 702 and my expert opinion is Sharon, his mother, was the expert of all of us. But Sharon was disqualified for money and the abusive thief was disqualified, but qualified for money.

Linda Goehrs did not read the summaries of 864 pages of Andrew’s medical records I provided or a two year stream of emails about child abuse, as I hoped against hope that a light bulb would turn on. She’s had 2 ½ years to do so. So did his lawyer, the attorney ad litem. Linda testified that she did not allow us to take Andrew to speech therapy because his incompetent abusive father said “it was a waste of time” and she “did not understand autism.” Linda committed crimes against Andrew by not providing medically necessary speech therapy, ordered by the family court judge. Apparently, she did not read the 10 years of family court files I sent to her and summarized. I gave her a pile of school and medical records 1 1/2 feet high and summarized them all. Were they read?

The Code says if a person is indigent, the County pays. When I begged that Section 665A be enforced and revealed the Legislative History, I was threatened with jail and then Judge Olsen stated on the record “Wouldn’t it be nice if Harris County had the money?” He denied my plea for a jury trial on the disqualification before he threw out mom and said I would not get a jury “because he was the ultimate arbiter of fact.”

I could not disqualify or qualify the attorney or temporary guardian because the judge never understood they weren’t qualified under the rules of evidence. And at the end of the day, I ended up representing Andrew and my client in a system that cared only about money and we had insufficient funds to beat the system. I lost and Andrew is a hostage because these reckless incompetent people think they are competent and have no idea what they have just done. I do and I am horrified. Now Sharon cannot file any more court actions or she will “never see Andrew again.”

When the case began, I prayed Charles Bearinger would stick with us. He volunteered pro bono when his rate is $700/hour. I offered him to Linda and Fatima and they did not call him on the phone or to trial. I could not call him because he was afraid to testify. Charles is Board Certified in Special Education and Psychology/Counseling with a combined total of more than 50 years of experience. The case was tragic and I fear for Andrew’s life because Randall once told his older son, who got away, “no one will hear you cry for help now.” Imagine Andrew’s nightmare.

Social media can hang you in a divorce

images

Electronic communications such as texts, email and even posts on social media sites such as Facebook and Twitter are fast becoming the most important pieces of evidence in divorce cases. In fact, 94 percent of 1,600 lawyers recently surveyed by the American Academy of Matrimonial Lawyers (AAML) claimed that text messages had increasingly become the most damaging evidence in divorce cases. The same survey shows sharp increases in evidence via texting (62 percent), social media (81 percent) and emails (23 percent). So, how can you protect yourself before and during a divorce?

We suggest you consider the following tips

Protecting your digital assets

The most important thing you can do to protect your digital world is to change all of your passwords on a rotating basis and do not write them anywhere snooping eyes may find them. Rules of thumb for strong passwords are using words not typically associated with you combined with a special character and number.

Not only does this apply to your email and social media accounts, but to especially to the password that “unlocks” your smartphone. As texts have increasingly become the most common form of evidence in divorce cases, these sometimes emotionally-charged messages need to be shielded from potentially prying eyes. We are not advocating dishonesty; but, we understand that there may be occasions where a person engages in communications they later regret. A myriad of life circumstances can cause even the best of us to fall short of our aspirations. We simply advise people to avoid a spiteful or angry spouse from taking unfair advantage of you in a divorce for lapses of judgment you probably regret.

Is snooping software legal?

Passwords are also important for your computer, laptop and new devices such as an iPad. Why? Some spouses try to obtain evidence (or even communications between their spouse and a divorce lawyer) by installing “snooping” or spyware software onto their spouse’s digital devices. Snooping software takes digital “pictures” every few seconds of incoming emails and other information, which can then be sent automatically to an email address.

The legalities of snooping software are often murky, so most divorce lawyers advise their clients to refrain from becoming a cyber spy. Courts are increasingly permitting the discovery of public posts on Facebook and Twitter, but occasionally even private emails. Emails are generally considered private and sometimes confidential or privileged if to a lawyer. This renders snooping software to capture a spouse’s emails potentially illegal. The result is Courts may be reluctant to admit this into evidence, if at all. It is important to note that divorce law / family law is evolving rapidly in the area of social media, texting, spyware and the like. This means that what might be inadmissible today may change tomorrow.

Worried about spyware?

If you are worried about spyware being installed unknowingly on your digital devices, there are anti-spyware programs that can detect them. However, not all anti-spyware programs can do the job. If you want to be certain you aren’t being “watched” by spyware? Take your devices to technicians who specialize in detecting digital spies.

The best practice is to avoid posting, tweeting, texting or emailing anything you would not want the World to see, including your spouse. But attorney-client communications are a concern. While they are privileged and inadmissible, the damage is done simply by viewing them-in seeing your strategies and plans of how to approach the case. If you are in a contentious divorce or believe it’s a matter of time, take time and protect yourself. You can lose custody of your children over this—in addition to significant assets.

Child Custody Evaluations ~ Rolling the Dice on your Child’s future?

I hate to say it, but there is no way in God’s green earth I would turn the decision of my child’s wellbeing over to a psychologist whose values do not remotely resemble mine, much less do I know if they have a clue. You could get a great conservator doctor or a liberal Einstein alien who believes nothing that you do and so, will you simply roll the dice on your child and your future? Utter stupidity. Work it out. What in the world does a scientist know about real life as opposed to theory? This isn’t a science experiment.

Child custody evaluations are the most frightening, harrowing things I have witnessed in family courts and they are also prohibitively expensive so I would avoid them like the plague. With the undergraduate work I have done in this area combined with family counseling exposure, I simply do not believe even the best family counselors can meet with a child a few times and the parents for what amounts to mere hours and make decisions that alter their lives forever.  I have seen this work tragically in cases where a parent is an undiagnosed psychopath or person with a manipulative personality disorder. Salespeople are excellent at putting on a mask and becoming someone their are not.

Many times in a custody proceeding, the case will hinge on statements the children have made to the mental health professional.  That is a landmine waiting to happen because depending on the day your child is having or events that just blew up between you and your child, your life could be ruined or drastically differ. Let’s say your client comes into your office and has a lengthy story about everything the kids  say upon return from Dad’s home.

The children allege the step mother is mean, Dad leaves them alone with her, she has a pad lock on the refrigerator, she forces them outside while her own children remain indoors drinking tea from gold plated cups and eating crumpets. You get the idea, and if you have not heard this story in your practice yet, you will. The bottom line is the children are being affected and there may or may not be enough evidence to prove the children would be better in the other parent’s home. Your client knows her children. She knows they are miserable.

You ask the question, “what counselor are they seeing?” And she says “no one.” You see your case go down the tubes. The statements of the children are likely not to come in under these circumstances. (although you should research exceptions to hearsay because you may be able to argue state of mind, or that the statements are not being used to prove truth of the matter asserted, just the unhappiness of the child. But good luck with that once the Judge hears “Little Suzy told me…” ).  So, many times, the lawyer will direct the client to a mental health professional.

So, why can a mental health professional testify to what Little Suzy said and your client cannot? Statements made to an LPC, if foundation is properly laid, can be admissible. Texas Rules of evidence bars the introduction of a statement made to prove of the truth of the matter asserted. Texas Rules of Evidence 801 and 802. (For instance, a child says the sky was blue that day. If the issue at hand was the color of the sky, that is hearsay. However, if the purpose of the use of the statement is to show the child was outside that day, the statement may not be hearsay.  At least that is what I would argue.) the nightmare is that eyewitness testimony is inherently unreliable so we are now going to try this twice removed? I have also seen lazy court appointees who don’t care about the families but the money. Their reports are half baked and disastrous outcomes result.

So if a case is heavily reliant on the testimony of the LPC, the first step is to overcome the hearsay. Pursuant to Texas Rules of Evidence 803(4), allows for testimony of a statement “Made for Medical Diagnosis or Treatment. The statement must be made for–and is reasonably pertinent to–medical diagnosis or treatment; and describes medical history; past or present symptoms or sensations; their inception; or their general cause.” Technically each and every statement is subject to this scrutiny and unless the statement was used to make the diagnosis and prescribe treatment, it is not admissible. For example, if a child says in passing, my dad is mean, the prudent practioner will establish that the LPC used the statement to make diagnosis and prescribe treatment.

 

Further, a professional is the only person who can offer an opinion, make the diagnosis, or prescribe a treatment for the child. So, now you have the counselor secured, or any other mental health professional. How do you qualify the witness as an expert? I would ordinarily think a better practice would be using medical professionals who know the child. but that isn’t done.

To be admissible, the proponent must demonstrate: (1) that the expert is qualified; and (2) that the expert’s testimony is relevant and reliable. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); Robinson, 923 S.W.2d at 556; see also Kraft, 77 S.W.3d at 807. Tex. R. Evid. 702. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

The Supreme Court of Texas adopted the United States Daubert construction of the Federal Rules of evidence and the Texas Court of Criminal Appeals decision in Kelly in Gammil v. Jack Williams Chevrolet, Inc. Gammil v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720. The Court stated that “[i]n order to constitute scientific knowledge which will assist the trier of fact, the proposed testimony must be relevant and reliable.” Id.

“The requirement  that  the  proposed  testimony  be  relevant  incorporates  traditional  relevancy  analysis  under Rules 401 and 402 of the Texas Rules of Civil Evidence. Id. To be relevant, the proposed testimony must be “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Id. Evidence that has no relationship to any of the issues in the case is irrelevant and does not satisfy Rule 702′s requirement that the testimony  be  of  assistance  to  the  jury.  Id.   It  is  thus  inadmissible  under Rule  702 as  well  as  under Rules   401 and 402.” Id.

In addition to being relevant, the underlying scientific technique or principle must be reliable.  Scientific evidence which is not grounded “in the methods and procedures of science” is no more than “subjective belief or unsupported speculation.” Id. Unreliable evidence is of no assistance to the trier of fact and is therefore inadmissible under Rule 702.” Id.

“There are many factors that a trial court may consider in making the threshold determination of admissibility under Rule 702. These factors include, but are not limited to:

  • the extent to which the theory has been or can be tested;
  • the extent to which the technique relies upon the subjective interpretation of the expert;
  • whether the theory has been subjected to peer review and/or publication;
  • the technique’s potential rate of error;
  • whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and
  • the non-judicial uses which have been made of the theory or technique.” Id.

 

 

Trial courts may consider other factors which are helpful to determining the reliability of the scientific evidence. The factors a trial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable will differ with each particular case. Id. However, a distinction has developed in civil cases. Nenno v. State, 970 S.W.2d 549, 561 (Court of Crim. App. 1998). There was a portion of Nenno that was overruled and when you pull the case up in Westlaw, it has a red flag. However, Courts have continued to use the factors the Court held in that case for the purposes  of  testing the reliability of a soft-science expert witness.

“[i]n  2010,  this  Court,   with   a   different   composition,   issued   a   unanimous   opinion   in   which   the Nenno factors were applied in testing the reliability of a soft-science expert witness in a termination case. See In re S.R., No. 10–10–00063–CV, 2010 WL 4983484, at *2, 2010 Tex. App. LEXIS 9681 at **4– 6 (Tex. App.—Waco Dec. 8, 2010, pet. denied) (mem. op.). However, the S.R. opinion did not reference this Court’s prior J.B. opinion. See generally id. Nevertheless, a fair reading of this Court’s more recent pronouncement in S.R. yields a finding that we apply the Nenno factors to evaluate soft-science testimony in civil cases. See id. 2010 WL 4983484, at *2, 2010 Tex. App. LEXIS 9681 at **4–6. As such, it would appear that S.R. effectively overruled J.B. with respect to the analysis used to evaluate soft-science testimony in civil cases.”

While the Texas Supreme Court has not adopted the Nenno factors like they did Gammil, several Courts apply the Nenno factors in family law cases.   In the Interest of J.R. 2016 WL 6128159 (Tex. App. –Waco 2016).    There were three criteria set forth in Nenno to assist the courts in determining soft science testimony. Those factors were (1) whether the area of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon or utilizes the principles involved in that field. Nenno v. State 970 S.W.2d 549, 561 (Court of Crim. App. 1998). The Court also noted that where the Daubert Robinson factors do not seem applicable, the analytical gap test should be applied in addition to the Nenno factors. That test is essentially evaluates the gap between the experts ultimate conclusion and the data and methodology utilized.”

My best advice is stay away from these evaluations. You are likely to regret it and it’s a 50/50 toss up unless you don’t interview well.

 

FAQ in Texas Family Court from Parents

What is joint custody? What is sole custody?

In Texas, courts divide child custody issues into two different categories: conservatorship and possession and access.

Conservatorship is basically the rights and duties of the parents (i.e. to make decisions for the child regarding schooling, medical decisions, and psychiatric decisions, among many other things). Conservatorship can be done in different ways, including allowing one parent to make all the decisions (Sole Managing Conservatorship) or allowing both parents to jointly make the decisions (Joint Managing Conservatorship).

When determining the rights and duties of the parent(s), the court will decide what is in the “best interest” of the child, which takes into account a large number of factors.

Possession and access refers to when the parents have physical custody of the children or when they can visit with the children. Texas has two statutory possession and access schedules: standard and extended standard. These schedules dictate the time each parent spends with the child.

However, the parties can agree on different possession and access schedules based on their needs or the court can order a different possession and access schedule based on the best interest of the child.

 If both parents share custody does anyone pay child support?

Whether or not a parent has to pay child support depends on what the court determines to be in the best interests of the child.

In determining the best interests of the child, the court will consider evidence relating to a wide array of factors including: physical and emotional needs; physical and emotional danger; stability of home; plans for child; cooperation between parents; parenting skills; who was the child’s primary caregiver; the child’s preferences if the child is 12 or older; geographic proximity of the children; keeping siblings together; false reports of child abuse; and fitness of each parent (including abuse, physical force and family violence).

Typically the parent who is awarded the right to designate the primary residence and/or has possession and access to the child a majority of the time is the recipient of child support.

Can a parent refuse to allow visitation if child support is not paid?

No, child support and visitation do not go hand-in-hand. While the court can take into consideration how much possession and access to the child(ren) is being exercised when determining the amount of child support to be paid to an obligee, a parent nor a court can refuse to allow visitation solely on the issue of non-payment of child support.

When can my child decide which parent to live with?

In Texas, a child’s decision cannot be the sole factor in determining which parent the child lives with. However, once the child reaches the age of 12, and upon motion, the court can consider the child’s wishes as to whom he/she wishes to live with.

Do grandparents have custody and visitation rights?

No, grandparents do not typically have custody and visitation rights, unless they can meet the statutory requirements, including:

1.) at least one parent not having their parental rights terminated at the time relief is requested;

2.) overcoming the presumption that a fit parent acts in the best interest of their child in denying possession or it would significantly impair the child’s physical health or emotional well being; and

3.) the grandparent must be the parent of the child and that parent of the child must be either i.) declared incompetent by the court; ii.) is dead, or iii.) does not have actual or court-ordered possession to the child.

What is a parenting plan, and do I need one?

Yes, every case involving children needs a parenting plan. A parenting plan sets the rights and duties of a parent regarding the child. Some rights and duties include: right to designate primary residence; right to make decisions regarding the child’s health; rights to make decisions regarding the child’s education; duty to provide health insurance; duty to provide child support and many others.

If my separation agreement includes custody/support can it be included in the divorce decree? Texas does not have separation agreements. Instead the state has temporary orders. Upon agreement of the parties or upon order of the court, the possession and access/support terms from the temporary orders can be included in the final decree of divorce.

Upon filing of a divorce or other family matter, a party may request the court enter a temporary order governing the matter. Temporary orders allow the parties to get agreed upon or court-ordered “rules” governing various aspects of the domestic arena, including child conservatorship, possession and access, child support, property division, spousal support and various other items.

Possession and access will be decided on a temporary basis in the temporary orders either by agreement or by order of the court. Possession and access will be decided on a permanent basis in either the final decree of divorce or in the order on Suit Affecting Parent-Child Relationship (SAPCR).

When can I modify custody?

You can modify custody if it is in the best interests of the child and:

1.) the parents agree;

2.) if the child is 12 years old or older and tells the court he wants to change his primary caretaker;

3.) the person with the right to determine the primary residence relinquishes care and possession of the child for at least 6 months; or there has been a material and substantial change in the circumstances of either the child, the parent, the conservator or another significant party.

The most common way people modify custody is by showing that there has been a significant change in a party’s circumstances, which is a very broad category and can be proven in a variety of ways.

Who will get custody of our child(ren) and how is custody decided?

The court will determine possession and access to the child/children based on the best interest of the child.

In determining the best interest of the child, the court will consider evidence relating to a wide array of factors including: physical and emotional needs; physical and emotional danger; stability of home; plans for child; cooperation between parents; parenting skills; who was the child’s primary caregiver; the child’s preferences if the child is 12 or older; geographic proximity of the children; keeping siblings together; false reports of child abuse; and fitness of each parent (including: abuse; physical force; family violence).

How can I increase my chances at getting a larger custody agreement?

You can increase their changes at getting a larger custody agreement by proving to the court that you are an integral part of the children’s lives. This includes showing the court that you exercise regular visitation; that you take the kids to their extra-curricular activities; that you care for them on a daily basis; and that you are stable and competent to take the children for longer periods of time.

It is always helpful to keep a journal and calendar of everything that you do for and with the children leading up to the temporary orders or final determination of custody so you can show the court, mediator or opposing party that you are capable and deserving of a larger possession and access period.

What is visitation?

Texas does not use the term “visitation.” However, as stated above Texas uses the terms “possession and access.” Possession and access refers to when the parents have physical custody of the children or when they can visit with the children. Texas has two statutory possession and access schedules: standard and extended standard.

These schedules dictate the time each parent spends with the child. However, the parties can agree on different possession and access schedules based on their needs or the court can order a different possession and access schedule based on the best interest of the child.

Can a judge order supervised visitation or no visitation?

If the other party can prove that the children’s emotional or physical well-being is at risk of being harmed, the court can order supervised visitation.

 

You should know extensive and detailed information about your child. For example, you should know:

Child’s birthdate;
Child’s allergies;
Child’s special needs;
Child’s medical background;
Child’s schedule;
Child’s extracurricular activities and the names of all sponsors/coaches;
Your children’s school, teachers and grade.

Do I need to use a Custody Evaluator?

In Texas, we typically don’t use Guardian ad Litems, we more typically use amicus attorneys. A Guardian ad Litem and/or amicus attorney is often used when the children are under the influence of the strength of one party or the children are experiencing a great amount of change. It allows the child to have an advocate for their rights who is not persuaded by other factors.

Because the parties sometimes become wrapped up in “side issues,” it may be most helpful to the judge to have a third party neutral or advocate for the children come in and evaluate the case. Typically Guardian ad Litems and amicus attorneys are used when there is to be a termination of the parental rights, an adoption, or if there is physical/mental abuse.

Will my child need to appear in court?

Typically your child will not need to appear in court unless one of the parties has filed a Motion to Confer with Child. This type of motion is usually filed when one of the children is 12 or older and wants to express with the court whom they would like to reside with.

Please note that it is never a good idea to bring your child to the court for any family matters.

What if my wife tries to move the kids out state?

It is always important to try and maintain a stable and safe environment for the kids and the judge will try and maintain that stable and safe environment. Typically counties will have a standing order that will prohibit the parties from taking the children out of state, or your attorney can help you get a Temporary Restraining Order that will prevent your wife from moving out of state.

If you already have orders in your case regarding possession and access to your children, you can still file a Temporary Restraining Order to keep your wife from moving the children from the state. It is possible to limit the children’s residence to the state of Texas, the current county and/or contiguous counties.

Sexism in the Courts? Small Children, probably

In the United States, state laws involving custody do not automatically favor the mother over the father, but courts apply the best interests doctrine to determine what is in the best interests of the child. While a father’s legal rights with a newborn are usually the same as with an older child, cases involving newborn babies have unique circumstances. The well-being of the baby should be the paramount consideration, and courts consider the best interests of the child, over the desires or requests of either parent.

Legal Definition of “Father”

In the United States, if a mother and father are married and the father is named on the baby’s birth certificate, he is granted parental rights of custody and visitation, provided he is a fit parent. The situation is less clear when there is a question of paternity or if the parents are unmarried. If paternity is questioned and the mother will not let the father visit the newborn child, the man should file for a paternity test in family court in the jurisdiction where the mother and child live. The court will grant parental rights if a DNA test proves paternity.
Legal Custody

Custody is divided into physical custody and legal custody. Physical custody is where the child lives. Legal custody is the right of biological parents to be involved in important legal decisions relating to the child’s upbringing, what school he goes to, what religious preference or church (if any) the child will attend, and what health care he receives. Custody, including legal and physical custody, may be sole, joint or shared. Courts will usually award joint legal custody, unless doing so is not in the child’s best interests. This could include an unfit, incarcerated, abusive or neglectful parent. Joint custody means both parents have equal rights to be involved in the important decisions affecting the child, from birth until the child is old enough to make his own decisions, usually age 18 in most states.
Physical custody refers to the child’s primary residence. In the case of unmarried parents, the court tends to award physical custody to the mother. Physical custody may be awarded to the father, if the mother is deemed to be unfit. In the case of a newborn, physical custody is often awarded to the mother, if she is breastfeeding the child throughout the night, says attorney Lina Guillan for DivorceNet.com. The father is likely to have few or no overnight stays with the baby until she no longer requires night feeding. This comes down to what is in the best interests of the baby, rather than giving preference to either parent over the other.
Parenting Time

A father who is not granted physical custody (sole or joint) of his newborn baby is usually granted visitation rights, often called parenting time, according to what the court determines is in the best interests of the infant. If the parents are unable to reach an agreement, the court will set up a schedule of visitation in a parenting plan, taking into account the baby’s feeding schedule and sleep patterns. “Creating a Parenting Plan: Children Under Three” by the Los Angeles Superior Court suggests a two-hour visit on three non-consecutive days per week for babies from birth up to 6 months.

If the baby is drinking formula from a bottle, overnight stays with the father may be a possibility. If the father suspects the mother is using breastfeeding as a reason to deny him overnight stays, the court would have to decide whether breastfeeding was more important than the development of the bond between father and baby. Each decision is made by the court, after careful and thorough analysis of the facts of the case. Years ago, an idea developed in the courts that children under 5 simply needed the nurturance of their mothers and the law has remained that way. The problem is that once a status quo is obtained, it tends not to change, creating an uphill battle later unless the mother seriously goes off the deep end. Couples would do well to plan these issues together. Or else, it’s a no win situation.