A new decision from the court of appeals, Division II, Meredith v. Muriel, Docket No. 37098-1, held that a permanent domestic violence protection order restraining the father from contacting the US Department of Homeland Security regarding the mother’s immigration status violated the first amendment.
The first amendment proscribes governmental prior restraint of protected speech. A prior restraint, or gag order, is an order that prevents the restrained person from saying something in the future. Protected speech is, essentially, anything that isn’t libelous, slanderous, or incendiary (e.g. shouting fire in a crowded theater).
In this case, the father, an assistant attorney general for the Commonwealth of Virginia, decided that he wanted an Internet bride. He then made contact with a 16-year-old from Colombia. When the girl turned 18, the father brought her over here, married her, and got her pregnant.
He also engaged in a pattern of domestic violence and abuse against her. The mother ended up in Pierce County and filed for dissolution. In the dissolution process, the father tried to intimidate witnesses and falsify evidence. He also tried to interfere with the mother’s immigration process.
Based on this past conduct, the court order restrained the father from contacting any government agency about the mother’s immigration status. The court of appeals remanded to the lower court with instructions to re-craft the restraining order so it didn’t restrain protected speech.
Wednesday, February 25, 2009
Tuesday, February 24, 2009
Mother Must Prove She Actually Incurred Daycare and Medicalcare Expenses
A new case from Division three, Fairchild v. Davis, Docket # 26818-6, ruled on the type of evidence necessary to prove that a parent actually incurred daycare and medical care expenses.
The child support statute provides that, where the transfer payment includes daycare and medical care costs, and those costs were not actually incurred, the person making the transfer payment is entitled to reimbursement if he has overpaid by at least twenty percent in a given year. RCW 26.19.080(3).
The statute doesn’t address what level of proof is required to establish that the expenses were actually incurred. This case addresses that issue.
Here, the mother, who was receiving support, submitted a declaration from herself, a statement of health insurance premiums, and a statement for orthodontia.
The commissioner concluded that the declaration was self-serving, and that the other “proof” was insufficient to establish that she actually incurred the expenses.
On revision, the court concluded that this level of proof was sufficient, because the mother was not required to keep detailed records of expenses over the years, reversing the commissioner.
The court of appeals reversed in turn, holding that more proof was required. In terms of daycare, the court held that “cancelled checks, prior tax returns, or declarations from childcare providers would have been more helpful.” In terms of medical expenses, details on co-payments, other medical expenses, and expenses actually incurred would have been more helpful.
The child support statute provides that, where the transfer payment includes daycare and medical care costs, and those costs were not actually incurred, the person making the transfer payment is entitled to reimbursement if he has overpaid by at least twenty percent in a given year. RCW 26.19.080(3).
The statute doesn’t address what level of proof is required to establish that the expenses were actually incurred. This case addresses that issue.
Here, the mother, who was receiving support, submitted a declaration from herself, a statement of health insurance premiums, and a statement for orthodontia.
The commissioner concluded that the declaration was self-serving, and that the other “proof” was insufficient to establish that she actually incurred the expenses.
On revision, the court concluded that this level of proof was sufficient, because the mother was not required to keep detailed records of expenses over the years, reversing the commissioner.
The court of appeals reversed in turn, holding that more proof was required. In terms of daycare, the court held that “cancelled checks, prior tax returns, or declarations from childcare providers would have been more helpful.” In terms of medical expenses, details on co-payments, other medical expenses, and expenses actually incurred would have been more helpful.
An Agreed Order of Dependency Does Not Constitute a Voluntary Placement Under the Indian Child Welfare Act
A new case from the court of appeals, division II, In Re the Welfare of MG, # 36975-3, held that the initial involuntary foster-care placement of an Indian child per the Indian Child Welfare Act cannot be considered voluntary at a later date, even if the mother later agrees.
The purpose of the Indian Child Welfare Act is to prevent the break-up of Indian families by establishing minimum standards for the removal of Indian children from their homes. Different standards apply for involuntary removal versus voluntary placement.
In an involuntary proceeding, the tribe must be notified, the parents are entitled to appointed counsel, the state must offer remedial services to the parents, and the state must prove that failure to remove the child would result in serious physical or emotional damage to the child.
In a voluntary proceeding, however, the state need only ensure that the Indian parent is fully aware of the consequences of placing the child with others, and the parent can revoke permission in the future.
In this case, the mother had a serious problem with drug use. The child was born premature, underweight, and with symptoms of drug withdrawal. The mother signed an agreed dependency order, whereby the child could stay with the mother while the mother was in rehab., pending approval of the child’s medical care providers.
However, the child’s medical care provider did not approve because the child was too weak. The mother then attempted to revoke her consent. The court held that an agreed order of dependency was not a voluntary placement under ICWA.
The purpose of the Indian Child Welfare Act is to prevent the break-up of Indian families by establishing minimum standards for the removal of Indian children from their homes. Different standards apply for involuntary removal versus voluntary placement.
In an involuntary proceeding, the tribe must be notified, the parents are entitled to appointed counsel, the state must offer remedial services to the parents, and the state must prove that failure to remove the child would result in serious physical or emotional damage to the child.
In a voluntary proceeding, however, the state need only ensure that the Indian parent is fully aware of the consequences of placing the child with others, and the parent can revoke permission in the future.
In this case, the mother had a serious problem with drug use. The child was born premature, underweight, and with symptoms of drug withdrawal. The mother signed an agreed dependency order, whereby the child could stay with the mother while the mother was in rehab., pending approval of the child’s medical care providers.
However, the child’s medical care provider did not approve because the child was too weak. The mother then attempted to revoke her consent. The court held that an agreed order of dependency was not a voluntary placement under ICWA.
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