June 1st, 2010

Mom, Son Reunited After CPS Nightmare

Jury Awards Man $16 Million for Ex-Wife’s False Molestation Claim

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Mom, Son Reunited After CPS Nightmare; Jury Awards Man $16 Million for Ex-Wife’s False Molestation Claim
June 1, 2010
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Mom, Son Reunited After 2-Year CPS Nightmare
By Robert Franklin, Esq., Board Member, Fathers and Families

CPSThe case that’s dropped jaws all across the U.S. and Canada is finally coming to an end. Judge Kip Leonard is finally allowing Noah Kirkman to return to his native Calgary after two years in foster care in Oregon.  Read about it here (Yahoo, 5/29/10).

We’ve covered this outrageous case extensively. Noah Kirkman is now 12 years old.  When he was taken into foster care by Oregon authorities two years ago, he had not been abused; he had not been neglected.  No one has ever claimed that his mother Lisa Kirkman (pictured) or his stepfather John Kirkman has ever been anything but a good parent to him.  That’s reflected in his grades which are straight A’s despite Noah’s severe  ADHD.

No, in their zeal to substitute foster care for parental care, Oregon child welfare authorities decided that Lisa Kirkman had abandoned her son.  How did they figure that?  Well, he was living with his stepfather in Oregon, that’s how.  Make sense to you?  After all, John has been the boy’s steadfast and true dad for 10 of his 12 years on this earth.  How Oregon child welfare workers and Judge Leonard concluded that a boy, who’s never been abused or neglected in any way and who’s living with his stepfather, had been abandoned is one for the record books.  In all the annals of state intervention into families, has there ever been a case more arbitrary or capricious?

Recently, Lisa Kirkman asked what Oregon child welfare authorities do with kids who go to summer camp.  She had a point.  If a stepfather has no parental authority, does a camp counselor?  Can we look forward, in the upcoming weeks, to child welfare sweeps of Oregon summer camps for kids?

In the meantime, we can also inquire as to what’s changed to make the judge allow Noah to return to Canada.  Is he in some way less “abandoned” now than he was two years ago?  Have Lisa and John miraculously become better parents?  I doubt it.  I think the extreme level of public and media-based outrage at the highhandedness of the judge and the Oregon DHS forced them to do the obvious – the thing that any non-zealot would have done from the very first day – send Noah home to his dad and move on to real cases of children who suffer from parental abuse or neglect.  In other words, Oregon DHS should have done its job.

Amazingly enough though, Judge Leonard didn’t return Noah to John and Lisa; he returned him to his grandparents in Calgary.  How that makes sense is anyone’s guess, but it looks suspiciously like a judge trying to make himself look like a little less of a fool than most people probably think.  He actually maintains the fiction that the Kirkman’s household may not be the best thing for Noah, although he doesn’t mention why it wouldn’t be.

Whatever the case, I have a couple of pieces of advice for the Kirkmans.  First, once your son is beyond the jurisdiction of the Oregon court, bring him home to your house.  He can see his grandparents any time and he’ll be beyond the reach of Judge Leonard’s draconian grasp.

Second, talk to an Oregon attorney about suing the state’s DHS under Oregon’s tort claims act.  My antennae tell me that there was a lot of negligence involved in the decision to take your son.  And you can count on a sympathetic jury.  Almost every one on it will sit in court listening to the evidence while the sentence “There but for the grace of God go I” runs through his/her head.

Jury Awards Man $16 Million for Ex-Wife’s False Molestation Claim
By Robert Franklin, Esq., Board Member, Fathers and Families

In this case, a mother’s claim against her husband that he sexually molested her daughter went slightly awry. Thirteen years after the fact, a federal appellate court has upheld the verdict in his civil cause of action against her and her police officer husband. The verdict was for $14 million in compensatory damages and $1 million each in punitive damages for a total of $16 million.

Back in 1991, Ted White married Tina (whose name is now McKinley) and attempted to adopt her two children by a previous marriage. But the children’s father refused to give up his parental rights, so there the issue stayed. In 1995, he had a change of heart, though, and agreed to the termination of his rights. Why the about-face? It seems that Tina had informed him that if he didn’t, she’d file charges of child sexual molestation against him. Too bad Ted White didn’t know that.

Because about a year later, his marriage to Tina was on the rocks and, unbeknownst to him, she was seeing another man. That man was Richard McKinley, a police officer for the Lee’s Summit police department. Apparently they hatched a plan to get White out of their lives and those of the children for whom he was the adoptive parent.

Tina charged him with sexual molestation of her daughter, Jami, and who do you suppose investigated the matter for the police? That’s right, Richard McKinley. And during his investigation, certain exculpatory evidence went missing. That included Jami’s diary, in which the girl said she thought White was a great dad and that he was more caring about her than was her mother. After Tina leveled her charges at White, McKinley also interfered in Jami’s interview with the Center for Protection and Children that’s charged with interviewing children in molestation cases.

White was convicted, fled to Costa Rica, was captured and spent over five years in prison successfully appealing his conviction. First, he discovered the withheld evidence and got a new trial. That resulted in a hung jury that voted 11-1 for acquittal. On retrial, he was acquitted.

He then sued his former wife, her current husband Richard McKinley and the City of Lee’s Summit. The city settled out of court and the jury found both Tina and McKinley liable to White and awarded damages. Because he was a police officer acting under color of law, the suit was for violation of White’s civil rights under 28 U.S.C. Sec. 1983. (We’ve seen that little gem used to sue the State of California for denial of parental rights for bypassing a father and placing a child in foster care.)

White has already gotten paid by the City of Lee’s Summit, although how much we don’t know. Will he ever see a dime from the happy McKinley couple? I doubt it, although he may agree to be paid a few cents on the dollar. Still, it’s an instructive tale. False allegations are not legal. Prosecutors aren’t often interested in pursuing them in criminal court, but individuals always have the civil courts in which to try to gain some form of justice.

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CA Legislative Update
F & F Bill to Protect Disabled Parents’ Child Custody, Visitation Rights Passes Senate by Unanimous Consent, Moves to Assembly

Fathers & Families’ mission is to protect children’s right to the love and care of both parents after divorce or separation. We often hear from disabled or partially disabled parents who have been driven to the margins of their children’s lives because the other parent has used their disability/partial disability as a pretext to deny them custody or visitation with their children.
While some disabled people are truly unable to care for their children, many are not. California Senator Rod Wright’s (D-Los Angeles) SB 1188 will address and help solve this problem. Fathers & Families has joined with the American Retirees Association in co-sponsoring SB 1188, which passed the Senate by unanimous consent on May 19.

Fathers and Families has helped garner the support of disabled rights groups, the Association of Certified Family Law Specialists, the Association of Family and Conciliation Courts, and others for SB 1188.

Existing California family law codes do not address the issue of disabled parents, leaving the door open for unnecessary and often expensive litigation, even in cases where the disabled parent had been successfully parenting the children for many years prior to the separation or divorce.

SB 1188 will add Section 3049 to the Family Code. It will read:

3049.  In any proceeding to determine child custody or visitation under this part, in which at least one parent is disabled, the disability of that parent may not form the basis for an order granting custody or visitation to another party, or for an order for imposing any condition or limitation on an award of custody to or visitation by the disabled parent, unless there is a finding by the court that  a grant of custody or visitation to, or a condition or limitation on custody or visitation by, the disabled parent would not be in the best interest of the child. This section applies to any proceeding regarding custody or visitation, including, but not limited to, a request for a modification of an existing order for custody or visitation…

SB 1188 shifts the burden of proof onto the parent who raises the disability as an issue, serving as a deterrent to a parent seeking to raise the issue as a way to cause unnecessary litigation. It also reduces disabled parents’ litigation costs and helps reduce court calendar time and costs at a time when California is struggling with budget woes.

If you are a disabled parent, we want to hear from you–please fill out our form here. If you have a family law problem or feel that your disability has been used against you, please also fill out the last two boxes of the form.


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