THE ONLY "CONTENTS" WAS A LETTER FULL OF HEARSAY
"ON FRI-OCT-22-2010, AN EMERGENCY EX PARTE ORDER WAS SOUGHT OUT BY DCFS"
The Arkansas statute: (To obtain an) "emergency ex parte order" requires the following steps:
1-A.Proof of the emergency of harm or endangerment: A notarized affidavit of truth (That's required by law) was "NOT" presented to Judge Kent Crow of the Carroll County, AR Family court. 1-B.(Bonner Jones the 3rd) knowingly violated the law when he sought out an emergency ex parte order.
2-Notify all attorneys to be present or on the phone with all attorneys involved in the case when requesting the "order" from the judge.
3-To have an (Evaluation) longer than 15-minutes within the past 90-days from a Licensed Family Therapist (LFT) A. There was a hand written letter presented to (Mary Jeppson), LFT, based on the kids telling their school counselor that they were coming home and that they wanted to come home, several times. This is all that the case worker had to offer to the judge that would cause harm to the kids.
B.There was another hand written letter from the Ozark guidance center counselor, (Mary Jeppson) LFT also stating that this would cause harm if the kids came home after an only 15 minute visit with them within the previous 90 days.
A- Call from Carroll County DCFS supervisor: All weekend visits cancelled due to hot line call.
B-ASP Hot line abuse investigator is not called for two to three weeks later.
C- No records in the ASP Hot line abuse computer data of a hot line called made.
D-Three different stories about what the alleged abuse charge was that required a hot line call and stopped all visitations. Maybe the case worker Sandy Craig could fill us all in.
E-The ASP/DCFS investigator (Kevin Estes) report of the kids interview states that they (Ana & Hopi) could not verify what the case worker said happened (Sandy Craig).
F-The report we received states,"unsubstantiated", and the date of the complaint is (Unknown).
The so-called emergency ex parte order was not sought for an emergency. It was sought in order to disrupt our visitation, due to the fact that DCFS had already transitioned our children to adoption.
1-Mr. Bonner Jones the 3rd all of a sudden steps into the case for Robert Depper, without Mr. Depper notifing the court or the other attorneys. Is this not illegal? And Judge Crow signed it without reading it because he was on his way out the door to start his vacation.
2- AT 4:30 PM ON A FRIDAY, WHEN NONE OF THE FAMILY ATTORNEYS COULD BE REACHED.
3-WITHOUT NOTIFYING THE ATTORNEYS OF THE CLIENTS.
4-USING THE LICENSE OF MARY JEPPSEN OF OZARK GUIDANCE CENTER TO WRITE A LETTER TO THE JUDGE BASED ON HEARSAY EVIDENCE SOLELY FROM THE CASE WORKER, "SANDY CRAIG".
5-THERE WAS NO EVALUATION PREFORMED ON THE CHILDREN and Mary Jeppsen had seen them only one time in 90 days.
7-The emergency ex parte order was gotten based solely on the kids crying to come home and repeating the statement, "We want to go home!". Social worker Sandy Craig decided that the reunification visits were not really necessary because they were "causing anxiety" and "Hey, the kids can bond to their future adoptive parents better if they don't see their real parents anymore". The ex parte order was sought and presented illegally to the judge under false pretense from (Bonner Jones) to the judge, and the order was granted on illegal grounds.
(OUR MOTION TO VACATE THE UN-EMERGENCY EX PARTE PICK UP ORDER)
IN THE CIRCUIT COURT OF CARROLL COUNTY, ARKANSAS
-vs- CASE NO. JV-2006-15-WD
REBECCA CHRISTIAN, MOTHER
HOPI DOB: 11/18/02
ANA DOB: 11/18/02
REBECCA CHRISTIAN, MOTHER
JAMES HOLDERFIELD, LEGAL FATHER
FOREST DOB: 3/7/07
MOTION TO VACATE EX PARTE ORDER
Comes now Rebecca Christian, and for her Motion to Vacate Ex Parte Order
states the following:
The ex parte order in this case is governed by Rule 65 of the Arkansas Rules
of Civil Procedure.
The factual statements in the affidavit consist solely of unsworn hearsay
The issuance of the ex parte order does not conform to the standards of Rule 65.
The order resulting from the incompetent affidavit does not conform to the
standards of Rule 65.
WHEREFORE, Petitioner prays that the order be vacated, and that all prior orders
of the Court remain in place.
MARGARET REGER, ATTORNEY FOR
Margaret Reger, Bar No 80119
Legal Aid of Arkansas
816 North Main
Harrison, Arkansas 72601
Telephone: (870) 741-2454, or
1-800-967-9224, Ex. 5302
Facsimile: (870) 741-4255
BRIEF IN SUPPORT OF MOTION
It was improper for the Department to request an ex parte order to disturb the reunification services previously ordered at the termination of parental rights hearing. This proceeding was not one for an emergency order as defined in Ark. Stat. 9-27-314, which addresses initial orders entered at the outset of a case. The foregoing statute allows the Court to issue ex parte orders, in “any case …..to protect the juvenile from severe maltreatment as defined in Sect. 12-18-103 (17)” That section does not apply to this proceeding, and no severe maltreatment was alleged.
The juvenile code provides that probable cause hearings occurring at the outset of a case are miscellaneous proceedings and normal rules of evidence do not apply. 9-27-315 (e). The instant proceeding for an exparte order, is not part of a probable cause proceeding and regular rules of evidence apply.
The only authority for this particular ex parte order is ARCP 65. Jones v. Jones, 51 Ark. App. 24; 907 S.W.2d 745; 1995 Ark. R. Civ. P. 65(a)(1) provides that, where a preliminary injunction is to be given without notice to the adversary of the one requesting it, it must be alleged by affidavit or verified complaint that, absent the injunction, irreparable harm will result. There is no such allegation in the petition, or the affidavit attached thereto. There is a hearsay statement that the children are suffering anxiety as a result of the visits. There is a hearsay statement that the mother has a history of setting the children at odds with the foster parents. There is a normative statement regarding whether or such visits should be “necessary”. These statements should not be considered by the Court in issuing an ex parte order, as the person making the statements was not under oath, and even if under oath, no irreparable harm is alleged.
There are other statements of opinion based on the statements of the children, which constitute hearsay on hearsay, which are incompetent to justify an action as drastic as an ex parte order. The mere fact that the hearsay statements were contained in the body of the affidavit signed by the DHS caseworker, does not bootstrap them into affidavits, because the children were not under oath. Additionally, the letter from Mary Jeppson is not under oath. There are no competent statements in the affidavit signed by Sandi Craig that show the actions of the mother in exercising visitation will cause irreparable harm to the children. Sandi Craig’s affidavit expresses no observations of her own, and is merely a conduit for the aforesaid unsworn hearsay statements.
In Jones, Supra, the practice of attaching letters to an affidavit requesting an ex parte custody order was expressly condemned by the Court of Appeals, which said:
“ Here, Dr. Jones' request for emergency ex parte relief was supported by four documents: Dr. Jones' verified petition and affidavit, a letter from Dr. Gayle Harrison, and a letter from Dr. Justin Ternes. Because the letters from Dr. Harrison and Dr. Ternes were not under oath they could not constitute affidavits. Ark. Code Ann.§ 16-40-103(b). The fact that these letters were attached as exhibits to Dr. Jones' verified petition for relief does not bootstrap them into affidavits, and they should not have been considered by the Court. This leaves only Dr. Jones' verified petition and affidavit. When the hearsay statements of Dr. Harrison and Dr. Ternes are disregarded, the only remaining allegations of fact addressing the need for relief could only support, if proven, a change of custody after notice and a hearing on the merits, but fall short of establishing such an emergency that irreparable harm would or might result if immediate ex parte relief was not granted. We believe that the chancellor erred by granting ex parte relief under these circumstances.”
It should be pointed out that the petitioner had filed a motion for an accelerated review hearing right after the second spurious abuse report was made in this case. At that time the Court had informed the Department that all issues would be decided at the time the Court had set for review. No new facts have been alleged in the Motion for Ex Parte Relief, except that the mother told the children to behave when they were with their foster parents. Yet inexplicably, the Court granted the more drastic second motion, when it denied the first.
Furthermore, since three other attorneys were involved in this case, (Margaret Reger, Gail Segers, and Tammy Mullins) it was improper for the attorney for the Department to obtain the order at 4:30 PM. on a Friday afternoon without making every effort to contact the other attorneys about his intentions. As said in the Jones case:
“Although Rule 65 provides for relief without written or oral notice to the adverse party or his attorney where the requisite proof of emergency is shown, we believe the better practice is to give oral notice to the adverse party's attorney, if known and available to receive such notice, prior to submission of the ex parte request.”
Rebecca Christian does not have the same status as a parent just beginning to work her case plan. She has survived (temporarily, at least) a TPR hearing; completed all of her case plan goals, and is seeking to demonstrate that she can care for the children in her home. Therefore petitioner has “earned” a status that demands strict adherence to procedural due process of law when balancing a public policy of keeping the best interests of children in state care paramount, and considering the fundamental liberty rights of parents to raise their children under the due process clause of the 14th Amendment. “The parental rights protected by the 14th amendment do not spring from a bare biological connection to a child, but rather must be born of a relationship to a child demonstrated over time” Linder v. Linder 348 Ark. 322, 72 S.W.3rd 841 (2002) at 852.
Petitioner has a fundamental liberty interest in the companionship with her children, and she does not lose that status, merely because she was not a perfect parent in the past. Ark Dep’t of Human Services v Huff., 347 Ark. 533, 65 S.W. 3rd 880 (2002), at 886.
It would have been helpful and enlightening to the Court for the other attorneys to be involved, and to address the trauma to the children which would surely result from another dashing of their expectations to be with their family again. There are only two explanations for the children’s misbehavior and anxiety on returning from visitation with the parents. Either the children are desperately unhappy when they have to go back to the foster home, or the mother is telling them things that make them misbehave. The other attorneys never got to argue their positions on this matter before the order was entered.
Furthermore, the order, by its nature, is extremely disruptive to the goal of reunification previously stated by the Court at the Termination hearing. The Court said it would give the parents “another chance”, but that the time would be short. They have not been given a fair chance to prove that they can parent these children. They have been summarily deprived of the most elementary principles of due process of law.
The Department has mishandled this case. The Department, not the mother, is the purveyor of trauma to the children. The Department complains of the mother’s mistrust of the Department, and contends that she is spilling over her anxiety to the children. Yet from the mother’s perspective, there is reason for this mistrust. There have been two absolutely groundless hotline reports made regarding the children in the past year. Both times this resulted in a cessation of contact between the children and the mother totaling at least five months all together. Yet, at the termination and permanency planning hearings, the AAL and the children’s therapist both admitted that the children are still very bonded to the mother and consistently plead to go home. And, now again, there is another delay occasioned by the Department.
The Department is not serious about reunification with this family and is employing both open and clandestine methods to wean these children from their parents, and deny permanency to the children. The Court should vacate the ex parte order and make a trial placement with the parents. That is the only way to end the Department’s machinations and ensure permanency and security for the children.
CERTIFICATE OF SERVICE
I, M.E. REGER, LEGAL AID OF ARKANSAS, attorney of record for Rebecca Christian Holderfield, herein state that the foregoing pleading has been placed in the United States Post Office with sufficient postage on this ___ day of October, 2010.
Bonner R. Jones III, Office of Chief Counsel, 900 S.E. 13th Court, Bentonville, AR 72712;
Gail Segers, Attorney at Law, 26 East Meadow, Suite A, Fayetteville, AR 72701
Tammy Mullins, Attorney at Law, P.0. Box 608, Pea Ridge, AR 72751
STATEMENT FROM REBECCA CHRISTIAN HOLDERFIELD:
When my attorney sought to have the ex parte order dismissed, since there had been no negative changes whatsoever in our case, and our visits were happy and healthy, and this ex parte order had traumatized all of us, all the Dept's attorney did was try to strike out my attorney's statements as "scandalous" because she clearly articulated the Dept's malfeasance, misconduct, conspiracy to deprive us of our rights, and the damage the Dept. has done to our children, when the Original Cause that opened this case is nonexistent. The judge declined his request to strike, and let it stand in the record for the appeal and future lawsuits.
Then, the Dept. lawyer (Depper) said "Well, you should have gotten a Writ of Habeus Corpus". When I got home, I looked up "writ of habeus corpus". Its what you write when you protest illegal detention in someone else's custody, challenging someone's right to hold a citizen and detain them illegally. Well that's exactly what the Dept. has been doing for almost five years now--detaining us in Arkansas when our home is in North Carolina, and of course, illegally detaining my children in their so-called custody, in order to get federal Medicaid funds and keep their jobs. This is called conspiracy, racketeering, human traficking, corruption, complicity in child abuse, and so, so much more. This is real, and I want the world to know about it. This is my opinion, and does not necessarily reflect the opinions of anyone else associated with this case. Sincerely, Rebecca Christian Holderfield
Law suits against DCFS in any state: