From FC: Did the Illinois Supreme court treat bio fathers as 2nd class citizens?

So I read this, and I thought, maybe those crazy father’s rights cases do have a point.

A single mother brings home baby from the hospital and she has constitutional rights.

Dad has to get a DNA test and even then his rights are conditional?

Why the difference?

read on:

Parentage of J.W.
v.
Wills

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Supreme Court of Illinois.May 23, 2013Full title

990 N.E.2d 698 (Ill. 2013)Copy Citation
990 N.E.2d 698371 Ill. Dec. 5102013 IL 114817

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Summaries written by judges

  • Holding that the biological father, who established his paternity under the Parentage Act of 1984 more than six years after the child’s birth, was not entitled to the presumption that visitation was in the child’s best interests (under section 607 of the Dissolution Act) but was required to prove that visitation was in the child’s best interests (under section 602 of the Dissolution Act)

    Summary of this case from James R.D. v. Maria Z. (In re Parentage of Scarlett Z.-D.)

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David Sotomayor, of Orland Park, for appellant. James A. Martinkus, of Erwin, Martinkus & Cole, Ltd., of Champaign, for appellee.
Robert F. Harris, Kass A. Plain and Christopher Williams, of the Office of the Cook County Public Guardian, of Chicago, for amicus curiae Cook County Public Guardian.
Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro, Solicitor General, and Diane Potts, Deputy Attorney General, of Chicago, of counsel), for amicus curiae Illinois Department of Healthcare and Family Services.
Camilla B. Taylor, of Chicago, for amicus curiae Lambda Legal Defense and Education Fund, Inc.

OPINION


Justice THEIS delivered the judgment of the court, with opinion.

¶ 1 The issue in this appeal concerns the proper standard to be applied when a biological father seeks visitation privileges after a determination of parentage under section 14(a)(1) of the Illinois Parentage Act of 1984 (the Parentage Act)(750 ILCS 45/14(a)(1) (West 2010)). The circuit court of Vermilion County applied the best interests of the child standard set forth in section 602 of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act)(750 ILCS 5/602 (West 2010)), and found that it was not in the minor child’s best interests to have contact with her biological father at this time. The appellate court reversed, concluding that section 607(a) of the Marriage Act (750 ILCS 5/607(a) (West 2010)) is the relevant standard to be considered, entitling a noncustodial parent to a rebuttable presumption of reasonable visitation unless it can be shown that visitation would seriously endanger the child’s physical, mental, moral or emotional health.

¶ 2 For the reasons that follow, we hold that in a proceeding to determine visitation privileges under section 14(a)(1) of the Parentage Act, the initial burden is on the noncustodial parent to show that visitation will be in the best interests of the child pursuant to section 602 of the Marriage Act. We therefore reverse the judgment of the appellate court.

¶ 3 BACKGROUND

¶ 4 In the summer of 2001, Amy Wills–Merrill and Jason Wills began an intimate relationship. During that same summer, unbeknownst to Jason, Amy had a one-time sexual encounter with Steve Taylor. Amy subsequently became pregnant and had a child, J.W., who was born on April 15, 2002. Amy assumed that the child’s father was Jason. Jason signed a voluntary acknowledgment of paternity and was listed as the father on J.W.’s birth certificate.

¶ 5 Amy and Jason married in March 2003, when J.W. was almost a year old. The couple later divorced in 2006. They entered into a marital settlement agreement, which was incorporated into the dissolution judgment. Pursuant to the terms of their agreement, which identified Jason as J.W.’s father, Amy had sole custody of J.W., and Jason had visitation rights and child support obligations.

¶ 6 After the divorce, J.W. experienced a lot of chaos in her life. In September 2008, Amy married Joe Merrill, who had three children from a previous relationship. Meanwhile, that summer, Steve viewed a picture of J.W. on Amy’s social media site, while seeking out old acquaintances. He saw a resemblance in J.W. and contacted Amy regarding the possibility that he was J.W.’s biological father. Thereafter, Steve, Amy, and J.W. submitted to DNA testing. About one week prior to Thanksgiving 2008, DNA results indicated Steve was J.W.’s biological father.

¶ 7 After receiving the DNA results, Amy temporarily separated from Joe, moved with J.W. from Catlin, Illinois, to Potomac, Illinois, where Steve resided, and placed J.W. in school there. Amy informed Jason that he was not the biological father. Over the holiday season, J.W. was introduced to Steve and his extended family and spent time with them between Thanksgiving 2008 and January 2009. J.W. was initially introduced to Steve and his family as friends, but was subsequently told by Amy at the end of December 2008 that Steve was her “real dad.” Amy never discussed with J.W. her understanding of her relationship to Steve.

¶ 8 In January 2009, Jason sought a temporary modification of custody or, alternatively, an order prohibiting Amy from cohabiting with any male not her lawful spouse while having physical custody of J.W. Amy and Jason agreed to modify the judgment of dissolution. Under the modified order, Amy was prohibited from residing or cohabiting with Steve, prohibited from allowing J.W. to have any contact with Steve, and prohibited from promoting the existence of any parent-child relationship between Steve and J.W. until further order of the court. Neither Steve nor his counsel was present or a party to that hearing in the dissolution proceeding. Thereafter, on February 4, 2009, Steve filed a verified petition to determine the existence of a parent-child relationship under the Parentage Act ( 750 ILCS 45/1 et seq. (West 2008)). In addition to establishing his paternity, Steve sought joint custody and visitation privileges pursuant to section 14(a)(1) of the Act. 750 ILCS 45/14(a)(1) (West 2008). Jason did not contest Steve’s petition to establish parentage, but sought a best-interests hearing on the issue of Steve’s right to visitation with J.W. At that time, J.W. was almost seven years old.

The order is entitled “order on January 9, 2009, hearing.” According to the record, the order was entered and filed on April 17, 2009. A transcript of the January 9 hearing has not been made part of the record on appeal.

The record reflects that after mentioning it in his petition, Steve never pursued joint custody of J.W.

¶ 9 On April 17, 2009, the trial court granted Steve’s motion to consolidate the dissolution proceeding between Amy and Jason with his parentage action. The record reflects that the no-contact order was entered at that time. Steve’s motion to appoint a guardian ad litem (GAL) for J.W. was also granted. Steve then filed a motion to vacate, modify, or reconsider the no-contact order. He argued that the order effectively barred him from any contact with J.W. in contravention of the relevant standards in determining his visitation rights under the Parentage Act. The trial court denied his motion. Meanwhile, a month after Steve filed his petition to determine paternity, Amy reunited with Joe and his three children. Amy and Joe later moved to Danville and had a child together.

¶ 10 On September 9, 2009, after additional DNA testing, the trial court entered a judgment declaring Steve to be the biological father of J.W. After an unsuccessful attempt at mediation, the court held a hearing on Steve’s right to visitation with J.W. Dr. Marilyn Frey, a clinical psychologist, was appointed by the trial court to conduct an evaluation to determine whether visitation between Steve and J.W. was in J.W.’s best interests. Dr. Frey testified that in August and September of 2010, she interviewed Steve, Amy, and Jason and observed J.W. interact with Jason and Amy. Dr. Frey testified at the hearing consistently with her evaluation report. She stated that J.W. was bonded with both Amy and Jason, and that J.W. indicated that she enjoyed spending time with Jason and his son from a subsequent relationship.

¶ 11 Dr. Frey acknowledged that Steve and J.W. had some sort of a relationship at one time, but recommended that it would not be in J.W.’s best interests to have contact with Steve at this time. It was Dr. Frey’s opinion that J.W. did not have the abstract reasoning skills at her age to understand Steve’s relationship to her or how Jason was not her “biological” father, and that the information could seriously impact her relationship with her mother. Dr. Frey also believed that introducing another father figure into J.W.’s life could put J.W. at risk emotionally, socially and academically, affect her sense of adequacy with her peers, and create a fear of abandonment. She was concerned about J.W. being exposed at eight years old to information regarding her relationship to Steve in such a small rural community. In forming the basis of her opinions, Dr. Frey used dolls and teddy bears and had J.W. identify them with a person from her family. During these exercises, J.W. identified numerous extended family members, but did not mention Steve as part of her family.

¶ 12 Dr. Frey testified that the basis of her predictions of risk were based, in part, upon the developmental theories of Erikson and Piaget, and 44 years of clinical experience. She acknowledged that she did not have “hardcore evidence” or research that involvement with Steve would have a negative impact on J.W. Dr. Frey also acknowledged that at the time she interviewed J.W., J.W. had already been introduced to another father figure, her new stepfather, Joe, and that she did not exhibit any of the potential risks Dr. Frey expressed as concerns. However, Dr. Frey stated that the situation with a stepfather was not comparable. She acknowledged that it was possible that J.W. could have a good relationship with Steve and could receive the benefits of spending time with Steve’s extended family. Dr. Frey also left open the possibility that at some time in the future it may be in J.W.’s best interests to be advised about Steve. In her report, Dr. Frey stated that “[o]nly with time and observation of and interactions with [J.W.] will it be possible to determine at what age she should be told about Steve.”

¶ 13 Steve presented the testimony of Dr. Judy Osgood, a clinical psychologist retained by him to review Dr. Frey’s report. Dr. Osgood reviewed the report and interviewed Steve in May 2011. Dr. Osgood testified that she believed that J.W. and Steve had spent a significant amount of time together and that it would be detrimental for J.W. to miss out on contact with Steve and his extended family, who showed J.W. love and affection. Dr. Osgood believed it was in J.W.’s best interests to resume contact with her biological father. In her opinion, Steve did not present any risk factors which would create any danger to J.W.

¶ 14 Dr. Osgood stated that, based upon the fact that J.W. was told Steve was her biological father, she believed that J.W. would question why he had now disappeared out of her life. It was her opinion that if J.W. could at least maintain a stable relationship with her biological father, that could be a constant in her life, where there had been a lot of inconsistency and instability. Dr. Osgood recommended that both J.W. and Steve meet with a counselor to assist J.W. in understanding that she was not going to lose her relationship with Jason, and believed that there could be a gradual progression of contact with Steve.

¶ 15 Dr. Osgood was critical of Dr. Frey for failing to observe J.W. and Steve together and believed that this interaction was a significant missing piece of Dr. Frey’s evaluation. She did not agree that merely because J.W. did not mention Steve in the session with Dr. Frey that there was no bond between them. It was Dr. Osgood’s opinion that the testing reflected the people that were currently in J.W.’s life, given the no-contact order, but did not mean that there was not a bond between them at one time, or that J.W. did not know her biological father. She believed it would be shortsighted to conclude that there was no bond. She found it significant that, although Steve was not allowed to continue contact with his daughter due to the court order, Steve’s sister continued to provide child care to J.W. until March 2010, when J.W. moved to Danville. Dr. Osgood acknowledged that she did not know what J.W. currently understood about her relationship to Steve.

¶ 16 Dr. Osgood explained that she was not retained to engage in a best-interests visitation evaluation. Rather, she characterized her role as providing a psychological report on Steve and providing an opinion as to his “position and credibility” in requesting visitation with J.W. She was not provided with the GAL’s report and did not have an opportunity to interview or evaluate J.W. She would have liked to have observed J.W. interact with Steve, but believed that the no-contact order prohibited her from observing them together. She further stated that she was not requested by counsel to evaluate them together.

¶ 17 Steve testified that he was employed with the railroad and resided in Potomac, Illinois, with his father. He has no other children and is not married. He has three sisters, who are all married with children. Upon finding out that J.W. was his biological child, he and his extended family were introduced to J.W. and engaged in many activities with her during the period from Thanksgiving of 2008 until January of 2009, when the court prohibited Amy from promoting a relationship between him and J.W. He introduced several photographs of their time together. Steve stated that he recognized that J.W. had many people in her life that loved her. He did not want to take away Jason’s right to visitation or disturb the relationship J.W. had developed with Jason and with her current stepfather, Joe. Steve testified that he wanted to be a part of J.W.’s life, to get to know her, to watch her grow up, to teach her how to do certain things, and be there to support her. He further testified that he had provided financial support for J.W.’s care.

¶ 18 Stephanie Bishop, Steve’s sister, testified that she started babysitting for J.W. after school in December 2008, when J.W. moved to Potomac and continued to provide child care until March 2010, when J.W. moved to Danville. Bishop and her sisters’ families were originally introduced to J.W. as Amy’s friends, and then, after Christmas 2008, they were referred to by J.W. as aunts and cousins and engaged in several activities together. Stephanie heard J.W. refer to Steve as “daddy” on many occasions.

¶ 19 Clarendin McCarty was J.W.’s first-grade teacher while she lived in Potomac from December 2008 until May 2009. McCarty knew Steve from high school and was friends with one of Steve’s sisters. McCarty testified that J.W. was very enthusiastic, academically a good student, and good with transitions. McCarty did not observe any anger or depression. J.W. spoke about two dads, “daddy Steve” and “daddy Jason,” and referred to Steve as her “real dad.” In February 2009, Steve came to a Valentine’s Day party at the school. Steve’s two nephews were also in the same class as J.W. at the school.

¶ 20 After hearing the evidence, the trial court allowed the GAL an opportunity to comment on whether the evidence presented at the hearing had changed his recommendations previously set forth in his report filed in June 2009. The report was admitted into evidence at the hearing. Therein, the GAL indicated that he met with J.W. in June 2009. At that time, he expressed concern with regard to all of the changes in J.W.’s life, including the divorce, her mother’s remarriage to Joe, being taken abruptly out of her school, and being removed from her home and placed with a new set of children in a new school. The GAL noted that during the meeting with J.W. in June 2009, J.W. did not include Steve as someone in her family, when given an opportunity to tell him about her family. When asked about what was new in her life or if there were any surprises, J.W. did not mention Steve in her life. When asked about her babysitter, if the babysitter had any brothers, and if Steve was the babysitter’s brother, J.W. responded that Steve was the babysitter’s friend and her mother’s friend.

¶ 21 The GAL further found that J.W. had a very strong bond with Jason. The GAL did not believe that Steve posed any serious endangerment to J.W., but was concerned that introducing him into J.W.’s life could detrimentally impact her stability. He recommended that it was not in J.W.’s best interests to be introduced to Steve at this stage in her life. However, if the court were to order visitation, he believed it should be gradual and with extensive counseling. At the hearing, he acknowledged that his opinions were based upon his perspective, without having a degree in psychology. He essentially deferred to the opinions and recommendations made by Dr. Frey, but felt even stronger about his recommendation after hearing Dr. Frey’s testimony.

¶ 22 Amy did not testify at the hearing.

¶ 23 The trial court determined that based upon this court’s precedent, Steve had the burden of proving that visitation would be in J.W.’s best interests by a preponderance of the evidence. The court applied the “best interests” factors as set forth in section 602 of the Marriage Act (750 ILCS 5/602 (West 2010)). Specifically, the court found the following factors applicable to the circumstances: the wishes of the child’s parent or parents as to custody; the interaction and interrelationship of the child with the parent or parents, siblings, and any other person who may significantly affect the child’s best interests; the child’s adjustment to home, school, and the community; and the mental and physical health of everyone involved.

¶ 24 The trial court considered that Steve sincerely sought to establish a close parent-child relationship and desired visitation. The court indicated that Amy’s desire was unclear, having taken conflicting positions. At the time of the GAL report, she seemed desirous of visitation, but at the time of trial, she did not support Steve’s efforts to obtain visitation. The court also noted Jason’s opposition to Steve’s visitation with J.W.

¶ 25 With respect to the experts, the court found Dr. Frey’s opinions more persuasive than those of Dr. Osgood. The court noted that Dr. Frey’s observations of J.W. did not support an existing close relationship between Steve and J.W. and that Dr. Frey’s explanations regarding J.W.’s inability to process Steve’s relationship to her and the increased risk it posed were credible. The court further found Dr. Osgood’s opinions not persuasive because she did not perform any independent testing of J.W. and relied instead upon her impressions related by Steve of a close and loving relationship.

¶ 26 The court indicated that the most weight was given to what J.W. perceived at the time of her evaluation. The court found that based upon Dr. Frey’s testing and the GAL interview, J.W. did not understand Steve to be her father. She identified Jason as her father because of their long-standing loving relationship. The court noted that Steve had no regular contact with J.W. since January 2009 and his involvement was limited to a five—or six-week period of time, where much of that time he was thought to be a family friend. The court was concerned about the increased risk of harm if the court disregarded J.W.’s current lack of understanding of the situation. Based on these findings, the court held that it was not in J.W.’s best interests for Steve to be introduced or reintroduced into her life at this time.

¶ 27 In ruling, the court also considered Steve’s argument that under section 602(c) of the Marriage Act there is a presumption that “the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child.” 750 ILCS 5/602(c) (West 2010). The court found that the presumption was not relevant to the facts and circumstances presented here, and that even if the presumption applied, it was rebutted by Dr. Frey’s testimony that Steve’s involvement was not in J.W.’s best interests at this time.

¶ 28 The court denied Steve’s petition for visitation, and ordered that all parties and their families not promote the existence of a parental relationship between Steve and J.W. The court additionally ordered that J.W. be evaluated annually “to determine [her] understanding of the identification of her father.” The order provided that if during the annual evaluation, J.W. demonstrates “an understanding that [Steve] is her father,” all parties shall be notified within 10 days. Issues with regard to child support were reserved.

¶ 29 Thereafter, the trial court entered an agreed order on Amy’s petition to set child support. The parties agreed that Steve would pay Amy child support for J.W. in the amount of $300 per month in addition to an arrearage in child support of $4,500. The order noted that although the amount deviated from the guidelines, it was reasonable and appropriate under the unique circumstances of this case because Jason also pays child support to Amy for J.W.

¶ 30 On appeal, Steve argued that the trial court erred in holding that the burden of proof is on the noncustodial parent seeking visitation under the Parentage Act to establish that visitation is in the best interests of the minor child. He maintained that as a biological parent he enjoyed a presumption, entitling him to visitation under section 607(a) of the Marriage Act absent evidence of serious endangerment to the child. 2012 IL App (4th) 120212, ¶¶ 35–36, 362 Ill.Dec. 111972 N.E.2d 826. The appellate court considered the conflicting appellate court case law on the appropriate standard, including its own prior Fourth District case of Department of Public Aid ex rel. Gagnon–Dix v. Gagnon, 288 Ill.App.3d 424, 428223 Ill.Dec. 776680 N.E.2d 509 (1997), which rejected the application of section 607(a) as the relevant standard under the Parentage Act. Id. ¶ 34. The appellate court then noted that other appellate court decisions had disagreed with Gagnon. Relying on those cases, the court concluded, without engaging in any statutory construction of its own, that section 607(a) of the Marriage Act is the relevant standard to be considered when determining visitation rights in cases brought under the Parentage Act or the Marriage Act. Id. ¶¶ 35–39.

¶ 31 However, in reaching its conclusion, the appellate court emphasized the factual circumstances of this case, highlighting that there was “no delay on Steve’s part in attempting to establish a healthy, meaningful relationship with J.W.” Id. ¶ 41. The court stated, “[w]e are confident trial courts can sort out those cases such as Gagnon, where a biological father sought visitation after no contact for eight years, and [cases] where a presumed father eagerly sought continued visitation and contact with the son born during his marriage to the child’s mother.” Id. ¶ 39. Thus, the court seemed to suggest that whether the presumption in section 607(a) is relevant under the Parentage Act is not a question of law but, rather, depends upon the facts and circumstances of the case.

¶ 32 The appellate court held that Steve was entitled to reasonable visitation rights unless visitation would seriously endanger J.W.’s physical, mental, moral, or emotional health. Id. ¶ 40. The court found that the evidence did not support a finding of serious endangerment. Accordingly, it reversed and remanded with directions for the trial court to create and implement a reasonable visitation plan. Id. ¶ 52.

¶ 33 We subsequently allowed Jason’s petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010). Additionally, we allowed the amicus curiae briefs of the Cook County public guardian, the Lambda Legal Defense and Education Fund, Inc., and the Illinois Department of Healthcare and Family Services. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010).

¶ 34 ANALYSIS

¶ 35 I

¶ 36 The question presented by this appeal is a narrow one: What is the proper standard to be applied when a biological father seeks visitation privileges after a determination of parentage under section 14(a)(1) of the Parentage Act (750 ILCS 45/14(a)(1) (West 2010)). This question requires us to construe section 14(a)(1) and its interrelationship to the provisions in the Marriage Act referring to a noncustodial parent’s entitlement to reasonable visitation under section 607(a) (750 ILCS 5/607(a) (West 2010)).

 At the outset, we note that Jason has never challenged Steve’s standing to establish the existence of a parent-child relationship, and no attempt has been made or order entered disavowing Jason’s parental rights either under the Parentage Act or under the judgment of dissolution. Accordingly, for purposes of this appeal, we make no determination with regard to either party’s standing, or as to Jason’s continued legal status as a parent. Those issues are not presently before this court.

¶ 37 Familiar principles of statutory construction guide our analysis. Our primary objective is to give effect to the legislature’s intent. In re C.C., 2011 IL 111795, ¶ 30, 355 Ill.Dec. 25959 N.E.2d 53. In determining that intent, we may properly consider the statutory language, the reason and necessity for the law, the evils to be remedied and the statute’s ultimate purpose and objective. Carter v. SSC Odin Operating Co., 2012 IL 113204, ¶ 37, 364 Ill.Dec. 66976 N.E.2d 344. When construing the language of the statute, we must view the statute as a whole, construing words and phrases in light of other relevant statutory provisions and not in isolation. Id.Our review is de novo. Mashal v. City of Chicago, 2012 IL 112341, ¶ 21, 367 Ill.Dec. 223981 N.E.2d 951.

¶ 38 The Parentage Act establishes a comprehensive scheme for determining paternity and for establishing custody, visitation, and child support obligations in connection with a judgment of paternity. Under the Act, once paternity is established, section 14(a)(1) provides in pertinent part that the judgment “ maycontain provisions concerning * * * visitation privileges with the child.” (Emphasis added.) 750 ILCS 45/14(a)(1) (West 2010). Decisions regarding visitation

“shall [be] determine[d] in accordance with the relevant factors set forth in the Illinois Marriage and Dissolution of Marriage Act [750 ILCS 5/101 et seq.] and any other applicable law of Illinois, to guide the court in a finding in the best interests of the child. In determining custody, joint custody, removal, or visitation, the court shall apply the relevant standards of the Illinois Marriage and Dissolution of Marriage Act, including Section 609.” 750 ILCS 45/14(a)(1) (West 2010).
Thus, section 14(a)(1) expressly provides that an award of visitation is discretionary, directs the trial court to make a “finding in the best interests of the child,” and to apply the “relevant standards” of the Marriage Act.

¶ 39 We have previously held that under the express terms of the Parentage Act, a judgment of paternity does not automatically entitle a biological father to visitation. Rather, the “privilege” of visitation is subordinate to the best interests of the child. J.S.A. v. M.H., 224 Ill.2d 182, 211309 Ill.Dec. 6863 N.E.2d 236 (2007)(“[T]he right of a biological father to establish paternity to a child born to a marriage does not also mean that the legal rights flowing from the parent and child relationship are automatically conferred.”); In re Parentage of John M., 212 Ill.2d 253, 264–65, 288 Ill.Dec. 142817 N.E.2d 500 (2004).

¶ 40 In J.S.A., this court reiterated that “the Parentage Act specifically provides in section 14(a)(1) that decisions regarding the involvement of the biological father in the life of the child are to be governed solely by what is in the child’s best interests.” J.S.A., 224 Ill.2d at 211309 Ill.Dec. 6863 N.E.2d 236. We explained that “ ‘even though paternity may be established upon the filing of a petition pursuant to section 7(a), any parental rights of the biological father, such as the right to have custody of, or visitation with, the child, shall not be granted unless it is in the child’s best interest.” ’ Id. at 212, 309 Ill.Dec. 6863 N.E.2d 236 (quoting Parentage of John M., 212 Ill.2d at 265288 Ill.Dec. 142817 N.E.2d 500). Accordingly, under the statutory scheme, after a declaration of paternity, the court is “required to conduct a best-interests hearing to determine whether, and to what extent, the natural father may exercise any rights with respect to the child.” Id. We further held that “both parties may introduce evidence either in support of, or in opposition to, the natural father being granted parental rights to his biological child.” Id.

¶ 41 As this court has long emphasized, the best interests of the child is the “guiding star” by which all matters affecting children must be decided. Nye v. Nye,411 Ill. 408, 415105 N.E.2d 300 (1952). Nevertheless, we have not specifically been called upon to consider which provisions of the Marriage Act are “relevant” to guide the court in a finding in the best interests of the child in the context of a paternity action where visitation is at issue.

¶ 42 Initially, we observe that our appellate court has previously ruled inconsistently on this issue. Some cases have applied the best-interests provisions set forth in section 602 of the Marriage Act, which lists several nonexclusive factors the court is to consider and weigh in making any custody determination. 750 ILCS 5/602(a)(West 2010). Other cases have applied the visitation provisions of section 607(a), which presumes visitation is in the best interests of the child absent evidence of serious endangerment. Compare Wittendorf v. Worthington,2012 IL App (4th) 120525, 366 Ill.Dec. 661, 980 N.E.2d 754;Department of Public Aid ex rel. Gagnon–Dix v. Gagnon, 288 Ill.App.3d 424, 428223 Ill.Dec. 776680 N.E.2d 509 (4th Dist.1997)(finding that the reference in section 14(a)(1) of the Parentage Act to the Marriage Act was a reference to section 602 and did not incorporate section 607(a)), with Jines v. Jurich, 335 Ill.App.3d 1156, 1162270 Ill.Dec. 572783 N.E.2d 147(5th Dist.2002)(the plain language of the Parentage Act requires courts to use the standards for visitation outlined in section 607(a) of the Marriage Act); In re Parentage of Melton, 314 Ill.App.3d 476, 480247 Ill.Dec. 295732 N.E.2d 11 (1st Dist.2000)(“the factors for determining visitation privileges in section 607(a) * * * guide visitation determinations under the Parentage Act”); Wenzelman v. Bennett,322 Ill.App.3d 262, 265255 Ill.Dec. 196748 N.E.2d 1266 (2001) (where a prior parent-child relationship existed, a presumption existed in favor of the biological parent for visitation and parent was not required to prove visitation was in the child’s best interests).

¶ 43 Steve maintains that the appellate court correctly concluded that section 14(a)(1) incorporates the visitation provisions of section 607(a) of the Marriage Act as the “relevant” standard in considering visitation privileges arising out of a paternity action. Section 607(a) of the Marriage Act provides:

“[a] parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health.” 750 ILCS 5/607(a) (West 2008).
Thus, under section 607(a) of the Marriage Act, the General Assembly has established a presumption that it is in the best interests of the child to have reasonable visitation with a noncustodial parent, and the burden is on the custodial parent to prove that visitation would seriously endanger the child. In re Marriage of Fields, 283 Ill.App.3d 894, 905219 Ill.Dec. 420671 N.E.2d 85 (1996). The “serious endangerment” standard has been described as a high burden that is “onerous, stringent, and rigorous.” In re Marriage of Diehl, 221 Ill.App.3d 410, 429164 Ill.Dec. 73582 N.E.2d 281 (1991); see, e.g., In re Marriage of Pleasant, 256 Ill.App.3d 742, 751195 Ill.Dec. 169628 N.E.2d 633 (1993) (finding that the standard is “an extraordinary” one and “is more stringent than the best interests standard”); In re Marriage of Lombaer, 200 Ill.App.3d 712, 724146 Ill.Dec. 425558 N.E.2d 388 (1990) (evidence of mother’s hospitalization for mental condition and failure to take psychiatric medication was insufficient to meet the onerous standard of serious endangerment to the children).

¶ 44 Although section 607(a) speaks to visitation, the Parentage Act does not expressly refer to section 607. Thus, to understand whether this presumption and the “serious endangerment” standard are “relevant” to a best-interests hearing on visitation under section 14(a)(1) of the Parentage Act, we consider the legislative purpose for the presumption as well as the high burden established to overcome it.

¶ 45 When the General Assembly enacted the Marriage Act in 1977, it substantially adopted the Uniform Marriage and Divorce Act (Uniform Marriage Act). See Unif. Marriage and Divorce Act § 101, 9A U.L.A. 171 (1998); Ill.Ann.Stat., ch. 40, ¶ 101, Historical & Practice Notes, at 6–7 (Smith–Hurd 1980) (referencing the Uniform Marriage Act). Section 607(a) of the Marriage Act is derived from section 407 of the Uniform Marriage Act. Ill.Ann.Stat., ch. 40, ¶ 607, Historical Note, at 70 (Smith–Hurd 1980). The comment to this section in the Uniform Marriage Act explains why the “serious endangerment” language was chosen:

“Although the standard is necessarily somewhat vague, it was deliberately chosen to indicate its stringency when compared to the ‘best interest’ standard traditionally applied to this problem. The special standard was chosen to prevent the denial of visitation to the noncustodial parent on the basis of moral judgments about parental behavior which have no relevance to the parent’s interest in or capacity to maintain a close and benign relationship to the child. The same onerous standard is applicable when the custodial parent tries to have the noncustodial parent’s visitation privileges restricted or eliminated.” Unif. Marriage and Divorce Act § 407, 9A U.L.A. 398–99, cmt. (1998).
Thus, the onerous standard derives from the general principle that in matters of visitation, as in custody, the primary concern is the welfare of the child. In a postdissolution setting, the legislature has presumed it to be in the child’s best interests to maintain a continued, meaningful relationship with both parents after the dissolution. See also 750 ILCS 5/102(2) (West 2010) (stating that one of the underlying purposes of the Act is to safeguard family relationships); In re Marriage of Seitzinger, 333 Ill.App.3d 103, 112266 Ill.Dec. 720775 N.E.2d 282 (2002)(noting that the best interests of the child is normally fostered by continuing a healthy and close relationship with the noncustodial parent); Pleasant, 256 Ill.App.3d at 751195 Ill.Dec. 169628 N.E.2d 633 (“[t]here is a strong public policy to preserve the relationship between a parent and child”).

¶ 46 This general policy is also reflected in section 607(c) of the Marriage Act by limiting the court’s power to restrict visitation rights in those circumstances. 750 ILCS 5/607(c) (West 2010); see also Ill.Ann.Stat., ch. 40, ¶ 607, Historical & Practice Notes, at 70 (Smith–Hurd 1980) (“The public policy of Illinois maintains that it is beneficial for a child to have a healthy and close relationship with both parents even after divorce [citations] and that visitation privileges should not be awarded or withheld as a punishment or reward to either parent.”).

¶ 47 As a result, the presumptive right to visitation in section 607(a) of the Marriage Act, drafted over 30 years ago, is in keeping with the traditional model of a family paradigm, where each parent has presumably exercised custody over the child and one parent will now be granted custody and the other reasonable visitation. Such a presumption reflects a legislative recognition of the need to protect the preexisting parent-child bond that presumably developed prior to the divorce or separation of two parents. Thus, to overcome the presumption that visitation is in the best interests of the child in custody proceedings filed by a parent under the Marriage Act, the General Assembly sought a higher, more stringent burden on the custodial parent than merely the traditional best-interests factors.

¶ 48 In contrast, in actions under the Parentage Act, paternity is at issue and must first be proved. At the time visitation is sought, a relationship with the child may not have ever been forged, especially where paternity is established long after birth. See 750 ILCS 45/8(a)(1) (West 2010) (recognizing that the statute of limitations for raising paternity is two years after the minor reaches the age of majority). Additionally, the paradigm of preserving or continuing the parent-child relationship of a traditional intact family unit does not accurately reflect many family situations. See, e.g., Siobhan Morrissey, The New Neighbors: Domestic Relations Law Struggles to Catch Up With Changes in Family Life, 88 ABA J. 37, 38 (March 2002) (“The domestic unit in early 21st century America [has become] a crazy quilt of one-parent households, blended families, singles, unmarried partnerships and same-sex unions.”). Thus, in parentage actions, issues of visitation may arise under situations where the court may be asked to balance several competing interests related to the child.

¶ 49 As this case illustrates, there are many factors that may be relevant to whether visitation is in a child’s best interests in the context of a paternity action. An alleged father seeking to determine his paternity and subsequent entitlement to visitation privileges may be confronted with an already existing meaningful relationship between a presumed father and a child, where the biological father has had no previous contact with the child. Alternatively, the alleged father may have been living with the child prior to a determination of paternity, or the marriage between the child’s mother and a presumed father may have disintegrated so that there is not necessarily an “intact family.” Additionally, there may be scenarios where a biological father may be the only person in the child’s life who can effectuate the strong public policy of providing for the physical, mental, emotional, and monetary support of the child. 750 ILCS 45/1.1 (West 2010).

¶ 50 Given the myriad relationships that may evolve outside the parameters of a dissolution proceeding, the General Assembly could not have predetermined with such broad strokes that the presumptive entitlement to reasonable visitation absent “serious endangerment” is in a child’s best interests in every parentage action, without giving the court the flexibility to consider the facts and circumstances of each case. Rather, the plain language of section 14(a)(1), giving the court discretion in awarding visitation and requiring “a finding in the best interests of the child,” contemplates a hearing where the court has the flexibility to consider whether, and to what extent, the biological father may now exercise visitation rights with respect to the child. (Emphasis added.) 750 ILCS 45/14(a)(1)(West 2010); J.S.A., 224 Ill.2d at 212309 Ill.Dec. 6863 N.E.2d 236. Accordingly, the “serious endangerment” standard under section 607(a) would undercut the court’s statutory authority under section 14(a)(1) of the Parentage Act to deliberate and weigh factors relevant to making a “finding in the best interests of the child.”

¶ 51 The provisions of section 602 of the Marriage Act are broader and allow the court to take into account the facts and circumstances of each case. Section 602(a) sets forth a nonexclusive list of best-interests factors that the trial court shall consider in making determinations related to custody. 750 ILCS 5/602(a) (West 2010). We have previously described visitation as a form of custody. In re M.M., 156 Ill.2d 53, 62189 Ill.Dec. 1619 N.E.2d 702 (1993). Those relevant factors include: (1) the wishes of the child’s parent(s); (2) the wishes of the child; (3) the interaction and interrelationship of the child with the parent(s), siblings, and any other person who may significantly affect the child’s best interests; (4) the child’s adjustment to his or her home, school, and community; (5) the mental and physical health of the involved individuals; (6) the potential for violence or threat of violence; (7) the occurrence of ongoing or repeated abuse; (8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child; (9) whether one of the parents is a sex offender; and (10) military obligations. 750 ILCS 5/602(a) (West 2010). These factors best promote the legislative intent under the Parentage Act given the nature of the proceedings.

¶ 52 We recognize, as Steve points out, that section 602(c) incorporates the policy of the Marriage Act that “the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child.” 750 ILCS 5/602(c) (West 2010). In that regard, we note that the trial court erred in stating that this presumption was not relevant to the best-interests hearing. Rather, the presumption is indeed relevant, but unlike the onerous “serious endangerment” standard in section 607(a), it may be overcome if, after considering the relevant factors, the court finds it is not in the child’s best interests to grant visitation privileges.

¶ 53 Accordingly, for the foregoing reasons, it was error for the appellate court to apply the “serious endangerment” standard of section 607(a). We hold that in a proceeding to determine visitation privileges under section 14(a)(1) of the Parentage Act, the initial burden is on the petitioner to show that visitation will be in the best interests of the child pursuant to the provisions set forth in section 602 of the Marriage Act. To the extent that Wenzelman, Jines and In re Parentage of Melton contradict our conclusion, they are expressly overruled.

¶ 54 II

¶ 55 We next consider whether the trial court erred in determining that it was not in J.W.’s best interests to have visitation with Steve at this time. A

 trial court’s determination as to the best interests of the child will not be reversed on appeal unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. In re Marriage of Eckert, 119 Ill.2d 316, 328, 116 Ill.Dec. 220, 518 N.E.2d 1041 (1988). A judgment is against the manifest weight of the evidence only when the opposite conclusion is clearly apparent. In re A.P.,2012 IL 113875, ¶ 17, 367 Ill.Dec. 11981 N.E.2d 336.

¶ 56 Dr. Frey, the court-appointed expert, and Dr. Osgood, Steve’s retained expert, disputed J.W.’s cognitive understanding of her relationship to Steve and its implications for her best interests. They disagreed about the risks that introducing or reintroducing Steve into J.W.’s life would have on her emotional well-being and stability and the risk to her bond with Jason, whom she has known as her father for her entire life.

¶ 57 The testimony of Dr. Frey and the GAL supports the trial court’s conclusion that visitation was not in the best interests of J.W. at this stage in her life. Based upon various testing procedures, and the evaluation and interviews with J.W., it was their opinion that, despite the fact that Steve and J.W. had spent some time together, at this stage in her cognitive development, J.W. did not understand Steve to be her father and was unable to process a relationship with him. Dr. Frey believed that disrupting her life by introducing Steve as her father at this stage, given her current chaotic life circumstances, would potentially increase her risk of instability, disrupt her emotional well-being, and could be detrimental to her long-standing relationship with Jason and her mother.

¶ 58 Dr. Osgood disagreed with Dr. Frey’s premise and believed that Steve and his family had developed a close and meaningful bond with J.W. and believed that it would be detrimental to now disrupt that relationship. Dr. Osgood was critical of Dr. Frey’s failure to observe Steve with J.W. Nevertheless, the trial court found that Dr. Osgood’s opinions were not persuasive where she did not interview J.W. to understand her perception of her relationship with Steve, did not perform any independent testing, and instead relied solely on her review of Dr. Frey’s report and an interview with Steve. Dr. Osgood did not refute any of Dr. Frey’s testing methods.

¶ 59 The court considered that Steve was genuinely interested in having a relationship with J.W., and considered the experiences Steve had with J.W. in late 2008 and early 2009, which were supported by his sister’s testimony and other evidence. Nevertheless, after weighing the relevant best-interests factors, the court ultimately found any presumption that it was in J.W.’s best interests to promote a parent-child relationship was rebutted by the evidence. In making its findings, the court relied upon the actions and behavior of J.W. as recounted by Dr. Frey and the GAL, and their concern for increased risk of harm to her at this stage in her concrete cognitive development. We cannot say that the trial court’s ruling was clearly against the manifest weight of the evidence.

¶ 60 We note, and as Jason’s counsel points out, the trial court’s order and the statutory framework do not foreclose the possibility that in the future it may be in J.W.’s best interests to have a meaningful relationship with her biological father and to reintroduce him into her life. Steve has shown a committed interest in developing a relationship with J.W. and has adhered to his parental responsibilities of support. The no-contact order in no way reflects a lack of desire on Steve’s part to be a part of J.W.’s life. Nor should the no-contact order prohibit Steve in any future proceeding from having his own expert evaluate J.W. Rather, as reflected by the court’s annual evaluation requirement, the denial of visitation was focused on J.W. and her circumstances at her stage of development at the time of the hearing. The parties and the court acknowledged that J.W. is a very resilient, strong, adaptable child, despiteall of the chaos in her life. As she grows and develops, as Dr. Frey indicated, future evaluation of J.W. may suggest a different outcome.

¶ 61 CONCLUSION

¶ 62 For all of the foregoing reasons, we hold that the trial court correctly concluded that in a proceeding to entertain a petition for visitation privileges under section 14(a)(1) of the Parentage Act, the initial burden is on the petitioner to show that visitation will be in the best interests of the child pursuant to the provisions set forth in section 602 of the Marriage Act. Additionally, we conclude that the trial court’s ruling, that it was not in J.W.’s best interests to award visitation privileges at this stage, was not against the manifest weight of the evidence. Accordingly, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

¶ 63 Appellate court judgment reversed.

¶ 64 Circuit court judgment affirmed.

Chief Justice KILBRIDE and Justices FREEMAN, THOMAS, GARMAN, KARMEIER, and BURKE concurred in the judgment and opinion.

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From FB: Judge actually awards sanctions against lying DCFS workers who lied to remove kids and place them in abusive foster care system

http://www.fox5atlanta.com/news/judge-orders-largest-sanctions-ever-against-cps-for-lying-to-remove-kids?fbclid=IwAR2UJF6jlu3o3qJ9_VdatNVk-y6frmxXq_gJpGFRdR6O9p4N4I9G_iYde-4

 – “This is by far the largest sanction I’ve ever been a part of or ever heard of being imposed against CPS,” said attorney Dennis Slate.

Family Law Judge Mike Schneider says he would have made Child Protective Services pay even more but didn’t want to burden taxpayers.

The judge found CPS case worker Levar Jones and his supervisor Niesha Edwards lied in order to take Michael and Melissa Bright’s 2-year-old daughter and 5-month-old son away from them.

“And the fact that CPS still has those two people employed is disgusting,” said attorney Stephanie Proffitt.

“I think people would be really concerned if they actually sat here and listened to all of these days worth of CPS covering up the lies they told,” Slate said.

The Brights’ 2-year-old daughter ended up being abused in foster care.

“We’ve got a little girl with a black eye and basically an acidic burn in her diaper area,” Proffitt said. “She didn’t even make it to foster care until 10 or 11 o’clock at night and by the next morning all of these things had already happened to her.”

Judge Schneider ordered CPS to pay the Brights $127,000 for legal fees and other expenses for a case he said should have never been brought against them.

“I’m glad it’s over. We can just go on and be a family,” said Melissa Bright.

“We can go home free and clear without any allegations with our children,” Michael Bright said.

Judge Schneider also gave CPS until December 5 to come up with a plan to retrain almost every CPS worker in the Houston region.

“The law on removal, the process on removal, and making sure parents are told about the removal of their children,” said Slate.

“It’s an unfortunate epidemic and until someone like Judge Schneider makes CPS accountable it’s going to continue,” Proffitt said.

In a statement CPS says,” In light of today’s ruling we are reviewing our options including our right to appeal.”

But if CPS appeals and loses, the judge said the agency will have to pay all legal expenses.

From Chic.TribBN: Accts manager at Suburban financial institution stole $300k+ from elderly clients

https://www.chicagotribune.com/suburbs/ct-met-dupage-theft-sentence-st-1211-story.html

Suburban account manager who stole from elderly clients sentenced to 4 years in prison

Clifford WardDaily Southtown

A retired nurse in her 90s testified how her questions helped uncover thefts committed by a west suburban financial institution account manager who was sentenced Monday to four years in prison.

Christine Lang, 48, of Summit, was sentenced Monday on a count of felony theft in DuPage County court. The former account manager at the Trust Company of Illinois in Downers Grove, stole $328,000 from the accounts of three elderly clients and spent much of the money at riverboat casinos, DuPage County prosecutors said.

One of the victims, a woman in her 90s, testified at Lange’s sentencing hearing that she called Lange in 2016 when TCI failed to mail her quarterly statements. Lange promised to send a statement but failed to do so, the woman said. TCI finally mailed her a statement, and the woman said her account balance was down by $58,000.

“It made me sick to my stomach,” she said. She reported the issue to police, who began an investigation that led to Lange’s arrest.

Assistant State’s Atty. Lynn Cavallo said Lange spent a lot of the stolen funds on riverboat gambling. She lost more than $200,000 at one Joliet casino, authorities said.

“When she went gambling, she didn’t use her own paycheck. She spent the lifelines of three elderly people,” Cavallo told Judge Robert Miller.

Authorities say that Lange stole the money over a four-year period and made 84 illegal transfers from the accounts of the victims to her own account.

Lange, who had no previous record, tearfully apologized and said she was ashamed by her actions. She asked for probation so she could continue to help her parents, but the judge said her crime called for a prison sentence.

“You picked on the most vulnerable people in society, and you did it 84 separate times,” Miller told Lange.

Miller said Lange’s crimes were also a form of gambling – Lange gambled that the victims would die or not notice the thefts, and she gambled that she wouldn’t be caught. But Lange failed to outwit the retired nurse, Miller said. The elderly woman walked with the help of a cane and had her daughter stand by her for emotional support as she took the witness stand, testifying in a clear, sharp manner.

“You picked the wrong person. She’ll probably outlive us all,” the judge told Lange.

Miller ordered Lange to pay TCI $328,000 in restitution. The financial company reimbursed the victims of the thefts.

Clifford Ward is a freelance reporter.

Copyright © 2018, Chicago Tribune
.
Now if we can only get them to go after the corrupt lawyers and judges in probate that allow litigants to steal, there could be additional millions recovered.

From EB and AA: a Juryless court system threatens our democracy and the integrity of our US court system

From: Adequacy Assurance <adequacyassurance@yahoo.com>
Sent: Thursday, December 6, 2018 5:26 PM
To: adequacyassurance@gmail.com
Subject: ACCOUNTABILITY/ COURT-CORRUPTION / DUE PROCESS TASKFORCE—-U.S. LAW ENFORCEMENT/EDUCATORS/ PRESS: STOP THE THEFTS FROM AMERICAN CITIZENS, & ENFORCE OUR RIGHTS TO TRIAL BY JURY

U.S. Institute of Science
Adequacy Assurance-Collegiate (Constitutional) Research Group

____________________________

In Re: COURT-CORRUPTION / DUE PROCESS TASKFORCE—-U.S. LAW ENFORCEMENT/EDUCATORS/ PRESS: STOP THE THEFTS FROM AMERICAN CITIZENS, & ENFORCE OUR RIGHTS TO TRIAL BY JURY
Dear Honorable Law Enforcement Officers/ US Citizens,

I would like to bring your attention to the “Juryless Process Abuse Epidemic”, that is currently plaguing our country, and unlawfully stripping away assets from some of our most vulnerable citizens/seniors/parents/divorcees/property-owners…a situation that we have become aware of—and seen the evidence. Too often “juryless” courts are being used as a tool to racketeer/steal assets from American hard working citizens & families, and intentionally wrongly award them to probate networks including “attorneys“, “guardians”, “fiduciaries”, etc., via cooperating “probate/juryless judges”, acting in contravention to law. These racketeering uses of our court facilities, “federally and state defined felonies” (of the corruption, obstruction, grand theft/embezzlement, jury, witness, & evidence tampering, etc. varieties), are immensely adding-to/creating the civil unrest, chaos, crime & debt rates on the streets….which in turn is endangering, harming, and KILLING POLICE OFFICERS and the general citizenry alike, this very day. Just recently, Attorney General Jeff Sessions reported a 61% increase in police officers killed this very year…NOW IS THE TIME TO PROSECUTE!

I am of the great hope that you, from your position and dedication to support and defend the Constitution of the United States, and your personal stake herein, will take the necessary steps to ensure that these abuses are stopped and due process is in fact being provided and protected, including minimally:

1.Identify courts operating without juries in your area & jurisdiction, detailing those sitting without a jury in the courtroom, as well as those without sufficient jury review and oversight of “proposed findings” and litigant objections, etc.

2.Ensure that in your department, as well as on a state/federal level, that there is an adequate task force apprised and charged with identifying and prosecuting any/all illegal exploitation of juryless court facilities/functions, which would include the wrongful removals of proper grand/trial jury function and the facilitation/enabling of organized crime/wrongdoing, “court”/”attorney”/”bar” exploitation of litigants, assets, etc.; and personally ensuring that those findings are presented to the district grand jury for process, minimally

It has long been proven that Juryless Governance is a breeding ground for organized crime, racketeering, and crime in general—preventing the same being one of the main reason for the establishment of this country. As these are urgent matters that expand and exaggerate unnecessarily the crime and debt rates on our streets this very day, they are well within your authority and best interest to investigate and bring to justice. I look forward to your efforts in stopping these CRIMES & UNCONSTITUTIONAL activities, RESTORING PROPER GRAND/TRIAL JURY FUNCTION. As always, my staff and I are available to assist you in any way possible. Please stay safe as you protect our communities, and may God Bless you and the United States of America.

Sincerely,

U.S. Institute of Science
A Government/Law Studies Research Science Group
Adequacy Assurance-Collegiate (Constitutional) Research Group
Email us: AdequacyAssurance@yahoo.com

From Nasga: Taking a look at boomerang effect between hospitals and nursing homes-the profit motive

Medicare Takes Aim At Boomerang Hospitalizations Of Nursing Home Patients

Deborah Ann Favorite sits in her Los Angeles apartment last month. Favorite’s mother died after a lapse in communication about the need to resume her thyroid medication. (Heidi de Marco/KHN)

“Oh my God, we dropped her!” Sandra Snipes said she heard the nursing home aides yell as she fell to the floor. She landed on her right side where her hip had recently been replaced.

She cried out in pain. A hospital clinician later discovered her hip was dislocated.

That was not the only injury Snipes, then 61, said she suffered in 2011 at Richmond Pines Healthcare & Rehabilitation Center in Hamlet, N.C. Nurses allegedly had been injecting her twice a day with a potent blood thinner despite written instructions to stop.

“She said, ‘I just feel so tired,’” her daughter, Laura Clark, said in an interview. “The nurses were saying she’s depressed and wasn’t doing her exercises. I said no, something is wrong.”

Her children also discovered that Snipes’ surgical wound had become infected and infested with insects. Just 11 days after she arrived at the nursing home to heal from her hip surgery, she was back in the hospital.

The fall and these other alleged lapses in care led Clark and the family to file a lawsuit against the nursing home. Richmond Pines declined to discuss the case beyond saying it disputed the allegations at the time. The home agreed in 2017 to pay Snipes’ family $1.4 million to settle their lawsuit.

While the confluence of complications in Snipes’ case was extreme, return trips from nursing homes to hospitals are far from unusual.

With hospitals pushing patients out the door earlier, nursing homes are deluged with increasingly frail patients. But many homes, with their sometimes-skeletal medical staffing, often fail to handle post-hospital complications — or create new problems by not heeding or receiving accurate hospital and physician instructions.

Patients, caught in the middle, may suffer. One in 5 Medicare patients sent from the hospital to a nursing home boomerang back within 30 days, often for potentially preventable conditions such as dehydration, infections and medication errors, federal records show. Such rehospitalizations occur 27 percent more frequently than for the Medicare population at large.

Nursing homes have been unintentionally rewarded by decades of colliding government payment policies, which gave both hospitals and nursing homes financial incentives for the transfers. That has left the most vulnerable patients often ping-ponging between institutions, wreaking havoc with patients’ care.

(

“There’s this saying in nursing homes, and it’s really unfortunate: ‘When in doubt, ship them out,’” said David Grabowski, a professor of health care policy at Harvard Medical School. “It’s a short-run, cost-minimizing strategy, but it ends up costing the system and the individual a lot more.”

In recent years, the government has begun to tackle the problem. In 2013, Medicare began fining hospitals for high readmission rates in an attempt to curtail premature discharges and to encourage hospitals to refer patients to nursing homes with good track records.

Starting this October, the government will address the other side of the equation, giving nursing homes bonuses or penalties based on their Medicare rehospitalization rates. The goal is to accelerate early signs of progress: The rate of potentially avoidable readmissions dropped to 10.8 percent in 2016 from 12.4 percent in 2011, according to Congress’ Medicare Payment Advisory Commission.

“We’re better, but not well,” Grabowski said. “There’s still a high rate of inappropriate readmissions.”

The revolving door is an unintended byproduct of long-standing payment policies. Medicare pays hospitals a set rate to care for a patient depending on the average time it takes to treat a patient with a given diagnosis. That means that hospitals effectively profit by earlier discharge and lose money by keeping patients longer, even though an elderly patient may require a few extra days.

But nursing homes have to hospitalize patients. For one thing, keeping patients out of hospitals requires frequent examinations and speedy laboratory tests — all of which add costs to nursing homes.

Plus, most nursing home residents are covered by Medicaid, the state-federal program for the poor that is usually the lowest-paying form of insurance. If a nursing home sends a Medicaid resident to the hospital, she usually returns with up to 100 days covered by Medicare, which pays more. On top of all that, in some states, Medicaid pays a “bed-hold” fee when a patient is hospitalized.

None of this is good for the patients. Nursing home residents often return from the hospital more confused or with a new infection, said Dr. David Gifford, a senior vice president of quality and regulatory affairs at the American Health Care Association, a nursing home trade group.

“And they never quite get back to normal,” he said.

‘She Looked Like A Wet Washcloth’

Communication lapses between physicians and nursing homes is one recurring cause of rehospitalizations. Elaine Essa had been taking thyroid medication ever since that gland was removed when she was a teenager. Essa, 82, was living at a nursing home in Lancaster, Calif., in 2013 when a bout of pneumonia sent her to the hospital.

When she returned to the nursing home — now named Wellsprings Post-Acute Care Center — her doctor omitted a crucial instruction from her admission order: to resume the thyroid medication, according to a lawsuit filed by her family. The nursing home telephoned Essa’s doctor to order the medication, but he never called them back, the suit said.

Without the medication, Essa’s appetite diminished, her weight increased and her energy vanished — all indications of a thyroid imbalance, said the family’s attorney, Ben Yeroushalmi, discussing the lawsuit. Her doctors from Garrison Family Medical Group never visited her, sending instead their nurse practitioner. He, like the nursing home employees, did not grasp the cause of her decline, although her thyroid condition was prominently noted in her medical records, the lawsuit said.

Three months after her return from the hospital, “she looked like a wet washcloth. She had no color in her face,” said Donna Jo Duncan, a daughter, in a deposition. Duncan said she demanded the home’s nurses check her mother’s blood pressure. When they did, a supervisor ran over and said, “Call an ambulance right away,” Duncan said in the deposition.

At the hospital, a physician said tests showed “zero” thyroid hormone levels, Deborah Ann Favorite, a daughter, recalled in an interview. She testified in her deposition that the doctor told her, “I can’t believe that this woman is still alive.”

Essa died the next month. The nursing home and the medical practice settled the case for confidential amounts. Cynthia Schein, an attorney for the home, declined to discuss the case beyond saying it was “settled to everyone’s satisfaction.” The suit is still ongoing against one other doctor, who did not respond to requests for comment.

Dangers In Discouraging Hospitalization

Out of the nation’s 15,630 nursing homes, one-fifth send 25 percent or more of their patients back to the hospital, according to a Kaiser Health News analysis of data on Medicare’s Nursing Home Compare website. On the other end of the spectrum, the fifth of homes with the lowest readmission rates return fewer than 17 percent of residents to the hospital.

Many health policy experts say that spread shows how much improvement is possible. But patient advocates fear the campaign against hospitalizing nursing home patients may backfire, especially when Medicare begins linking readmission rates to its payments.

“We’re always worried the bad nursing homes are going to get the message ‘Don’t send anyone to the hospital,’” said Tony Chicotel, a staff attorney at California Advocates for Nursing Home Reform, a nonprofit based in San Francisco.

Richmond Pines, where Sandra Snipes stayed, has a higher-than-average rehospitalization rate of 25 percent, according to federal records. But the family’s lawyer, Kyle Nutt, said the lawsuit claimed the nurses initially resisted sending Snipes back, insisting she was “just drowsy.”

After Snipes was rehospitalized, her blood thinner was discontinued, her hip was reset, and she was discharged to a different nursing home, according to the family’s lawsuit. But her hospital trips were not over: When she showed signs of recurrent infection, the second home sent her to yet another hospital, the lawsuit alleged.

Ultimately, the lawsuit claimed that doctors removed her prosthetic hip and more than a liter of infected blood clots and tissues. Nutt said if Richmond Pines’ nurses had “caught the over-administration of the blood thinner right off the bat, we don’t think any of this would have happened.”

Snipes returned home but was never able to walk again, according to the lawsuit. Her husband, William, cared for her until she died in 2015, her daughter, Clark, said.

“She didn’t want to go back into the nursing home,” Clark said. “She was terrified.”

KHN’s coverage of these topics is supported by John A. Hartford Foundation,Gordon and Betty Moore Foundation and The SCAN Foundation

 

From FB: Tori Harper has kids removed by DFS for being “mentally unstable” without proof and without any abuse reports.

https://fox17.com/news/ferrier-files/ferrier-files-do-criminals-have-more-rights-than-parents-in-tennessee

Thisis a parent’s worse nightmare, and it happens a whole lot of times in a whole lot of states.

FERRIER FILES: Do criminals have more rights than parents in Tennessee?

(Fox 17 News)

AA

FERRIER FILES: Do criminals have more rights than parents in Tennessee?

And even if you do absolutely nothing wrong, your children can be taken from you. It may sound like a ridiculous question but not when you consider what happened to a Williamson County, Tennessee, mom.

It all started when Tori’s 3-year-old son told her something inappropriate happened to him when he was with their father. The couple is divorced.

Tori followed the law and reported it to DCS.

“I was interrogated for two to three hours with no videotape, no attorney present,” Harper said. “I was a little intimidated, but at that time I still didn’t think I had done anything wrong when I realized they were investigating me.”

Remember, there is no allegation against Tori Harper, yet DCS asked her to surrender her kids on the spot and relinquish custody during the investigation.

“There was no way I was going to give strangers custody of my children even for a day or two especially with that going on,” Harper said. “I wanted my children.”

The next day she said DCS secretly went to Williamson County Juvenile Judge Sharon Guffee and asked for an ex-parte order to get custody of the kids. The judge signed the order even though Tori wasn’t present to defend herself.

DCS claimed Tori Harper was mentally unstable…

“I’ve never had a speeding ticket,” Harper said. “I have no mental health history. I’m a good mom. I love my kids. I was a room mom that year for my oldest son.”

Her lawyer, family law specialist Connie Reguli, said this is standard practice, and it is nasty stuff.

“For people who don’t know what e x-parte means it is behind the back,” Reguli said. “They knew Tori. They certainly had an opportunity to get it before the court. Instead they get an ex-parte order to get her children in custody of DCS. DCS can do whatever they want to them. They obviously didn’t want Tori or her lawyer there.”

The only consolation was that Tori’s parents would be the foster parents during the investigation. When they all went back to court, Judge Guffee ordered Harper and her parents be drug tested eventhough none of them had any drug history.

Her father couldn’t get to the drug test because he was keeping the kids and didn’t have car seats. Harper said DCS locked herself and her mom in a room after their drug tests and told them they would send a squad car out with the boys’ car seats so Harper’s dad could go take the drug test.

Once police finally arrived at the home, they brought a new court order signed by Judge Guffee giving DCS custody of the kids, who were going into foster care that night.

“The things that these people did to our family was so against our fourth amendment rights,” said Tori’s dad Tom Naïve. “I said boys you got to go with the policeman and so I watched them walk to that police car and get in the back of the police car. All I could do is go inside and blow up and blow up. I was helpless.”

The oldest boy Ethan still remembers that night.

“I was scared,” Ethan said. “When I got in the car, I started crying. They told me my grandpa didn’t want me. He had never told me that. It hurt my heart.”

This family without a single allegation of abuse or neglect or even a failed drug test lost their two boys to DCS.

“There is nobody that knows me that would say there is anything I love more than being a mom,” Harper said. “But one thing I know is I am a good mom, a good mom and I love my kids so much.”

So what was DCS and the court hinging this removal on? That Tori Harper was mentally unstable. She got an independent psychological evaluaton and passed flying colors; doctors, dentists, records, report cards, high test scores formed a lazer-focused rebuttal to DCS and Williamson County Juvenile court.

DCS dismissed the case and Judge Guffee returned the children to Harper. The children were in state custody for two months.

Family law attorney Connie Reguli said this story may sound shocking, but it is common.

“Criminals have more rights and protections than parents,” Reguli said. “Once they have your children in the system they are in total control…and while this may have a happy ending. There are scars and trauma, real trauma.”

“So when i got my son back, keep in mind he always held my hair when I would sing him to bed every night,” Harper said. “Well when he was in foster care he was so upset that he would pull his own hair in bed, and he ended up with a big bald spot.”

Her son Andrew now believes in monsters and holds his mom’s hair, praying they will never come back.

DCS said the law prohibits it from commenting on specific juvenile case but pointed out that all of its actions were approved by a judge. Tennessee judges are also prohibited from discussing cases.

From JP: Interesting case quotes on Fraudulent Concealment, Fundamental Liberties, and Civil Rights

FRAUDULENT CONCEALMENT

 

  1. A few of the definitions of “fraudulent concealment” are discussed in: Woods v. Davis, 11 U.S. 271 (1812) quoting,

 

“Party having superior knowledge who takes advantage of another’s ignorance of the law to deceive him by studied concealment or misrepresentation can be held responsible for that conduct. Fina Supply, Inc. v. Abilene Nat. Bank, 726 S.W.2d 537, 1987. Knowing failure to disclose material information, necessary to prevent statement from being misleading, or making representation despite knowledge that

it has no reasonable basis in fact, are actionable as fraud under [the] law.” Rubinstein v. Collins, 20 F.3d 160, 1990.

 

 

Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud. Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994.

 

When circumstances impose duty to speak and one deliberately remains silent, silence is equivalent to false representation. Fisher Controls International, Inc. v. Gibbons, 911 S.W. 2d 135, 1995.

 

When a person sustains to another a position of trust and confidence, his failure to disclose facts that he has a duty to disclose is as much a fraud as an actual misrepresentation. Blanton v. Sherman Compress Co., 256 S.W. 2d 884, 1953.

 

  1. Petitioner’s right of review under 5 USC 702 statutorily defined:
  1. A person suffering legal wrong because of … or adversely affected or aggrieved … within the meaning of a relevant statute, is entitled to judicial review thereof. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.”(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 392; Pub. L. 94–574, § 1,Oct. 21, 1976, 90 Stat. 2721.)

 

  1. Neither law nor equity may be invoked to redress a wrong.

The courts should not lend their aid to willful violations of the law.  See

Clouse v. Myers, 753 S.W.2d 316 (Mo. Ct. App. S.D. 1988) See also: Glazier v.

Lee, 171 Mich.App. 216, 429 N.W. 2d 857 (1988); Preston v. State, 152 A.D.2d

943, 543 N.Y. S.2d 823 (4th Dept. 1989; Picture Plays Theater Co. of Tampa v.

Williams, 75 Fla. 556, 78 So. 674, 1 A.L.R. 1 (1918).

 

In Freeman on Judgments, 5th Ed., Sec. 338, pg. 678 it is said:

 

[“There must be some appropriate application invoking the judicial power of the court in respect to the matter sought to be litigated; for such as the filing of a petition, complaint or other proper pleading, for it is this manner that the court’s power over the subject matter is invoked.”]

 

 

“Fundamental” Liberties

 

 

In the parlance of United States constitutional jurisprudence, a “fundamental” right is a civil liberty of paramount importance. Whenever an individual can show that the government is interfering with an exercise of a “fundamental” civil liberty, the government has the burden to prove to a court that the government action can survive the “strict scrutiny” standard of court review.

The strict-scrutiny test upholds state intervention as proper only if (1) an authorizing state regulation exists that can be justified by a compelling state interest, (2) the means chosen are essential to furthering that interest, (3) there is a clear and present danger to the interest the state may lawfully protect, and (4) the tactic used is narrowly tailored and the least restrictive means of discharging the government’s compelling interest.

 

“Non-Fundamental” Rights

 

In contrast to a “fundamental” liberty, other rights are entitled to very limited protection. Whenever an individual can show that the government is interfering with an exercise of a “non-fundamental” civil liberty, [i.e. private-power of attorney contract] the individual has the burden to prove to a court that the government action fails the “rational basis” standard.

The rational-basis test stops state intervention as improper only if (1) the governmental action does not represent a reasonable means to a legitimate state interest, and (2) the relationship between the reasonable means and the legitimate state interest is not at least debatable. The test does not require the government to use the least intrusive or most creative regulatory scheme to achieve legitimate state ends.

 

In the case of Ableman v. Booth, 62 US 506 – Supreme Court 1859.  “complex character of our Government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, and each within its sphere of action, prescribed by the Constitution of the United States, independent of the other.”

 

The 10th Amendment (Amendment X) to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15th, 1791.  It expresses the principal of federalism, which strictly supports the entire plan of the original Constitution for the United States of America, by stating the federal government possesses only those powers delegated to it by the United States Constitution.  All remaining powers are reserved for the States or the people.  However, once the State incorporates and begins operating in commerce, it loses part of its once dejure sovereign status or what is considered to be a misnomer, operates under its quasi-sovereign corporate defecto alter-ego as a legal fiction, i.e. corpus ficti in exchange for participation for federal grants to the States through fund incentive programs Congressionally approved as b) the instrumentalities of interstate commerce. . . . under PL 89-97 during the 89th session that involve special “demonstration” projects and/or public private contractual arrangements which are nothing more than, “express lanes to abuses” of federally protected fundamental civil rights.

  1. The state citizen is immune from any and all government attacks and procedure, absent contract.” see, Dred Scott vs. Sanford, 60 U.S. (19 How.) 393 or as the Supreme Court has stated clearly, “…every man is independent of all laws, except those prescribed by nature.”

 

  1. He is not bound by any institutions formed by his fellowmen without his Consent.” CRUDEN vs. NEALE, 2 N.C. 338 2 S.E. 70.

 

  1. “The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no such duty [to submit his books and papers for an examination] to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution.”

 

  1. “Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights.” (See Hale v. Henkel, 201 U.S. 43 at 47)

 

Many federal question cases have applied state law to issues involving state-created rights where the result were of such application would not be contrary to a strong federal interest. E.g. Helvering v. Stuart, 317 US 154 (1942); Blair v. Comm’r, 300 US 5, (1936); Security Mortgage Co., v. Powers, 278 US 149 (1928); See Prudence Realization Corp v. Geist, 316 US 89, 95 (1942); Huron Holding Corp., v. Lincoln Mine Operating Co., 312 US 183 (1941); Kavanugh v. Fowler, 146 F.2d  961 (6th Cir 1945); United States v. Michaelson, 58 F. Supp. 796 (D. Minn 1945).

However, the interest of the state may not be too great, or in many instances unarticulated. In any event it can be argued that the federal policy of encouraging private anti-trust enforcement would override any contrary state policy.

Our Federal courts have addressed the matter of courts “usurping authority” that is not delegated to them by constitution or statute. See Dellenbach v. Letsinger, 889 F.2d 755 (7th Cir 1989): “Where there is clearly no jurisdiction over the subject- matter, any authority exercised is usurped authority, and for the exercise of such authority, when want of jurisdiction is known to the judge, no excuse is permissible.” According to CHIEF JUSTICE, WAITE in MEYER v. CONSTRUCTION COMPANY; 100 U.S. 457 (____)

 

RULE 81 EXCEPTIONS

A civil action filed in a state court may be removed to federal court [under any one of the enumerated provisions cited below] if the claim is one “arising under” federal law. § 1441(b). To determine whether the claim arises under federal law, we examine the “well pleaded” allegations of the complaint and ignore potential defenses: “[A] suit arises under the Constitution and laws of the United States only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or that Constitution.

Avco Corp. v. Machinists, 390 U. S. 557 (1968). We later explained that holding as resting on the unusually “powerful” pre-emptive force.  Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.” Franchise Tax Bd., 463 U. S., at 23–24 (footnote omitted).

“The necessary ground of decision [in Avco] was that the pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.” 463 U. S., at 23–24 (footnote omitted).

 

Similarly, in Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 (1987), we considered whether the “complete preemption” approach adopted in Avco also supported the removal of state common-law causes of action. Thus, a state claim may be removed to federal court in only two circumstances—when Congress expressly so provides or when a federal statute wholly displaces the state-law cause of action through complete pre-emption. When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. This claim is then removable under 28 U. S. C. § 1441(b), which authorizes any claim that “arises under” federal law to be removed to federal court where the federal statutes at issue provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action. Of course, a state claim can also be removed through the use of the supplemental jurisdiction statute, 28 U. S. C. § 1367(a), provided that another claim in the complaint is removable.

 

Title 28 USC § 1331 states:

This so-called “arising under” or “federal question” jurisdiction has long been governed by the well-pleaded complaint rule, which provides that “federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U. S. 386, 392 (1987). A federal question “is presented” when the complaint invokes federal law as the basis for relief.

 

28 U.S. Code § 1443 – Civil rights cases

 

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

 

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;

 

(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law. (June 25, 1948, ch. 646, 62 Stat. 938.)

Petitioner will -reuse- his Prayer for Relief in his certificate of appealability application.

Special Note:  https://www.law.cornell.edu/wex/nonfederal_grounds

 

APPEALABILITY OF CASES ON REMAND

In any event, the appealability of remand orders was reinstated by 28 U.S.C. § 1447 (d) (1964) (originally enacted as Civil Rights Act of 1964, § 901, 78 Stat. 266) (see note 19 infra); Note, 43 N.C.L. REv. 628 (1964). This provision has been upheld by recent court of appeals’ decisions, see, e.g., New York v. Galamison, 342 F.2d 255, 257 (2d Cir.), cert. denied, 380 U.S. 977 (1965), and by the United States Supreme Court, see Georgia v. Rachel, supra at 786-87 & n.7. -9 28 U.S.C. § 1447 (d) (1964) (originally enacted as Civil Rights Act of 1964, § 901, 78 Stat. 266) provides in part: ” an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.” There is substantial indication in the legislative history that Congress enacted § 1447 (d) to provide an opportunity for the appellate courts to reinterpret the Strauder-Powers cases. See, e.g., 110 CONG. Rec. 2770, 2773 (1964) (remarks of Representative Kastenmeier, who favored lifting the appeal bar to remand orders); id. at 2771-73 (remarks of Representative Dowdy, who was opposed to lifting the appeal bar); id. at 6551 (remarks of Senator Humphrey); id. at 6564 (remarks of Senator Kuchel); id. at 6955-56 (remarks of Senator Dodd). 20 Compare Baines v. City of Danville, 357 F.2d 756 (4th Cir.), aff’d mem., 384 U.S. 890 (1966), and Wallace v. Virginia, 357 F.2d 105 (4th Cir.), aff’d mem., 384 U.S. 891 (1966), with Peacock v. City of Greenwood, 347 F.2d 679 (5th Cir. 1965), aff’d in part and rev’d in part, 384 U.S. 808 (1966), and Rachel v. Georgia, 342 F.2d 336 (5th Cir. 1965), aff’d, 384 U.S. 780 (1966). See Johnson, supra note 17, at 139-49; Note, 44 N.C.L. Rev. 1152 (1966); 44 Texas L. Rev. 200 (1965); notes 95-96, 146, 194 infra and accompanying text. 21 384 U.S. 780 (1966). 22384 U.S. 808 (1966).

Petitioner, Brian Van Akin, submits that he has fulfilled the preemptive requisites necessary to pursuit this claim in federal court. Petitioner has indicated in the last sentence (Initial EMERGENCY Petition) that which fulfills, if not exceeds the plain statement of facts requirement under Title 28 USC 1446(a) allowing this Court to proceed under both federal question and Constitutional & Public Policy Questions whereas both venue and jurisdictional basis have been satisfied as grounds for this Emergency Petition for Declaratory Relief be permitted to advance through this Court the ends of justice, so require.