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Parental Alienation, the Courts, and Emotional Distress

September 12, 2020January 5, 2021 14thdaymom

What is Parental Alienation?

The intentional alienation of a child’s affections with his or her parent without cause.

The tactics used after methodical and calculated acts of child abuse which can result in severe consequences. The alienated child an targeted patterns can suffer irrepairable harm.

Even if the child and the targeted parent once had a close, loving relationship before the alienation began, in severe cases, they can lose any existence of a relationship as the direct result of the alienation.

The “alienator” is not always a parent, it can be anyone in the child’s life that has the control and opportunity to influence the child.

The alienation also oftentimes extends to the child’s friends and extended family members.

While family courts recognize that parental alienation happens, (especially in high conflict divorces with child custody disputes), allegations of domestic violence can create an atmosphere of improper justification for the tactics used in alienation.

Daniel G. Saunders, Ph.D., Kathleen C. Faller, Ph.D. and Richard M. Tolman, Ph.D. or the University of Michigan, School of Social Work, submitted a research report to the U.S. Department of Justice which analyzed parental alienation in the family court system.

In their findings, it was concluded that the Judges, private attorneys, and custody evaluators were more likely than domestic violence workers and legal aid attorneys to believe that mothers make false allegations of abuse. This position creates a difficulty for a battered spouse to protect themselves and the child from abuse as they are labeled as an alienator.

This can have catastrophic consequences when “parental alienation syndrome” is brought up by the abuser to counter an allegations of domestic violence. The. battered spouse can even lose custody to their abuser and be erased from the childs life..

In a 2002 case in Nassau County, a trial court found that in cases where parental alienation is alleged, “the court has the duty to become aware of and seek out every bit of relevant evidence and advice on the custody issues before it”, which included a forensic evaluation. (Zafran v. Zafran, 740 NYS2d 596).

This can be achieved by a forensic custody evaluation, home study, or in cases where conflicting testimony is present, the court has the authority to use is an “in camera” interview (also called a Lincoln hearing) with the child.

The judge will interview the child in the absence of the parents and their attorneys, having only the child’s attorney present. The judge has the discretion to do an “in camera”, usually making this determination by assessing several factors. These factors include the facts of the case, the age and maturity of the child and the need to protect the child from the adversarial proceeding. The judge will conduct an “in camera” if they hear conflicting testimony or if one of the attorneys make the request. A lot of judges are partial to getting children directly involved in child custody or visitation cases and will therefore only conduct an “in camera” when it is absolutely necessary.

Parental Alienation as Form of Emotional Distress Tort Claim

Divorce lawyers see quite a bit of parental alienation in its various forms.

Some cases are severe, like the Tsimhoni case from Waterford & Clarkston, while other cases are mild.

An interesting case, Fukimaki v Ichikawa, decided in the Washtenaw County Circuit Court makes the Tsimhoni case look like a pro confesso divorce proceeding.

One particularly unusual aspect of the case is that the ex-husband filed a brand new case against his ex-wife in the court of general jurisdiction more than a decade after his divorce was completed in the family court.

The basis of the new case: tort claims for “alienation of parental affection” and “intentional infliction of emotional distress”.

The trial court judge dismissed the action on the grounds Michigan does not recognize the parental alienation tort claim and that the emotional distress claim was time-barred.

Not so fast, says the Michigan Court of Appeals. While the appellate court agreed that there is no cause of action for parental alienation, it held that the intentional infliction of emotional distress claim did not accrue until the mother began preventing parenting time with the father.

The trial court selected a much earlier date to begin running the “statute of limitations” clock: the date mother was awarded sole physical and legal custody of the child.

To establish the intentional infliction of emotional distress, the appellate court held that plaintiff must demonstrate that a defendant’s conduct was, “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.”

In sum, the courts have held that to be actionable, the defendant’s conduct must be so severe and shocking that a community member is compelled to shout, “Outrageous!”

In his complaint, father sets forth the following allegations:

Mother was twice held in contempt of the family court for disallowing father’s parenting time with the child;
Mother arranged for the child’s teacher to keep the child while she served a stint in the county jail following her second contempt of court ruling;
Mother sent father letters promising that she was committed and determined to completely destroy father’s relationship with the child;
Mother denied father parenting time for 22 consecutive weeks, and
Mother conspired with the child’s school to exclude father from all school-related events.

Based on these facts, if proven by a preponderance of the evidence, would constitute “Outrageous!” acts of conduct.

The case now goes back to the Washtenaw County Circuit Court where this father gets the opportunity to establish the elements of an intentional infliction of emotion distress claim; not an easy thing to do.

Father will have to prove extreme and outrageous conduct that is intentionally designed to cause severe emotional distress.

Although rare, torts can be filed against one’s spouse or former spouse, just like any other named defendant.

Recognizing Parental Alienation

Parental Alienation can be difficult to detect, largely because it may not be intentional. Yet whether the alienating parent intends to disrupt the relationship between the targeted parent and the child, the damage is the same.

In extreme situations, the alienating parent may relocate the child without the targeted parent’s knowledge or permission. Generally, alienating parents feel they are doing the right thing.Fortunately, courts have jurisdiction over most cases; the relocating parent must obtain leave from the court to move out-of-state or more than 100-miles from the child’s established custodial environment.

Sources:

Clarkston Legal

Parental Alienation Awareness

cps, parental alienation syndrome

Obsessed Alienation – Severe Parental Alienation in Custody Cases

May 15, 2018August 20, 2021 14thdaymom

“I love my children. If the court can’t protect them from their abusive father, I will. Even though he’s never abused the children, I know it’s a matter of time. The children are frightened of their father. If they don’t want to see him, I’m not going to force them. They are old enough to make up their own minds.”

The obsessed alienator is a parent, or sometimes a grandparent, with a cause:

to align the children to his or her side and together, with the children, and a campaign to destroy their relationship with the targeted parent.

For the campaign to work, the obsessed alienator enmeshes the children’s personalities and beliefs into their own. This is a process that takes time but one that the children, especially the young, are completely helpless to see and combat. It usually begins well before the divorce is final.

The obsessed parent is angry, bitter or feels betrayed by the other parent. The initial reasons for the bitterness may actually be justified. They could have been verbally and physical abused, raped, betrayed by an affair, or financially cheated.

The problem occurs when the feelings won’t heal but instead become more intense because of being forced to continue the relationship with a person they despise because of their common parenthood. Just having to see or talk to the other parent is a reminder of the past and triggers the hate. They are trapped with nowhere to go and heal.

The characteristics of obsessed alienation are as follows

They are obsessed with destroying the children’s relationship with the targeted parent

They having succeeded in enmeshing the childrens’ personalities and beliefs about the other parent with their own.

The children will parrot the obsessed alienator rather than express their own feelings from personal experience with the other parent.

The targeted parent and often the children cannot tell you the reasons for their feelings.

Their beliefs sometimes becoming delusional and irrational. No one, especially the court, can convince obsessed alienators that they are wrong. Anyone who tries is the enemy.

They will often seek support from family members, quasi-political groups or friends that will share in their beliefs that they are victimized by the other parent and the system.
The battle becomes “us against them.” The obsessed alienator’s supporters are often seen at the court hearings even though they haven’t been subpoenaed.

They have an unquenchable anger because they believe that the targeted parent has victimized them and whatever they do to protect the children is justified.

They have a desire for the court to punish the other parent with court orders that would interfere or block the targeted parent from seeing the children. This confirms in the obsessed alienator’s mind that he or she was right all the time.

The court’s authority does not intimidate them.

The obsessed alienator believes in a higher cause, protecting the children at all cost.

The obsessed alienator will probably not want to read what is on these pages because the content just makes them angrier.

There are no effective treatments for either the obsessed alienator or the children.

The courts and mental health professionals are helpless.

The only hope for these children is early identification of the symptoms and prevention. After the alienation is entrenched and the children become “true believers” in the parent’s cause, the children are lost to the other parent for years to come.

We realize this is a sad statement, but we have yet to find an effective intervention, by anyone, including the courts that can rehabilitate the alienating parent and child.

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More on Parental Alienation

Divorce is one of life’s most painful passages. It is painful for the spouse who wants it, painful for the spouse who feels rejected, and painful for the children.

We can understand and empathize with the spouse who feels wronged and wants revenge, or the spouse who is overwhelmed with anxiety at the thought of losing the children, or the spouse who prefers to forget that the marriage ever was.

But using the children to get revenge, to cope with anxiety, to erase the past, is unacceptable.

Parents must hold themselves to a higher standard.

Parent/child relationships are particularly vulnerable when children are first informed of the impending separation, or when one parent actually leaves the home.

If your spouse manipulates the children to blame you for the divorce, or to believe you have abandoned them, affection can dissolve overnight as their distress and hurt feelings are channeled into hatred.

The risk becomes multiplied if, for any reason, you have no communication or contact with the children after you leave the home. This keeps you from reassuring the children of your love and helping them understand that they do not have to choose between their parents.

A child who feels caught between two homes may feel that the solution to the conflict is to declare a clear allegiance to one household. This motive can result in alienation from either parent.

A child who is anxious or angry about the remarriage may channel these feelings into unwarranted hatred of the remarried parent and stepparent. Or the child’s alienation may express the disappointment of reconciliation wishes that have been dashed by the remarriage.

Regardless of the child’s underlying motivation, if the favored parent welcomes the child’s allegiance and fails to actively promote the child’s affection for the other parent, the child may cling to a maladaptive solution.

The parental alienation syndrome (PAS) is a disorder that arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.

enablers

PAS is more than brainwashing or programming, because the child has to actually participate in the denigrating of the alienated parent. This is done in primarily the following eight ways:

1. The child denigrates the alienated parent with foul language and severe oppositional behavior.

2. The child offers weak, absurd, or frivolous reasons for his or her anger.

3. The child is sure of him or herself and doesn’tdemonstrate ambivalence, i.e. love and hate for thealienated parent, only hate.

4. The child exhorts that he or she alone came up with ideas of denigration. The “independent-thinker”phenomenon is where the child asserts that no one told him to do this.

5. The child supports and feels a need to protect the alienating parent.

6. The child does not demonstrate guilt over cruelty towards the alienated parent.

7. The child uses borrowed scenarios, or vividlydescribes situations that he or she could not haveexperienced.

8. Animosity is spread to also include the friends and/or extended family of the alienated parent.

In severe cases of parent alienation, the child is utterly brainwashed against the alienated parent.

The alienator can truthfully say that the child doesn’t want to spend any time with the other parent, even though he or she has told the child that he has to, it is a court order, etc.

The alienator typically responds, “There isn’t anything that I can do about it. I’m not telling the child that he can’t.

Alienation advances when the alienating parent urdses the child as a personal therapist. The child is told about every miserable experience and negative feeling about the alienated parent with great specificity.

The child, who is already enmeshed with the parent because his or her identity is still undefined, easily absorbs the parent’s negativity. They become aligned with this parent and feel that they need to be the protector of the alienating parent.

Parental alienation can be mild and temporary or extreme and ongoing. Most researchers believe that any alienation of a child against (the child’s) other parent is harmful to the child and to the target parent.

Extreme, obsessive, and ongoing parental alienation can cause terrible psychological damage to children extending well into adulthood.

Parental Alienation focuses on the alienating parents behavior as opposed to the alienated parent’s and alienated childrens’ conditions. This definition is different from Parental Alienation Syndrome as originally coined by Dr. Richard Gardner in 1987:

“a disturbance in which children are preoccupied with deprecation and criticism of a parent-denigration that is unjustified and/or exaggerated.”

Parental Alienation Syndrome symptoms describe the child’s behaviours and attitude towards the targeted parent after the child has been effectively programmed and severely alienated from the targeted parent.

Parental alienation, on the other hand, describes the alienating parent’s or parents’ conduct which induces parental alienation syndrome in children. Parental alienation is a form of relational aggression by one parent against the other parent using their common children.

The process can become cyclic with each parent attempting to alienate the children from the other. There is potential for a negative feedback loop and escalation.

At other times an affected parent may withdraw leaving the children to the alienating parent. Children so alienated often suffer effects similar to those studied in the psychology of torture.

Alienating parents often use grandparents, aunts/uncles, and other elders to alienate their children against the target parent.

In some cases, mental health professionals become unwitting allies in these alienation attempts by backing unfounded allegations of neglect, abuse or mental disease. Courts also often side with the alienating parent against the target parent in legal judgements because parental alienation is so difficult to detect.

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Extreme forms of parental alienation include obsessive brainwashing, character assassination, and the false inducement of fear, shame, and rage in children against the target parent. Moderate forms of parental alienation include loss of self control, flare ups of anger, and nconscious alliances with the children against the target parent. In it’s mildest forms, parental alienation includes occasional mild denigration alternating with a focus on encouraging the children’s relationship with the other parent.

Parental alienation often forces children to choose sides and become allies against the other parent. Children caught in the middle of such conflicts suffer severe losses of love, respect and peace during their formative years.

They also often lose their alienated parent forever.

These consequences and a host of others cause terrible traumas to children as studied in Parental Alienation Syndrome.

Parents so alienated often suffer heartbreaking loss of their children through no fault of their own. In addition, they often face false accusations from their alienated children that they cannot counter with the facts.

Finally, they often find themselves powerless to show that this little-known form of cruel, covert, and cunning aggression is occurring or has occurred.

Often the problem can be cured only by realizing the underlying causes. The reasons are very numerous and varied. These are examples:

Money. The custodial parent may wish to have more than the non-custodial parent is willing or able to provide and the children are leverage pawns.
Retaliation. ‘You wanted a life without us. Now you have it.’

New family member.The mother forms a new romantic relationship and wants her new man to be the father. The non-custodial parent is a hindrance to that new relationship, an unwanted reminder.

New partner’s interference. Mother’s boy-friend or new husband wants to be the man in the child’s life and works to exclude the father.
Jealousy Mother’s empty life is in stark contrast to Father’s recovering one. Mother may not wish the father’s new partner to have the role of ‘rival mother’ – particularly if she is insecure about her own abilities.

Property rights. Mother regards child as her property and is unwilling to share

Social appearance.Mother could never admit that she is not the sole focus of her child’s life.

Depression, Poor health.General negative view on life interpreted by her as being a result of the marital breakup and therefore his fault.

Simple hatred by the mother of the father.

Hostility from the father toward the mother is viewed by her as a risk to the children as well, so she feels that she must ‘protect’ the child by preventing the father from visiting. Mother may have no basis whatsoever for feeling that the father will be hostile to the child.
Possessiveness of the child’s attention and affection. The Mother may have no other close family and be envious of the father’s friends and relatives.

Mother convinces herself that the father is a dangerous human with extreme character flaws to which the child should not be exposed. Mother assumes that activities enjoyed by the father are risky to the child, even though other children may engage in those same activities.

Mother has taken a gender approach and is hostile to all men. This can be particularly true if the mother has limited her own contacts to other single mothers. She may be unable to sustain a wholesome relationship with a man.

Punishment. Mother eliminates visits or shortens contact with the father if the children do not behave. “You have not finished your homework. You cannot go to dinner with your father.” or “You did not obey me about your bedtime. You are grounded here and while you are with your father this weekend.”

Perceived competition with the former spouse. This is particularly true when the non-custodial father spends more on the children than the mother is able to do. Also called “Disneyland Dads”, the father uses his time in high dollar activities while the mother has to make do on free and low cost amusements for them. This also works in reverse with the “competitive” mom – where the non-custodial parent plans an activity, such as a driving vacation and then the custodial mom has to ‘trump’ it by flying the children out of the country on vacation. Neither parent seems to notice that the TWO vacations are far more than the child would have received if in a pre-divorce home and that the child’s values are being distorted on a very subconscious, but permanent level.

Self-esteem. The mother’s interests and activities may be so focused on the children that she has no life if they are not around. She does not wish to, or cannot admit, that they have fun if she is not part.

Fear of abandonment.Mother worries that children may choose the father over her if given the opportunity.

Control. The children may be the only means the parent has of directing the life and emotions of the former spouse.

Reverse control. The mother may have never wanted a man except to sire the child and, once that role is complete, the mother wants him well away from her child. Watch for parents who say ‘MY child’ when talking to the other parent.

Punishment to the Father for forming a new marriage. ‘You were supposed to stay single and grieve for me forever.’

Mistaken belief that the father was actually not interested in the child.Many men are not granted much of a role in baby care, so as the child grows older and the father is ‘learning how to parent’ he may not spend as much time with the child –which may be viewed in retrospect as disinterest. Parenting does not come naturally to everyone and non-custodial parents have less of a chance to practice, with their mistakes being more visible.

Lifestyle conflicts.Mother and father have different choices in cultures, religions, and values and she wants to isolate the children into hers.

Emotional dependence.The mother may feel that the child has only so much capability for affection and wants it all for herself.
Resentment of reminders of failure.The mother may view the dissolved marriage as a failure and wish to avoid all memory of it.

Concealment. The mother may be having difficulties and does not want the children to provide information about her situation to the father.

Theses cases involving Parental Alienating are very frustrating to the targeted parent. Many times the offending parent feels totally justified in their actions. They cannot see the damage they are causing their children.

How can targeted parents in these situations be helped?

Encourage them to keep their heads up, maintain perspective, and contact the right professionals. Open up the line of communication with their children, recognize early warning signs of trouble, and respond appropriately to rude and hateful behavior.

Avoid common errors made by rejected parents through recognition of the problem and quickly obtaining the proper experts, which is crucial in developing a strategy inn a custody case involving Parental Alienation.

If necessary, ask the courts to order an evaluation and most of all to order treatment to reverse the damages caused by such conduct.

Sources:

Parental Alienation Syndrome by Lynn M.Swank,

Dr. Richard A. Warshak. Divorce Poison, Protecting the Parent-Child Bond from a Vindictive Ex, Regan Books, New York,

Gardner, R.A. (1998). The Parental Alienation Syndrome, Second Edition, Cresskill, NJ: Creative Therapeutics, Inc.

Forensic Family Services, Inc.

cps

A few things you should know about CPS litigation

December 16, 2013 14thdaymom

Because knowledge is power –

This article is from the Texas District and County Attorneys Association at http://www.tdcaa.com/node/2496

By Pamela Kemp Parker

Special Projects Attorney with the Office of General Counsel, Texas Department of Family and Protective Services, Austin

If you are new to CPS cases, the learning curve is steep.

What follows is a roadmap for this important but often disorienting legal terrain.

A growing awareness of the unique legal, social, and psychological issues confronting abused and neglected children and their families in recent decades has produced an army of judges, lawyers, child advocates, and social workers better equipped than ever to handle the unique landscape of child protective services (CPS) litigation. For attorneys new to this area of practice, however, the field’s increasing complexity makes getting up to speed a daunting task.

Any attorney who has been in the trenches knows why the learning curve is so steep: a maze of constantly changing federal and state laws, an alphabet soup of acronyms, a variable cast of parties in every lawsuit, and myriad special laws governing everything from paternity, to Native American children, to interstate and international placements. It isn’t possible to produce an exhaustive compilation of what an attorney representing the Department of Family and Protective Services (DFPS) needs to know in a brief article, but what follows is intended as a roadmap for this important but often disorienting legal terrain, with citations and resources for further research. Although this is only a fraction of what a successful practitioner needs to know, I hope that a close look at the infrastructure underlying this field of practice will make it easier to build the necessary expertise.

The big picture

In 1997 Congress enacted a fundamental truism of child welfare litigation into law: Child safety is paramount in every decision at every juncture.1 Although it almost seems unnecessary to say out loud, the reality of child welfare litigation—the frenetic pace, heavy caseloads, high stakes and limited resources—makes the mantra of child safety a useful touchstone for practitioners.

Another pillar of child welfare policy is the concept that every child needs the most permanent living arrangement possible, as quickly as possible. Ideally, permanency means services that prevent a child from being removed from her home or allow a child to be returned home as quickly as possible. When a child cannot be returned home, however, her need for permanency requires timely decisions to afford her a safe and stable placement. After too many years of children languishing in foster care, both the Texas Legislature and U.S. Congress enacted statutory mandates that compel timely progress and review of cases and, most importantly, impose strict time limits for reaching a final determination in a child welfare case.2

Another significant concept, reflected in both policy and law, is a renewed emphasis on the role of the extended family and friends in resolving abuse and neglect issues.3 This philosophy takes many forms, but the Family Group Conferencing model is a prime example.4 In this model the first effort to aid a family in crisis is to provide a forum for the family to craft its own solution. A facilitator convenes relatives, friends and other members of the community important to the family, but the focus is on encouraging the family to draw on its own strengths and create a uniquely appropriate plan to address child safety.

With the increased focus on families, greater emphasis is also placed on an aggressive search to find any and all possible relatives or family friends who are potential caretakers when it’s determined that a child can no longer be safe in her home. To this end, DFPS provides a parent with a Child Placement Resources Form at the time of removal and must evaluate each person on the form and complete a home study of the most appropriate substitute caregiver before the adversary hearing.5

A hearing for every occasion

The rhythm and progress of a child protection lawsuit is dictated by federal and state laws that require a series of hearings that begin when a child is removed from a family’s home. The following are broad descriptions of the purpose and timing of these standard hearings. For details about the statutory requirements, issues and procedural prerequisites, consult the resources cited below. In addition, the Office of General Counsel for DFPS anticipates releasing the Practice Guide for DFPS Attorneys in the fall of 2008. Attorneys who represent the agency also currently have access to HOTDOCS, a software program with standard pleadings for DFPS litigation.6

Emergency removal. If a child has been removed with no prior court order, the agency must appear in court no later than the next business day (usually this is an ex parte hearing/order) and provide sufficient evidence of “a continuing danger to the physical health or safety of the child if returned to the home or evidence that the child has been sexually abused and is at substantial risk of future sexual abuse.”7

Alternatively, DFPS may seek an ex parte order prior to a removal and in that instance must provide sufficient evidence of “either an immediate danger to the physical health or safety of the child, or that the child has been a victim of neglect or sexual abuse.”8

In addition, in either of these circumstances the agency must also provide sufficient evidence:

• that there is not sufficient time, consistent with the child’s physical health or safety, to hold an adversary hearing;

• that it would be contrary to the child’s welfare to remain in the home; and

• that reasonable efforts were made to prevent or eliminate the need for removal.9

Non-emergency hearing. If there is no urgent need for removal but the child’s safety is at risk if left in the parent’s care, DFPS can seek a court order authorizing removal following a noticed hearing. This type of order requires sufficient evidence to prove:

• that it would be contrary to the child’s welfare to remain in the home; and

• that reasonable efforts were made to prevent or eliminate the need for removal.10

In every removal, the original petition in the Suit Affecting the Parent Child Relationship (SAPCR) is verified by the caseworker’s supporting affidavit, which must detail specific facts about household conditions, medical findings, allegations of sexual abuse or physical abuse, or other circumstances that make removal of a child necessary, as well as the efforts made to obviate the need for a removal.

Adversary hearing. Within 14 days after DFPS takes a child into custody in an ex parte proceeding, the court must revisit the issue of removal and either enter temporary orders or return the child to the family.11 At this hearing, if the court appoints DFPS as the child’s temporary managing conservator, the court must enter temporary orders and find:

• danger to the child’s physical health or safety and that it is contrary to the child’s welfare to remain in the home;

• the urgent need for protection required immediate removal; and

• that despite reasonable efforts to prevent or eliminate the need for removal and to return the child home, there is a substantial risk of continuing danger to the child in the home.12

At this juncture the agency attorney also typically seeks any necessary orders for visitation, child support, paternity testing, psychological testing, drug assessment or testing, physical examinations, discovery, or other orders needed to protect the child, facilitate the child’s return, or find optimum placement for a child.

Status hearing. No later than 60 days after a temporary order is entered, a status hearing must be held.13 Its focus is:

• the contents of the service plan;

• designation of the person authorized to give medical consent for the child;

• the status of diligent search efforts for any missing parents; and

• a warning to parents that unless the parent can offer the child a safe environment, termination of parental rights is an option.14

Permanency hearings. The first permanency hearing must be held no later than 180 days after DFPS is named as temporary conservator.15 Notice is required and all parties must be given a copy of the permanency plan at least 10 days prior to the hearing.16

At the hearing, the court must:

• thoroughly assess all facets of the case;

• return the child to the home if it is safe to do so;

• enter necessary orders to ensure progress toward permanency; and

• set a dismissal date.17

A subsequent permanency hearing must be held within 120 days of the last permanency hearing.18

Final hearing. The driving force that dictates timely resolution of a child welfare case is the requirement that no later than one year after DFPS is named conservator (or at most an additional 180 days later if the court finds that extraordinary circumstances necessitate an extension), the court must either enter a final order or dismiss the lawsuit.19 DFPS may seek termination of parental rights and appointment of DFPS or another caretaker as permanent managing conservator. Although it is sometimes necessary, naming DFPS or another caretaker as a child’s managing conservator without termination of the child’s parental rights is only appropriate if no other, more permanent option is available. Without question, this stage of the litigation requires the most careful preparation, adherence to procedural requirements, and close coordination between DFPS staff and attorneys representing the agency.

Evidence of DFPS’ efforts to locate a missing parent, a parent’s compliance with the service plan, and the child’s adoptability may all be crucial at this juncture. If termination of parental rights is requested, there must be clear and convincing evidence of at least one statutory ground for termination of parental rights and that termination is in the child’s best interests.20

Placement reviews

If the final order names DFPS as managing conservator, the court must review the child’s placement at least every six months until the child ages out of foster care.21

DFPS must submit a placement review report addressing all aspects of the child’s status at least 10 days in advance, and the court must make findings as to the appropriateness of the placement, the efforts made to meet the child’s needs, and any additional services the child needs.22

Who qualifies as a parent?

In child protection litigation, sometimes half the battle is figuring out who is a party to the action. If a child is born to a married woman, her husband is the presumed father and must be named in a suit seeking to restrict or terminate parental rights.23 Similarly, if a man has lived continuously with a child during her first two years of life and has held himself out to be the child’s father, he may also qualify as a presumed father.24

A presumption of paternity can be rebutted only by an adjudication of paternity or a valid denial of paternity filed by a presumed father with a valid acknowledgement by another person.25

If the mother is not married when a child is born (and wasn’t married within 301 days before birth) and no man has been adjudicated to be the father, the legal ramifications of alleged father status become important. Texas maintains a paternity registry, which allows an alleged father to protect his rights by registering; if he fails to do so, he allows a child to be legally freed for adoption without service of process.26

The process of checking the registry and terminating parental rights of a man who fails to register is not difficult, but getting accurate information as to potential fathers, obtaining paternity testing where possible, and handling new information that may not surface until the eve of a final hearing can be tricky. The best strategy is to make every effort to resolve the paternity question as early in the litigation as possible to streamline the litigation and make the best use of limited resources.27

Search and serve

When parental rights are at stake, due process requires that a parent be served with the lawsuit or, at a minimum, the agency must exercise due diligence in an effort to locate a missing parent before a court can authorize substitute service, usually by publication. Generally, DFPS pleads for termination of parental rights in the alternative in the initial petition. This strategy avoids the necessity of serving parties again when and if the decision is made to pursue termination of parental rights. If a default judgment is taken, compliance with the Service-members Civil Relief Act requires proof that a parent is not an active member of the military.28

Acronyms and lingo

Being familiar with the language always makes navigating new terrain much easier. A few key terms include:

Adam Walsh: The federal Adam Walsh Child Protection and Safety Act of 2006, which requires (among other things) that child welfare agencies conduct fingerprint-based FBI checks on all prospective foster and adoptive homes and, for federally funded placements, imposes either a permanent or a five-year bar on placements if a caretaker has a conviction for specified crimes.29

ASFA: The federal Adoption & Safe Families Act of 1997 which amended Title IV-E of the Social Security Act.30

Baby Moses: The tag given to cases involving infants left at a designated facility, which are not treated as abandonment, to promote safe delivery of infants who might otherwise be left in trash bins or similar perilous circumstances. Special procedures regarding confidentiality, notice, and termination of parental rights apply in these cases.31

CAC: Child Advocacy Center, a multi-disciplinary center designed to minimize the trauma on a child by limiting the number of interviews and to promote collaboration between medical, law enforcement, social work, legal, and other child welfare professionals.32

CAPTA: The federal Child Abuse Protection and Treatment Act, most recently reauthorized and amended by the Keeping Children and Families Safe Act of 2003.33

CASA: Court Appointed Special Advocates, volunteer guardians ad litem appointed to advocate for a child in court.34

CCEJ: Court of Continuing and Exclusive Jurisdiction. After the adversary hearing, if another court is the CCEJ as result of a custody case or another CPS suit, the court must transfer the suit to the CCEJ or, if mandatory transfer grounds exist, order the transfer of the suit from the CCEJ, or order the transfer of the case to the court having venue of the suit.35

FBSS: Family Based Safety Services. These are protective services provided to a family before a child is removed from the home. These services are designed to avoid a removal and reduce the likelihood that a child will be abused or neglected.36

IV-D: Title IV-D of the Social Security Act creates the state’s child support enforcement program. Texas receives a substantial federal subsidy for this program. The Child Support Division of the Office of Attorney General (also known as the IV-D state agency) is responsible for the establishment and enforcement of child support.

IV-E: Title IV-E of the Social Security Act, the source of federal foster care and adoption assistance funding and the accompanying restrictions and requirements.37

Family Reunification Services: These are protective services provided after removal to support a family and the child during the child’s transition from living in substitute care to living back in the home.38

Kinship Care: Caretaking by relatives or “fictive kin,” friends of the family that function like relatives.

Order to Participate in Services: A court order to compel a parent or caretaker to participate in services designed to avoid the need to remove a child.39

SWI: Statewide Intake, a centralized DFPS office located in Austin where members of the public or professionals can report child abuse via the telephone or the Internet.

Special circumstances

In some cases, laws applicable to special situations and populations require particularized knowledge to competently resolve a CPS case. If you find yourself in a case with one of these issues, you must get help before you proceed.

For example, if a case involves:

• a child with Native American heritage: Any removal or termination of parental rights of an “Indian child” is subject to the Indian Child Welfare Act.40

• a foreign-born child: If a foreign-born child is in DFPS custody, DFPS must give notice to the foreign consul.41

• an undocumented child: If an undocumented child cannot reunify with her family, the child will probably be eligible for Special Immigrant Juvenile Status, which is an avenue for obtaining Permanent Resident status.42

• a child to be placed outside Texas: If a child will be placed outside of Texas, the Interstate Compact on the Placement of Children may require advance approval from the state where the child will be placed.43

• a child from another state: If Texas does not have “home state” jurisdiction or there is a prior custody determination in another state, consult the Uniform Child Custody Jurisdiction and Enforcement Act to assess to what extent a Texas court can assert jurisdiction beyond temporary emergency jurisdiction.45

Where to get help

Fortunately, there are excellent resources, mentors, checklists and guides available to help the busy practitioner wade through the daunting blend of legal, medical, mental health, financial and educational issues that modern child welfare litigation presents. Using these tools, we can best follow the advice of an early child advocate, Sitting Bull, who urged, “Let us put our minds together and see what kind of life we can build for our children.”46

Texas Department of Family and Protective Services for CPS policy, rules, resources and updates about new initiatives; www.DFPS.state.tx.us.

Administration for Children and Families for Children’s Bureau, with federal law and child welfare policy handbook; www.acf.hhs.gov/programs/cb/.

Texas Lawyers Care for child welfare-related articles, practice guides, expert witness information, and legal research; www.texaslawyerscare.org.

American Bar Association Center on Children and the Law for articles, news, legislative updates and links to many other resources; www.aba.childlaw.org.

National Council of Juvenile & Family Court Judges for technical assistance, training, and research; www.ncjfcj.org.

National Association of Counsel for Children for training, publications, and advocacy; www.nacchildlaw.org. D

Editor’s note: For more information, the author can be contacted at 512/929-6635 or pamela.parker@dfps.state.tx.us.

Endnotes

1 Adoption and Safe Families Act of 1997, P.L.105-89, §102.
2 42 U.S.C. §675 (5)(E) (state must file termination of parental rights for child in foster care for last 15 out of 22 months, or in case of aggravated circumstances, unless exception applies); Tex. Fam. Code §263.401 (dismissal of DFPS suit after one year unless extraordinary circumstances warrant extension of no more than 180 days).
3 42 U.S.C. §671(a)(19) (mandatory preference for adult relative that meets child protection standards over non-related caretaker); Tex. Fam. Code §262.114 (DFPS must evaluate relatives or other potential caregivers identified by parents and perform home study of most appropriate caregiver); Tex. Fam. Code §264.751 (relative and other designated caregiver support program).
4 Tex. Fam. Code §264.2015 (family group conferencing as strategy to promote family preservation and permanency).
5 DFPS Designated Caregiver Form 2625.
6 Contact Chrissy Sanders, Legal Assistant, Office of General Counsel, at 512/438-5606 or chrissy .sanders@dfps.state.tx.us, to request HOTDOCS.
7 Tex. Fam. Code §262.107; §262.104 (a)(5) and (b) (in addition to general danger to physical health or safety, removal authorized based on specific harm caused by a parent or caretaker’s use of controlled substances or by allowing a child to remain on the premises where methamphetamines are manufactured).
8 Tex. Fam. Code §262.102.
9 Tex. Fam. Code §262.102 (a)(2)-(3); §262.107(a)(2)-(3); DFPS can claim federal funding for children who qualify for Title IV-E, but only if a court finds at the time of the removal that it was contrary to child’s welfare to remain in the home and that reasonable efforts were made to prevent or eliminate the need for removal. 42 U.S.C. §671(a)(15)(B); §672(a)(2)(A)(ii).
10 Tex. Fam. Code §262.113.
11 Tex. Fam. Code §262.201(a).
12 Tex. Fam. Code §262.201(b).
13 Tex. Fam. Code §263.201.
14 Tex. Fam. Code §§263.006; 263.202; 266.007.
15 Tex. Fam. Code §263.304.
16 Tex. Fam. Code §263.301.
17 Tex. Fam. Code §263.306.
18 Tex. Fam. Code §263.305.
19 Tex. Fam. Code §263.401 (dismissal after one year; 180 day extension possible).
20 Tex. Fam. Code §161.001(2); Holley v. Adams, 544 S.W. 2d 367 (Tex. 1976) (list of best interest factors).
21 Tex. Fam. Code §263.501.
22 Tex. Fam. Code §263.502-.503.
23 Tex. Fam. Code §160.204(a) (possible permutations that warrant presumed father status include child born during marriage, or within 301 days of a terminated marriage, child born during attempted marriage, or marriage after child’s birth with voluntary assertion of paternity if father takes specific actions)
24 Tex. Fam. Code §160.204(a)(5).
25 Tex. Fam. Code §160.204(b).
26 Tex. Fam. Code §160.402 (paternity registry); §160.404 (termination without notice to alleged father unless established parent-child relationship or man has filed paternity suit).
27 A variety of mechanisms exist for establishing paternity, Tex. Fam. Code Ch. 160, Subch. C. (establishing parent-child relationship); Subch. D. (acknowledgement of paternity) and Subch. G (adjudication of parentage).
28 Servicemembers Civil Relief Act, 50 U.S.C. App. §511 et seq.
29 P.L. 109-248; See also 42 U.S.C. §671(a)(20)(A).
30 P.L. 105-89.
31 Tex. Fam. Code Ch. 262, Subch. D; §263.1015 (no service plan required) and Tex. Fam. Code §161.001(1)(S) (termination ground for abandoned infants).
32 Tex. Fam. Code Chapter 264, Subchapter E.
33 P.L. 108-36.
34 Tex. Fam. Code Ch. 264, Subch. G.
35 Tex. Fam. Code §262.202-.203.
36 40 Tex. Admin. Code §700.702.
37 42 U.S.C. §670 et seq.
38 40 Tex. Admin. Code §700.703.
39 Tex. Fam. Code §264.203.
40 25 U.S.C. §1901 et seq.
41 Vienna Convention on Consular Relations, 21 U.S.T. 77, Article 37.
42 8 U.S.C. §1101(a)(27)(J).
43 Tex. Fam. Code Ch. 162, Subch.B.
44 Tex. Fam. Code §§152.102(7); 152.201(a)(1) (“home state” is state where child lived with a parent or person acting as a parent for at least six months prior to the filing of the SAPCR).
45 Tex. Fam. Code Ch. 152.
46 Sitting Bull, Hunkpapa Sioux, See The Indian Child Welfare Act Handbook: A Legal Guide to the Custody and Adoption of Native American Children, B.J. Jones (American Bar Association, Family Law Section, 1995), p.1.

Published in The Prosecutor, May-June 2008, Volume 38, No. 3

parental alienation syndrome

Poisoned Hearts – How Parental Alienation Hurts

November 29, 2013 14thdaymom

I am going to focus my attention for a while on Parental Alienation Syndrome. I encourage comments and ideas from the readers.

Parental Alienation Syndrome Poster

(From Wikipedia):Parental alienation syndrome was a term coined by child psychiatrist Richard A. Gardner. He defines Parental Alienation Syndrome as “a disorder that arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against the parent, a campaign that has no justification. The disorder results from the combination of indoctrinations by the alienating parent and the child’s own contributions to the vilification of the alienated parent.”(ref:Gardner, RA (2001). “Parental Alienation Syndrome (PAS): Sixteen Years Later”. Academy Forum 45 (1): 10–12. Retrieved 2009-03-31.)

Parental Alienation is child abuse and a hate crime of the worst kind – with the consequences primarily going to the child that the alienating parent is trying to estrange from the targeted parent.

I can tell you, as the ‘target parent’ – the pain is deep. There is no words to describe it. There is such extensive damage done, to both the child and parent, that to heal seems impossible. Where do we start? How do we start to heal when the alienating parent (or grandparent in my case) still has control of the child, still alienates the child, and does not want anything to change? Now, my child isn’t even a child anymore – he is an adult. So he is no longer part of any custody agreements or court rulings. There is no custody modification possible. There is no reversal of court orders possible.

It is over. Or is it?

I waited ten years after I realized no matter what I did, how hard I fought, or what happened, I would not win custody of my son back. I had to give up eventually or it was going to kill me. I eventually had to accept that it would be his adulthood that I would have to wait for. So I did just that – I waited.

I imagined for years how it would go – his 18th birthday. I imagined what it would be like to have his birthday party take place, with his custodial family present and I show up – to their dismay- and how my son would run to me, because he could.

I imagined how after that day we would be best friends. How he would call me for advice or to share good news with me. I imagined how he would come to stay with me, and we would talk all night about the good times, and cry together over the bad.

I imagined so many things we could do together. I never imagined there would be silence on his end. I never imagined I would call on his 18th birthday and he wouldn’t answer. I never imagined emails would go ignored, chats would not be initiated. I never imagined he was so alienated from me that even though he’s old enough now to decide for himself, she still controls him.

The International Handbook of Parental Alienation Syndrome by Gardner, Sauber, and Lorandos, has become the standard reference work for PAS. The International Handbook features clinical, legal, and research perspectives from 32 contributors from eight countries.

I never imagined that my son might hate me – or that I would wonder if he really does hate me. My gut tells me he doesn’t, but I have not heard from him, so maybe I am wrong.

I never imagined this pain might last forever.

What do I do now? How do I reach him? Do I wait for him? Do I find a seminar to attend? Do I drag my entire extended family to some weekend camp retreat where we make clay sculptures and have group sessions about our dysfunctional family and how its come so far between me and my son that he’s out of control. I cannot believe or understand how my brothers, my child’s uncles, have allowed this alienation to take place, and now that the deleterious effects are shining through they are ‘washing their hands of it’ – frustrated at the results of their inaction. WELL WHAT DID YOU THINK WOULD HAPPEN?

I have to fight the demon that tells me i want to commit suicide when I think about the idea that my son may hate me for real and we may never heal. I have to fight the demon that gives me so much rage that I cannot take out against anyone but myself. I have to fight to forget everything I don’t want to remember, but then I am afraid to forget too much. I don’t know anymore, I just want to know my son again. I want him to be okay.

How do we fix the damage that’s been done?

I am going to include articles about PAS that I found from around the web here, and ask that anyone out there who has something to say, please do. I need to know how to fix this. It hurts.

PAS RESOURCES AND LINKS

(source: http://www.pasattorney.com/pas-resources-links.htm)

Parental Alienation Awareness Organization (PAAO)

PAAO is dedicated to educating the general public, schools, police, counselors, and religious leaders on the subjects of Hostile Aggressive Parenting and Parental Alienation Syndrome. To achieve its goal, PAAO uses not only seminars and conferences to disseminate information, but also actively collects information. The PAAO website is clean, well organized, and highly informative.

Breakthrough Parenting

Breakthrough Parenting is a California-based organization that offers both classes and counseling on child custody, co-parenting, parenting plans, and parental alienation. The Breakthrough Parenting website offers several interesting books for sale. The executive director of Breakthrough Parenting, Jayne Major, PhD, has also put up an informative article entitled “Parents who have Successfully Fought Parental Alienation” that can be downloaded for free in PDF format.

PsyCare

This no-frills but highly popular website describes itself this way: “PsyCare hopes to address issues that are not always popular or politically correct. Instead, we want to stimulate debate and research on important issues affecting today’s families[,] to learn from other’s experiences and try to influence social policies based on empirical research and objective findings.” Highly informative and contains links to many other high-quality PAS websites.

Parental Alienation Syndrome

Florida psychologist Dr. J. Michael Bone has put up a solid website that deals with both parental alienation and Parental Alienation Syndrome. Dr. Boone has provided a number links to some highly informative sources.

Help Stop PAS

“Help Stop PAS is a non-profit organization dedicated to fostering healthy, rational, supportive and sustainable relationships between parents and their children during and after divorce. Our mission is to educate parents, extended family, law practitioners, clergy, medical and mental health professionals to recognize the signs and symptoms of parent alienation in order to intervene, in the appropriate discipline, and to reduce the occurrence of parent alienation. We also seek to obtain funding to promote and perform research projects aimed at providing new information about the appropriate professional definitions of, and the legal and mental health effects of parent alienation.” Another very solid website.

Parental Alienation Information Network (PAIN)

Far from painful, Dr. Glenn Cartwright’s site is a great no-nonsense PA and PAS information source.

accountability, Collin County, Texas, corruption, government, judicial system, legal, news, system failure

District Clerk’s Case Set for Trial

November 12, 2011 14thdaymom

Source: Collin County Observer

The pretrial hearing in the Collin County District Clerk’s case held on November 8, 2011 revolved around motions filed by former District Clerk Hannah Kunkle’s attorney John Charles Hardin. Watching Mr. Hardin in action, it appears he is nothing if not flamboyant, perhaps a cross between Richard “Racehorse” Haynes and Colonel Harland Sanders of Kentucky Fried Chicken fame.

The hearing was held in the suffocatingly small Auxiliary Courtroom #3 and with so many grandmothers in attendance; it looked more like a gathering of the Collin County Garden Club.

All of Mr. Hardin’s minor motions were granted, but only after objections made by attorney pro tem John Helms resulted in the rewriting of many of them. However, a motion for continuance was denied, as was Hardin’s request to have former District Clerk Hannah Kunkle’s trial severed from her co-defendants.

A major dispute erupted between Mr. Hardin and Mr. Helms concerning when discovery would be made available to Mr. Hardin for use in preparing Hannah Kunkle’s defense. The dispute became so heated that Judge Nelms had to quiet the two. Mr. Hardin demanded a specific time and place for all discovery and a list of the state’s expert witnesses to be provided to him. It was finally decided the exchange would take place November the 15th at 10 AM at the courthouse. Judge Nelms left it for Hardin and Helms to decide exactly where in the courthouse the exchange would take place.

Next up was Sherry Bell’s attorney Mr. Yoon Kim. Based on the decisions made on Kunkle’s motions, many of Mr. Kim’s motions were withdrawn or were granted without objection by Mr. Helms. Helms objected to Kim’s motion requiring disclosure of all information concerning the informers who brought the allegations against the four district clerks. Judge Nelms granted this motion.

Derek King Walpole representing Rebecca Littrell asked to adopt all orders to Littrell’s case. Judge Nelms granted this motion.

Judge Nelms next considered motions filed by District Clerk Patricia Crigger’s attorney Robert Hinton. Judge Nelms stated, “I ruled on all of Kunkle’s motions and therefore I have ruled on yours,” to which Mr. Hinton said, “yes sir.”

Next Judge Nelms busied himself with judicial housekeeping. In discussing voir dire Judge Nelms stated there would be 56 peremptory challenges. 28 for the state and 7 for each of the defendants. Mr. Walpole suggested they might need to call 250 members of the jury pool. Judge Nelms felt 150 would be sufficient and expressed concern that the selection of a jury should take no more than one day because of voir dire cost the county $6000 a day.

The affable Judge Nelms closed the hearing stating, “Thanks for being here, I’ll see you on the 28th.”

John

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Comment from: COLLIN COUNTY ATTORNEY [Visitor]

Was John Hardin wearing his deer skin vest? He has always tried to channel Gerry Spence. The attorneys are so used to it, we don’t even notice anymore!

Permalink 11/10/11 @ 16:04

The District Clerks trial: Day 1

November 28th, 2011

The Case
In September, 2009 Hannah Kunkle, the long-time District Clerk announced she would retire and endorsed Patricia Crigger running for the job.

Patricia won the race after a run-off, but a few months later, the Texas Rangers raided the District Clerks office at the Collin County Court House.

The Texas Rangers seized computer hard drives, removable storage drives, calendars, binders, and 2 employee Access Cards. Ranger Davidson interviewed and took testimony from 5 District Clerk employees who charged that they were either pressured into working for the Crigger campaign or told they would be rewarded with “Blue Book” time for any PTO (paid personal time off) taken to campaign.

“Blue Book” time was paid time off that was not authorized by county policies, but instead kept by the supervisors on Excel spreadsheets, and later in binders. One informer told Davidson that the “Blue Books” began in the early 1990’s after Hannah Kunkle was elected as District Clerk. When “Blue Book” time was taken by an employee, their supervisor would falsify county records to show that the employee was at work. Employees were reminded to leave their “Access Cards” with their supervisors when taking “Blue Book” time off, so that the supervisor could clock them in as ‘present’.

Davidson charges that at least 29 employees (out of 63 in the District Clerk’s Office) received “Blue Book” time off during the Crigger Campaign. In the 24 page Affidavit, Davidson lists several examples of employees being reported as present, but not having logged into their computers and of having ‘out-of-office’ messages on their phones. The DA’s documents show over 220 work days in free day, with county money, were given to employees for working on the Crigger campaign.

After she was indicted, she was sworn in as the new elected District Clerk.

The cast:

Judge:

Judge John Nelms, a retired judge from Dallas County

For the State:

John Helms,Jr., prosecutor pro tem an attorney in Dallas
Rebecca Gregory, 2nd prosecutor pro tem the former US Attorney of the Northern District of Texas

Hannah Kunkle, the former elected District Clerk. John Hardin is her attorney.For the Defense:

Patricia Crigger, the current elected District Clerk.Robert Hinton is her attorney.
Rebecca Littrell, the Chief Deputy District Clerk. Derek King Walpole is her attorney.
Sherry Bell, a Deputy District Clerk. Yoon Kim is her attorney.

The Charges

Kunkle, Crigger, and Littrell are charged with Abuse of Official Capacity, for more than $20,000 and less than $100,000. The charge is a 3rd degree felony, punishable by imprisonment in the penitentiary from 2 years to 10 years plus a $10,000 fine.
Kunkle, Crigger, Littrell and Bell are charged with Conspiracy of Abuse of Official Capacity, for more than $20,000 and less than $100,000. The charge is a ‘state jail felony’, punishable by imprisonment in a State Jail from 6 months to 2 years plus a $10,000 fine.

The Trial – Day One:

Most of today’s morning was spent corralling the 200 prospective jurors, organizing the court room and then listening to a couple of motion arguments.

I was surprised when I saw the defendants. At first I didn’t recognize Hannah Kunkle. She looks some how smaller and older. Her hair was simple and completely grey. Kunkle was wearing a dress looking an older, conservative, dignified lady. The other three ladies’ appearance looked in total contrast to Ms. Kunkle. Normally a defendant wants to give a jury’s a good their first impression.

Patricia Crigger appeared to be very worn and distracted. She looked disheveled looking like she came in from a storm. Rebecca Littrell came to court in a dressy, casual pants suit. The most shocking was Sherry Bell. She appeared in court in slacks and a home decorated applique sweatshirt. She looked like a bag lady coming to court looking for a free lawyer.

The judge and bailiff spent the large part of organizing moving the trial from a court room to the Central Grand Jury Room. That room was the only one capable of seating over 200 people.

After the court settled down, John Hardin made two motions to continue the case, and to sever Kunkle’s charges from the trial. The judge had ruled the same questions before, and again the judge denied the motions.

After lunch, voir dire began. The judge warned the panel that these trials may go on to December 15. Nelms promised them that the trial will not go into Christmas.

I do need to thank Judge Nelms and the prosecutor. He asked the panel did anyone know Bill Baumbach…. and then Helm’s later asked them twice if anyone reads the Collin County Observer. While no one said they knew me or read the CCO, I think the court I owe the court for the free advertising of the Collin County Observer. The jury panel was a captive audience and he had their complete attention. That kind of advertising is priceless.

The voir dire will continue late tomorrow.

The District Clerks trial: Day 2

November 30th, 2011

The second day of the trial was entirely spent in choosing a jury

Judge John Nelms

Voir dire took all morning.

After lunch, the judge told the 200 folks on the jury panel, that if they want to ask for an excuse for serving on the jury, he and the counsel would meet with each of them individually, and the judge and attorneys would vote if they could be excused.

59 people lined up to talk to the judge.

That took most all afternoon – from my perspective the procedure had as much drama as watching paint dry.

After the excuses, there were 147 members left in the panel. Each defendant had 7 strikes against a potential juror, and the State had 28 strikes. The whole process was finished a little after 6 PM.

The judge sworn in 10 men and 2 women as the jury. (I wonder if a male jury is less forgiving to female defendants, then a jury made up of mostly female jurors. I don’t know.)

The trial will begin again at 9:30 AM at the Ceremonial Courtroom. First up will be the State’s opening arguments.

The District Clerk’s Trial – Day 3

December 1st, 2011

The District Clerk’s Trial – Day 3
By: Lex In Limine (LIL)
Attorney at Law
Guest Contributor

After some preliminary matters, the parties presented their Opening Arguments.

John M. Helms, Jr.

The Prosecution, lead by John Helms, Jr. , prosecutor pro tem, began. With a clear voice and methodical manner, he told the jury of four women and six men that this was a case that involved the abuse of taxpayer dollars and the interference with free and fair elections. Of the 63 employees at the District Clerk’s office, all but one are female. He referred to the office as a “Good Ole’ Girl Network.”

The Defendants, Hannah Kunkle, Patricia Crigger, Rebecca Litrell, and Sherry Bell were the four highest “ranking” employees of the office at the time of the alleged offense. The Clerk’s office set up a rewards and benefits system for the employees and this system was kept “secret” from the Collin County Commissioners’ Court. Helms was quick to emphasize that the Defendants were not being prosecuted for the “secret” reward and benefit system.Helms stated that the crime alleged to be committed by the Defendants is the misuse of labor to promote the campaign of Patricia Crigger. The reward system was “off book” paid leave time that was referred to as “Blue Book” time. Again, Helms repeated that there is no crime in having the secret Blue Book time, but, instead, the use of said time for campaign work is what offends.

Helms produced a poster with snap shots of the Defendants and explained their respective job titles. He described the defendants as “joined at the hip” and a close knit group. The proximity of their respective work spaces added to their camaraderie. Helms said the evidence will show that the absences of the workforce when using “Blue Book” time adversely affected the efficiency of the office.

Helms then described the “anxiousness” felt by the many employees when they learned of Kunkle’s retirement. Kunkle had been in office for many years and they were concerned they would lose their jobs with a new regime. A lunch meeting was held at Fudruckers in January 2010 – two meetings to permit proper coverage of the office. The meetings, allegedly headed by the Defendants, are where Litrell stated that those who worked for Crigger’s campaign would be rewarded with Blue Book time.

Helms stated that in April after the runoff election between Alma Hayes and Patricia Crigger (Crigger won the election handily), the Press (which is The Collin County Observer) made a FOIA (Freedom of Information Act) request for the time records of the District Clerk Employees during the period of the campaign. Records were provided – but none of the Blue Book time was supplied.

The Human Resources Department noticed irregularities in time keeping. This was attributed to supervisors overriding the computer records and entering time arrival and departures in whole/exact numbers. If an employee swiped their card in the reader, the time would probably not be at the exact hour, for example.

The HR department audited the time records. The supervisors then collected the access cards of the employees and “swiped” various employees in or out of work to make it appear they were in the office, when they were, in fact, exercising paid leave pursuant to the Blue Book.

In June 2010, the Texas Rangers raided the District Clerk’s office and confiscated records and computer hard drives. Helms stated that despite the FOIA press request, the HR audit, and a raid by the Texas Rangers, the Defendants never conducted any type or form of internal investigation.

Helms concluded by stating that the Defendants had a “feeling of entitlement” and “undermined the integrity of an election.” Crigger had second thoughts about using the Blue Book time but did nothing to stop it and she benefitted from it.

Patricia Crigger

Defendant Patricia Crigger’s attorney, Robert Hintondelivered the second Opening Argument. Hinton specializes in representing legal professionals and elected officials. An experienced litigator with a folksy and easy manner, Hinton addressed the jury and agreed with much of the characterization of the prosecution. He agreed that the Defendants were “Good Ole’ Girls” – they are just good people. He described Kunkle’s office as the best District Clerk’s Office in the State. (Many an attorney, LIL included, can attest to this – regardless of the guilt or innocence of the Defendants, there is no clerk’s office that matches this one.)

He describes his client, Patricia Crigger, as a “God fearing woman” who worked at the office for 24 years in a career that she began as a secretary. The Blue Book system has been in existence since the “beginning of time” and is necessary because the county cannot offer cash or monetary rewards or incentives because of budgetary constraints.

Over the years, time clocks gave way to computers and swipe cards. Blue Book time was kept manually at first then it was kept on the computer. When the HR department asked the Clerk’s to discontinue manually overriding the time records, they adopted the system of swiping the ID cards of the employees. Every time the HR department asked the clerks to change the way they kept time, they complied. What occurred is not illegal. As an elected official, Hannah Kunkle could do what she wanted with her budget.

The employees at the Clerk’s office feared for their jobs because a Crigger opponent allegedly promised to ‘clean house” if elected. The employees had a garage sale to pay for Crigger’s filing fee (to seek election). Hinton stated that Crigger was the most qualified person in Collin County for the job.

The Fudruckers luncheons did occur and Kunkle promised Blue Book time to those who worked on Crigger’s campaign. But this, according to Hinton, was against the will of Crigger. After the election, Crigger told the supervisors to alert the employees to use their Blue Book time because this practice of Blue Book time would be discontinued in January 2011 when Crigger took office.

Hinton then describes what he learned about one of the Prosecution’s witnesses, Kristy Duty. Duty was a relatively high ranking employee at the Clerk’s office who was assigned to the 296th District Court, presided by Judge John Roach, Jr.. Allegedly, Roach, who was seeking re election at the time, asked that the clerks of his court display his signs, alongside those of Crigger at campaign sites. Crigger did not permit the display of Roach’s campaign signs by the clerks and this “infuriated Roach.” Then Duty made her complaint to Roach.

Hinton concluded by stating “mistakes were made,” and Crigger never agreed to this practice.

Rebecca Lettrell

Defendant Rebecca Littrell’s attorney, Deric Walpole, gave the third opening argument. (Yes attorneys and non attorneys alike – this is a LOOONG trial and there are many players – usually there are only two sides to a dispute).

Walpole is an experienced criminal attorney who recently defended Warren Jeffs at the YFZ child sexual assault trial, and is a self described victim of the former district attorney. He is an aggressive litigator and wastes no time with pretences. He began by stating that the prosecution of this case is “politically motivated.” He described what occurred as akin to someone waiting in the bushes, watching a fire start, and refusing to call for help until the house burned down. He said that the law is not a sword, it is a shield.

Walpole stated that Duty complained to Judge Roach and surmised the following scenario: “I’m going to Dad, Dad goes to the Texas Rangers, and you are getting arrested.” (Note – the past District Attorney, John Roach, Sr. is Judge John Roach, Jr.’s father)

Littrell has worked for the District Clerk’s office for 24 years and this is all she knows. He told the jurors that the original indictments against these Defendants were for keeping the Blue Book Hours – and nothing more. At this point the Prosecution objected to this but he was quickly overruled by the judge. Walpole continued, that since the District Attorney’s office, then lead by DA John Roach, Sr., had their own “Blue Book” system, the indictment was dropped and Littrell was re indicted with other charges.

He describes Duty as a disgruntled employee who is a cousin by marriage to Littrell. Duty and Littrell did not “get along.” The impetus for this investigation and subsequent trial is Kristy Duty’s chagrin over having to use paid leave for a snow day. Allegedly, Duty had previously arranged to have paid leave on that day. As it turns out, it snowed that day and all the employees were able to take leave pursuant to a snow day. Duty did not want to use her paid leave for that day and requested that HR change her timesheet to reflect this change. HR refused and Duty complained to Littrell. Littrell told her that she can use her accrued Blue Book Time instead. For whatever reason, this offended Duty. So, she then complained to Judge Roach.

Walpole stated that the Defendants are not in a position of power and have no influence over anybody. He stated that the legal standard for conviction in this case requires that the Littrell “intentionally or knowingly” misused government property. And she did not know. And she did nothing wrong. He said that the clerks used Blue Book time to work on the campaigns of County Commissioner Joe Jaynes and County Clerk, Stacy Kemp.

Walpole concluded stating “don’t throw their careers in the trash because someone didn’t hold up a freakin’ sign.”

Sherry Bell

Defemdant, Sherry Bell, represented by Yoon Kimdelivered the 4th Opening Argument. Yoon, a young attorney and former prosecutor, spoke briefly about his clinet. He describes her as a 64 year old with a high school education who worked for the clerk’s office for 22 years. She was advised that she could help the campaign and she did not realize that she was doing anything wrong. There was no intent for a conspiracy.

THE JURY WAS EXCUSED AT THE REQUEST OF JOHN HARDIN

John Hardin then made a motion to sever Hannah Kunkle’s trial from the other Defendants. This motion was denied. Helms, for the Prosecution, requested that any testimony regarding the prior indictments and attempts to indict the Defendants be excluded. This was denied by the court also. Helms protested that he did not want it to appear that he was a party to the prior indictments. Hardin then stated, and this is not an exact quote, “when you step into someone’s shoes, you step into the mud too.”

AND THE JURY IS BACK

Hardin addressed each individual juror by name and reminded them that this is the second week of Advent. He described former Constable and husband, Jerry Kunkle’s various illnesses and hospitalizations, including a debilitating heart attack in Colorado, and stated that Kunkle retired to attend to the needs of her husband and family.Defendant, Hannah Kunkle, represented by John Hardindelivered the 5th and FINAL Opening Argument. Hardin is a prominent, long time, and well known Collin County attorney. He has a folksy and casual manner with the jurors. His style is a conversational one which causes him to segue to various points of information – and the summary here reflects that style.

Hardin relates that After Kunkle announced her retirement, Kristy Duty and another Clerk’s office employee organized a garage sale to raise money to pay for Crigger’s filing fee. This prosecution “star witness” seemed to want Crigger to win and engaged in the same activities of which the Defendants are accused. Kristy created a flyer for the occasion. Hannah saw the flyer and promptly advised Kristy that “no one is to campaign in the office.”

He stated he did not know what happened at the Fudrucker’s meeting. He said that Judge Roach, an honorable man, was subpoenaed, and will testify at the trial. He mentioned to the jury that there is an article in the March edition of the Dallas Observer that describes the Collin County “Kangaroo Court.” He suggested the jury review the article and then he told them not to do their own research. (Not sure why the prosecution did not object to this one – LIL)

Hardin then segued to the actual election. He said that a Laura Roberge was campaigning at the Election office displaying signs for Crigger and Judge Roach. Sherry Bell called Roberge and told her to stop displaying Roach’s sign. Roberge called Roach and Roach allegedly went to the Election office.

Hardin then describes the raid by the Texas Rangers. The office was shut down during business hours. The Rangers confiscated records, computers, and even hand searched the purses of the employees. This raid was an absolute shock to all in the District Clerk’s office.

Hardin relates that the Defendants, with the exception of Kunkle, were indicted two times before and the indictments were dropped. Greg Davis, then the First Assistant to DA Roach, made a Brady Filing requesting recusal from the case because the DA’s office uses a system called “High Five” to permit exemplary employees to take leave from the office while time records falsely indicated they were actually working. This lead to the appointment of a prosecutor pro tem – John Helms, Jr.. Hardin relates that Helms and his team interviewed various employees. Pursuant to these interviews, Littrell asked Kunkle to write a letter vouching for her and the other defendants. Kunkle did so, and among the various documents that were presented to the subsequent Grand Jury, Kunkle’s letter was among them. This, asserts Hardin, is the reason that Kunkle was indicted in May 2011.

Hardin then describes his repeated requests for a continuance and his difficulty in obtaining discovery from the Prosecution. He stated that Kunkle, upon her announcement to retire, spent many days at the end of her term caring for her husband and was not involved in the minutiae of the office . He conclude by stating that Kunkle specifically forbid any campaigning in the office.

Lex In Limine
Attorney at Law

Cousins, Babysitters, and Snow Days – More from Day Three of the District Clerk Trial

December 1st, 2011

By: Magna Carta
Attorney at Law

On Day Three of the District Clerk trial, John Helms Jr. for the Prosecution called Ms. Kristy Duty who worked for the District Clerk’s office and remains a county employee in another division.

Kristy Littrell Duty

Duty described the Blue Book system as being a system for recording extra hours that employees worked, redeemable as PTO (Paid Time Off). Initially, when a person redeemed PTO time from the Blue Book, their supervisor would manually enter aPeopleSoft record showing that employee had actually been at work. (PeopleSoft is the software system they use in the HR department and payroll department.) Eventually, HR came to audit the DC office because of the excessive number of manual PeopleSoft entries. (Normally, entries are automatically created when a person scans his or her badge.) Once the HR audit was completed, employees and supervisors adopted the practice of employees leaving their badges with their supervisor when redeeming Blue Book time so the supervisor could “swipe” the employee in and out. This created the PeopleSoft record needed to get the employee paid without requiring a manual entry. Duty described the Blue Book system as being secret in the sense that it was not to be disclosed outside of the District Clerk’s office.

Deric Walpole

Rebecca Littrell’s attorney, Deric Walpole, cross examined Duty. During Walpole’s cross, Duty admitted that the DC employees described the Blue Book system to her during her initial job interview with the DC’s office, his point being that if it was so secret, why were they telling a mere prospective employee? Her response was that because her cousin (Littrell) was involved in the hiring process and everyone knew she was going to get the job. [Implicating the “Good Ole’ Boy (Girl?)” network arrogance that is so endemic in Collin County.]

Duty admitted that she had been the beneficiary of the Blue Book system. When she was pregnant and on bed rest, she had to work one weekend to show Crigger and others how to change some accounting codes in the AS/400 system. She received 40 Blue Book hours for the weekend, which she redeemed. Defense attorneys pointed this out more than once. And each time she distinguished her use of the Blue Book as being related to work she did for the county vs. working on someone’s election campaign.Initially, Duty testified that her only involvement in the Crigger campaign was that she and Melissa Smith held a garage sale to help raise funds to pay Crigger’s filing fee. Later, under cross examination by Walpole, she remembered that she held a Saturday evening meet and greet, close to the Valentine’s Day.

Duty described a meeting at Fuddruckers and recounted that Littrell encouraged the staff to campaign for Crigger and they would “get their time back.”

Hannah Kunkle’s attorney, John Harden, cross examined Duty. She admitted that Kunkle never said anything about anyone getting reimbursed for campaign time. Littrell sent a reminder email (using the county computers) regarding the Fuddrucker lunch. Walpole pointed out during his cross that if the Blue Book system was so secret, why did they talk about it openly and freely during lunch hour at a popular restaurant?

Duty testified that when Human Resources notified the District Clerk’s office that they would be conducting an audit, Littrell sent an email to the supervisors instructing them to delete their Blue Book spreadsheets prior to the audit. According to the Blue Book calendar, some employees would take several days off in a row to work on Crigger’s campaign. Sometimes so many people would be out of the office working on the campaign that there were not enough people for the office to function properly. Duty alleged that phones were not being answered, people couldn’t take lunch breaks, parties couldn’t get their file marked copies, etc. [I never understood what this meant, having lots of experience in getting things file marked. There has never been a delay, in my experience – MC]

On cross, Walpole asked her WHO complained about the service. She said “lots of people.” He said “name one.” She named two people and punctuated it with a sarcastic “how’s that?” Walpole asked Duty to name a single customer who complained. Duty finally admitted she never actually heard any customer complaints–just heard people complaining about people complaining.

NON SEQUITUR: Duty never held a campaign sign for Judge Roach.

Duty testified that in February 2010, it snowed. Employees were told that they could take half a day off and record it inPeopleSoft as 4 hours of “Office Closed” time. If they wanted to take off the entire day, they needed to record an additional 4 hours of PTO time. She took the entire day off, but somehow her time was recorded in PeopleSoft? as 8 hours of PTO time. Initially Duty testified that she complained about this to Littrell who told her to call Human Resources. She called the payroll department and was told that if Littrell or Kunkle would send an email, payroll would correct the time entry. Littrell, according to Duty’s testimony, told her that Kunkle and Crigger wanted all of her PTO would go on the Blue Book, rather than a PeopleSoft correction. This upset Duty. LATER, during Hardin’s cross, Duty admitted that Kunkle had never been involved in her timesheet and Kunkle’s name never appeared on any of the emails comprising this transaction.

The next day, still upset about her PTO time AND all the campaign time she saw being logged into the Blue Book, she complained to Judge Roach. About two weeks later, Roach told Duty and a Lara Roberge, who made a separate complaint, that he took the issue to his father, John Roach, Sr., the District Attorney at the time, who, in turn, referred the issue to the Texas Rangers. Judge Roach told them that they should know that as supervisors in the department, they could face jail time for being part of the system they were complaining about.

[Yes, this blew up over 4 hours of PTO time for a person probably making $15/hour. $60 would have kept all this under wraps.]

Duty testified that she was contacted by Texas Ranger A.P. Davidson. She described the Blue Book system to him and thereafter kept him informed of what was occurring in the DC office. She quit her job in the DC office in November 2010 because she did not want to work under the Crigger/Littrell regime.

Duty described the falling out she had with Littrell. Twelve years ago, she and Littrell “got into it.” They were very close (cousins by marriage) when she first moved to Collin County. Littrell and Husband Adam asked her to babysit their child. She agreed. Later, she decided to spend time with her sister so she backed out. Littrell was hurt by this. She thinks this is where the relationship started to sour between her and Littrell. [There is a pungent waft of “pettiness” (this being a polite word) on all sides throughout this story. Little hurts and annoyances leading to big bangs.]

Kunkle discovered a Crigger campaign flyer in the office and was very upset about campaigning on county time. Kunkle said “they shouldn’t do this.” Hardin made her tell this story several times. Hardin was genteel but insistent and forced Duty to admit she had no personal knowledge of Kunkle’s involvement in anything.

Magna Carta
Attorney at Law

Yes,, Attorneys are Expensive – Aaaand we’re back –

Day 4 of the District Clerks Trial

December 3rd, 2011

By Lex In Limine
Attorney at Law
Guest Contributer

Lorrie Robertson takes the stand. She is a supervisor at the District Clerk’s office. She was one of the Defendants who was originally arrested and indicted.

Through the direct examination of John Helms, Jr. for the prosecution, Robertson explained the various calendars and spreadsheets and how they were used to record Blue Book time. She testified that the Blue Book time was kept on the computer until Rebecca Littrell told her to remove it – sometime before the Runoff between Patricia Crigger and Alma Hayes in April 2010. She did so.

Robertson admitted that much of the Blue Book time was for leave not associated with the campaign. She testified that Littrell told her to encourage the staff that she supervised to work on the Crigger campaign. And she did, in fact encourage this.

At the time of the raid by the Texas Rangers, Robertson had another employees badge in her possession. That employee was not at the office but was exercising this Blue Book time. Robertson, as the supervisor of this employee had swiped the badge to make it appear that the employee was at work, when she was, in fact, not.
Yoon Kim, attorney for Sherry Bell, then cross examined Robertson. Robertson admitted that she was originally indicted. In July 2010, she entered into a plea agreement with then assistant District Attorney, (and instigator of most of these types of cases) Chris Milner.

NON SEQUITOR – Milner has a history of prosecuting defense attorneys for typos in their pleadings – alleging some type of government document tampering. Most of these cases have been dismissed and Milner has been mentioned in other publications regarding this over reaching and abusive tactic. He attempted to prosecute the current District Attorney, Greg Willis, for some crime – don’t know the exact charge – but basically Milner did not like how Wills ran his court (when he was a judge). The Grand Jury refused to indict Willis and took the unusual step of preparing a written statement explaining that Willis committed NO CRIME.

After Robertson entered into her plea of guilty to engaging in organized criminal activity, she kept her job and she wasn’t fined. (why don’t the other ladies get the same deal?) Later the indictments against the other defendants were dropped and re-indicted. She was afraid that her ex-husband would attempt to seek custody of her young children if she was prosecuted. So, she agreed to assist the prosecution.

She remained in the office during all of the alleged campaign activities. She reluctantly admitted that the business of the Disrict Clerk’s office never suffered during the campaign. She admitted that Kristy Duty, a prosecution witness and former employee of the Clerk’s office, was “in and out” of the office a lot because she was working with IT. She testified that not all Blue Book time was actually redeemed.

She was a former roommate with Crigger opponent, Alma Hayes, and this caused discomfort in the office. Robertson asserts that Hannah Kunkle excoriated her for supporting Hayes. Bur Crigger advised Robertson that it was not appropriate for Kunkle to do that and she could support whoever she wanted.

Deric Walpole, attorney for Sherry Littrell, cross examined Robertson. Robertson testified that if a judge or anyone else had advised the office what they were doing was illegal, Kunkle would have stopped it immediately.

NON SEQUITOR – Deric – you are a top notch attorney – so please take those sunglasses off your neck!

During the Robert Hinton, attorney for Patricia Crigger, cross examination, Robertson denied ever hearing Crigger proclaim that the Blue Book system would cease upon her taking office. But she found the Blue Book system to be a good program which contributed to the success of the office.

Robertson testified that the day she was arrested was the most embarrassing day of her life. She was humiliated. No one from the District Clerk’s office told her what to do. She hired attorney George Milner (no relation to Chris Milner)

John Hardin, attorney for Hannah Kunkle, cross examined the witness next. Hardin reminded Robertson that they had known each other since she was a child, she played with his dog, etc. etc. ( a lot of folksy introductions going on here – so BORING) Hardin promised the witness that no matter what happened, they would remain friends.

Robertson, through tears, testified that Kunkle was a very special and awesome lady. At the Fuddrucker’s meeting, she only remembers Littrell speaking and alleges that Littrell , when encouraging the staff to work on the Crigger campaign, said “we will figure out a way to get your time back.”

She met with prosecutor pro tem, John Helms, Jr.. Through attorneys, he asked to speak with Robertson. When asked, through Hardin, whether she took her attorney with her to this meeting, she said no “because he is very expensive.” This statement drew laughs from the gallery and the hoards of attorney in the courtroom. Judge Nelms asked the court reporter to make a transcription of that statement and laughed. (Attorneys are, indeed expensive – and they deserve every penny, I say!)

She met Helms for dinner and discussed car racing, oh and, also the District Clerk’s office.

I had to leave at this point and Bill will be covering the rest of the day. I will continue to cover the trial if you find that my posts are helpful to your understanding of this case.

Lex
Attorney at Law

District Clerks Corruption Trial – CLOSING ARGUMENTS

December 6th, 2011

By: Lex Lawyer
Attorney at Law
Guest Contributor

We have a verdict and a sentence – but I have been asked to bring everyone up to date on what transpired before the verdict. I have studied and analyzed the Closing Arguments – So Get Ready!!!

The State rested on Friday, December 2, 2011 around 2:30 p.m.. The court recessed until the following Monday at 9:00 A.M.. So, everyone shows up in court Monday morning – all ready to hear this rest of this loooooong trial. Guess what? The Defense rests. Judge Nelms was surprised by this and determined that the attorneys would work on the Jury Charge on Monday and they would resume Tuesday morning to read the charge to the jury and to hear closing arguments.

Tuesday – today – Judge Nelms read the charge to the jury. This is a very aggravating time for attorneys and litigants. This reading of a very long charge is required by the law. The jurors get a Charge to read in the jury room but every word is read to them – even the judge sounded bored.

Mentioned in the charge are the legal requirements necessary to find a “conspiracy.” There must be corroboration of testimony to find that a conspiracy occurred. Moreover, an accomplice, (such as the testifying District Clerk employees who used the Blue Book Time), cannot corroborate each other. There must be proof independent of the testimony of the accomplices.

The Charge contained many lesser included offenses. For example, even if the jury finds that government funds in an amount less than $20 was somehow misappropriated, some sort of lesser conviction can occur.

CLOSING ARGUMENTS

John Helms, Jr., Prosecutor Pro Tem

Helms describes this case as an “abuse of official capacity.” He states, “this is why we are here . . .” Aaaand, we are waiting for what I think is a dramatic video or something. Nothing happens and an assistant or some attorney is fiddling with some switches on a machine. This temporarily throws off the Mojo of Helms (I hate it when stuff like this happens to me – stupid equipment – that is why I stick to posters – nonetheless, not your fault , Helms! – LL) Well the AV equipment isn’t exactly working and finally, an audio recording booms through the courtroom. It is a recording of telephone conversation between Defendant Rebecca Littrell and Lara Roberge, a District Clerk employee. Littrell tells Roberge that she has used over 100 hours [on Crigger’s campaign] of her Personal Time Off (PTO) and will get it back on Blue Book – and she will do the same for Roberge.

Helms states, with steady eloquence, that this case is about “influencing an election.” He begins to review the charge with the jury. He asks one of his assistants to display the charge on the trusty ELMO projector. (For those of you who don’t know, Collin County is blessed with a Battlestar Galactica set up of technology that is the envy of many counties.) Guess what, the ELMO isn’t turned on. Assistants are flipping switches, Helms tries to get it to work. The attorneys mention that the bailiff knows how to work the projector. The Bailiff is in the anteroom “bailifing.” Yoon Kim, attorney for Defendant Sherry Bell, volunteers that he knows how to use the equipment. Judge Nelms is relieved and Kim gets to work. (Kim is a young attorney so he knows what he is doing! LL). Kim gets on the judge’s computer then assists Helms with his computer and, voila, ELMO is working.

NON- SEQUITOR – Kim is quite a gentleman to assist the Prosecution with this. He is a better man than me. I would have stared at the ceiling.-LL

Helms reviewed the charge with the jurors. The element of intent is required for these crimes and Helms said intent could be found because the Blue Book time program was asecret. Helms stated that the law does not require that the object of the conspiracy was accomplished – only that there was an agreement among the Defendants.

He reviewed the chronology of events. In the Fall of 2009, Hannah Kunkle announced her retirement. Patricia Crigger, Alma Hays, and Terrye Evans announced they were running for the office. Hays had a head start on fundraising and campaigning. At a Christmas party, Kunkle told everyone they should support Crigger. Kunkle wrote a letter of endorsement for Crigger.

Concerned that Crigger did not have enough volunteers, the Fuddrucker’s luncheon was held. Helms described the Defendants as the “Brain Trust” of this operation who took seats at the foot of the table. Littrell did most of the talking but all of the Defendants “strategized.”

Helms described various emails sent by Kunkle to friends where she lamented the election and did not want to turn over her office to someone who “didn’t have a clue” on running the place. He described other emails by other Defendants that were introduced in the trial. He casually mentioned that there were “complaints” about how the office was run without mentioning specific testimony or evidence.

Twenty District Clerk employees were involved in this activity, and he named each one. (Why weren’t they indicted? – LL) They were audited by HR. After the FOIA request (by The Observer), Ms. Jacobsen from the HR office asked Crigger about the request and Crigger assured Jacobsen that “nothing was going on.”

Littrell instructed her supervisors to remove the BB time from the computer and keep records on “scraps of paper” – a retreat of technology. The Defendants swiped badges for other employees.

The Blue Book program does not stop until June 2, 2010, the day of the raid by the Texas Rangers. During the raid, Littrell called Linda James, an employee and witness, and said, “the Texas Rangers are here – if you are asked, you don’t know anything.”

After all of this, no one was fired. Instead, they were promoted!!

Helms describes some of the various lesser included offenses in the charge. The misuse of a sum greater than $1500 is a State Jail Felony. The misuse of a sum greater than $20,000 is a Third Degree Felony. Oh yeah, and the misuse of less than $1500 is a Class A Misdemeanor.

Helms then used the spreadsheet prepared by the Texas Ranger to demonstrate how the amount of misused funds were calculated. It was determined that for each hour of time misused by the employees, the cost, INCLUDING BENEFITS – NOT JUST STRAIGHT TIME – was approximately $25. (I do not believe the Prosecution could have reached the Third Degree Felony level without this particular formula – LL)

He stated that the Defendants misused used approximately $26,000 of time poll sitting, block walking, and campaigning for Crigger on County time by this calculation.

Helms said regardless of whether all of the Blue Book time was actually exercised, a crime is still committed. He countered defense arguments that much of the Blue Book time was accrued before the campaign activities by showing the various calendars and ledgers that recorded the time spent on the campaign and said that more time was accrued during the campaign than before.

The Texas Ranger testified that, at the time of the raid, Littrell gave him the Blue Book time schedule when asked. He said the Defendants thought they could get away with this and described their behavior as “brazen.” Sometimes, Helms said, “if you are in an [elected] position too long, you get a feeling of entitlement.”

(I apologize for not having a summary of Robert Hinton’s (attorney for Crigger) argument – we were unable to cover that one. – LL)

Yoon Kim, attorney for Defendant Sherry Bell

Kim focused on the element of intent required by the Charge. Specific mental intent, mens rea, is required for guilt and it is not possessed by Bell. She thought she was doing the right thing. All of the witnesses were co-conspirators and therefore, could not, by law, corroborate the charges of a conspiracy.

He described the testimony of Lorri Robertson. She was indicted and signed a confession admitting guilt. Then the indictment was dismissed. Moreover, Robertson was never indicted of the same crime as the Defendants. He described Ranger Davidson’s Excel spreadsheet as not being trustworthy and much of the Blue Book time was accrued and used before the campaign.

He said, “you cannot trust the evidence to put these women in prison for their lives.”

Deric Walpole, Attorney for Rebecca Littrell

Walpole, sans the sunglasses (thank you – LL), finds the law to be on the side of the Defendants. He describes the Defendants as good people. He described his role as a defense attorney as a difficult one. Many of his clients are not good people and he has to “set fires” (literal not figurative) to divert attention from their misdeeds. But in this case, these Defendants are genuinely good people and he does not need to create any diversions for them.

He reiterated that all of these activities could have been stopped by a telephone call. And sometimes good people make mistakes. All of the PTO was done on the Defendants’ own time. The cost of this trial exceeds the alleged $26,000 in misused funds.

Walpole describes the prosecution as politically motivated and questioned why the prosecution waited until the election had ended to pursue their investigation. Because of the political situation, innuendo was used as evidence and innuendo is not evidence.

He said that Lorri Robertson confessed to nothing that the Defendants were prosecuted for.

John Hardin, Attorney for retired District Clerk, Hannah Kunkle

Kunkle was not indicted until recently – others were indicted many months before. He stated that he did not have sufficient time to prepare for trial.

Hardin related that John Roach, Sr., former Collin County District Attorney, never indicted Kunkle and Roach was a fierce prosecutor. And the fact that Roach did not prosecute Kunkle and Helms did, demonstrates the overzealousness of Helms, the prosecutor pro tem. Then, according to an observer in the court room, Hardin raised his hands above his head and started doing a “dance” toward Helms. While “dancing,” Hardin complained of the overzealous prosecution. He stopped and said “I’m so sorry, I just get upset.” No one objected to this (and I am not judging, in fact, I am impressed – Hardin’s client was acquitted, after all!)

He stated the evidence was insufficient for a conviction. He told the jurors that regardless of their verdict, he would like to get to know them and talk to them. Hardin concluded by stating, “when you leave the courthouse, on this cold day, during Christmas, you should feel good about what you did.”

John Helms, Jr., Prosecution – Rebuttal

Aaaaaaaand finally – we see the finish line. Helms stated that intent is not needed for a conviction. (huh?? – LL) He said a phone call would not have stopped the use of Blue Book time – the Defendants were fully engaged in these actions and were committed to it. There was never an internal investigation by the District Clerk’s office. The only investigation that was conducted was to find out who the whistle blowers are. Crigger’s reaction to the raid was to promote Bell and Littrell. He ended by stating that this is a third degree felony and the Defendants know it.

Hannah Kunkle was found NOT GUILTY
Patricia Crigger, Sherry Bell, and Rebecca Littrell were found GUILTY of all charges against them and accepted two years of probation each.

Lex Lawyer
Attorney at Law

Posted in Guest Opinions

WE HAVE A VERDICT IN THE DISTRICT CLERKS CORRUPTION CASE

December 6th, 2011

*BREAKING NEWS*

Bill was in the courtroom when the jury annnounced their verdict.

Patricia Crigger – GUILTY on all charges
Rebecca Littrell – GUILTY on all charges
Sherry Bell – GUILTY on her one charge
Hannah Kunkle – NOT GUILTY – Kunkle is acquitted.

Judge Nelms immediately asked Crigger to stand. He said, “you are removed from your office effective immediately. Do you understand?” Crigger replied, “Yes sir.”

Bill and I will have updates later this evening regarding evidence and testimony from Day 4 and the Closing Arguments.

Sentencing tomorrow at 9:00 A.M.

LEX LAWYER (In Limine)
Attorney at Law

District Clerks Corruption Trial – CLOSING ARGUMENTS

December 6th, 2011

By: Lex Lawyer
Attorney at Law
Guest Contributor

We have a verdict and a sentence – but I have been asked to bring everyone up to date on what transpired before the verdict. I have studied and analyzed the Closing Arguments – So Get Ready!!!

CLOSING ARGUMENTS

John Helms, Jr., Prosecutor Pro Tem

NON- SEQUITOR – Kim is quite a gentleman to assist the Prosecution with this. He is a better man than me. I would have stared at the ceiling.-LL

Littrell instructed her supervisors to remove the BB time from the computer and keep records on “scraps of paper” – a retreat of technology. The Defendants swiped badges for other employees.

After all of this, no one was fired. Instead, they were promoted!!

He stated that the Defendants misused used approximately $26,000 of time poll sitting, block walking, and campaigning for Crigger on County time by this calculation.

(I apologize for not having a summary of Robert Hinton’s (attorney for Crigger) argument – we were unable to cover that one. – LL)

Yoon Kim, attorney for Defendant Sherry Bell

He said, “you cannot trust the evidence to put these women in prison for their lives.”

Deric Walpole, Attorney for Rebecca Littrell

He said that Lorri Robertson confessed to nothing that the Defendants were prosecuted for.

John Hardin, Attorney for retired District Clerk, Hannah Kunkle

Kunkle was not indicted until recently – others were indicted many months before. He stated that he did not have sufficient time to prepare for trial.

John Helms, Jr., Prosecution – Rebuttal

Hannah Kunkle was found NOT GUILTY
Patricia Crigger, Sherry Bell, and Rebecca Littrell were found GUILTY of all charges against them and accepted two years of probation each.

Lex Lawyer
Attorney at Law

Posted in Guest Opinions

WE HAVE A VERDICT IN THE DISTRICT CLERKS CORRUPTION CASE

December 6th, 2011

*BREAKING NEWS*

Bill was in the courtroom when the jury annnounced their verdict.

Patricia Crigger – GUILTY on all charges
Rebecca Littrell – GUILTY on all charges
Sherry Bell – GUILTY on her one charge
Hannah Kunkle – NOT GUILTY – Kunkle is acquitted.

Judge Nelms immediately asked Crigger to stand. He said, “you are removed from your office effective immediately. Do you understand?” Crigger replied, “Yes sir.”

Bill and I will have updates later this evening regarding evidence and testimony from Day 4 and the Closing Arguments.

Sentencing tomorrow at 9:00 A.M.

LEX LAWYER (In Limine)
Attorney at Law

cps

This is M.D. one of the children not forgotten…

July 8, 2011 14thdaymom

Source of Stories: PLAINTIFFS’ ORIGINAL COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND REQUEST FOR CLASS ACTION in the recent lawsuit filed on behalf of 12000 foster children in the State of Texas against Governor Rick Perry, Thomas Suehs, Executive Commissioner of the Health and Human Services Commission of the State of Texas and Anne Heiligenstein, Commissioner of the Department of Family and Protective Services of the State of Texas.

There are several “named plaintiffs” suing the Texas system. They are children who have had to live in foster care on a long-term basis and they represent a “class action” suit on behalf of over 12000 other foster children.

Usually a foster care stay is approximately 12 to 18 months if all goes well, but for the not so fortunate, the stay in foster care may last for years. Many children never find a permanent home, and “age out” of foster care as a young adult who has not learned how to find a sense of security or how to trust people.
These children have become a product of their environment, harmed by the failure of a government system that needs not just an overhaul, but a miracle to fix. Whether an oversight created some problems or a lack of financial funding for a private foster family or residential facility occurred because of some bureaucratic red tape – the effects trickle down and the leftover mess is cleaned up by the ones that matter the most – the children – and when I say cleaned up, I mean dealt with.

Most of the time, the higher ups will never put a face to the name – or number these innocent children have become. Most of the time, these are not accidents, or unforeseen circumstances, but completely preventable and avoidable situations that leave these children paying the ultimate price by living in an unimaginably painful world. Negligence, abuse, misconduct, untrained workers, caregivers with backgrounds that should keep them from working in any environment ‘designed’ to protect children….are some of the causes for the damage done to these children. Caseworkers carry too high a workload with too little incentive or not enough pay for long hard overtime work hours so the turnover rate is high. The need to hire more workers often means they are not always experienced or even properly trained to deal with the depths of the situations they will encounter in their job. The real life situations of a child that they must protect if at all possible, realizing their decisions may change the course of many lives forever. That is not a light responsibility to be taken, and when the workers are hired and fired or quit so often that motivation to do the job right is low, lives can be ruined. Destroyed. By one choice made, or one decision.

I can barely touch the issues our system must address in order to affect a noticeably positive change that those families named in the lawsuit as well as those who are not. will benefit from. One thing is clear, anyone involved in the system will become someone new before its over with. The lawsuit outlines what the issues are that the children see in their daily lives when living in foster care. The lawsuit places the failures on the table for all to see now, not just the children, but anyone else who has not, until now, taken a look.

Its Almost Tuesday is thrilled that legal action has been sought to find justice for these children and families. Meanwhile we await the outcome of the battle ahead that the lawyers must face, and we can only cross our fingers that the outcome we can anticipate will be in favor of the children. We can only hope it will not only be in favor of the children, but also begin the road to remedy the harmful effects they have suffered. Somehow. Having said that it only seems appropriate now, to take the time to get to know these children, starting with M.D. the first named child plaintiff in the lawsuit.

M.D. is the first of many stories we will share. Remember, these stories are real. These experiences have been lives of children not unlike yours or mine — they have been caught up in an unfortunate trap set by a system out of control.

Child Welfare. Child Protection. How much do we see in these stories? Have these children been protected?

If they had been we would not watch as lawsuits are filed. If they were protected, I would not be writing this blog; or introducing you to these children. Although we will only learn their initials and not their full names, we will hopefully learn something about who they are – and not forget them.

Its Almost Tuesday commends all the survivors of the foster care system, applauds them for their courage when living in a world they never should have known…

This is the story of M.D.

M.D. is a fourteen-year-old girl from Corpus Christi, in Nueces County. M.D. was originally brought into state custody at age eight, placed with relatives, and then again brought back into state custody at age ten. Over the four years that M.D. has most recently been in the care of the state, DFPS has repeatedly failed in its obligation to provide for her safety and wellbeing. Instead of providing her with services and therapy to address the maltreatment that caused her removal from her parents and the abuse she suffered while living in a DFPS-selected placement, DFPS has compounded that trauma by placing her for years in inappropriate institutions; failing to provide her with critically-needed mental health evaluations and services; over-medicating her with powerful psychotropic medications; failing to seek and secure an appropriate permanent home for her; and subjecting her to numerous and frequent placement moves that have prevented her from establishing lasting relationships with caregivers, therapists, or even other children.

When M.D. was eight years old, DFPS removed her from her parents due to neglect by her mother and abandonment by her father. After nine months in the state’s custody, DFPS placed M.D. in conservatorship with her aunt and uncle. However, when M.D. was ten years old, DFPS removed her from this home, because her cousin sexually assaulted her while she was
under the aunt and uncle’s conservatorship.

After removing M.D. from her relatives’ home, DFPS moved the ten-year-old child through three foster placements over the next six months. Eventually, DFPS placed M.D. in a foster home in Dallas, over 400 miles from her home community.

Toward the end of 2007, DFPS moved M.D., still only ten years old, to an institution, an RTC in Victoria. After three months in this facility, M.D. became suicidal. She stayed there for almost two and a half years, steadily deteriorating both emotionally and psychologically. During this time, DFPS assumed PMC of the child.

From the RTC, DFPS sent M.D. to an acute care facility just outside of Houston, without making any permanent plans for her. After two months, DFPS moved M.D. 300 miles away to yet another RTC in Denton.

While at that RTC, M.D. and another young child left the facility and walked to a nearby retail establishment where M.D. was raped. After the rape, DFPS did not provide M.D. with any special counseling, even though M.D. was so traumatized that she had started cutting herself.
Instead, RTC staff chastised M.D. for leaving the facility. In the midst of the emotional turmoil resulting from the assault, DFPS sent M.D. to a juvenile detention center after a disturbance at the RTC.

During the four years that M.D. has been in foster care, DFPS has moved her through at least seven different foster placements, as well as hospitalizations. For much of this time, this young child has been kept in institutions of one kind or another – RTCs, psychiatric centers, and detention facilities. With such an existence, M.D. has been unable to form any lasting relationships.

M.D. is currently placed in an austere, restrictive short-term therapeutic placement in San Antonio. M.D. has no privileges of any kind. She has no visitors. She cannot have any toiletries. She is warehoused and alone. Her DFPS caseworker has said that M.D. will be transitioning from this facility to another RTC.

As M.D. has moved through the foster care system, she has been given numerous psychotropic medications. These drugs have been used as a chemical substitute for the care, counseling, and permanent placement in a family that DFPS is obligated to seek and secure for her. M.D. is now diagnosed with bipolar disorder and depression.

While M.D. is nominally in the eighth grade, she has been placed in a number of schools attached to the institutions where she was placed. In those schools, she has been advanced from one grade to the next based on her age. Her true academic progress has been constantly interrupted by her placement in a series of far-flung facilities.

Although DFPS knew early on that M.D.’s parents were not capable of parenting her, and in fact had removed her from their care in 2005, it was not until July 2010, more than three years after she was brought into foster care for the second time, that M.D. was freed for adoption.

Despite the fact that M.D. has consistently asked to be adopted, DFPS has continually failed to seek and secure a permanent family for this lonely child. At the age of fourteen, M.D. faces the prospect that she will age out of care after four more years of being shuffled around the state from institution to institution.

Defendants have violated M.D.’s constitutional rights by failing to protect from her from harm while in their care; failing to provide adequate supervision over her foster care placements; subjecting her to frequent moves across the state far from her home community; failing to arrange for adequate therapy to address the trauma she has suffered both before and while in DFPS custody; subjecting her to unnecessary psychotropic medications; keeping her for long periods in institutions; and failing for years to identify or plan for an appropriate permanent placement.

child welfare reform, foster care abuse, cps, family, foster care, system failure

Breaking The Silence – Moms Losing Child Custody To Their Batterers?

October 2, 2008 14thdaymom

This is the program that aired on Public Television in October of 2005.

The documentary tells the stories of children who are taken away from their protective mothers.

October is domestic violence awareness month

This October –

Listen.

Breaking The Silence: Children’s Stories (BTS) chronicles the impact of domestic violence on children and the recurring failings of family courts across the country to protect them from their abusers. In stark and often poignant interviews, children and battered mothers tell their stories of abuse at home and continued trauma within the courts. The producers approached the topic with the open mindedness and commitment to fairness that we require of our journalists. Their research was extensive and supports the conclusions drawn in the program. Funding from the Mary Kay Ash Charitable Foundation met PBS’s underwriting guidelines; the Foundation had no editorial influence on program content.

However, the program would have benefited from more in-depth treatment of the complex issues surrounding child custody and the role of family courts and most specifically the provocative topic of Parental Alienation Syndrome (PAS). Additionally, the documentary’s “first-person story telling approach” did not allow the depth of the producers’ research to be as evident to the viewer as it could have been.

PBS has received a substantial body of analysis and documentation from both supporters of the documentary and its critics.

It is clear to us that this complex and important issue would benefit from further examination. To that end, PBS will commission an hour-long documentary for that purpose. Plans call for the documentary to be produced and broadcast in Spring 2006. We expect that the hour-long treatment of the subject will allow ample opportunity for doctors, psychologists, judges, parent advocates and victims of abuse to have their perspectives shared, challenged and debated.

About The Documentary, And The Malicious Fathers’ Rights Attacks Against It

Critics of Child Abuse Film Miss the Point in Rush to Defend Fathers”. Article By Paul J. Fink, Judge Sol Gothard, and Tasha Amador. Article addresses misconceptions circulated by fathers’ rights activists about domestic violence and the documentary. In particular focuses on writings by fathers’ rights activist Glenn Sacks.

The Latest Fathers’ Rights Attack Against “Breaking The Silence: Children’s Stories. Pro-PAS nonsense masquerading as fact.

“Custody Fight”, by Bob Port. A supportive article about the documentary. (This article is also available on my blog.)

The National Organization For Women On “Breaking The Silence”. This article is also available on my blog.

Angry Fathers’ Rights Activists Vs. PBS.

Caught In The Middle: Documentary shows how kids can be pawns in abuse, custody cases”.

Press Release From Stop Family Violence .

Stop Family Violence – Petition To Air “Breaking The Silence”.

Stop Family Violence: Shocking PBS Documentary Exposes Secrets Of Family Court.

October Is Domestic Violence Awareness Month – Includes mention of “Breaking The Silence” and fathers’ rights protests.

Blogcritics: An Important Documentary – “Breaking The Silence: Children’s Stories

Blogcritics: Fathers’ Rights Activists Livid Over Airing Of “Breaking The Silence: Children’s Stories

child welfare reform, foster care abuse, cps, family, foster care, system failure