Part 1 of the DHS Whistle Blower Story

http://www.news9.com/story/36684613/dhs-supervisor-speaks-out-after-10-year-old-girls-death

This is the first is a series of stories about DHS workers who are blowing the whistle on wrong doing within the agency.  Employee Heidi was suspended with pay just 2 days after this story ran and is still suspended with pay as of March 24, 2018, 5 months later while DHS tries to find a reason to discipline or fire her.  Heidi was simply the first of many brave current and former DHS employees who came forward to talk about how DHS is violating the rights of Oklahoman’s and not following the Pinnacle Plan settlement it entered into as a part of a federal court settlement in 2012.

As we approach a state wide walk out on teachers and potentially state employees due to our workers being under paid and our agencies under funded, DHS has a worker that wants to work and protect children and they are paying her to stay at home because she has the courage to speak out against the agency when they are failing children.  Oklahoma – are we a great state or what?

Choose Hope for a Better Future

In life we all have days where we will always remember exactly where we were and exactly what we were doing when an event happened.  For each of us those events will arise out of our own personal experiences – a baby was born, someone died, your best friend got married – and the collective state, national or world experience – the Challenger disaster, the OKC bombing, 9/11 and so one.

One of those days for me was 4/20/1999.  One day after the 4th anniversary of the bombing.  I remember exactly where I was and exactly what I was doing.  I was a 23-year-old new mother, sitting at home on the couch nursing my 4-week-old baby when the news came on and started describing the horrors of Littleton, Colorado.  I remember looking down at the helpless little girl in my arms and wondering about the world she would grow up in.

Fast  foreword almost 19 years to February 14, 2018.  It was a day that seemed like any other day to me as I’m sure it did to you as well. I got up, I went to work, and dealt with the normal chaos that makes up my day.  At some point in the day, I heard about the shooting and the brutal deaths of 17 people.  Unfortunately, a week after this incident as I write this column, I have to look up the statistics about this shooting.  Not because I don’t care and or because it doesn’t affect me, but simply because school shootings have become too common for me to remember the statistics associated with them all.

I cannot tell you how unbelievably sad that makes me feel.  On a day that is supposed to be about celebrating the ones you love; 17 people lost their lives in a senseless act of violence – 3 adults and 14 children gone in the blink of an eye.  I don’t know a single one of them personally, but through the many organizations I’m involved with and friendships, I am within 6 degrees of separation from them and I feel the weight of their loss as I write this article.

Since the latest shooting, I’ve seen the media and social media explode with the blame game – guns caused it, mental health caused it, a bad childhood caused it and on and one and on. At the same time, I have seen everyone have a solution for the problem – gun control, better mental health counseling, parents need to be more involved, etc.

I have no idea what caused it and I do not know the solution.  What I do know is that something has changed in our society, for lack of a better description we have an IT.  We need to figure out what IT is, what caused IT, how to fix IT, and how to keep IT from coming back.

IT seems like the appropriate term because solving the riddle of this new normal reminds me of Stephen King’s novel IT.  In the novel, the reader follows the experiences of 7 children growing up in Maine as they deal with their fears and phobia’s that manifest through a dark force living in the town.  The novel is split into two-time periods – childhood when the children are victimized by the force, and again as adults when they come back to town to defeat the force.

The 7 children are referred to as the “Losers Club” which is made up of: the fat kid, the sick kid, the stuttering kid, the abused kid, the 4-eyed class clown, the black kid, and the Jewish kid.  Each of these children represents stereotype that has often been the target of a bully in society, in the book, in the 80’s when King wrote the book, and the same or similar groups of kids are targeted today.  In the book the children fall victim to Pennywise the Clown as he entices them into his world by playing on their fears and uses their fears to harm them by transforming into their worst fears and killing others in town.

Somehow the 7 kids use their “loserness” to survive Pennywise and make it into adulthood.  But make no mistake the children do not survive without scars and some 25 years later the 7 Losers come back together to save the town when the darkness of IT wakes up again and starts to prey on children in their town again.  The 7 children use their victimhood and life experiences to stop Pennywise for 25 years and the strength of their life experiences and love for each other to defeat him again when he reawakens.  Mr. King is able to tie up all the loose strings in the story and the kids overcome their challenges, beat the bad guy and move forward with bright futures.

In real life things rarely end so nicely.  The kids who are teased for being the “the fat kid, the sick kid, the stuttering kid, the abused kid, the 4-eyed class clown, the black kid, and the Jewish kid” and so on, rarely seem like they are able to band together to defeat the dark force of society that holds them back.  Just like the kids in the books, the kids in real life that are targeted by the bully are often abused, neglected, homeless, sick or victimized in some way that they don’t let others see.  As many times, the bully is also a victim who has found his/her own strength in victimizing others with the hope that they won’t be victimized again.

On days like February 14, 2018, I wish for a story book ending of people banning together for good to overcome evil and to save the day.  But before we can do that we have to identify what the IT is that is affecting our people.  Unfortunately, no one seems to know the cause, only the symptoms of its existence.

Logic tells me that all the things we like to blame are individually not the problem.  A gun is just a hunk of metal until its loaded, pointed at someone and the trigger is pulled. People live with mental illness and survive abuse every day without killing or injuring someone.  Just as others survive being bullied for their appearance, race, religion, income, or handicap, being bullied alone is not what causes the violence.  The problem is something more, something bigger and requires all of us together relying on our collective life experience, hurts, wrongs, misdeeds, injuries and joys to solve.

The only common denominator that I can find in all of these acts of violence, especially school shootings, is the lack of hope.  When we have hope to hang onto we have a reason to believe that things will get better – a new job, friends, family, school, or whatever – the possibility of tomorrow and something better exists.  When we have no hope left all the light is gone.  If you ask me why school shootings happen, it doesn’t matter if the date is 4/20/1999 or 2/14/2018, I think the children have lost hope.  When we find a way to keep hope alive, for the those who hurt the most among us, I believe things will change.

Until then I leave you the words of Maya Angelou – “Hope and fear cannot occupy the same space at the same time. Invite one to stay.”  #ChooseHope

Silence Breakers

I finished my article for the the newspaper last night and planned to get up this morning and make a few final touches before submitting it. However when I woke up today and checked my newsfeed I saw that time had announced its person of the year. If you haven’t seen it yet Time chose the “Silence Breakers.”

The silence breakers are the women who spearheaded the #MeTooMovement. these women are actresses, engineers, migrant farm worker’s, television and radio personalities, and a slew of other every day people. Times selection this year shows the power of the grassroots movement and of the voices of many when they overcome the fear of speaking out.

If you’ve been following along with what I’m doing lately you’ve  seen the case that I’m working on against Oklahoma department of human services DHS. I have had people say that these women are attention seekers with an ax to grind against the department. I have read comments from others stating that if the children in their care aren’t safe it’s because they’re not doing their jobs. There have been many other negative comments posted online by those who support the powers that be within DHS. But more importantly there have been more and more people step forward for our version of #Metoo to say DHS has a problem.

The hashtags we have chosen for this movement is #saveOKkids and #OKleadershipcrisis.  If you’re on social media hashtags are a great way to collect and follow stories on a certain subject but more important than the hashtag though is the subject at hand.

Like the woman of the #metoo movement these women have stepped forward with a great potential risk to their careers their finances their reputation and potentially even their personal safety if you believe some of the things I’ve been told. However these women don’t have an ax to grind against the state or DHS. They want to save children which is why they went into this profession to begin with.

If you’ve lived in Oklahoma a long time a few of these names might sound familiar to you & they highlight the ongoing problem with the department of human services.

Ryan Luke – died in kinship placement with grandfather who allowed child to see his allegedly abusive mother. ( 1996)

Shane Coffman – died in home that had been investigated for abuse and his body was found hidden in the freezer outside the mobile home.  ( 1996)

Erika Green aka Precious Doe – died when father was in prison and mother and boyfriend took her and killed her in a drug fueled rampage in 2001.  Her body was discovered decapitated in the woods in Kansas.  The DOC and DHS system failed her. (2001)

Kelsie Smith Briggs – killed by her stepfather in home after DHS investigated abuse allegations involving the family. (2005)

Serenity Deal – died after being allowed to stay with stay with her previously uninvolved father who had his own legal history.  Two DHS workers were criminally prosecuted over the death and one worker who was cleared committed suicide. (2011)

Alysa Horney – died in Kinship foster placement, DHS worker failed to do a proper background check and ignored warning signs. (2013)

Miracle Ellis – died in DHS foster care but DHS claims there was no neglect because Miracle was a “fragile child” due to the conditions of her birth. (2013)

Christopher Seaton – died trying to escape a foster group home and allegedly chased across I-44 by group home workers. (2013)

Andrew Prior – died in Foster care from a head injury.  (2014)

Mame-Neta Attocknie – died after being left in a hot car by foster parents. (2016)

Sha’Quality Cox – died in kinship placement due to asthma attack. (2017)

Joshua – a 2 month old who suffered life ending injuries 24 hours after his foster care placement this fall.  (2017)

A.S.  – died while in DHS custody but in home placement with the mother.  (2017)

These are just a few of the cases that I know about or have received widespread attention.  Ryan Luke’s 1996 case and Kelsie Smith Briggs 2011 case spurred new legislation.  In between in 2008 we had the civil rights lawsuit that lead to the Pinnacle Plan which was supposed to reform the system.  Unfortunately DHS hasn’t improved.  We have seen DHS blame the workers but this is an ongoing problem that is bigger than the workers.  This is a problem that goes all the way up to leadership in the agency.  There is routine turnover in the lower ranks due to the demands of the job, but the constant is leadership.

Looking back to the Silence Breakers who have stepped out to start a movement that has changed the face of sexual harassment in the US this year it proves that while sometimes one voice isn’t heard, that one voice can be the catalyst to set off more voices to be heard.  Soon we don’t hear just one victim or one worker saying that change needs to occur, rather we hear a cacophony of voices calling out about the problems in our society.  Whether its sexual harassment in the workplace, the election of alleged sexual predators, abuse of children or some other equally heinous allegation, its the courage of the silence breakers that is truly remarkable.

The Silence Breakers have the ability to make change.  The Silence Breakers are being the change they want to see.  The Silence Breakers for sexual harassment have toppled some of the biggest names in entertainment, politics, and business.

The Oklahoma DHS Silence Breakers are working to do the same to save children.   The Oklahoma Silence Breakers are more than 3 woman in Oklahoma County.  This is more than a complaint about bosses or working conditions.  The Oklahoma Silence Breakers are current and former workers from all over the state, foster parents, biological parents, adoptive parents, and kids who have been through the system who are stepping forward to say the system is broken, children are dying, workers are ill prepared and parents are overwhelmed.  The DHS Silence Breakers are not waging a personal attack, they are seeking to protect children, help workers and empower parents.  DHS has a leadership crisis, kids are dying and people aren’t willing to stay silent anymore.

Thank you to the Time Silence Breakers in the #metoo movement for stepping forth and stepping out to help break the silence all over.  I truly think you are the people of the year too.

Is there a leadership crisis in Oklahoma?

November 1 is the time when new laws in Oklahoma traditionally take effect.  This year as we approach this date we have a legislature in special session because there is no budget.   We’ve seen news reporting about the budget crisis, shortfalls in funding to the state, and the planned decrease in services. 

 Not long ago, it was announced that there would be deep cuts in services to the Department of Human Services and the Department of Mental Health.  At one point it was reported that a budget deal could be reached if parties would agree to a statewide ban on abortion.  Politics of abortion aside, such a law is clearly unconstitutional under the existing laws of the United States.  The Supreme Court has spoken on this issue and the states cannot ban abortion. Period.  It can be limited but it cannot be banned.   I do not understand why our government must stall the process of governing to insist on passing bills that those in charge know from the outset will fail.  Just yesterday the Oklahoma Supreme Court issued a stay on a law aimed at drunk driving reform because there are constitutional challenges to the law. 

 The last few weeks the news has been full of reports on the failings of DHS.  A foster baby died from what is likely shaken baby syndrome. The baby was shaken just a day after being placed in the foster family’s care.  A foster mother stands accused of beating and starving four children.  On October 23, 2017 a story ran in the Oklahoman regarding a child who died after DHS closed its investigation. One of the DHS employees in the investigation then spoke out to the media afterwards explaining that DHS did not tell the entire story. 

 Budgets are down.  Agencies are understaffed and overworked.  In 2008 a civil rights lawsuit was filed against DHS that resulted in the creation of a plan of reform in DHS.  That document is called the Pinnacle Plan.  The purpose was to fix problems in the foster care system.  Except the Pinnacle Plan is not being followed.  

 DHS in Oklahoma County alone has about 1/5 of the staff that it needs to investigate child welfare claims.  Child service workers are only supposed to have 12 cases per worker.  I know of one team that has only 3 of the 5 child welfare worker slots filled.  Pursuant to the Pinnacle Plan that team can only work 36 investigations.  Yet that team has over 100 active cases assigned to it.  That is approximately 3 times the allowed number of cases per worker. This is the “team” that was disciplined for the death of a child after DHS closed its investigation.  This is the team that was disciplined after the supervisor said we need to take these kids into protective custody.  This is the team where the District Director vetoed the decision of the workers in the filed to protect the children.  This is the team that was accused of failing children by DHS but the leaders at DHS did not shoulder any of the blame or the failing  Was this a failure of the team in the field or the leader who pushed to close cases?  Oklahomans need to decide. 

 Leadership at DHS has been advised that the DHS child protective workers overworked and underpaid.  Leadership has been advised that there are workers who are developing drug and alcohol problems as a result of the extreme stress that they are placed under in trying to help the families who need help protecting their kids.  Recently a DHS worker was arrested for showing up on a call under the influence.  The response from Leadership was to refer to the employee assistance program.  I don’t see this as leadership at a key agency charged with protecting the most vulnerable.  I also see Leadership passing the buck and disciplining those who speak out against them for their failings instead of stepping up and appreciating the criticism. 

We have a crisis in Oklahoma.  There is without a doubt a budget crisis.  Tax revenue is down and we give cut after cut in taxes to corporations but raise dollars on the backs of our hard working citizens.  But even more than a budget crisis in Oklahoma, is a Leadership crisis in Oklahoma. 

 We have elected and appointed officials who do not represent the interests of their constituents.  We have elected and appointed officials who push their own agenda rather than developing law that we know will stand up to constitutional challenges. When did we become a society so concerned with placating everyone that we get nothing done?  

 Regardless of which side of the political aisle we are sitting on, our state needs Leadership that will stand up and protect our citizens, especially the most vulnerable ones in society.   While the Legislature remains in special session trying to resolve the latest budget problem, I encourage all Oklahomans to contact their State Senator or Representative to make your voice heard on the issues that affect you and to be the change you want to see in the system.

 Now more than ever is the time for our elected leaders to stand up and LEAD for what is right, what is fair and what is just. Now is the time for the politicians to remember that they represent people.  People like you and me who raise children, pay taxes, own businesses and want to see the best in our society.  

My eyes! Do we really need to be warned not to stare directly into the solar eclipse?

For the last several weeks everywhere I’ve looked I’ve seen advertisements and information about the phenomenal “once in a lifetime” eclipse on August 21, 2017.  Special glasses were sold, people booked trips to far away locations that would provide excellent views of the event, there were eclipse parties, and really no end to the eclipse madness.  So that made me wonder how I could tie the eclipse into the law.  My answer was right there on Facebook – eclipse glasses!!!!

One thing that was discussed everywhere was the potential for retina damage from looking into the sun during the eclipse.  I won’t pretend to understand how my retinas were going to be anymore damaged from looking at the sun today as opposed to any other day in August where it feels like the skin is going to melt smooth off my body, but apparently there’s something to this theory.

Anyway, eclipse glasses were everywhere!!!! The purpose of eclipse glasses is to allow the wearer to stare into the sky at the sun and the moon as they pass on another in this “once in a lifetime event” (which incidentally will occur in about 7 years in North America and 2 years in South America). So I thought about eclipse glasses as a product and if they failed who could I sue and for what if I went blind after staring into the solar eclipse.

This kind of claim is known as a “product’s liability” claim and is based on the notion that anyone in the chain of distribution of a product from component part manufacturer to final distributor can be liable for the harm caused by a defective product.  Under Oklahoma law, a product is defective when it is not reasonably fit for the ordinary purposes for which such products are intended or may reasonably be expected to be used. A product can be defective due to the way it is designed, manufactured or based upon the way the consumer is warned about its use.

A design defect is inherent in the design of the product and the defect cannot be removed unless the product is redesigned in some manner.   The classic example would be a power saw designed without a proper finger guard. If there is a design defect every model of the product that is designed in that way is defective regardless of whether it has injured someone yet. This was the problem with the Ford Pinto with the exploding gas tank.

A manufacturing defect occurs when the product is otherwise properly designed, but there is an error in the manufacturing process that causes the product to become unreasonably dangerous.  A good example of this is an exposed sharp edge that according to the design should be covered in a way that would protect the consumer from injury, but do to an occurrence in the manufacturing process did not properly get covered up.

A warning defect occurs when the product when used in its ordinary and foreseeable manner does not have ordinary or reasonable instructions about its dangerous character and the risk of harm associated with the product is not one that an ordinary user would reasonably expect. Warnings are not required when the danger is obvious to an ordinary user from the nature of the product or information known to the user.  This kind of defect is the reason why your hairdryer says don’t use this product while taking a bath.

Knowing all of this, its unlikely that I could sue anyone if I went blind wearing my eclipse glasses due to a warning defect, because the ordinary user should know that you don’t look directly into the sun for long periods of time, especially during an eclipse.  The eclipse glasses could have a design defect if the design of the glasses did not adequately consider the amount of filtration necessary to protect an individual’s eyes for the expected length of time while looking into the eclipse.  Additionally, the glasses could have a manufacturing defect, if the manufacturer determined the appropriate rate of filtration in the design but if in the manufacture a substandard component lens was used that did not provide the appropriate level of filtration on a specific production of the glasses.

The moral of the story is if you stared into the sun to experience this remarkable phenomenon of nature on August 21, 2017, keep your receipt and glasses. That way if your doctor tells you that your retinas have been burned you can call a lawyer to discuss whether your glasses had a flawed design, if they were poorly manufactured or if it would have been better to just listen to your grade school teacher about not looking directly at the sun during an eclipse.

Free Speech & Personal Freedom – Your rights end where my rights begin.

One of my favorite high school teachers used to say “Your rights end where my nose begins.” At 16 I didn’t quite appreciate the depth of that statement, but I found myself recalling it, not for the first time since Ms. Fitzer said it, after the events in Charlottesville VA this last weekend. In her own way, Ms. Fitzer and her business law class at Piedmont OK helped put me on the path for the person and lawyer I am today, passionate about civil rights and protecting an individual’s right to express their views regardless of whether I agree with the opinion.

Before I moved to the small town of Piedmont, Oklahoma at age 15, I lived in St. Louis.  I grew up in an area known as North County which is the same  area of St. Louis County where Ferguson, Mo is located.  Ferguson was in the world news a few years ago when a white police officer shot Michael Brown after a convenience store robbery. This shooting seemed to be a tipping point in race relations and police interaction.

Where I lived in St. Louis was one of the older suburbs of the city, where the families started moving post World War II to escape city life.  I lived in an older home built in the early 50’s and my school and neighborhoods were very blue collar.  Where I lived in North County there was a fairly even mix of white and black kids, with a few kids of other races or nationalities and we all got along.  We had your typical school hierarchy of kids but it was not based on the color of skin or the notion that one of us was better than the other due our race. But this has changed in the last 25 years and in this area society has developed a feeling of black vs. white. This saddens me.

I never really thought about racism much until I transferred to a school in West County for my Freshman year of high school.  St. Louis was still under desegregation orders at that time in the 90’s and kids from the inner city were bussed into the predominately white schools in West County and South County to ensure integration was occurring.  West County and South County were what I heard people refer to as “white flight” areas.  That was another term I didn’t understand for a while.   Basically I now understand it to mean that at that time, as families, predominately black and other minority families, began to move out of the city and into the suburbs in the quest for home ownership and better schools for their children, more affluent white families were moving to other more exclusive areas of the city where the price of real estate was higher and the schools were better.   I attended high school for approximately 6 months in West County and it was my first real look at racism up close as there was a distinct difference between the ‘haves’ and the ‘have nots’ at that school.

But ironically it was the least diverse school that I ever attended, that really started making me think about the line of demarcation between my rights and the rights of someone else. I’m not known as a woman who keeps her thoughts and opinions to herself. I like to discuss topics that are tough and controversial.  I like to learn why people hold certain beliefs and what makes them tick.  In having this discussion I had to learn though to respect the rights of others to have differing opinions than mine.  I had to learn to be willing to listen to why they felt a certain way and to explain why I believed the way that I did.  I had to learn how to be persuasive in my thinking and argument in a way to respect that my right to my opinion ended where their right to their own opinion began.

The US Constitution gives us the freedom of speech, press, assembly and religion.  However, it doesn’t give us the right to impose our beliefs on someone else.  The Constitution guarantees that we have a right to protest and state our views about the state of society or the law, those rights are not unlimited.  The government has the right to restrict our constitutionally protected rights bases on the time, place and manner in which the right is being exercised.  In regard to speech the lower the value of the speech, the easier it is for the government to regulate or restrict.  For example speech that would be deemed to be “obscenity” or “fighting word” is subject to more governmental control than say high valued speech like political speech which the government must have a compelling  interest to regulate.  The time place and manner restrictions must be content neutral, be narrowly drawn, serve a significant government interest, and leave open alternative channels of communication. I cannot walk into a crowded theater and yell “fire” because it endangers others. You can protest but you can’t protest by setting things on fire or using violence. You can print whatever you want in the paper and distribute it, but if its untrue then your subject to civil and/or criminal penalties.

So what does all of that mean for what happened in Charlottesville?  Well regardless of whether we agree their speech, the alt-right supporters had a right to gather and protest on Saturday.  They had a right to peacefully assemble and protest the movement of the statue of Robert E. Lee. They had a right to say that removing it was an attempt to revise history.  They even have a right to engage in hate speech even if their speech arguably violates the civil rights of other people under the equal protection clause of the 14th amendment.  They did not have a right to run people down with cars. They did not have a right to threaten violence.  They did not have a right to incite violence.

Likewise the protesters who showed up to demonstrate against the alt-right supporters have the same rights of speech and assembly. They have a right to say that the beliefs constitute Nazi propaganda, support the suppression of women and minorities and that the statue supports historical racism.  They did not have a right to incite violence either.

Clothing, including your accessories and appearance is also a form of speech.  Going to a demonstration that protests the removal of a statue carrying guns and torches, while wearing swastikas, riot gear and the presidential campaign slogan makes a statement without words. It makes a statement that they are prepared to support their speech with violence and that they feel they have the support of those in power. It appears to be an incitement to violence. The alt-right supporters rights to protest the removal of the statue ended where the rights of the counter-protesters began and vice versa.

The anti-hate protesters had the right to say your beliefs are the same kind that  caused world war II or that there is no data to prove that one race is superior to another. The anti-hate supporters also had a right to reasonable self-defense when they felt threatened. Unfortunately its hard to know where the line is between speech, inciting one to violence and self-defense from real or perceived violence before a car comes plowing through a group of protesters.

At some point the speech & protest evolved into violence.  I wasn’t there I can’t say who  threw the first proverbial punch or what one event set it over the line from peaceful protest to violent riot.  Both sides have a constitutional right to have their speech heard and to make their protest whether I agree with it or not.  Part of the issue we face now is that we have the benefit of viewing the world with post-World War II glasses. We wonder how someone like Hitler ever came to power to enact the atrocities that he did. This is beneficial because we are always on the look out to prevent that kind of atrocity from happening again. But its also a hindrance because its easy to escalate to violence and suppress speech when it disagrees with our own opinion and views on these subjects.

At the end of the day, I think Nelson Mandela summoned up our freedom best when he said “For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.”  In our polarized world we have to find a way to get along. To get past hate and differences and enhance each other.

What do Independence Day, the Constitution and Julius Caesar have in common?

Somewhere around 5th or 6th grade, I was required to memorize the Preamble to the Constitution.  A few years later, a high school English teacher required me to learn and recite lines from Shakespeare’s Julius Caesar, being the rebel that I was I chose an entirely different passage than what the majority of the class picked. Now 30 years later I can still recite both passages and it occurs to me on this rainy Independence Day that the preamble and the passage from Shakespeare had a lot in common, though I doubt I knew it then, and that both said a lot about who I would become.

The words from the Preamble, written in 1787, some 11 years after we declared our independence from the King of England, inspired and influenced me in a way I wouldn’t understand for a long time:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Preamble is the introduction to the principles and purpose of the Constitution. It is not a part of the Constitution and grants no powers, but has been viewed as evidence of what the Founding Fathers of our Country wanted to achieve with this document that has ruled us for some 230 years since it was drafted. The purpose according to the words was to form a “more perfect” union that provides for the good of all of our people of the United States. The Preamble doesn’t guarantee perfection, as we all know perfection is unattainable by man, but it does strive to create a government that continues to be better, to provide for all, to guarantee our continuance as a society, to defend us in our time of need, and secure our liberties.

There is much debate in constitutional law about whether the words in the Constitution should be interpreted to mean the same as what they meant in 1787 when our Founding Fathers met to draft it or if they were to change with society.  As a student and practitioner of the law, I believe that the Founding Father’s knew and expected the interpretation of their historic document to grow over time.  These men knew that society changed and developed and that for government to continue to exist it had to be willing to change with it.  This was part of the break away from England, the King did not adapt his rule to the changes occurring within the colonies so the colonies adapted the rule of law for him and gave birth to a new nation.

With this in mind, I think about the passage I chose from Julius Caesar. It is in Act 1, Scene 1, and set in the streets of Rome when the people are waiting for Caesar to come through the city and it sets the theme for the play.:

“You blocks, you stones, you worse than senseless things,O you hard hearts, you cruel men of Rome, Knew you not Pompey?…..”

This passage is about the fickle nature of the people to switch their support from one leader to the next  over simple things.  The speaker is reminding the people about the last celebration for the former leader when they backed him wholeheartedly but now they are flooding the streets cheering for the new leader.  This seems to be the nature of our political society today, constantly changing support from one dynamic figure to the next based on what they say rather than what they do.  I find this to be interesting given another common cliche  “actions speak louder than words” often repeated in life. We vote, electing and reelecting leaders, who’s accomplishments we celebrate and who’s words before the election promise one thing but their actions post election show the words mean little.

I fear we have become the citizens in Julius Caesar, changing our loyalty from one dynamic leader to the next. Relying on words instead of looking to their actions.  Placing our trust in “parties” and “platforms” rather than in the elected people who regardless of party show a demonstrated practice of acting in their own self interest rather than in the interest of our citizenry. I’ve heard repeatedly that no one was happy with the candidates offered by the major parties in our 2016 election, yet they were the ones chosen by our political process, one of the best, if not the best in the world, to represent us, to lead us, and to speak for us.

In a time when our country is divided, the words of our Preamble, the Declaration of Independence and even the Constitution itself to remind us of the founding principles of this country.  The principles that were, are, and will continue to be important enough for people to fight and die for to ensure that we continue as the greatest nation in the world.

We The People….need to be the change that we want to see in our community, in our state and in our country. We The People….like we were in 1776 and in 1787 are the future and the voice of our times. We The People….need to make our voices heard  and votes count to direct, steer, and guide the future of our country.  We The People….need to decide if we are Romans cheering the next dynamic leader who conquers those who are weaker or if we are the Founding Father’s giving birth to and  raising the greatest nation in the world to provide for All the People.

Placing your cards on the table in a family law case

Some weeks when I sit down to write this column its very easy. I write about a subject that I’m dealing with in my practice, that I’m asked about all time or that is in the news. But during other weeks it’s a struggle to find something that I think the readers might find interesting in this crazy world that I live in.

Over the weekend I read an article about the high suicide rate among lawyers and I found myself wondering what it is I love about what I do and why so many lawyers are unhappy.  There are days when I come home when I think I would literally rather dig ditches under the high Oklahoma August sun than step foot in my office again. On the flip side, there are days when I can’t wait to get up and go to court because I live for the thrill of the hunt. Today was not a thrill of the hunt kind of day, but Monday seldom is for me anyway.

I started my day in family court.  Opposing counsel was late due to a scheduling problem, my client was nervous and edgy and we were at the end of the docket.

Opposing counsel and I had never worked together on a case before and he was a new lawyer so we sat and talked for a while and got to know each other in addition to talking about the case.  In doing this I told him a little about my philosophy about family law. It’s a philosophy that is born out of being a lawyer, having been the child of divorced parents with half siblings and step parents, going through a divorce myself and  parenting children through divorce and remarriage.

Each of those experiences has helped enrich my practice and expand my point of view in and out of the court room.  It has also helped my professional happiness and stress level.  I also told this young lawyer that while clients would come and go, we would be seeing each other again, that the client’s problems were not our problems and when we left court we should be able to shake hands, have lunch and tell war stories.

Some client’s do not like it when the lawyers are friendly with one another, they want a blood bath at all times but that rarely works out for anyone.  The law is a field where we are paid to fight and we are evaluated by the size of our kill.  But in a family law situation the unintentional “kill” is often the children and it is incumbent upon the lawyers to protect the children when the parents lack the willingness or the ability to put the children’s needs first.

The young lawyer was a little surprised when I told him my philosophy about family law, I could read it in his face.  At the same time, something very interesting happened.  I watched him soften a little too, not with weakness but with humanity and trust, that I was not interested in taking a child away from a parent but in making sure that the needs were being met in the best way possible.

Suddenly the other lawyer showed a willingness to listen to me about why I was proposing certain things for this family and I walked away from the Court hearing getting virtually everything my client wanted and I believed were best for the children in terms of visitation, support and the like.  I did not attack his client, I did not say all the awful things I could have said about his client, I did not tear apart the other parent in the many possible ways that I had the ammunition to do.  Instead of focusing on the negative aspect of the parents, I focused on the positive aspects of the children and how to best meet those needs. In that case it was clear that one parent better filled those roles and we set goals for the other parent to meet so that the child did not suffer.

Sometimes the scorched earth litigation tactic, even in family law,  is appropriate, but most of the time, just taking the time for cooler heads to prevail and discuss what it is that you want and why is all that is necessary for things to work out.

I think lawyers and litigants would be a lot happier in the process if we were encouraged more to be real about the process and to lay our cards on the table about what we think.  Since I’ve started doing that I’ve been amazed at the difference I’ve seen in my practice and the response from opposing counsel in general just like the response I got today.  The court and opposing counsel have come to know that I believe and advocate strongly for both parents to be involved in a child’s life.  I believe children need a mother and a father who are involved on a regular basis.  Because this is the position I always take, I also believe when I take a different position the Court and opposing counsel notice and give my reasons more creditability because they know regardless of whether I have mom or dad I want to see both parents involved with the kids and If I’m making a recommendation for someone to have less involvement that must mean I have serious concerns.

Finding ways for attorneys to reach common ground and work for the greater good for the clients is better than a “win” for the particular attorney and should be our overall goal in family law.  At the end of the day, I want to make sure that my client’s family’s needs are met more than I want to make sure that I have a verified “W” in my win/loss column because a satisfied client is always a win and I am then always a happy lawyer.

What is negligence?

One of the great lessons that I’ve learned in life as a lawyer and as a parent is that we all learn differently. I’ve also discovered that my own learning style isn’t universal for all tasks.  For example if I’m learning for rote memorization for a test, I learn best by reading and rereading material over and over until its burned into my brain.  But to really comprehend concept such that I can explain it to someone else, I need to take the concept and apply it to everyday life.  I used this lesson over and over in life in law school raising toddlers and  in my legal practice.

My oldest daughter was 6 months old when I started law school and the younger one came into being during the first few weeks of law school.  I spent the summer between year one and year two of law school taking care of babies and reading as much as I could ahead so that when school started back in August I could occasionally sleep.  Since I was a part time law student it took me 4 years to complete my degree while balancing work, babies and school.  Balancing family life and law school meant that I had to learn how to learn in any environment and i had to get creative with my study habits.  As my girls got older and more independent this meant reading in the park or at the McDonald’s play zone while keeping one eye on them and one eye on the text book or flash cards I was studying.  One minute I might be trying to teach the concept of sharing to a 2 & 3 year old fighting over the same happy meal toy and the next minute analyzing why burning the flag is considered protected speech under the first amendment.  It wasn’t until much later in my practice, really the last few years, that I even realized how much this experience enhanced my skills as a lawyer in the courtroom, as a teacher to new lawyers, or in counseling my clients on an everyday basis.

Balancing all of this helped me develop those crazy mom eyes that we all get at some point in the parenting process … you know where you can be doing something on one side of the house while knowing exactly what your kids are doing upstairs on the other side of the house.  However, it also taught me to read people for signs of honesty or deceit, to look for signs of understanding,  and to see complicated legal scenarios happening in everyday life.   The other interesting thing about law school that I didn’t understand until I was a real world lawyer, even though I’d heard it a thousand times, is that law school does not teach you the “business of the law” or even what it means to “practice law,” law school teaches you how to think like a lawyer.

When I think back on when I first realized I had started “thinking like a lawyer” I think about a dreary winter day studying at the McDonald’s playground.  On this particular day  I was trying to wrap my brain around the legal concept of  negligence. Law students are taught that the elements of negligence are duty, breach, causation, and harm.  If all of those elements are satisfied then a negligent act occurred. Great but what does that mean???  If the lawyer cannot translate a concept like negligence into real words to a judge, jury or a client its no different than saying well you should know that NaC2H3O2 is sodium acetate because you can clearly see that the elements that make it up are sodium, carbon, hydrogen, and oxygen.  No that’s not how most people think or analyze facts. In fact I only know that because I randomly recall thinking it was funny in high school that a chemical formula was NaCHO but even today I had to look up what NaCHO was called.

So in real world terms what does it mean when someone says you’re negligent? Negligence is the notion that an ordinary person A going about the routine of life has a DUTY of REASONABLE CARE to ordinary person B. If the DUTY is BREACHED by the doing or not doing of some act that the ordinary person A knows or should know could cause harm and the BREACH CAUSES HARM to ordinary person B. Then the ordinary person A is NEGLIGENT and is liable for DAMAGES to ordinary person B. So what are damages? Damages are a dollar figure used to value the harm, because no lawsuit can undue the harm caused by a negligent act, it just can give you money to act as a band aid so the harm doesn’t hurt so bad. And what if the ordinary person B also has a duty not to harm ordinary person A and ordinary person A got hurt too?  This is called contributory negligence. Then what about ordinary person C who is watching A&B engaging in their duty of reasonable care but he’s acting like a fool.  The first thing you might wonder is “WHY CAN’T WE ALL JUST GET ALONG???”  The second thing you might wonder is how does this all work together and who’s at fault when the inevitable bad thing happens.

Back to McDonald’s, I had my aha moment on these concepts at McDonald’s watching the kids on the playground.  Picture it if you will …. Adam is sliding down the slide, while Billy is climbing up the slide, while Chris is standing at the top of the play zone screaming his head off because he’s a kid, its raining & mom said no ice cream so he’s throwing the ball pit balls he carried to the top with him at Adam & Billy who aren’t paying any attention to him or each other  The inevitable happens and Adam & Billy collide and fall over the side of the slide and both break their arm (in real life there were only bumps and bruises). Who’s at fault and why? Well Adam is using the slide properly he climbed up the steps and is sitting at the top trying to go down properly.  But Adam either sees or should see Billy climbing up the slide and a reasonable person in Adam’s  place should know if he slides down he is going to hurt Billy so even though Adam is in the right, if he slides, he might have breached his duty if he knows or should know that sliding will cause Billy to get hurt.  Doesn’t Billy have the same duty to Adam, not to crawl up the slide when he knows that is not the right way? Yes Billy has to know because his mother has told him 100 times “we climb up the ladder and slide down, NOT climb up the slide and down the ladder.”  Billy has “ASSUMED THE RISK”  of getting hurt because he knows or should know that playing on the slide in this way is wrong and can cause him or someone else to get hurt.  So if its just Adam and Billy, playing on the slide and Billy sues Adam, the jury decides who’s more negligent.  If the judge or jury decides that Billy has $100 in damages from the accident and Billy was 50% at fault in the accident then Billy gets 50% of his damages ($50) from Adam.  The damage award is reduced by Billy’s percent of negligence.  However, if Billy is 51% negligent in causing his injuries then Billy can’t recover any money damages from Adam because Billy’s negligence is greater than Adam’s negligence.

Well what about Chris who was screaming and throwing the balls at Adam and Billy is he at fault in this whole mess? Maybe. If Chris’s screaming and ball throwing distracts Adam and causes Adam to slide down the slide because he was trying to get away from the balls even though he knew Billy was climbing up the slide, then Adam isn’t the cause of Billy’s harm when they collide because Chris’s actions are an “intervening cause.” An intervening cause is a set of actions that by themselves are enough to cause harm and interrupt a previous bad act to cause harm.  Here it would stop Adam from being at fault in the collision because Chris’s behavior of distraction and ball throwing was enough to cause the harm itself and it is what actually caused Adam to slide down the slide, not Adam’s disregard for Billy.  However, if Adam slides because he wants to slide regardless of Billy and Chris is throwing the balls that hit Billy and the ball throwing and screaming cause the impact to be more dangerous and cause greater harm to Billy than if either had just happened, then Adam and Chris are “concurrent causes” and the judge/jury gets to decide what percent of harm is caused to by Adam, Billy and Chris.  However, Billy still has to be less than 51% at fault total to recover any money from Adam and Chris.  A question left to another day is does McDonald’s have any fault in all of this?

Watching this scene unfold in part peaked my interest in civil personal injury law.  It also led to my family calling me a “fun sucker” because I developed a habit of saying do you know how many ways what you are proposing to do could go wrong and I won’t have anyone to sue??? But most of all this day at McDonald’s flipped a switch in my “think like a lawyer” brain to translate a complicated legal concept I had tried to understand through rote memorization into a concept I understood and could explain to you because I applied it to everyday life.  I had to look for the duty, find the breach, determine if the breach was the cause something to happen and if the harm that happened was real.  I had to watch the actions and explanations to determine who was being truthful, who was lying, what each child’s intent was and what he reasonably believed would happen based on his action.  My practice of law ironically started in the raising of children and to this day I often explain negligence to my clients in terms of these 3 kids at McDonald’s.

Preparing for a storm

Spring is here and spring in Oklahoma means storms!  Living in tornado alley, social media feeds are full of references to our legendary weather – the Gary England Drinking Game, Mike Morgan’s weather ties and Rick’s tornado circles.  Rick likes to draw one of those circle over my house in Piedmont and yell “take cover” at least once a year.  All of this crazy spring weather often leads to lots of questions about insurance.  What do I have? What do I need? What do I do?

Whether you own or rent a home, you need insurance.  If you are a renter, you need renter’s insurance.  That will cover your personal contents in the event of a weather disaster that causes loss or damage to your rented home or apartment. If you are a homeowner and there is a mortgage on your home, then you will be required to maintain home owner’s insurance which covers both the structures of the home and the contents within the home.  If there is no mortgage on the home the requirement for homeowner’s insurance goes away but the need for it does not.

Many people learned this lesson the hard way after Piedmont was hit with a devastating F5 tornado in 2011.  I’m not the kind of girl you want out swinging a hammer or picking up debris post storm, not because I can’t, but because I’m a klutz and likely to injury myself or someone else in the process.  Therefore, I volunteered to help the community in the best way that I could which was helping people interpret their insurance documents, make claims, and get their reimbursements.  One of the things that I universally found was that many older folks were either uninsured or underinsured.  Uninsured meaning that they had let their coverage lapse because they no longer paid the mortgage and/or thought that insurance wasn’t necessary or could no longer afford insurance.  Underinsured meaning they had some coverage but not nearly enough coverage for what they owned and what needed to be repaired or replaced. While its impossible to value a lifetime of memories and stuff, it is very possible to value the buildings we live in and the household goods we accumulate.  A good insurance agent will help you review this on a regular basis to find the right mix of coverage and affordability.

As we get older, incomes tend to decrease and become ‘fixed’ as we rely on social security and pensions to live out our twilight years.  Often expenses have to be cut and homeowner’s insurance is viewed as a luxury or unnecessary expense once the home is paid off because its no longer required, but that is when insurance is needed the most. After years of scrimping and saving to pay off your mortgage, insurance is still needed to protect your investment. Your home is an asset that should appreciate from year to year rather than depreciate, meaning the dollars you invested in it continue to grow so its value increases rather than decreases. Further, when your income is fixed you need that investment protected because you likely do not have the income or the savings to repair or replace a home and/or contents due to storm damage or other destruction.

Homeowner’s insurance covers more than just the structure of your home or other buildings on your property. It also covers the contents of your home and your belongings, alternate living expenses and liability protection.   Policies need to be reviewed closely though to ensure that you have the proper level of coverage for structures, contents and belongings.  Most standard policies only provide up to a certain dollar amount of protection for things like electronics, jewelry, furs, and firearms.  In today’s consumer focused society with gadgets especially, the standard policy is often not enough to cover you in the event of major home damage or theft.  The value of the contents of the home is also a calculation based off the value of the home itself rather than the actual value of your contents. Most people really do not know the value of the cost of their ‘stuff.’  Spring is a good time to make a list of all of then contents of your home with models, serial numbers, and the like.  This lets you know what is in your home in the event of a tragedy but also helps you evaluate your coverage.  Additionally, it’s a good idea to keep this list in electronic format and stored off site or in a secure cloud file so that if your technology is ever damaged you can get the list back.

If you have to move out of your home during repairs or if your home is completely lost due to storm, fire or other damage, your policy provides funds to cover alternative living arrangements while the home is being repaired. Alternate living usually covers up to a year but may be shorter or longer depending on the loss event or the terms of the policy. Liability protection is also an invaluable asset to have. If a friend or family member gets hurt while visiting you, if your dog bites someone, or if you do something negligent and it causes harm to someone your liability protection is available to pay the cost of a lawyer to defend you in court and then if you are liable to pay for the damages up to the amounts of your coverage.  An umbrella policy can also be purchased to cover liability for auto accidents or other damage.  April showers have arrived and storm season is upon us.  Make sure you have prepared financially for the storms so that when its time to take cover, you know you are protected.