Monday, November 24, 2014

When Adoptions Fail: What You Should Know about “Rehoming”


Q:       What is “rehoming?”
A:        Rehoming is the term currently being used to describe a privately arranged second placement for an adopted child when the first adoptive placement fails. Such a failure is called a “disruption.” Usually, it is the initial adoptive family that arranges the “rehoming” of a child to another adoptive family.

Q:       Why would a child be moved from an initial adoptive home? 
A:        Sometimes, children and their adoptive families do not bond effectively. In particular, difficulties may arise when children are adopted from other countries, or when children are older (school age) when placed. Or, an adoptive family may have received inaccurate information about important facts about the adopted child, such as age or health status. Also, many children have been victims of physical or sexual abuse, which prevents them from bonding in their initial placement. Adoption disruption rates may range from 9 to 25 percent. 

Q:       I read a newspaper article that criticized rehoming. What, exactly, are the concerns?
A:        Concerns stem from the fact that these replacement efforts frequently bypass social work safeguards such as home studies, child abuse clearances, criminal record checks and Interstate Compact clearances that are designed to protect the child. Failure to follow the safeguards may expose the child to possible abuse or neglect. In addition, bypassing these safeguards when proceeding with a private rehoming for an adopted child may well be a violation of the law. Therefore, a family trying to place its adopted child with another family must find competent legal representation and comply with child welfare laws. Such families face possible financial and criminal liability if the process is not well managed.
            It is also unclear whether all of these secondary placement families are fully aware of the child’s needs or have the resources appropriate for the child’s care and nurturance. Sometimes, after the child has been moved to another home, no one takes responsibility for providing oversight and for ensuring that the child is doing well in the new home. A second adoption that is done properly would provide such oversight. However, when “rehoming” is handled privately, there may be no home study, so no assessor or social worker would be assigned to oversee the adoption, as would happen in an agency adoption. So, it may be difficult to find the right entity qualified to oversee the adoption and make sure the child is making a successful transition. If the replacement effort is private, these costs may be covered by the placing or receiving parents.

Q:       My husband and I adopted a six-year-old boy last year, but we didn’t realize how difficult it would be. Is there anything we can do short of placing him with another family?
A:        If you adopted the child from a domestic agency, that agency may offer post-adoption services, including counseling, respite care and mental health services. The local children’s services agency also may offer services to avoid disruption, particularly if the child’s actions are a danger to himself or others. You also may opt to privately place the child in a treatment or educational facility while maintaining ties with him. Adoption subsidies are sometimes available to assist with the cost of placement. National adoption advocacy groups recommend that more and better post-adoptive services be put in place to support families such as yours. Ohio law makes special provisions as to child support for adoption children placed in out of the home care with county agencies. Support may be waived if the court decides this is appropriate.
            If these options fail, and you decide the child should be placed in another home, then you must be careful to do so in a responsible and ethical manner with the standard social work safeguards.

Q:       What are some of the reasons for adoption failures?
A:        Sometimes the child’s needs are too overwhelming for the adoptive family to handle, or the family’s expectations are unreasonable. Sometimes the family lacks appropriate training and resources to support the adoption or the family does not receive appropriate social work support. 
            Also, in the last 20 years, there has been a concerted effort to place special needs children in adoptive homes. While such adoptions can work very well, they present additional challenges that many adoptive families cannot manage successfully.
            While enforcement of current laws can curtail some unethical rehoming, such enforcement may also adversely affect situations where rehoming is a good option for a child, such as when a child is moved to a grandparent’s home.

This “Law You Can Use” consumer legal information article was provided by the Ohio State Bar Association. It was prepared by Columbus attorney Susan Garner Eisenman, chair of Ohio’s Adoption Law Roundtable and fellow of the American Academy of Assisted Reproductive Technology Attorneys and the American Academy of Adoption Attorneys. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, November 17, 2014

The CSI Mystique: Forensic Science in the Courtroom


            Long before CSI debuted, juries have reached confusing decisions. Forensic science is an important part of many trials and, if used effectively, can help guide the jury. 

Q:       Is there really a “CSI effect” in courtrooms? 
A:        Yes. CSI remains among the top television shows in America. Many of those millions of weekly viewers will be seated on juries and asked to decide cases with forensic evidence.
            CSI is not the first exposure most TV viewers have to forensic science. The roots of CSI date back to Quincy M.E., which first aired in 1976 and  as early as the 1960’s, popular TV shows such as Mannix, Cannon and Ironside focused on private investigation that involved the use of forensic analysis to solve cases. 
After more than a half-century of these types of television shows, most jurors come into a courtroom with a pre-conceived notion of what forensic evidence should be and how it is used in investigations and litigation.
 
Q:       What is forensic evidence?
A:        Most dictionaries define forensics as “analysis suitable for use in courts or public discussion and relating or dealing with the application of scientific knowledge to legal issues.” Courtroom application, however, is complex.
            Jurors today are intrigued by forensic testing and analysis and are extremely receptive to this type of evidence. Attorneys and witnesses must embrace fully jurors’ interest in forensics and use it to maximum advantage. If they fail to do so, they are unlikely to meet expectations arising from their exposure to forensics through movies, television or popular novels. 
  Jurors are ready and willing to hear and consider forensic evidence, especially when the advocate or witness presenting the evidence intrigues the jury and demonstrates the extent of analysis and preparation that went into building the case in a way that is not dry and boring.

Q:       How does “real” forensics differ from CSI?
A:        Most actual laboratory analysis is done in a basement with old tile floors and fluorescent lighting, and not in the space age, blue-lit phenomenal laboratories depicted on TV. Lab results and testing are far more complicated and take much longer than a one-hour TV episode allows. Hollywood’s depiction is also much different from the forensic evidence and analysis that presented in an actual jury trial.  Attorneys and witnesses must do a good job of explaining and even demonstrating why the jurors can rely on a particular scientific analysis to reach a sound decision about evidence in a case. Many jurors find such explanations and demonstrations to be the most interesting and compelling part of a trial.

Q:       So what, exactly, IS the CSI effect?
A:        The CSI effect describes the way television drama bolsters the impression that forensic evidence is both more glamorous and more conclusive than it actually is. In April 2005, a cover story in U.S. News and World Report, revealing conclusions from a study of the “CSI effect,” reported that many Americans are disappointed when encountering the real world of law and order. In particular, jurors expect that forensic evidence will be used in every case and that it will be conclusive, and these expectations may influence their understanding when performing jury service.
            Due to the impact of the CSI effect, jurors may reach an erroneous decision, not because of a lack of sound evidence, but because the presentation of that evidence does not meet or exceed their expectations from TV. Jurors are ready to be “wowed” in the courtroom by the “who, what, when, where and why” of forensic analysis and evidence.

Q:       How can attorneys and jurors mitigate the CSI effect?
A:        Attorneys must take the CSI effect into account when addressing juries. Simply presenting forensic evidence to the jury may not be sufficient. To advocate effectively for a client, an attorney must clearly understand jurors’ expectations, whether right or wrong, and present forensic evidence in a way that will help jurors better understand the case.
   Jurors must try to adjust their expectations of “real life courtroom drama” and understand that the actual use of forensic evidence is rarely as conclusive or as exciting as an hour-long television show suggests.

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association. It was prepared by Matthew J. Smith, Esq. of the law firm Smith, Rolfes & Skavdahl Company, L.P.A. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek the advice of a licensed attorney.

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Monday, November 10, 2014

Termination of an Ohio Teacher’s Tenured Employment Requires “Good and Just Cause”


According to Ohio law (Ohio Revised Code Section 3319.16), a tenured teacher has the right to a hearing before a school board determines whether there is “good and just cause” to terminate that teacher’s employment contract.

Q:       What conduct constitutes “good and just cause” for a tenured teacher’s employment contract to be terminated?
A:        The Supreme Court of Ohio addressed that question in a case that involved the Mount Vernon City School Board’s termination of a tenured teacher’s employment contract. In Freshwater v. Mount Vernon City School District Board of Education, the teacher who brought the lawsuit argued that the school board did not have “good and just cause” to terminate his employment contract as is required by Ohio law.
            In its decision, the Supreme Court found that “good and just cause” includes “insubordination” by a teacher. The Court further defined “insubordination” as the willful disobedience of, or refusal to obey, a reasonable and valid rule or regulation of the school board.

Q:       Must a school board inform a tenured teacher that the school board intends to consider terminating the teacher’s employment contract?
A:        Ohio law requires a school board to provide written notice to the teacher. The notice must state that the board intends to consider terminating the teacher’s employment contract, and provide the specific reason(s) for termination. For example, if insubordination is the reason for termination, then the school board’s written notice must state the specific instances when the teacher willfully disobeyed or refused to obey a school board rule.

Q:       Can the teacher contest the charges in the written notice?
A:        The teacher has ten days after receiving the written notice to demand a hearing. The teacher also has the right to demand that the hearing be conducted by an impartial hearing referee. The person serving as the hearing referee may not be a member of the school board, an employee of the school or the spouse of a person employed by the school. The Ohio Superintendent of Public Instruction gives the teacher and the school board a list of three individuals qualified to serve as a hearing referee. If the teacher and the school board cannot agree on one of those three individuals, then the Superintendent appoints one of them to serve as referee.

Q:       What are the teacher’s rights at this hearing?
A:        Both the teacher and the school board have the right to be present during the hearing and to have attorney representation at the hearing. Evidence presented at the hearing is confined to the reasons for termination stated in the school board’s written notice to the teacher. The teacher and the school board may each introduce and examine their own witnesses and may cross-examine the other party’s witnesses. Both the board and the teacher may also submit documents into evidence. A complete stenographic record of this hearing is required. It is typically prepared by a court reporter.

Q:       What does the hearing referee do?
A:        After hearing all the evidence, including witness testimony, the hearing referee must prepare and submit a “report and recommendation” to the school board. The report includes the referee’s findings of fact, conclusions of law and the referee’s recommendation to the school board. The referee determines whether facts show that the teacher engaged in the acts as the school board’s letter charged and whether those facts constituted good and just cause for termination. Then, the referee recommends either termination or continuation of the teacher’s contract. The referee must send this report and recommendation to the school board within ten days after the hearing.

Q:       Must the school board accept the referee’s report and recommendation?    
A:        If the referee’s findings are supported by the evidence in the hearing record, the school board must accept the referee’s findings of fact. Courts have held that a school board has the discretion to decide whether to accept or reject a referee’s recommendation, but the board’s decision cannot be contrary to law. For example, if a referee recommends that the employment contract should not be terminated because the findings of fact clearly did not constitute good and just cause, and if the record of the hearing supports the referee’s findings of fact, then a school board’s decision to ignore the referee’s recommendation and terminate the tenured teacher’s employment contract would be contrary to Ohio law. 

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association. It was prepared by Stow attorney Ronald E. Alexander. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, November 3, 2014

What Does Ohio Law Say about Campaign Contributions?


Q:       Does Ohio law regulate my campaign contributions?
A:        Yes. Ohio law regulates the amount of money you can give in certain races, primarily in state legislative and statewide campaigns. The law also requires the candidate to report contributions. The goal is transparency, which applies to both the candidate and the contributor.

Q:       What must be disclosed?
A:        Candidates and their campaign committees must disclose the campaign contributions they receive. This usually includes the amount of money received as well as the contributor’s name and address.  The value of an “in kind” donation of something other than money must also be disclosed.

Q:       Can’t I remain anonymous?
A:        No. Neither a candidate, nor the committee supporting the candidate, is allowed to accept anonymous donations. If, for example, a candidate’s committee receives an anonymous donation and does not know the contributor’s identity, the committee must make a reasonable attempt to determine who the donor is. The committee or candidate must disclose the donor’s identity if it is discovered, and must document the steps taken to identify the unknown contributor.

Q:       It’s my money. Can’t I give as much as I want?
A:        No.  Ohio limits contribution amounts to campaigns for statewide offices or legislative seats. Ohio’s Revised Code sets the amounts, but allows the Ohio Secretary of State to adjust those for inflation in odd-numbered years. The Secretary of State currently caps individual donations in these amounts:
·       $12,155.52 to a candidate’s campaign in the same election cycle, including primary and general elections;
·       $18,233.28 to a legislative candidate’s election fund in the same calendar year;
·       $12,155.52 to the county party’s fund for the election of  political candidates (“county party statewide fund”) in the county where you live;
·       $0 to any county party’s statewide candidate fund in counties where you do not live;
·       $36,466.56 per calendar year to a state party’s fund for the election of political candidates (“state party’s statewide candidate fund”) in a county where you live.*
·       $12,155.52 to the same the political action committee in a calendar year.
·       $3,600 to a candidate for Supreme Court of Ohio justice or chief justice per election period, if the candidate has a contested primary election. If the candidate does not face a primary election opponent, the maximum is $3,600.
Visit the Ohio Secretary of State’s guide to current contribution limits at
*State and county political parties operate independently; each may maintain funds specifically designated for electing candidates to statewide office.

Q:       Can my child give?
A:        Ohio law prohibits children under age seven from contributing, but children age seven or older may contribute within the limits described above. Also, unlike some other states, there is no statute limiting the total amount a family can donate.

Q:       Can my company donate?
A:        It depends on the type of company. Partnerships, limited liability companies and other unincorporated business entities are allowed to donate to candidates, but Ohio law restricts corporations from donating directly to a candidate’s campaign committee or a political party.  
            However, restrictions that previously applied in Ohio were affected by a 2010 U.S. Supreme Court ruling called Citizens United. Now, corporations (for profit and non-profit) and labor unions are allowed to donate more freely to election campaigns. These organizations, as well as any individual or group of individuals, are allowed to sponsor advertising—without financial limits—that endorses candidates, as long as the entity does not directly contribute to, or coordinate with, the candidate or the candidate’s campaign committee.

Q:
      Can I contribute freely to the local race for dog warden?
A:        Ohio law puts no restrictions on local or county races, but local governments are allowed to create their own regulations about campaign contributions, and some have done so.

Q:       Are candidates restricted in how they use their campaign funds?
A:        Yes. Candidates must use their funds for ordinary, necessary and verifiable expenses. This means that candidates may not use their campaign funds for business or for clearly personal needs. However, these rules are broad and allow for spending that might not seem like campaigning. Candidates have been allowed to use their campaign funds for certain meals, trips and even to pay fines related to campaign law violations.

Q:       What about contributions to candidates for federal office?
A:        Federal law applies to campaign spending for candidates running for Congress and President. Contribution limits are set in the following amounts:
·       $2,600 to a federal candidate or the candidate’s campaign committee in each election period (primaries and general elections are considered different election periods);
·       $2,600 per presidential election period;
·       $5,000 to a political action committee (PAC) in the same calendar year;
·       $32,400 each calendar year to a national party committee. 

Q:       Can anyone contribute to federal candidates?
A:        No. A citizen of another country is not allowed to contribute to any U.S. candidate, unless that person is a permanent resident of the United States. Additionally, anyone considered a government contractor—even consultants—may not contribute to federal candidates. For more information about federal campaign laws, visit www.fec.gov.

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association. It was prepared by Columbus attorney Paul Aker. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, October 27, 2014

City Law Director Works with the Public


Q:       What are the civil law duties of a city law director? 
A:        Ohio law authorizes the office of a director of law for both cities and villages. The city
law director typically is paid a salary from public funds. The term of office and duties are specified in local city charters that differ from the state statute.
The law director represents the municipality as its attorney, advises all municipal officers on issues of law, and prepares all contracts and other legal instruments, including approval of city council resolutions. Typically a city contract does not take effect unless the law director approves and signs it. 
The law director also may bring suit in court to collect funds owed to the city, and will defend the city anytime someone (including a former city employee) sues the city. 

Q:       What criminal court duties does the city law director have?
A:        If the city operates a mayor’s court, the city law director or the law director’s assistant serves as the prosecuting attorney.
In a municipal court or county court with county-wide jurisdiction, the city law director of the county seat may serve as municipal court prosecutor, even if the crime being prosecuted originated in a separate city. The municipal court handles all non-felony crimes, which most often are automobile offenses such as speeding tickets or drunk-driving charges.

Q:       Who is the city law director’s client?
A:        While the law director advises all municipal employees and officers, the “city,” as a corporate entity, is considered the lawyer’s “client.” Rather than to simply follow the instructions of a mayor or city council, the law director must exercise independent judgment in the best interests of the city as client.

Q:       May the mayor or city council hire additional lawyers?
A:        No. Only the law director has the authority to hire outside counsel or additional lawyers and assistants as necessary, with funds appropriated for the law director’s use from the city’s budget.

Q:       What does the law director do if a city official violates the law?
A:        Any person may ask the city law director to file for an injunction in court, to prevent the city from misapplying funds, abusing the corporate powers, or making an illegal contract. The city law director also can file for a “writ of mandamus,” a court order used when a public official to fails to properly perform the duties of his or her office.

Q:       What if a city law director refuses to file suit against a city official who is violating the law?
A:        If the law director fails to act, then any city taxpayer, after first sending a written request to the law director, may bring a “taxpayer’s suit” on behalf of the city.  If the lawsuit is successful, the taxpayer may be able to recover any attorney fees. 

Q:       Must a city follow all state laws?
A:        Ohio cities enjoy an Ohio Constitutional exception to following state law known as “home rule.” This allows cities to enact local law to reflect city preferences, where state law may be silent or different. 
A typical exercise of home rule is whether city government will be headed by a city manager or by an elected mayor, a matter for local citizens to choose without affecting non-residents. For instance, a city may create a domestic partner registry as long as the city creates no obligation upon registrants, the law is administered only within the city, and the law has no effect outside the city.
However, the city may not enact a local preference if the state law on the subject is a general law or the state’s exercise of a police power.  For example, a city may NOT change the election date for city voters for state or county officials, however. Also, a city may not change the jurisdiction of state courts, and it may not change utility laws relating to multi-jurisdictional utilities such as gas lines or electric transmission lines.

Q:       Must the city law director give me access to public records if I ask for them?
A:        Ohio’s Public Record Law says that all public officials must make all public records available within a reasonable time to any person requesting the records. You do not need to put your request in writing, and you may access such records, if your request is reasonable, simply by walking into a public office and asking for them. Only records that the law expressly exempts are not considered “public” records for purposes of public access.
As a practical matter, it is more likely that a public records request will be filled in a timely and complete way if you make your request in writing to the city law director. Then the law director can advise the appropriate record-keeper and coordinate a timely response.

This “Law You Can Use” legal information article was provided by the Ohio State Bar Association (OSBA). It was prepared by Luther L. Liggett, Jr., former Grandview Heights city attorney. Articles appearing in this column are intended to provide broad, general information about the law.  Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney

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Monday, October 20, 2014

Depositions: What Are They and How Do They Work?


Q:       I have been asked to appear at a deposition as a witness in a civil case. What is a deposition?
A:        A deposition is a procedure before trial where one party to litigation gathers facts by asking the other party or non-party witnesses to answer questions. If you are called to answer questions at a deposition, you will be known as the “deponent.”  Examinations are typically made by asking oral questions, but written questions also may be used. A deposition is typically conducted outside of a courtroom—often in an attorney’s office—but you will testify under oath as you would in court.

Q:       May I have an attorney represent me at the deposition?
A:        Yes; you are allowed, but not required, to have an attorney represent you when you are deposed. Usually, a person who is being deposed as a party to a case chooses to have representation. You probably will not need representation if you are not a party and it is unlikely you will be named as a party to the litigation, but many people choose to be represented whether or not they are parties to the case.

Q:       Who will be with me at the deposition?
A:        Your attorney (if you want representation) and the parties’ attorney(s) will be present, and a stenographer and/or a videographer will record the questions and answers. The parties to the case are permitted, but not required, to be present, and if one of the parties is a business or other organization, a representative may appear on behalf of the business or organization. A deposition does not typically take place before a judge, but you should testify as though you were testifying in a courtroom before a judge and jury. 

Q:       Will I be paid for my time?
A:        As a non-party witness, you may be entitled to an attendance fee and mileage, depending on whether the matter is a federal or state court case, and the amount of travel required. The mileage and attendance fees are set by law. Parties to the case are not compensated for the time and travel associated with their depositions.   

Q:       What should I know before going to a deposition?
A:        When answering questions, always be truthful. Be sure you understand each question, or ask for clarification if you do not. You do not need to volunteer information; you only need to answer the question asked.

Q:       What if I do not know the answer to a question?
A:        Do not speculate or guess. Instead, tell the examiner you do not know the answer.

Q:       If my attorney objects to a question during the deposition, must I still answer it?
A:        Yes. Your attorney may object to a question so the judge may later rule on whether the question and/or answer was proper and should be admissible at trial. If your attorney instructs you to not answer a question, do not answer it, but if your attorney merely objects to the question, you should answer.  

Q:       How is a deposition transcript used?
A:        A deposition transcript may be used instead of a witness’s live testimony when the witness is considered “unavailable” at trial (if, for example, the witness is deceased or lives outside of the trial court’s jurisdiction and cannot be compelled to appear). A deposition transcript also may be used to impeach a witness who testifies at trial. Attorneys may, for example, point out contradictions between the witnesses’ deposition testimony and trial testimony, or contradictions between the witness’ deposition testimony and other evidence in the case.  

Q:       What if the opposing attorney does not ask me to testify about something I want to share?
A:        Once the opposing attorney examines you, your attorney may, but is not required to, ask you questions. Your attorney may decide to wait until the trial to ask questions, so do not be concerned if questions you consider to be important were not asked during deposition.  

Q:       What should I do if my deposition transcript contains errors?
A:        A deposition transcript may contain transcription errors and/or testimonial errors. A transcription error is a mistake, such as a misspelling or misuse of a word, which the stenographer might make when recording the testimony. A testimonial error occurs when the stenographer correctly records your testimony, but the testimony itself is inaccurate. For example, you may have testified during your deposition that the automobile accident occurred on a Wednesday, but later discovered that it actually took place on a Thursday. Both transcription and testimonial errors should be corrected. A document known as an “errata” sheet may be used to correct these transcript errors. 

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Cleveland attorney Terry Brennan, a partner at Baker Hostetler. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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