WHEN TO KEEP SECRETS Mandatory Reporting, Confidentiality, & - - PDF document
11/10/15 WHEN TO KEEP SECRETS Mandatory Reporting, Confidentiality, & Emergency Motions Graham Polando St. Joseph Probate Court VICTIM OF CHILD ABUSE OR NEGLECT Ind. Code 31-9-2-133 1 11/10/15 EXAMPLES PARENTFAILS
Mandatory Reporting, Confidentiality, & Emergency Motions Graham Polando
Getting to the duty to report “requires reference to no fewer than FIVE separate provisions contained in TWO different titles and FOUR different articles
Smith v. State, 8 N.E.3d 6 68 (Ind. 201 4) (Rucker, J., dissenting) (emphasis supplied).
8 N.E.3d 668 (Ind. 2014).
Principal Associate Principal #1 Examine Security Footage Associate Principal #2 Calls YOC School Nurse Questions Alleged Rapist Superintendent’s Office Calls DCS
■ SCREEN SHOT OF WTHR STORY
Court of Appeals “…child abuse is a serious claim, and a reasonable investigation…is not improper…” 982 N.E.2d 348,
363 (Ind. App. 2013) (vacated).
Supreme Court “…we also reject his [Smith’s ] belief that the reporting statutes permit a citizen t
‘assess and reflect’…the statutes do the opposite— they require immediate reporting…” 8 N.E.3d at 689.
8 N.E.3d 668 (Ind. 2014).
CONVICTION AFFIRMED
Principal Associate Principal #1 Examine Security Footage Associate Principal #2 Calls YOC School Nurse Questions Alleged Rapist Superintendent’s Office Calls DCS Delivers Evidence to Police
■ CANNOT say “someone else should have reported” ■ CAN say “report has already been made to the best of [my] belief.”
Players Parents Athletic Director Gilliland
LAWYERS MUST REPORT
If necessary to prevent reasonably certain death or substantial bodily harm
LAWYERS SHOULD NOT REPORT
Any other information of “completed” harm
“A fundamental principle in the client-lawyer relationship is that…”
“…in the absence of the client's informed consent, the lawyer
reveal information relating to the representation…”
“…The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.”
■ Clergy:
– “Failure to report child abuse is a criminal offense…This law does not exempt spiritual leaders from reporting.” Ballaban v.
Bloomington Jewish Community, 982 N.E.2d 329 (Ind. App. 2013) 341-342 (concurring opinion).
■ See also
– Therapists; State v. I.T., 4 N.E.2d 1139 (Ind. App. 2014). – Health Care Workers; Devore v. State, 658 N.E.2d 657, 658
(Ind.Ct.App.1995), reh'g denied, trans. denied.
■ “Other law may require that a lawyer disclose information…Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these rules…” Comment [12] to Rule 1.6.
■ Kentucky Formal Opinion KBA E-360 at 2 (1993) – “the Court, in Rule 1.6, has given lawyers discretion in these scenarios…a holding that the [mandatory reporting] statute overrides this grant of discretion would violate the separation of powers.” ■ Nebraska Attorney General Op. No. 207 at 5 (1982), – Mandatory reporting statute’s “curtailment of the common law attorney/client privilege…would be difficult to defend as to constitutionality.”
■ Rule 1.6 “recognizes the overriding value of life and phys ic al integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm.” Comment [6] to Ind. R. Prof. Cond. 1.6.
LAWYERS MUST REPORT
If necessary to prevent reasonably certain death or substantial bodily harm
LAWYERS SHOULD NOT REPORT
Any other information of “completed” harm
Michelle Cortese, “What Courts Should Consider When Determining Children’s Best Interests, 34 Child Law Practice Online 142, 143 (2015).
“The Commission calls on the profession to eliminate the SEEMINGL Y WIDE-SPREAD PRACTICE in Indiana…
■ Professional discipline – for attorneys – for judicial officers ■ For Litigants: – Attorney Fees – Potential Criminal Liability – Credibility Issues
729 N.E.2d 566 (Ind. 2000)
May 11: Hearing on Grandparents’ Petition for Custody
June 8: GAL Recommendation
23
June 9: “Verified Petition for Immediate Emergency Custody”
729 N.E.2d 566 (Ind. 2000)
Lawyer
■ Asked to speak to Judge when at courthouse to file “Emergency Motion” ■ Informed Judge of “Emergency Motion” ■ “Urged the judge to read the guardian ad litem’sreport.”
Judge
■ “Advised he would read the…report…” ■ Lawyer “should return to the court later in the day..” ■ Grants “emergency custody…pending a full hearing on the merits.”
729 N.E.2d 566 (Ind. 2000)
Lawyer
■ Calls opposing counsel and informs him of the “temporary custody”
■ Code Section
■ “Custody” (!) – But see I.C. 31-9-2-31(a) – “the family court is poorly equipped to speak for or protect the child. The presumption of parental fitness means the court need not and should not be concerned with the child.” Leonard P. Edwards, The Relationship of
Family and Juvenile Courts in Child Abuse Cases, 27 SANTA CLARA L. REV. 201, 208 (1987).
■ Custody ■ Violations of parenting time orders ■ Need order to enroll child in school ■ Moving out of state – But see Trial Rule 65(E)
Courts may issue TRO to prevent a Party from “removing any child of the parties then residing in the State of Indiana from the State with the intent to deprive the court of jurisdiction…”
Gold v. Weather, 14 N.E.3d 836,849 (Ind. App. 2014) (Robb, J., concurring)
■ Affidavit (i.e., verified) ■ Who signs? – Attorney, Trial Rule 11(A) AND – Affiant, Trial Rule 65(B).
■ “Specific Facts” – ARE NOT conclusions… (“abuse” or “neglect”) – When did these things occur? – Source of the information? – Why is this source credible? – Corroboration
■ FACTS adverse to your client
■ Ind. R. Prof. Cond. 3.3(d): ■ “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or
■ “Immediate and Irreparable Injury”
■ Unsuccessful Efforts to give notice AND ■ Why notice shouldn’t be required. ■ “And” operates as an “Or.” In re Ettl, 851 N.E.2d 1258 (Ind. 2006).
■ Security (i.e., bond)
Any party can file for “an emergency change in the child’s residence.” Court “may issue a temporary order.” However, the department shall then give notice …and the juvenile court shall hold a hearing on the question if requested.
■ “Children are in out-of-state foster care” is an emergency justifying relief under Trial Rule 65(B). In re R.A.F ., 766 N.E.2d 718 (Ind. App. 2002)
■ Ind. Code 31-1 7-2-25 specifically authorizes emergency when custodial parent dies and the remaining parent should not have custody. – Hearing within 4 Business Days
– But see:
–
when parenting time is suspended or supervised). – Troxel v. Granville, 530 U.S. 57 (2000), In re B.H., 770 N.E.2d 283 (2002) and progeny
■ I.C. 31-21-5-4 gives Indiana “temporary emergency jurisdiction” if the child is abandoned or otherwise subject to “mistreatment or abuse.”
– Indiana courts cannot invoke this exception in ex parte orders. See I.C. 31-21-5-5.
Client Report Ongoing? Client Advised of Reporting Requirement Trial Rule 65(B) implicated? Motion to Modify