Guardianships and the Opioid Epidemic

    Indiana is in the midst of a public health emergency. The opioid epidemic has affected Hoosiers of all ages, from grandparents entrusted with the guardianship of their endangered grandchildren, to adults entrusted with the guardianship of their own parents who have become addicted to prescription drugs or controlled substances. 
    The percentage of children placed in foster care with parental drug use cited as a removal reason has recently increased by almost 8%, more than any other factor considered in the revocation of parental custody rights. According to Indiana law, parental interests are not absolute and are subordinate to those of a child. Statute states a minor may meet the definition of a Child In Need of Services (CHINS) if (1) “the child’s physical or mental condition is seriously impaired or seriously endangered” and (2) because of that endangerment, “needs care, treatment, or rehabilitation that (A) the child is not receiving; and (B) is unlikely to be provided or accepted without the coercive intervention of the court.” CHINS proceedings are intended to help families in crisis and protect children; CHINS proceedings are not sought for punitive action against parents.            
    In regard to drug use in utero, if a child is born with “any amount, including a trace amount, of a controlled substance or a legend drug [inconsistent with a prescription] in the child’s body,” the child meets the first requirement of identification as a potential CHINS case. 
    Whether or not parental drug abuse constitutes neglect that causes “serious impairment or endangerment” is dependent upon the facts of an individual scenario. 
    Guardianship can be temporary or permanent, the latter of which, for children, results in the termination of a parent’s rights. If an emergency exists regarding the welfare of an incapacitated person or minor that requires immediate action, a guardian has not been appointed, and no other person appears to have authority to act in the situation, the court may appoint a temporary guardian either on petition by any person or sua sponte (action taken by a judge without a prior motion or request from a party) . Generally, the family of an incapacitated person has authority to act on their behalf. A temporary guardian has only the responsibilities and powers ordered by the court necessary to prevent immediate and substantial injury to the protected individual.
    The permanent termination of a parent’s rights must be based on clear and convincing evidence that a parent is unable or unwilling to meet the needs of a child, and is viewed as a last resort to be employed only after all reasonable efforts to maintain parental custody rights have failed. A petition to terminate a parent-child relationship for a CHINS case may be filed by the attorney for the county office of child services, a Court Appointed Special Advocate (CASA), or a Guardian ad Litem (a person the court appoints to investigate what solutions for custody would be in the “best interests of the child”). 
    Indiana’s court system is overwhelmed by the surge in CHINS cases in the wake of the current opioid crisis, as is DCS. Case workers are overloaded, and courts have heard cases well outside of the normal business hours to keep up with the influx of new CHINS cases. In addition, there is a shortage of CASA volunteers, and an extensive waiting list of children who are wards of the court in need of an advocate to be appointed to their case. Legislation to alleviate the issues plaguing DCS has been delayed until 2019, and awaits a report due in June 2018 assessing the current state of DCS.
    Ferguson Law donates services to the Monroe County CASA, who represents the children affected by abuse and neglect.  Ferguson Law donates services to assist in representing the agency, which has been increasingly busy, often due to the effects of opioid abuse.  CASA programming in Monroe County, and the surrounding counties, suffers from the overwhelming crisis that opioids have caused in this country.  Ferguson Law urges any of you who have the time, patience and dedication, to call your local CASA, to provide volunteer services. They need attorney volunteers, and CASA representatives (non-lawyers), who can be trained to assist the kids directly by representing their best interests in court. The number for Monroe County CASA is 812-333-2272.  

Information About Title IX -Why Should You Care?

By:  Yael Massen

We live in college community, and many of you may be students or come into contact with students on a daily basis.  Those students are subject to Title IX.  It states:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance…”

-Title IX of the Education Amendments of 1972

Title IX is a comprehensive federal law enacted to prohibit discrimination “on the basis of sex” in any federally funded education program or activity. The law was drafted following the passage of the Civil Rights Act of 1964.

Title IX also governs student sexual misconduct on campus.  There are some things happening with Title IX that may cause some upheaval, so we provide this informative piece.  Things are up in the air based upon current administrative decisions.

Why is Title IX in the news?

During the Obama Administration, The Department of Education’s Office of Civil Rights (OCR) has issued various “Dear Colleague Letters” (DCLs) that have outlined obligations school districts and federally-funded institutes of higher education have regarding Title IX complaint investigations. DCLs drafted under the Obama administration required schools to adopt the preponderance of evidence standard of proof in investigating Title IX complaints, the same standard of proof used in discrimination cases under Title VII of the Civil Rights Act.

What changes to Title IX enforcement have occurred under the Trump Administration?

Recently, the Secretary of Education for the Trump Administration, Betsy DeVos, withdrew DCLs on Sexual Violence and a Q & A on Title IX and Sexual Violence, dated 2011 and 2014, respectively. According to the OCR, these former guidance documents “interpreted Title IX to impose new mandates related to the procedures by which educational institutions investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct.”

A new Q & A on Campus Sexual Misconduct, released September 2017, will serve as an interim guide until the conclusion of a notice and comment rulemaking. In this document, the OCR states that procedures for finding responsibility for sexual misconduct “should be reached applying either a preponderance of the evidence standard or a clear and convincing evidence standard.” The OCR further states, “The standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applied in other student misconduct cases.” The burden of proof for conduct cases can therefore be determined at the discretion of the educational institution.

Preponderance of evidence standard is defined as “the proof need only show that the facts are more than likely to be than not so.” The clear and convincing standard is defined as “the proof which results in reasonable certainty of the truth.” Both are standards of proof used in civil cases, but differ in applications according to risk of loss (such the loss of a fundamental liberty). Typically, “clear and convincing evidence” standards are used in claims involving fraud, wills and inheritance, and end-of life decisions.

Additionally, the new guidance issued by the OCR states that “Schools may permit an informal resolution, such as mediation, if it is appropriate and if all parties voluntarily agree.” This language appears to contradict 2001 guidance from the Department of Education (“mediation will not be appropriate even on a voluntary basis”) which was issued after a formal notice-and-comment process.

Further complications

Title IX does not define the meaning of “sex.” Federal courts have interpreted Title IX in a similar manner as Title VII of the Civil Rights Act of 1964. In Title VII cases, courts initially defined the term “sex” as the biological sex assigned to a person at birth. The Supreme Court has also used the terms “sex” and “gender” interchangeably. More recent case law has begun to examine the definition of “sex” under Title IX: Does this mean only biological or birth sex? Does it take into consideration gender? Does it include sexual orientation, gender-identity, and/or transgender status? Statute and regulation do not define sexual harassment as sex discrimination, but through case law and enforcement guidance, harassment is a form of discrimination under Title IX.

During the Obama Administration, the OCR issued a DCL in May 2016 specifying schools’ obligations toward transgender students. This letter explicitly directs state and local agencies to “treat a student’s gender identity as the student’s sex for the purposes of Title IX and its implementing regulations.” As of November 2017, this DCL is still in place.

We do not know what the future may hold, but we do know that more inconsistency and upheaval will not help students. Both alleged perpetrators and victims deserve to have standards and guidelines when this occurs.  Unfortunately, that’s not the case.  Make sure you know your rights and talk to an attorney prior to talking to anyone else about any allegations made against you.

*This entry is not intended to provide legal advice or to open a lawyer-client relationship.

The Strategic Way to Participate in Mediation

The strategic way to participate in a mediation

A top personal injury lawyer Little Rock, AR trusts spends time and effort preparing a case for trial prior to even agreeing to mediate.  One important prerequisite to agreeing to mediation is that the trial date has already been set, and preferably, is approaching.  Defendants have little motivation to provide a top dollar offer at mediation unless the pressure of trial is on the horizon.  If it isn’t, it isn’t worth your time to mediate.

Confirm attendance by adjuster with authority

Unless this is a small figure soft tissue case (and sometimes even then), the most important person to be in attendance is the insurance adjuster with authority to extend pecuniary offers to settle.  Having someone available by telephone isn’t optimal…neither is having someone in attendance that doesn’t have ultimate authority to extend offers.  It does no good to you if the person you’re trying to persuade is not at the mediation.

The opening statement

Opening statements are becoming less and less frequent at mediations.  Many times, the mediator will make a short statement himself/herself and then separate the parties.  Sometimes, the parties will be separated from the beginning.  If an opening statement is available, it can help drive up the value of your case (1) only if the insurance adjuster is present, and (2) only if he/she has not seen many of the most persuadable exhibits.  Also remember that an opening statement in mediation will be helpful only to the insurance adjuster.  The mediator cares little to nothing about the merits of your case – he’s simply there to assist the parties in finding middle ground.  Further, your opening statement can (a) telegraph your trial opening statement to the defense and (b) drive up unease and friction with the defense attorney for the duration of the mediation.

Movement in mediation frequently happens towards the end

One of the most important reminders in mediation is to hold back persuadable talking points.  The mediator will make at least a dozen trips back and forth between rooms.  You should have ammunition for him to send back each time he leaves your room.  Otherwise, he won’t be armed with any talking points to help increase the Defendant’s offer from their current offer.

With that in mind, it’s also important to save many of the most damaging talking points to the defense until after lunch.  That’s usually when the movement happens, and you want to be able to make the largest moves at that time.  This can be the difference between an offer that you really have to consider versus trial, or an offer that you believe would be comparable to a jury’s finding on a great trial day.

For these reasons, it is imperative to hire a veteran trial lawyer with experience in mediations. 

Thanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into mediation strategy.  

5 Myths About Auto Accidents You Shouldn't Believe

Between what the police tell you, what your insurance company says, and the advice you hear from those close to you, you may be feeling overwhelmed when determining what to do after an accident. Especially with regards to getting the compensation you may deserve

To help, a top DC car accident lawyer has listed five common myths about auto accidents that you shouldn’t believe:

Myth #1: You don’t need to see a doctor for minor injuries

You may feel lucky if you were able to simply walk away from your accident. However, even if your injuries didn’t require an immediate trip to the emergency room, seeing a doctor may still be in your best interest.

If you have any injuries or pain from the accident, make an appointment with your primary care doctor or take a walk-in appointment. You may be suffering from an injury or damage that isn’t immediately apparent to you, but still requires medical attention.

Myth #2: Getting checked out by the EMT on scene is a waste of time

EMTs are trained professionals, and while the adrenaline you have after an accident could be masking your pain, and EMT is trained to look for signs of underlying trauma. Furthermore, some injuries don’t manifest themselves until a few days later. Discussing how you feel with an EMT can be a good first step to not only getting the treatment you need, but also offers an important documentation opportunity at the onset of your treatment.

Myth #3: Whiplash is a made up injury

A very common injury associated with a car accidents is whiplash; however, some reason, many people have been told that this is not a serious condition. Pain in your neck or back as a result of a violent impact may indicate a whiplash injury The pain can be debilitating, and may require immediate medical attention.

Myth #4: You can only be physically injured by an accident

Rarely do people consider the mental trauma that often follow accidents; however, it is actually pretty common to suffer from mental disorders like anxiety and Posttraumatic Stress Disorder following an accident. If unaddressed, these injuries they can cause anguish for years. Psychological trauma after an accident is very real and should not be ignored.

Myth #5: “Pain and suffering” is a term lawyers use to fabricate damages

Pain and suffering refers to a significant decrease in one's enjoyment of life after an accident. You may lose site of work, social engagements, and/or class because you are dealing with pain and psychological damage.

If you’ve recently been injured in a car accident, these myths can keep you from getting the compensation you deserve. Contact an experienced lawyer today for more information.

Thanks to our friends and co-contributors from Cohen & Cohen, P.C. for their added insight into common myths surrounding car accident injuries.