Lawyer Tactics in Divorce: The attorney fee correlation

It has been awhile since I posted anything, and this one deserved to be said again:

The best paid divorce lawyers are the ones that get very aggressive, and downright hostile sometimes, towards the soon to be ex-spouse. They use a harsh tone of voice and demeaning terms whenever they are in court or even in mediation (at least when their client is watching). This is an odd thing on the surface since judges tire of such antics and are not swayed by emotional ploys. They are far more concerned in finding some reasonable solution than figuring out which of the spouses is the most messed up (by the way, they assume you are pretty much just as messed up as whomever you are divorcing, just in a different way). It is an even greater oddity in mediation. Such tactics practically guarantee that negotiations will fail.

So, why do these lawyers resort to such psychological assaults? Well, the most cynical answer is that it pays! People in divorces are likely at the angriest point in their lives and all that anger is focused on the one person they are convinced has ruined their life. And yet, they are now separated from the object of their wrath and under the scrutiny of the court so that they cannot cut loose on the other party as they would like to. Instead, they get the vicarious release of seeing their lawyer say hurtful, nasty things – AND IN PUBLIC TOO! It becomes worth every penny of the $250 to $300 an hour fee (not my fee, I’m talking about the top charging lawyers here). And, since negotiations break down, they get to see the show over and over again at the court’s motion hour. That is, until the money runs out. Suddenly the tune changes and it is time to either come up with another large retainer or begin to settle for less that destroying your spouse’s entire life.

When it is all said and done and the money that would have paid for your children’s college has been spent – what it left? Nothing was really resolved and there are a whole set of fresh injuries to nurse. So, if you want an expensive divorce – get an aggressive attorney. If, however, you want to get on with your life and experience some semblance of peace – find a lawyer that believes in resolving conflict rather than profiting from it.

If you want an expensive divorce – get an aggressive lawyer

The best paid divorce lawyers are the ones that get very aggressive, and downright hostile sometimes, towards the soon to be ex-spouse. They use a harsh tone of voice and demeaning terms whenever they are in court or even in mediation (at least when their client is watching). This is an odd thing on the surface since judges tire of such antics and are not swayed by emotional ploys. They are far more concerned in finding some reasonable solution than figuring out which of the spouses is the most messed up (by the way, you are pretty much just as messed up as whomever you are divorcing, just in a different way – and the judge knows that. Seriously – why else did you marry him or her to begin with?). It is an even greater oddity in mediation. Such tactics practically guarantee that negotiations will fail.

So, why do these lawyers resort to such psychological assaults? Well, the most cynical answer is that it pays! People in divorces are likely at the angriest point in their lives and all that anger is focused on the one person they are convinced has ruined their life. And yet, they are now separated from the object of their wrath and under the scrutiny of the court so that they cannot cut loose on the other party as they would like to. Instead, they get the vicarious release of seeing their lawyer say hurtful, nasty things – AND IN PUBLIC TOO! It becomes worth every penny of the $250 to $300 an hour fee. And, since negotiations break down, they get to see the show over and over again at the court’s motion hour. That is, until the money runs out. Suddenly the tune changes and it is time to either come up with another large retainer or begin to settle for less that destroying your spouse’s entire life.

When it is all said and done and the money that would have paid for your children’s college has been spent – what it left? Bitterness. That’s all, just bitterness. Nothing was really resolved and there are a whole set of fresh injuries to nurse and brood upon. So, if you want an expensive divorce – get an aggressive attorney. If, however, you want to get on with your life, be able to take a vacation, and experience some semblance of peace – find a lawyer that believes in resolving conflict rather than profiting from it.

Need debt relief? Beware of advertised debt solution centers

Check out this post at Kentucky Bankruptcy Law to avoid being ripped off.

Personal Soap Box: Insight Communications, Inc & the “bundling” trap

I have subscribed to Insight Cable, telephone and internet for a number of years for services at my home. Over a year ago I asked if they would allow me, as a loyal customer, to add the unlimited long distance they were advertising for new customers to my phone service for the advertised rate (free). They allowed me to do this, never explaining that I would now be bundled into an introductory service plan. I thought they were just doing smart business by rewarding a long time customer. Nope – after a year I was informed that my “introductory package” price was being jacked up an extra ten dollars. I discovered a new line on the bill that showed “unlimited long distance” as costing me $11.95, an astronomically high amount with today’s options from VOIP (voice over internet protocol) companies.

Since the $11.95 was a line item, I thought I could merely call and cancel that particular service. Again – NOPE! Sure, I could drop down to basic phone service at $23.00 per month, but my internet and cable charges would jump up higher than what I would be saving by losing the unlimited long distance. I was TRAPPED by Insight’s bundle. Not only that, I walked into it blindly by not being told and not realizing that I was being put into an introductory offer. I am currently pondering the legalities of this. Specifically, if nothing on the bill and no contract exists that says the prices listed are only because they are bundled together, is it unlawful (civilly or criminally) to refuse to drop a single, unwanted service. If enough of us are frustrated by this practice, we could apply market pressures and possibly explore the viability of a class action lawsuit. Beyond that, though, there are some lessons here that are a tenuously about economic justice.

First of all, Insight is engaging in poor business practices in that they effectively punish people who become loyal customers. Their marketing is targeted only to getting people to switch away from some other provider. Unfortunately, they know that most people do not make changes readily and will continue on with them even in the face of mounting charges on their bills because of the effort it takes to change. The second lesson then is that our reluctance to change is our enemy. We must fight against that lethargy and be willing to reject deals such as these that promise short term savings, but cost more in the long run.

The third lesson is that when a company gets large enough, they no longer have to reckon with the individual customer. They can use their economic clout to make the customers conform and even force billions of dollars in welfare type loans and incentives from the government. This became even more evident when I called to talk to Insight about canceling certain services. I spoke with a person who appeared to be inflexible both by nature and training and who gave me the most ludicrous explanation for the charges. They insisted that they simply put $11.95 down for the long distance charge as a random number and it could have been placed on any other particular item so the cost of the phone service was just $35.00 no matter which way you worked it. Again, $35.00 for phone service is ridiculously costly in this day and time. When possible, go small. Smaller companies have to be responsive to individual customers to thrive.

Tying this personal soapbox back into the theme of justice is pretty easy. Those without resources need to band together to have a voice and to be treated with justice, especially in these economic times of trouble.

Oh, just so you know, I canceled the long distance, canceled cable, plan to go to a VOIP company for phone service and will look at Windstream’s prices for internet.

Best Practice in Dependency, Abuse & Neglect Matters

I have written criticisms in here about practices by the Cabinet that I find unsettling and sometimes that I abhor. I have also written defenses for the Cabinet because of the monumental tasks they are required to accomplish with such limited resources. Both of these positions are open to being misconstrued and misapplied. Yes, there are some real concerns in the practices of many workers and supervisors in the Cabinet and which are fostered on up the chain of command. There are some significant systemic problems as well. However, if you find yourself in the unfortunate predicament of having the Cabinet for Health and Family Services, Department of Community Based Services (what a mouthful of a title – I feel sorry for the folks who have to answer their phones) in your life, the single best approach is to keep a mindset of cooperation; avoid antagonism. I am writing this to correct any idea that I inadvertently promoted that being adversarial with the Cabinet is the way to win your case (I mean adversarial in the sense of ones attitude rather than in the sense that the court process is an adversarial process). Those criticisms are designed mainly for a global change in the system through political action; they are not meant to fuel a personal vendetta in an individual case.

Of course it is human to want to lash out in anger at this behemoth of an agency that does not seem to care or at workers who do not seem to understand. Of course it is a tragic and trying time when your child has been taken from you and young folks fresh out of college and are not yet fully raised themselves are telling you how to raise your children. Take all of those normal feelings, go in a closet, grab a thick pillow and scream every bit of outrage into that pillow where no one can hear. After that, whenever you are interacting with the Cabinet or with your children, you remind yourself that these folks are there doing what they believe is right for your child. That is actually the case about 9,999 times out of 1,000 or more (the key word is “believes”). In fact, the vast majority of the time they are at least hitting the paper that has the target printed on it even if they are missing the target itself, let alone the bullseye.

So, after screaming it out, you need to take a good, hard look at yourself regarding how the Cabinet says you screwed up. Do this for your child because if the Cabinet is close to right, then you owe it to your child to admit the shortcoming and fix it. Yes, they may have gone about things the wrong way, denied a Constitutional right or two, misrepresented what you said or sometimes flat out lied about you (they tend to justify the means by the end and the phrase “best interest of the child”). Those are NOT to be your focus unless you want to increase your chances at a termination of your parental rights down the road. Your focus is getting your child back in your home by becoming a better parent (we can all be better parents, so take the chip off of your shoulder when I say that). Don’t just play the game; honestly consider what they say and find how it fits. Believe me, they have enough work to do without needing to take your child for no reason at all or to just mess with you. Sure, they may have grossly overreacted, but that does not change that they picked up on a legitimate issue.

Now, I am not saying to admit to things that, after reflection, really are not true and this advise mainly applies to after an adjudication or stipulation has occurred (before that: be careful what your say, talk to a lawyer if you can, but still be kind). I am surely not telling you to say or do something your attorney has advised against. I am talking about a mindset and a cooperative approach that will increase the likelihood of the return of your children. Be kind and respectful in talking to your worker, avoid blaming them or others and never cuss or threaten them.

Why? you ask. Two reasons: 1) it is the right way to treat folks, even those who seem to be harming you; and 2) it is the pragmatic thing to do when faced with someone far more powerful than you. For a variety of reasons, Cabinet workers tend to take displays of anger towards them from parents as signs of denial and defiance. They equate denial and defiance as someone who is not going to take good care of their children and a likely sign of emotional instability. They want compliance, not consternation. I know, you are right, they are supposed to be trained professionals who understand the grief process and wildly swinging emotions that kick in when one’s family is ripped apart. Just forget about that. Being right is not going to get your children home. All you will achieve by pointing out the individual flaws of your worker is someone with a great deal of authority who believes you are a lost cause. Again, I am not saying to just parrot back to them everything they say, but if they say something that ticks you off, just say “You know, I really want to understand what you are saying there” or “I really want to spend some time thinking about what you just said” and then work it through later, somewhere else, with someone safe.

This is also not to say that you don’t fight for your rights. It is just a different way of fighting. Let your lawyer fight using the tools of the system in court. Fighting does not have to involve emotional attacks. I have represented many people in dependency, neglect and abuse actions. Those that get their children back home the quickest are the ones who take the approach I outlined above. Those that are determined to right the wrongs in their case usually take the longest to see their children return. Those that are adamant about beating the Cabinet are usually the ones who lose their children for good. Remember, the Cabinet has the overwhelming advantage because the statutes give them the upperhand, because they have far greater resources that you can imagine, and because the judges believe and trust them. You can stand shaking you fist and yelling about the injustice all you like, but that approach, in my experience, always makes justice more elusive.

As an aside: there is one supervisor with the Cabinet who is terribly fond of telling parents from whom she has removed children or terminated rights that “it isn’t personal”. I think of her as the Vulcan of the starfleet Cabinet. There is nothing more personal than having one’s children taken away. I think it is her way of constantly insulating herself from the inevitable pain that goes with her chosen profession. I also think she is trying to tell parents not to hold her personally accountable for the decision; that she is just a cog in the wheel. She’s wrong on both accounts. But, if you have this supervisor or another who uses “it’s not personal” as their catch-phrase, let it remind you that your personal feelings are not safe in their hands. Find someone for whom it is personal in the sense that they care, have compassion, but can still confront you when your are wrong rather than just commiserate to share those personal feelings with.

Stall Tactic – Involuntary Termination of Parental Rights

Kentucky sets forth the grounds for a court involuntarily terminating parental rights in KRS 625.090. The statute basically gives the essential elements, all of which much be proved by the heightened standard of “clear and convincing” evidence: the child has been abused or neglected (and there are three wasy to show this) and that it is in the best interest of the child for the parental rights to be terminated (interestingly, the likelihood of the child actually finding a permanent home through adoption is not supposed to be considered in determining “best interes”, but that is a topic for another day).

After laying out those two essential elements, the statute provides a laundry list of other things, one of which must also be found to be true. Supposedly, this list is to put the breaks on a little to keep parental rights from being terminated too easily. Unfortunately, built into that list is one item that is not ulitmately within the parent’s control and is a strict liability type provision. In other words, it is either true or not and there is no consideration for intent or mitigating circumstances. The provision is KRS 625.090(2)(j). Where the legislative intent appears to be to put on the brakes, provision (j) disables those breaks and leaves parents careening toward a crash.

How this plays out is if the Cabinet for Health & Family Services worker and surpervisor wishes to do an involuntary termination of parental rights with a parent, but that parent is basically doing fair, they stall the case. Most of the families they deal with are lower income and less educated with multiple challenges facing them. Even in families with great resources, one can find issues and challenges pop up. It is even easier to find such issues when the families are also facing stressors related to socio-economic status or who are less sophisticated in dealing with government agencies. So, the Cabinet highlights those challenges. For example, the parents long term friends may have brushes with the law or be involved in drug use or alcohol abuse. Even if the parent does not have those challenges, then the whole guilt by association sets in and the Cabinet demands they give up their friends creating isolation that is not readily filled (by the way, from my experience some workers partake of illegal substances or drink to excess at times and there is no mandatory employee testing for Kentucky governmental employees, but that is also a topic for another day). Perhaps the worker is concerned about an unsafe neighborhood and they demand the parent move to a nicer one. Or, perhaps the parent has a criminal history of minor, but frequent criminal incidences and they tell the parent they want to see a pattern of stability over time – let’s say twelve (12) months. The list can go on, but before anyone realizes it, they are up against that 15 of the last 22 months from (j).

So, you say, what’s the big deal? Well, if one examines all of the other items (a – i) in list, only one of which needs to be proven, (j) stands alone. The other items all require a showing that the parent has done something horrible or continues to really mess up and is not caring for the child. However, (j) is a strict timeline and the parent could actually be doing okay during that time, but (j) still gets them. The other items show some kind of mental status or intent on the part of the parents: they are either negligent which is requires a state of mind (mens rea)for latin geeks) or act willfully. Item (g) even expressly says that the failure in it must be for reasons “other than poverty alone.” Bu, item (j) requires no state of mind whatsoever; it just happens. In all the other items (a – j), the parent has some level of control over whether the even comes to pass whereas in (j), unless there is an active judge, they are at the mercy of the Cabinet.

So, this parent who is not messing up royally, but that is also not blowing people away with their progress, loses all the safequards that the statute is supposed to afford because the Cabinet structured the case that way. The Cabinet worker can simply drag the case along, picking at issues enough justify their “cautious” approach and then suddenly say, “Oh, we’re going to terminate your parental rights – see ya’ in court and have a nice day.”

The only way to combat this stall tactic is to be active in getting the case before the court on a regular basis. Insist on having reviews every three or four months and get the progress, or lack thereof, on the record. For attorney’s representing parents, it does mean more work and it does mean the County Attorney, the Cabinet, and maybe the Judge being frustrated at filling the dockets up. For parents, it means speaking up both to the court and to your attorney. For everyone, it means remaining focused on confronting legitimate issues head on and in a timely manner. Otherwise, this loophole in the involuntary termination of parental rights statute can ensnare the unwary and once again, where Constitutional protections should be at their height, they are found at their lowest ebb.

Accountability by the courts

A decsion rendered by the Kentucky Court of Appeals on May 16, 2008 reveals that the appellate courts are prepared to hold the Cabinet for Health and Family Services accountable in termination of parental rights cases. There are very few published opinions in Kentucky reversing involuntary terminations initiated by the Cabinet. This, I believe, is because the trial court judges have tremendous discretion in their findings, there is no jury, and the statute (KRS 625.090) tilts in favor of the petitioner (usually the Cabinet) in important ways.

In this case, M.E.C. v. Com., 2007-CA-1904-ME, a toddler and an infant were removed from their mother when her car was shot at in a bad section of Bowling Green. The mother had been residing in a shelter with her two little children and had claimed to be going to the grocery. The children were left with someone at the shelter, but because she had previously tested positive for cocaine, the Cabinet assumed that she had gone to load up on illegal “groceries” on her little solo jaunt and that is why her car had been shot. Apparently, this set of circumstances was enough to convince a judge to remove the children.

After removal, mom had some other unfortunate events occur, including a car wreck that left her hospitalized for two months due to a brain injury. She also had a few stints in the pokey, but these jail stays were characterized as short in duration. Aside from these situations, she visited regularly with the children. Here the Court reminds us that incarceration alone is not grounds for termination of parental rights, but the Cabinet tried some creative reasoning to get around that holding.
The case sites other circumstances worth reading, such as mom’s attempts at treatment on her own and an incidence where the Cabinet did not provide coverage when the regular worker was on extended leave, but you will have to read the case itself for those tidbits.

The Court notes how serious a matter termination of parental rights is, though from my observations it is sometimes initiated just because certain statutory and federal funding bells get rung. In this case, the Court noted that: 1) the children had not actually been injured or shown to suffer ill effects from any alleged neglect, 2) no evidence that termination was in the children’s best interest was introduced, 3) the Cabinet never provided justification for changing their goal from reunification to adoption, 4) the Cabinet did not alter its case plan to address her changed circumstances when she was hospitalized, 5) the Cabinet did little to put reunification services in place, 6) the Cabinet portrayed mom as adopting a criminal lifestyle though they did not lay out exactly what the basis for that was, and 7) mom was doing everything she could to meet the case plan goals when they petitioned the court for termination. Regarding this last observation, it was noted by the Court that the Cabinet focused primarily on the past rather than on the progress she had made, like working full time and resolving the criminal charges. She had shown that substantial improvement in her parenting capacity was occurring.

Justice was served by the Court – sort of. It seems obvious from reading this case that the Cabinet screwed up, but I am certain it appeared obvious to the Cabinet that termination was the right thing. Too often I see workers with tunnel vision where evidence that contradicts their position is not considered and evidence that is weak or can be explained in other ways is highlighted as proof. This mom and these children should have never gone through this ordeal. When we get to that point, where children are kept with parents unless they are at imminent risk of serious harm or repeated harm as required in the statute (KRS 620.060), then justice will truly be served.

Crisis brewing

The Fayette County office of the Cabinet for Health and Family Services, Protection and Permanency, is already in crisis mode and headings towards disaster. According to one source, there are only a dozen investigating workers and, due to budget constraints, none are being hired. This means a either referrals that normally would be accepted are being turned away, or these workers are stretched beyond reason. I suspect many other counties in Kentucky are faced with extremely excess case loads. And upon whom will the blame fall when the next child fatality occur? Sorry, that is rhetorical. It will be the front line worker despite not having the resources to do an adequate job.

I have also learned that other services, specifically the juvenile services team, are losing workers to retirement and better job prospects with no present means to fill those vacancies. This teams works with youth who are exhibiting behavior problems and/or moderate criminal activity to prevent further criminal involvement. I fear the consequences to our community and those youth with services being curtailed out of sheer necessity from understaffing.

We want a safe community where vulnerable people are protected and crime is minimized. It is time we become willing to pay for the services that will achieve those goals and insist our law makers find appropriate revenue sources (this means increased taxes, the end of corporate welfare, and/or monies redirected from industries that can survive without government incentives) to fund these agencies.

Cabinet practice has huge unintended (or is it?) consequence

A routine practice by the Cabinet for Health and Family Services in Fayette County seems innocuous to the untrained eye, but it has a huge unintended consequence for certain parents. I wonder if this consequence is actually unintended, but absent confirmation, I’ll give them the benefit of the doubt. Although the Cabinet developed a standard Consent to Adopt and Waiver of Appearance form, in Fayette County (and perhaps others) parents who have decided to voluntarily terminate their parental rights to a child removed for neglect or abuse sign a Petition for Voluntary Termination. The petition has standard language, but each is written for the particular parent. This petition shows parental consent to the termination, but it does not waive the right of the parent to appear at the termination hearing.

Instead of filing the Petition for Voluntary Termination, the Cabinet attaches the signed document to an Involuntary Petition to Termination Parental Rights. This allows them to proceed with the termination even if the parent does not show for the hearing or is not served with the Involuntary Petition. The Consent to Adoption and Waiver of Appearance form would be just fine and allow for the same action, only it would be a Voluntary Termination rather than Involuntary.

This may seem like a meaningless distinction to most people and I am confident few, if any, of the parents signing these Petitions know of the ramification. Only after looking at KRS 625.090(2)(h) is there any concern for this practice. A voluntary termination is not held against a parent regardless of the reason; an involuntary termination counts against them for the rest of their lives:

(2) No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds:
(h) That:
1. The parent’s parental rights to another child have been involuntarily terminated;
2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3. The conditions or factors which were the basis for the previous termination finding have not been corrected;

Let’s say birth mom is addicted to cocaine and realizes she is in no shape to parent Child A. She does the caring and courageous things and voluntarily terminates her parental rights. Unbeknownst to her, though, the Cabinet attaches that voluntary to an involuntary petition. A few years later, she has cleaned up and has another child. Subsequent to a painful birth, she develops an addiction to pain pills and her baby is removed due to the addiction and history, even though Child B is healthy and shows no overt adverse effects indicative of neglect. Mom freaks out and relapses and uses cocaine one time which is caught on a drug screen.

Even though mom was clean for a couple of years, the Cabinet believes the necessary bells have been rung to satisfy the statute, gets approval to dispense with “reasonable efforts” to reunify Child B, and moves to involuntarily terminate the parental rights of mom to Child B. Because the judge has considerable discretion, he or she finds that: 1) there was a prior involuntary termination of parental rights (even though it was based on a voluntary consent), 2) Child B was born after Child A, and 3) mom’s relapse shows the conditions or factors for the previous removal have not been corrected. Even if none of the other items in KRS 625.090(2) have been proven, the termination regarding Child B will occur.

Sure, mom can appeal and argue that the conditions and factors of the previous removal had been corrected and that this was a new episode of drug abuse only tenuously related to the first, but there are major problems with this. First, mom cannot afford a lawyer to file the appeal and Kentucky does not give her the right to court appointed counsel on appeal. Second, the judge’s discretion is broad and incredibly unlikely to be overturned on appeal. One would be hard pressed to say the judge’s findings were “clearly erroneous”.

I am confident that no one from the Cabinet would sit down and explain to the birth mom that she is not only signing away her parental rights to Child A, but is also signing away a safeguard for the parental rights of any future children. Since the Voluntary Petition also waives the parent’s right to appointed counsel, they have no real way to know about this unintended consequence. Now, whether the Cabinet worker and Cabinet lawyer think about how much easier it will be for them to terminate the rights of any future children if they convert a voluntary into an involuntary without anyone being the wiser is anyone’s guess. Regardless, the practice amounts to preventings the parent from truly making a knowing and voluntary consent.