UPDATE:
phil:
this is the "comment" i just posted at atlasshrugs. i agree with you about the judge. a very interesting hearing, based upon robert spenser's live blog. will check you shop, see what you wrote.
.......
.......
::::::::::::::::::::::::::::::::::::::::::::::::: at atlasshrugs ::::::::::::::::::::::::::::::
http://atlasshrugs2000.typepad.com/atlas_shrugs/2009/09/the-rifqa-bary-press-conference.html
i read robert spenser's live blog of the proceedings.
this judge appears to me to be in charge of the proceedings, and also to have rifqa bary's best interests at heart and in mind.
he also appears to me to have a very firm grasp of the legal principles involved.
spencer has a good ear, catching and noting this exchange between the parent's lawyers and the court:
"Now the parents' lawyer says that Ohio Child Protective Services won't file a case because they don't think she is in danger, but FL only has jurisdiction because Ohio has not filed a case, setting up a catch 22. He says that if they have to, they will file a case in Ohio charging that Rifqa is an unruly delinquent. The judge says essentially that if another case is filed, jurisdiction will be reconsidered."
now, the first thing to note is that the bary parent's lawyer does not speak for the state of ohio, and the court obviously understands this, cuz he ain't nibbling. the second thing, is what the lawyer said about the necessity of the parents having to allege that rifqa "... is an unruly delinquent ..." in order to get ohio to exert dependent child jurisdiction, and the ancillary allegation which is necessary, which the lawyer did not mention, that the parents are either unwilling or unable to care for her because of it.
the reason that the bary's have not done so already, and are really quite unlikely to, is that this type of allegation will invoke the jurisdiction of the ohio courts, (and, quite likely cause the florida judge to recognize appropriate jurisdiction in ohio according to doctrines of comity and full faith in other court systems), but it will also insure that rifqa goes back into a court setting, and into the custody of the appropriate ohio child welfare system, with legal representation and guardians ad litem and the like.
based upon a parental allegation such as alleged by the parent's lawyers, rifqa would not be returned to her parents care. the matters would go forward.
there is a real danger here, however.
if rifqa's parents initiate the proceeding and get her returned to a state social services setting and court supervised custody that is one thing. but, unless the state of ohio joins in the petition, rifqa's parents might be able to move to dismiss the petition they have filed: in which case, it would be up to someone to step forward and file a petition on their own.
mr. stemburger will no doubt be aware of this possibility.
as will the florida judge.
my guess is rifqa's parents will not file in ohio. they have had ample opportunity to do so: most dependency petitions are forms which the parents fill out by filling in several blanks, and then adding an affidavit like couple of sentences at the end explaining why the child is abused or is delinquent or why the parents are unwilling or incapable of caring adequately for the child.
it is simple. it takes about 5 minutes, and the petitioners are generally aided by court personnel, including social workers.
that the parents have not done so indicates that they have very grave misgivings about doing so. and, for whatever tactical reason, the parents "sponsors" in the forms of c.a.i.r. and the mosque do not feel that it is appropriate to do so at this time.
it may be that they want to milk this florida "event" for all it is worth, to see what rifqa's strategies are. or, it may mean that they think that they are getting the most favorable and credulous press coverage nationally they could hope for, and that they feel they may lie openly about islamic doctrine and never be questioned on it.
or, it may be that they do not want the mosque's activities looked into under the glare of publicity that this case is generating. this is my estimation.
at any rate, this matter has just begun.
it appears to me that rifqa bary is skillfully and zealously represented. she also, it would appear to me, has a very skillful and capable judge governing the case, who is doing his best with limited resources jurisdictionally speaking, to protect her as best and as long as he can.
john jay
milton freewater, oregon usa
[please see: http://atlasshrugs2000.typepad.com, almost for the last two weeks, for excellent coverage of what has been going on in this case. indeed, it is not an exaggeration to say this might not be a "case" were it not for pamela geller's news coverage, and her efforts to protect this child.
what follows herein is a legal analysis on the narrow issues of jurisdiction, and in which court the matter will likely be heard. john jay.]
friends:
i practiced almost exclusively in the juvenile courts and in child dependency court for about 10 years in the state of washington, maybe more.
there are some cautionary notes here, w/ regard to the court's ruling in the bary case.-- in my opinion, the matter has just begun, and there is a long fight ahead to try & keep the matter in florida, which outcome is problematic at best.
i do not know for sure, because i was not there and i don't know the procedural posture of the case at all, this not having been reported with requisite clarity in the blog coverage, and not having been covered at all in the mainstream media. (so take what i say with a grain of salt, as well!!) but, after reading phil aver at jewishodysseus, [http://jewishodyssesu.blogspot.com/2009/08/rifqa-bary-wins-direct-from-courtroom.html ] and pamela geller at atlasshrugs, [update: pamela geller has information suggesting that rifqa's father is liquidating his business, suggesting he may flee the country. http://atlasshrugs2000.typepad.com/atlas_shrugs/2009/08/was-rifqa-barys-father-planning-on-fleeing-the-country-with-his-threatened-daughter.html ]it would appear to me that the judge has made no ruling whatsoever on the merits of the case, and has simply ruled that it is appropriate for the florida court to exercise jurisdiction over the matter, at least for the time being, there being no court proceeding regarding the parties in ohio.
the ruling is a limited ruling only to the extent that it appears to the court appropriate for the florida court to exert jurisdiction, but that no ruling has been made as to whether ohio might be a more appropriate forum.
this is not what lawyers would call an "appropriate forum" ruling, which would bind the parties to have the matter heard on the merits in florida. this is only a preliminary ruling that under some circumstances, it may be appropriate for the florida court to here the matter on a contest of the merits of the contentions of the parties, or, that given facts as presented in an ohio court, it may be more appropriate to hear the matter there.
there is here what arecalled "a choice of law" issues, dealing with the comity of the courts: "comity" being that doctrine of respect between the states to give due faith and credit to the other state courts, and to defer to having a matter decided by a sister state if it seems appropriate. we are a nation of 50 states and a federal government, ... , a big duh!!, ... , and sometimes the courts have to decide which is the most appropriate forum in which to decide a legal issue as between several state court systems, and that has to do usually when the parties to an issue reside in or do business in different or multiple states, or if the events in a case occur in one or more states (for the most part). (yes, there are some malleable concepts involved here.)
in most such cases, the courts will use what is called "a most significant contacts" test, to try and weigh facts to see in which state the most of the facts or occurrences took place, or where the parties have the most significant contacts, and will defer the hearing of the matter to the state in which this has occurred. sometimes courts will use what is called the "convenient forum" test, to see which court system offers the most convenience to the principal parties, in terms of court process, appearance and other allied issues.
in contract law, sometimes the parties will stipulate and agree, usually as a matter of bargaining power, the state whose domestic contract law will decide a dispute: the party with the most bargaining power usually picks a place whose law is most advantageous with regard to a matter of potential contention.
in domestic law, and dependency law is part of this generally, the courts will look to see if:
1.)the court has any jurisdiction over the matter at all, in order to be able to properly hear the case, and
2.)whether the matter should be properly heard in that court, or whether the court of another state is more appropriate to hear the matter, should it appear that such other court also is capable of exercising appropriate legal/subject matter jurisdiction.
now, usually, in a case like this, with all the parties involved resident of the state of ohio, and the acts which are open to contest having taken place mostly in ohio, had there been an action pending in ohio prior to the filing of the matter in florida, or perhaps even afterward, the florida court would have engaged in the following analysis:
1.)does florida have jurisdiction to hear this case, and
2.)is florida the most appropriate forum in which to hear the case, e.g., which state, florida or ohio has the most significant contacts, and which is the most convenient forum for all the parties involved to have the case heard, in terms of witness availability, parties, and the best social agency to contact all the various persons who may be of interest in the matter, or who may be witnesses.
it would appear to me, that the florida court has decided at the very least:
1.)the state of florida has been sufficiently involved in this to at least exert jurisdiction for the time being; and
2.)that for the time being the state of florida is the most appropriate forum to hear the matter, as no contemporaneous legal case has been filed in ohio, .... , not by the parties, and not by the state of ohio.
from what i have read, issue no. 2 appears a very open question to the florida court, and that a definitive ruling from the florida court on that particular issue yet remains forthcoming: some of the court's comments suggest quite plainly that if the ohio courts, or parties appearing before ohio courts, wish to exam the question as to the appropriate forum in which to hold the case, the florida courts will do very little to try and retain their exercise of jurisdiction.
if, either the parents in ohio or the state of ohio files a dependency action, and to do so requires an assertion that the child is dependent: either because of her actions, e.g., rebelliousness, defiance, or that there is no parent willing or capable to supervise her and provide for her care, or that she is the subject of neglect or abuse, ... , then the ohio court and the florida court might exchange information, and hearings would be held in ohio and florida to see which is the most appropriate forum to hear the matter.
were this to happen, in my opinion, it is most likely that both the florida court and the ohio court would be in substantial agreement that it would be most appropriate for the ohio courts to hear the matter on the merits, and that ohio would be the appropriate and most convenient forum in which to hear the case on the merits. it is actually pretty cut and dried, (with one exception which i have never seen happen), ... , the parties all having lived in ohio in the most recent and relevant past, all the parties having been in ohio when rifqa left home, and almost all witnesses and/or concerned parties living in ohio. in addition, those persons, such as guardian ad litem's, counsel, and social agency investigators, would be most easily capable of performing their duties being handy in ohio to talk with people in ohio who have personal knowledge of the matters in contest.
a discussion of this matter does not appear to have been foreclosed at this point, based upon the court's remarks, such as i am given to understand them. nor can i imagine a competent judge foreclosing a decision to return the matter to ohio under the facts of the case.
it appears to me that the judge has made an initial ruling that the florida court has jurisdiction to entertain the case, but that no decision has been entered as yet as to appropriateness of the forum.
does that mean i think nothing positive happened?
oh, no, ... , a lot positive happened. the judge has decided, i think, that she is in the very real danger of physical harm if not death, if she is simply returned to her parents in ohio. and that, it appears, he was most unwilling to do.
well, so what?
in my opinion, if it does happen that a case will be filed in ohio opening a choice of law debate all over again, then the situation becomes that if the judge does order rifqa to be returned to ohio, she will not be returned in all likelihood to her parents, but into the hands of another foster family or a foster care facility, while the matter is heard on its merits before an ohio dependency court.
i do not think the judge will order her returned to ohio until he is satisfied that a proper dependency action is up and running, that she has counsel available to her in ohio, that she has guardian ad litem's (other lawyers available to represent her interests in a different manner), and that she is appropriately protected in foster care and that her parents be appropriately restrained from seeing her in the absence of persons able competently to assure her protection.
dependencies generally follow a certain path.
the child is taken into custody as an alleged dependent child.
with a short period, 72 hours or some such, what is called a "shelter care" hearing is heard, and that hearing is designed to address the issue as to whether parents are able to adequately supervise or care for a child's well being, and directly related to that is the issue as to whether there has been any history of abuse or threats of abuse or harm, and if such a showing is made, the child is placed in the "shelter care" of the state.
after the shelter care hearing is heard, state agencies are appointed to do reports to the court as to the most appropriate disposition of the case, and whether or not it is appropriate for the child to return home and under what conditions; whether it is appropriate for a child to be placed in foster care, usually with relatives, but given the circumstances of this case that is likely to be very hotly contested; or, in extreme cases, whether the state will move to sever the relationship between child and family. keep in mind, that in most states, the statutory presumption is in favor of reunification of the family, and to defeat that presumption places a heavy burden upon the proponent of terminating the child/family relationship.
given the facts of this case as to the issue of her safety, and the allegations of abuse by her dad and the statements of her mother, i cannot imagine that rifqa would be returned to her parent's household under any circumstances, whether in florida or ohio, at the shelter care stage of the proceeding. before that would happen, the parents would likely have to undergo family counseling, and extensive interviewing and counseling with the state agencies involved to show that the situation has healed itself. this is in the normal run of the mill situation.
in a case like this, with the religious and sociological issues involved, a cautious court would want to have very extensive reporting done to evaluate the risk to which she is exposed by being with her family, especially her father and mother, and her aunts and uncles. (all of whom present a risk of harm up to and including murder to the child, not to mention the same risk presented to her by mosque officials and members of the mosque, given her status as an apostate muslim.)
i have seen cases involving either abuse or sexual misconduct involving family members to take several years to resolve, and some cases remain open and under court supervision for 5 & 6 years, and beyond. given the complexity of this case, i cannot envision it resolving itself in a year's time: the jurisdictional wrangles might be contemplated to take 6 or 8 months to settle, all by themselves, let alone resolution of the case upon its legal and factual merits.
there is another very real consideration here.
and, that is the fact that if a dependency action is filed in ohio, whether by her parents or by the state of ohio, then her parents come under the jurisdiction of the ohio courts. her parents may be very loathe to do that, as they then are subject to temporary or permanent orders of the court with regard to travel, association and any number of other things, and they are also required to submit themselves to state agency supervision and examination. in addition, they might be ordered to be in compliance with any therapeutic or counseling regimens that the state agencies may order them to undertake. and, this is without the child being in the home, because the preliminary analysis will be whether it is even appropriate that this take place.
finally, let us consider what happens if the florida trial court orders that as a choice of law issue that it is appropriate that rifqa be turned over into the custody of an appropriate ohio court exerting its dependency jurisdiction.
rifqa has the right to appeal that ruling, in all probability, it constituting a final order of the florida trial court, in all probability.
this of course, would take time.
if a long time passes without the parents filing a motion for dependency in ohio, or if the ohio authorities, (and that could include the prosecuting attorney's office, the attorney general's office, or an interested social agency or worker) do not file an action, ... , well then, it gets very interesting.
my guess is that rifqa's parents are not pursuing the matter very strongly and are quite possibly lying very low, because in ohio they are exposed to criminal prosecution and sanction for their conduct, either under abuse or assault or neglect statutes. my further guess is, they would probably not want to get involved in this, in ohio. the dad had kind of a free lunch in florida, because he knows he is not going to be prosecuted in florida, (though what he said under oath in florida could very well be used against him in an ohio court, assuming the florida court took proper precautions of informing him of his 5th amendment rights, and advised him of right to counsel if he wanted one), but he could very well face prosecution in ohio.
so, that leaves it up to the ohio social agencies and a.g.'s & prosecutor's. if they initiate the action, it will have to be on the grounds of a parent either neglecting to care or being unable to care for a child, or abuse or assault grounds. even if they just file on the runaway basis, they are probably going to have to allege that a parent or both parents are either unfit or are unable to adequately care for the child & her needs.
this will mean that the child will be placed into custody, ... , choice of law issues may arise again, ... , and then a shelter care hearing, and then a trial on the merits.
my guess is that rifqa, even if returned to ohio, will not be placed in the home with her parents in the next year.
now, she has said she would like visitation with her brothers. in a sense, this makes it easy for the florida court to decide that ohio is the appropriate forum, because in order to reasonably and practicably have that happen, she is going to have to be in ohio. ultimately, it seems to me, that unless the florida court were to decide that certain circumstances being in ohio is a matter of physical danger to the child, e.g., that the mosque and its congregation presents a danger to her, or that her parents present a risk of assault or murder to and of her person, ... , and that the ohio courts are likely to refuse to recognize these open and notorious dangers, ... , then she is quite likely to be returned to have the matter heard by an ohio court.
which brings me to the last topic. i think for the florida judge to say, no, she stays in florida even if an ohio proceeding is brought, it would have to be on the basis that the florida court were to find the ohio court and social welfare system is indifferent to the safety of the ward, to an extent that she would be endangered by being sent back to ohio. this is not a very likely decision for one court to make about another court, the judge in florida believing that an ohio dependency court judge would be sensitive enough to the interests & safety of the girl sufficiently to guarantee her physical safety.
so, in sum, an initial procedural hurdle has been cleared.
but, other hurdles need be cleared to have the case heard in florida, and they appear almost insurmountable if a proper dependency action is brought in ohio. it is unlikely that on a choice of law analysis the case would stay in florida, if another matter is brought in ohio, given the state of the law on the issues of "significant contact" and "convenient forum".
but, will the parents bring it? probably not.
so, that leaves it up to the ohio social agencies. will they bring it? not unless they feel they can allege the necessary and proper jurisdictional bases to do so. and, where would they get such facts? why, from parents, family, friends and associates. we will see, i suspect, in rather short order whether those people want to cooperate with the state agencies or investigators, or the police. how badly does c.a.i.r., or how badly does the mosque, or how badly does rifqa's family, want to see their dirty family linens aired in public?
we shall see.
john jay @ 08.22.2009
Ohhhhh, Mr. Jay, it is as if you were sitting next to me in the Orange County Juvenile Courtroom, mahbruthaaaaahhhh...Very impressive!
Those were exactly the issues raised in the hearing, and that is how those issues were discussed.
Judge Dawson specifically noted that there is no other court proceeding in Ohio, therefore there is no question of competing jurisdictions. And he specifically explained that, should a proceeding arise in OH, then he and the OH court wd review the cases to determine the appropriate venue.
One unique factor: the Judge and the DCF both raised the potential danger to Rifqa "from the community" as a relevant issue. It is difficult to imagine how such a danger can be mitigated in any period of time. I can't believe that the planned FDLE investigation will downplay that hideous and credible threat.
I hope you are right as to the unlikelihood of the parents to press the issue in OH. But something tells me the morally corrupt Islamist attorneys hired by the mosque will prevail upon them to follow thru.
You were spot on about transferring Rifqa's custody to OH social services, not to the parents, Aysha's attorney (McCarthy) specifically alleged this...However, he was harpooned by the GAL atty (Bartholomew), who pointed out that, under OH law, even if she was transferred to the state there, her parents cd at any time RETRIEVE HER FROM THE STATE, effectively rendering such protection meaningless.
BTW, one little idea kept running thru my head...Say the tide turns...Judge makes a ruling to return her to Ohio...All over the courtroom are those solemn bailiffs...Perhaps Rifqa may take a strategic swing/slap at one of them, to provoke a felony batt leo charge? She is easily old enough to be charged as an adult in FL, and no criminal judge wd allow her reasonable bond or pre-trial release without a condition that SHE REMAIN IN THE COUNTY...Very few of these felony charges resolve in less than 8 months, many go on for more than a year, heheheh...And then Rifqa winds up with the most credible/sympathetic "necessity/duress" defense in US history, NOT GUILTY!!
And she's just 18 years old.
Posted by: JewishOdysseus | August 22, 2009 at 08:24 PM
phil:
thank you for these very kind words.
and, for the observations. you know, juvenile court doctrine in washington state says once you go into adult superior (felony) court, you are no longer treated as a juvenile. (no constitutional right to be a juvenile in juvenile court, it is a legislative court, e.g., created by the legislature and not the constitution, and what the legislature gives, in terms of various immunities from adult punishments, it can take away: zip zap, just like that.) (sorta odd, since juvenile court jurisdiction comprehends felonies, for which a child may be put into adult prison in washington state, if the department of corrections decides through a contested hearing process before administrative court judges who work for d.o.c. -- sorta cozy, eh? -- that the subject child is just too damned dangerous to be kept with other juvi's.)
but, who said it had to make sense?
i sorta felt that it had to have followed the scenario i supposed, based on a lot of time spent in juvenile hall, in both criminal and dependency settings.
by the way, from the pictures i have seen, it was no mean feat getting into that courtroom for the hearing. you know, i have sat through and participated in literally 1,000's of those kinds of hearing in juvenile hall, but i expect that even i would have been pretty damned juiced watching this one.
sounds to me that the judge preformed splendidly, and sounds to me that rifqa's court appointed attorneys are no dullards: they appear to be very comfortable in juvenile hall. different little world. the emphasis is upon remediation in almost all juvi settings, and not punishment: the emphasis is to protect the kids. you know, some of the people who toil in the less glamorous vineyards are pretty capable attorneys, and know the law pretty damned well. always fun to watch a big shot outsider, some who know bupkis about juvenile law, come into the cozy little confines of a different world, and try and feel himself around to try and find the right meter, the right vocabulary and the right manner to communicate in a specialized area of the law like that. they can kinda step on they tallywhackers sometimes, you know what i mean?
but, thank you very much for your comment. it is most appreciated, and most gratifying. i appreciate it very much, phil.
john
p.s. and, it will be very, very, very interesting to see if her parents pursue a dependency in ohio. i expect that they will not.
i expect that the mosque and c.a.i.r. are pressing them very hard to file. the mosque to get their hands on rifqa, ... , c.a.i.r. to politicize things as much as possible.
but mom & dad have their little chicken necks on the line in ohio.
it is a consideration. laughing.
Posted by: john jay | August 22, 2009 at 09:00 PM