Legal Questions for our VERIFIED Lawyers - Q & A ONLY ***No Discussion***

[msboo]

He is a narcissist. Over 4 million dollars in life insurance, that Mark wants. He will do anything to get it. Even have his wife murdered.

Hey, what about that policy MS had on himself with his mom as beneficiary? Anyone know the current status on that? And the date/year he started that policy?

 

[AZlawyer]

I just heard on Nbc-2 that Mark's brother is looking to adopt Teresa's girls. How is this even entertained, when Teresa's will specified that her brother, Patrick, should have custody? And since Patrick is the trustee in charge, he commands what he feels is best for the girls, and what he knows Teresa would have wanted.

I would think that the majority of family members, from both sides, would agree that the best place for the Sievers girls to experience Life would be in Connecticut--away from the ugly horror and constant reminder of how their beloved mother was taken from this world.

I thought it was a done deal that Mary Ann could move the girls to Connecticut.

Aren't there penalties in place for people who continue to badger the courts with frivolous lawsuits?

Teresa's Will wouldn't come into play at all with respect to custody of the kids, unless and until Mark is proven to have killed her (at least in probate court by a preponderance of the evidence, if not in criminal court). Her Will kicks in only if she is the LAST of the parents to die, and she was the FIRST. However, under the "slayer statute" the law would treat her as the last to die IF the first to die is proved to have been the killer.

The Trustee would have nothing to do with the care of the kids--just the money.

The issue for the courts right now (with Mark not being proved the killer) would be what's in the best interest for the kids, but they are legally required to take into account Mark's preferences as the sole living parent unless and until his parental rights are permanently terminated. (Or has that happened already? I can't recall.) But even if his parental rights were terminated, IMO Teresa's Will would still have nothing to do with the issue, legally speaking.

 

[Arachne 1]

Thanks for your expert advice, AZ. Hoping, wishing, and praying for the BEST outcome that Teresa would want for her girls.

 

[gitana1]

I posted this in the other thread and thought it might be helpful here:

She has physical custody, not legal custody yet.

Guardianships give both legal and physical custody to the guardian. However, the courts maintain jurisdiction over the case, unlike with an adoption. And there can be conditions for the guardianship that are set. Such as keeping the child in the state unless there is a court order.

Just an FYI: social services and GAL will still be a present force in this matter. Social services even recommended and supported Mary to take the girls to CT permanently. With that said, the paternal side still has a battle in regards to the the adoption by Mark's brother.

You're right. And that's good. Because although guardianships don't terminate parental rights, and still allow the parent to consent to an adoption, the law surrounding guardianships and adoption in Florida is the best interest standard. So even if Mark consents to the kids being adopted by his brother, the brother will not automatically be granted the right to adopt. The best interests of the kids will be considered, even though it appears that Florida favors adoptions over guardianships and the parents' wishes regarding placement and/or adoption are very important.

With regard to what's considered as to the kids best interests, here are some examples:

Who has been caring for them? It appears they've been with grandma for a year and half almost.

Who can provide stability? If they go with the brother, they will also have to move - to Minnesota.

Who are they attached to? Who do they want to live with?

Who has shown interest in their care? I don't think the brother has been involved thus far, right?

Who is more likely to foster a relationship with the other side of the family? I don't have facts to say.

But all of that will be considered.

The opinions of the GAL an social services will also be super important. It would be unlikely, IMO, that the court would go against their opinions, unless favoring adoption is much more important in Florida than I think. (But a case below makes me feel that may not be the case).

His parental rights would indeed have to be severed for their to be an adoption. But he has to consent to that and his consent can be conditional on who is adopting.

http://www.leg.state.fl.us/statutes...g=&URL=0000-0099/0039/Sections/0039.6221.html

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0063/0063.html

Here is a case that's very similar:

2015 ADOPTION AND CHILD WELFARE CASE LAW UPDATE 2015 ADOPTION AND CHILD WELFARE CASE LAW UPDATE
Directed Consent
In re Adoption of K.A.G, 152 So. 3d 1271 (5th DCA 2014).Background - After father-killed mother, DCF placed the child in custody of the maternalaunt. Father executed written consent for paternal grandmother to adopt. (conditionalconsent to parental grandmother) Aunt filed a counter petition to adopt in paternalgrandmother's 63.087 adoption proceeding. Court granted paternal's grandmotherMotion to Strike. Aunt's subsequent motion to intervene was denied. Trial courtdismissed paternal grandmother's petition because there was not clear and convincing 2evidence adoption was in best interest. Court relied on considerations such as thechild's needs and bonding with caregiver as if it were an intervention.Holding - Appellate Court found it was error to dismiss paternal grandmother's petition toadopt the child because the trial court failed to determine whether the father's consentwas valid. The trial court erred when it required the grandmother to prove by clear andconvincing evidence that allowing her to adopt the child served the best interest of thechild, as the preponderance of the evidence standard applied. Court has authority toappoint guardian ad litem. Appellate court found that Father's consent was conditional topaternal grandmother and if the trial court found the adoption by the paternalgrandmother was not in the best interest of the child, the father's consent to histermination of parental rights is deemed withdrawn.

https://clarielaw.com/images/uploads/Adoption_Case_Law_Update_Rev-2015.pdf

A child's best interests must be at the forefront when the court considers an adoption. See § 63.022(2), Fla. Stat. (2013). Our standard of review in a termination of parental rights case is highly deferential. N.L. v. Dep't of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003). A trial court's finding of clear and convincing evidence will not be overturned unless it may be said that, as a matter of law, no one could reasonably find such evidence to be clear and convincing. Kingsley v. Kingsley, 623 So.2d 780, 786-87 (Fla. 5th DCA 1993); L.F. v. Dep't of Children & Families, 888 So.2d 147, 148 (Fla. 5th DCA 2004) (finding that "[w]here a trial court has found that there is clear and convincing evidence supporting a termination of parental rights, such findings enjoy a presumption of correctness and will not be overturned unless clearly erroneous and lacking evidentiary support"). We review a judgment of adoption for substantial, competent evidence. Noonan v. Snipes, 569 So.2d 1381, 1381 (Fla. 2d DCA 1990).Here, the trial court dismissed Grandmother's petition because it "[did] not find by clear and convincing evidence that the father's parental rights should be terminated pending adoption by the paternal grandmother." Grandmother and Father contend that the trial court applied an erroneous "best interests" standard utilizing section 63.082(6), thereby disregarding Father's constitutional right to select an adoptive parent for Child. They argue that the trial court should have considered only Grandmother's fitness and whether her home was suitable when making a best interests determination.

[T]he petition for adoption should be determined on the basis of the fitness of a petitioner who is petitioning to adopt the child and whether the adoptive home that would be provided for the child by that petitioner is suitable for the child so that the child can grow up in a stable, permanent, and loving environment. It is within those criteria that the determination as to the best interests of the child is to be made with regard to an adoption petition.

The trial court had before it two separate questions: (1) whether Father's parental rights could be terminated based upon his consent; and (2) if so, was adoption by Grandmother in Child's best interests. Different evidentiary burdens of proof apply to each determination. The former determination on "termination of parental rights" must be proven by clear and convincing evidence, while the latter, "best interests determination," is to be proven by a preponderance of the evidence. Compare § 63.089(3), Fla. Stat. (2013) (requiring that "a judgment terminating parental rights pending adoption" be determined "by clear and convincing evidence"), with Hack v. Janes, 878 So.2d 440, 444 (Fla. 5th DCA 2004) (stating that absent legislation to the contrary, the "preponderance or greater weight of the evidence [standard] is the generally accepted burden of proof in civil matters"). Here, the trial court required Grandmother to prove by clear and convincing evidence that allowing her to adopt served the best interests of Child. This was error.Finally, we briefly consider several issues that may reoccur when this matter is again reconsidered by the trial court. The trial court concluded that it had no authority to appoint a guardian ad litem for Child in this adoption proceeding. We disagree. Section 63.022(4)(k) provides: "In all matters coming before the court under this chapter, the court shall enter such orders as it deems necessary and suitable to promote and protect the best interests of the person to be adopted." We believe this statute authorizes the trial court, in its sound discretion, to appoint a guardian ad litem for a child in an adoption proceeding. In addition, courts have the inherent authority to protect children by appointing guardians ad litem when appropriate. See Simms v. State, Dep't of Health & Rehabilitative Servs., 641 So.2d 957, 960-61 (Fla. 3d DCA 1994) (citing James v. James, 64 So.2d 534, 536 (Fla. 1953)).

Next, we agree with the trial court that Father's consent to termination of his parental rights was not unconditional, but rather, was conditioned on the trial court granting Grandmother's petition to adopt Child. If the trial court concludes that the adoption by Grandmother is not in Child's best interests, Father's consent to the termination of his parental rights is deemed withdrawn. Finally, we appreciate the trial court's concern that it was not able to consider the same evidence in the adoption proceeding as it would be able to consider in the dependency and termination proceeding. To some extent, those concerns have been addressed by the recent adoption of Florida Family Law Rule of Procedure 12.003, which allows a court to consolidate as many issues as is practical in adoption and dependency/termination proceedings and to conduct joint hearings or trials of any issues in related family cases. See In re Amendments to the Fla. Rules of Judicial Admin., 132 So.3d 1114 (Fla.2014) (adopting rule 12.003, effective April 1, 2014). This rule, which was not in effect at the time this matter was considered initially, should alleviate many of the concerns expressed by the trial judge.

https://www.leagle.com/decision/inflco20141226045

That case basically shows that here:

1. Mark can consent to having his parental rights terminated and his brother adopt, but if the court finds his brother is not suitable placement, his consent to terminating his parental rights is deemed withdrawn.
2. The court will use the preponderance of the evidence standard to determine whether adoption by his brother should occur. That is the easiest standard to meet.
3. However, the best interest standard is what determines whether the adoption should occur - so by a preponderance of the evidence, is it in the child's best interest to be adopted by the brother?
4. The guardianship/dependency court cases can be consolidated. So while in previous adoption cases the GAL's and social services were excluded from the hearing, now they're not and any and all evidence that would come out in those other cases may be considered when deciding the adoption request.
5. The court has the power to appoint an guardian instead of allowing an adoption.

I feel pretty good about grandma's chances of keeping the kids. Hopefully her age and sick husband and finances won't be too much of an obstacle. If the kids are happy and secure and want to stay with her, I think they will.

 

[beach]

Question for @AZlawyer

Can Mark's defense team use the transcript of Wayne's testimony in JRR's trial to impeach him should his story change when testifying against Mark?

 

[beach]

@AZlawyer I see you online. Just wanted to make sure you hear me.

 

[AZlawyer]

Question for @AZlawyer

Can Mark's defense team use the transcript of Wayne's testimony in JRR's trial to impeach him should his story change when testifying against Mark?

Yes

 

[No it's not]

@AZlawyer

Does Jimmy Rodgers qualify as a Prison Releasee reoffender (PRR) due to his federal probation violation (convictions on weapons charges), although technically he was extradited? Probably not..but the fact, that he would get an additional 30 y without parole, if he was a PRR must way in on his sentence, correct? I am not sure how much it would elevate his awaited sentence here is Florida and whether he still has to serve time in MO..But again, what can be expected in extra time? Double?

Thank you!

ALL IMO,
Nin

Edit: JR did indeed serve 6 months for the unrelated weapons charges! So he would qualify as PRR?

 

[Arachne 1]

What can happen to a juror if he misrepresents himself to the court? Can he go to jail? Could a mistrial be declared? What would happen if a mistrial were to be declared?

During jury selection, I remember the prosecutors painstakingly asking each potential juror if they could put their beliefs aside, and follow the law. Now, after the trial, we see this juror (who might've even been the foreman, and therefore influence the others), publicly state to media that the jury had to be careful not to take a life, when one had already been taken.

Also, when the jury was going to be polled, the audio was cut off of the livestream I was watching. Don't they poll the jury by number, not by name? Why couldn't they let us hear their voices?

TIA

 

[AZlawyer]

@AZlawyer

Does Jimmy Rodgers qualify as a Prison Releasee reoffender (PRR) due to his federal probation violation (convictions on weapons charges), although technically he was extradited? Probably not..but the fact, that he would get an additional 30 y without parole, if he was a PRR must way in on his sentence, correct? I am not sure how much it would elevate his awaited sentence here is Florida and whether he still has to serve time in MO..But again, what can be expected in extra time? Double?

Thank you!

ALL IMO,
Nin

Edit: JR did indeed serve 6 months for the unrelated weapons charges! So he would qualify as PRR?

I believe probation violation only comes into play in Florida if the person is being sentenced for the probation violation at the same time as they're being sentenced for the new crime. Since the probation was from another state, that wouldn't happen here.

The PRR statute (Fla. Stat. 775.082(9)(a)) applies even if the prison term was in a different state (or federal prison), as long as the offense in question would be punishable under Florida law by more than 1 year and the person was released less than 3 years before the offense for which they are being sentenced. JRR was released Sept. 2014 from federal prison, so that part works, and he was in federal prison for possession of a firearm by a felon, which is punishable in Florida by 3 years incarceration, so that part works too.

If the state attorney requests that JRR be sentenced under the PRR statute, he would be sentenced to the maximum available sentence (life) with no possibility of parole or other early release.

What can happen to a juror if he misrepresents himself to the court? Can he go to jail? Could a mistrial be declared? What would happen if a mistrial were to be declared?

During jury selection, I remember the prosecutors painstakingly asking each potential juror if they could put their beliefs aside, and follow the law. Now, after the trial, we see this juror (who might've even been the foreman, and therefore influence the others), publicly state to media that the jury had to be careful not to take a life, when one had already been taken.

Also, when the jury was going to be polled, the audio was cut off of the livestream I was watching. Don't they poll the jury by number, not by name? Why couldn't they let us hear their voices?

TIA

They don't let you hear their voices because someone's voice might be identifiable even if they don't say their name.

I don't have the full context of the juror's statement, but I would charitably interpret it as meaning that the jurors wanted to be extra careful about a matter that might involve the death penalty, because a life had already been lost. I don't think that's an improper statement or inconsistent with the oath of a juror. It's definitely not the kind of comment that would ever lead to a jury verdict being overturned or the juror being punished in any way.

 

[Oregonmama]

@AZlawyer

What are your thoughts about the new motion from JRR's team re a new trial??

 

[AZlawyer]

@AZlawyer

What are your thoughts about the new motion from JRR's team re a new trial??

As you might know, I didn't have a chance to follow the trial proceedings closely, so I'm not entirely clear on what JRR's "theory of the case" was or how it might have been affected by the new statements from Dr. P. Reading JRR's motion for new trial didn't help, as his attorneys made no effort to explain how the new information would have been important to their strategy or might have changed the verdict. The new statements support the idea that MS and CWW worked closely together, and perhaps JRR was less culpable in some way--but isn't that likely what the jury found anyway, based on the verdict? My impression is that the attorneys think their argument about the Dr. P statements is weak, because they put that argument at the end of the motion and didn't say much about it. I'm interested in seeing the State's response.

As for the "we didn't have enough time to process the DNA evidence" argument, I understand the judge already rejected that argument pretrial, so I doubt he'll change his mind. I don't know how long they actually had the DNA evidence available to them, but I bet it was plenty of time

 

[Arachne 1]

Where Will They Serve Time?

Please tell me that since CWW and JRR committed their crime in FL, they will do their time in FL. Thank You.

 

[AZlawyer]

Where Will They Serve Time?

Please tell me that since CWW and JRR committed their crime in FL, they will do their time in FL. Thank You.

Yes, unless some arrangement is made between jurisdictions to move them, which does happen sometimes.

 

[Arachne 1]

What could happen if a member of the public gallery loses their composure and cusses out the defendant? (AFTER the judge is finished, of course, and before the defendant exits the courtroom?) Would that person be escorted out of the courtroom? Out of the building? Put in jail and/or given a fine? If so, for how many days and for how much?

Or would this be considered free speech?

TIA

 

[AZlawyer]

What could happen if a member of the public gallery loses their composure and cusses out the defendant? (AFTER the judge is finished, of course, and before the defendant exits the courtroom?) Would that person be escorted out of the courtroom? Out of the building? Put in jail and/or given a fine? If so, for how many days and for how much?

Or would this be considered free speech?

TIA

It would not be considered protected free speech, because courts are allowed to require basic decorum during public hearings.

In most courtrooms, the person would be reprimanded and ordered to leave.

 

[Arachne 1]

Can Religious Hate Crime Increase/Upgrade Sentence?

Dr. Teresa Sievers was active in various charities. She was always looking to do good for others. Her mother referred to her as her "modern-day Mother Teresa". Aside from other blows and injuries that she suffered, Teresa's killers crafted a crown of wounds around her head (like a crown of thorns). They appeared to be making a mockery of her goodness. Can the killers' sentences be upgraded by the inclusion of a religious hate crime? Can prosecutors ask for additional considerations to a given sentence? Upon appeals?

If defense can bring up items/issues not previously known or considered, with their appeals--wouldn't prosecutors be able to do the same?

Thank you for your knowledge.