2010.06.28 - Kyron's Dad files for divorce and restraining order

[grandmaj]

I would say so Shadowboy.

But I still think there is more to this than visitation. This is for purposes of finding out exactly what evidence has been shared with Kaine IMO. They want to know what Kaine knows from LE. It is a method to get discovery.

 

[gwenabob]

It appears to me she is once again trading any chance of contact with baby K for another opportunity to further her own defense.

 

[Shadowboy]

I would say so Shadowboy.

But I still think there is more to this than visitation. This is for purposes of finding out exactly what evidence has been shared with Kaine IMO. They want to know what Kaine knows from LE. It is a method to get discovery.

AH!!! Thanks for that perspective. I keep seeing "discovery" in the opposite direction ... A chance for KH (and the court) to see TH's HIPAA protected records; personnel records (as a sub-teacher; as a food/etc manager ...)

... a chance to make all of that public. Still can't see how Houze and company could benefit from this latest civil court filing... ???

 

[pufnstuf]

IMO, KH and his attorney are forcing TMH into VERY uncomfortable position ...

"Further, extensive discovery and review of documents must be completed, including records and medical subpoenas, regarding Respondent's criminal, personal, mental health, and medical history." (Kaine) "must complete" depositions of family, friends, professionals, educators and others who can provide information relating to the Respondent and her ability or inability to have appropriate contact with the parties' child....

... Respondent is choosing not to participate in a legal proceeding initiated on her behalf."

By way of TH asking for time with her child, KH's lawyer found an avenue for assessing TH's mental health, yes?

Criminal defense attorneys often use civil cases to ascertain evidence when there are contemporaneous cases--I've thought that that was what was behind Terri's filing since she filed it. The civil and possibly impending criminal cases are inextricably tied together; Terri's attorney has made this argument himself. This is about much more than simple visitation.

I just wonder if Peter Bunch expected such a vigorous response from Laura Rackner. Now Kaine is on good legal footing to request depositions, employment history as it relates to children, and health/mental-health records.

I wonder if Terri's attorney prepared her for that eventuality. She can choose not to participate, but those around her cannot.

 

[grandmaj]

AH!!! Thanks for that perspective. I keep seeing "discovery" in the opposite direction ... A chance for KH (and the court) to see TH's HIPAA protected records; personnel records (as a sub-teacher; as a food/etc manager ...)

... a chance to make all of that public. Still can't see how Houze and company could benefit from this latest civil court filing... ???

But, if Terry was seen by a psychologist I would imagine she did so through her attorney and didn't just use Kaine's insurance card. So I think that it would be difficult to get that right now, maybe, it will be interesting.

If she has visited with a psychologist or counselor and used the insurance then more than likely Kaine knows who that is. I know I cover my husband under my insurance and I can see online each time he visits a doctor since the insurance is in my name.

It does open a whole can of worms as far as deposing friends etc. Wow I can't wait to see M. Cook's deposition.

Interesting. But, I'd much rather have Kyron found before all of this legal battle gets brewing. It is so distracting.

 

[Mrs G Norris]

Hinky Meter on this http://www.thehinkymeter.com/2010/10/22/kyron-horman-case-kaine-fights-back/ straight to the point as always

 

[DreamyEye]

Something that strikes me as odd about the Petitioner's Objection to which BeanE posted a link in post #3 of this thread:

On page 2 of the objection, item #4 says:

"Petitioner strongly believes that Respondent abducted and may have caused unimaginable harm to Petitioner's eight-year-old son, Kyron. Respondent also attempted to hire a third party to murder him."

Given that this is a legal document that was either prepared by a professional or prepared with the help of a professional, this is a very poorly worded passage, because it seems to suggest that the Respondant tried to do a "murder for hire" against Kyron. Unless Kaine's got evidence/information that TH did try a murder for hire on Kyron.

I notice too that the first sentence in my quote discusses a possibility couched in terms of "Respondent may have." In the second sentence, there's a shift to a declarative sentence ... "the Respondent did do this."

I don't know a lot about the preparation of legal documents, but my impression is that it's a part of the job to use very clear language? Which makes me wonder what is really being said in item #4, since the legals in this case seem to be pretty highly thought of--not bunglers.

MOO.

 

[Shadowboy]

From pufnstuf: (My bad. Me be Newbie. Can't yet "snippetedy-doo-daa")...

"I just wonder if Peter Bunch expected such a vigorous response from Laura Rackner. Now Kaine is on good legal footing to request depositions, employment history as it relates to children, and health/mental-health records.

I wonder if Terri's attorney prepared her for that eventuality. She can choose not to participate, but those around her cannot. " end snip

I hear ya. Hence my notation, above, re: HIPAA records, etc. Methinks the worm has turned (with no intended ref. to EAP).

 

[grandmaj]

I think of how anxious and frustrated we are at times waiting for forward movement in this case. We of course want Kyron found first and foremost. But I can't imagine being Terri right now just in limbo. Her attorney is her only friend if he has been able to control her impulsive actions.

He is trying to defend her,, but against what? No charges have been filed. So it is a waiting waiting waiting game. These little pushes and shoves are to stir up whatever they can get their hands on for information. Right now they haven't a clue exactly what LE has. If they can get their hands on information about the LS they have gained quite a bit. But, at what cost to Terri if she ever wants to have visitation with K. So many gambles. But effectively they have to take the gambles because the ball is not in their court right now.

I believe strongly that Houze is the driving force and certainly consulting on every family court matter.

 

[gwenabob]

I know Houze is involved because he is on the certificate of service.

 

[grandmaj]

DreamyEye I think it is a big fat typo. A rather bad one at that!

 

[pufnstuf]

From pufnstuf: (My bad. Me be Newbie. Can't yet "snippetedy-doo-daa")...

"I just wonder if Peter Bunch expected such a vigorous response from Laura Rackner. Now Kaine is on good legal footing to request depositions, employment history as it relates to children, and health/mental-health records.

I wonder if Terri's attorney prepared her for that eventuality. She can choose not to participate, but those around her cannot. " end snip

I hear ya. Hence my notation, above, re: HIPAA records, etc. Methinks the worm has turned (with no intended ref. to EAP).

Article from the Florida Bar Journal--worth the read.

The struggle between HIPAA's privacy rules and subpoenas for "protected health information" (PHI) is an ongoing issue that needs to be resolved, and this article is intended to assist in that resolution. In this writer's opinion, the Rules of Civil Procedure trump the privacy regulations of HIPAA once litigation has been initiated.

snip/

Pursuant to F.S. [sections]456.057(5)(a), a patient's medical records may not be furnished to, nor may the medical condition of a patient be discussed with, anyone other than the patient, the patient's legal representative, or other health care practitioners who are involved in the care or treatment of the patient, absent written authorization from the patient. F.S. [sections]456.057(5)(a) (2003). However, several exceptions to the "prior written authorization" requirement are provided by [sections]456.057(5)(a). The exception most pertinent to this discussion allows disclosure without written authorization in any civil action, unless otherwise prohibited by law, "upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records."

snip/

Of particular importance to this discussion is the notice requirement. A party who seeks the production of documents or tangible things from a nonparty witness must give all other parties (attorneys) to the action prior notice and an opportunity to object before service of the subpoena duces tecum. Fla. R. Civ. P. 1.351 (2004). Rule 1.351 specifies the procedure, and Form 1.921 is to be used as the approved format for the advance notice of production. Under Rule 1.351, notice of intent to serve a subpoena must be given to other parties (attorneys) at least 10 days before the subpoena is issued if service is by delivery, and 15 days before the subpoena is issued if the service is by mail. The proposed subpoena must be attached to the notice and must specify the time, place, and method of production, the name and address of the person to whom the subpoena will be directed, and identification of the items to be produced. The proposed subpoena must also state that the person upon whom it is to be served will have the right to object to the production.
_____________


Even though the author is basing his argument on Florida statutes dealing with HIPAA, he believes that laws are pretty universal in the US. Still, it all pivots on whether the judge is convinced that Terri's medical/mental-health records are of value in the matter at hand.

 

[BeanE]

BeanE I don't think LE is going to tip their hand and provide him crucial evidence for use in civil court. And it seems to me from listening to his interviews that there is probably crucial evidence he's not specifically aware of.

Hi Chili, yes, I would not think LE would give evidence to a family member either - they need to protect their investigation. But Kaine stated in the RO application that they did just that, and I would have expected to see that incorporated into this document.

This document reads, to me, as if Kaine and his attorney are attempting to come out guns firing, so to see any reference to "the police" providing Kaine with "probable cause", and him therefore having that in hand, is very, very surprising to me.

"Probable cause" from "the police" in hand that shows Terri was involved in Kyron's disappearance has instead been watered down to only a belief on Kaine's part.

It's confusing. Maybe our attorneys can give us some insight.

References:

"I believe Respondent is involved in the disappearance of my son Kyron who has been missing since June 4, 2010.

snip

The police have provided me with probable cause to believe the above two statements to be true."

Restraining order application page 2 of 6 (PDF page 11), item 3
http://www.kptv.com/download/2010/0708/24187664.pdf


"Petitioner strongly believes that Respondant abducted"

Response to visitation request, PDF page 2, item 4
http://www.koinlocal6.com/media/lib...e7b948/SharpNews_koin.com_20101022_165135.pdf

 

[Calliope]

I didn't understand the end of the pdf document.

The petitioner requests that he be allowed the statutory mandatory period to respond... etc.

If it's mandatory to give him time to respond, why do you have to request to be allowed to have it?

This motion isn't objecting to her request for parenting time. It's objecting to an expedited hearing for her request for parenting time.

 

[Trt]

BeanE, I don't see the language as changing to less forceful or resolved in the belief. He stated in his RO petition that HE believes that Terri is involved inKyron's disappearance. He states in the recent motion that he STRONGLY believes this.

He stated in the RO petition the police have given him probable cause to believe Terri hired someone to kill him. He states in the recent motion that Terri DID(not may have) hire a third party to have him killed. If anything, the language is stronger and more definitive in the recent motion

Also, according to Oregon statutes, Kaine had to provide proof of his allegations contained in the RO at his ex parte RO hearing. He would not have to offer additional proof to these "facts" at a visitation hearing(again according to the statutes). He and his lawyer seem to be requesting time to have Terri's mental stability and ability to care for a child evaluated, which would be a much longer process than just providing the court with the same information that was used to obtain the RO.

Jmo

 

[loves2bmom]

I find most everything in this new document is exactly what many Websleuthers were asking about just last week. ie; How can she ask for parenting time without addressing the RO? Why didn't she ask for parenting time earlier? Why an expedited hearing? Why she thought she was going to go around the system....

All very good questions and the legal wrangling is fascinating to me. I imagine this is what one of our lawyers (was it Gitana?) was referring to when she said she was anxious to see how it plays out. Kind of like a chess game. It's your move Terri!

ETA: I just want to be clear that I don't think the disappearance of a little boy and possible murder is a game. Only the legal manuevers.

 

[believe09]

Okay, I'm just going to restate what I posted earlier. Forgive me for trying to make a point. These issues, are issues KH and his lawyer were ready to address a little over 3 months ago. What happened?

That's what I'd like to know, what happened since then that leaves them unprepared and needing more time to address those; specifically, the accusations made in the RO that TH was involved in the disappearance of her stepson, and she the MFHP therefore, she cannot see her natural born child.

What the heck has transpired, since then, that Kaine needs more time? He and his lawyer, knew at the time all these things would need to be addressed, Terri's pscyh eval, etc. PROOF from his side to the accusations he's made, etc, etc. Now he's saying he needs to get depos from people in order to go forward? Why did he expect Terri to jump, when he is not going to take the leap over three months later? (Not being snarky, just wondering what the heck is going on here?)

Something's not making sense to me. I need a lawyer to weigh in here. Desquire/AZ, are you joining us tonight?

See, again I am reading this differently-3 months ago KH and his attorneys would have needed to do the same things-but at a minimum, TH would have had to appear before the judge, make statements and be asked questions under oath regarding the issues outlined in the restraining order. Legally binding statements.

She did not contest the RO. She waived her right.

Then she asked for the abatement because she did not want to be subjected to the normal discovery process and depostitions required for a custody battle.

But, now, she wants an accelerated process to occur in order to have some kind of parenting time with Baby K-without any kind of evaluation of her. KH on the other hand needs time to accumulate depositions from friends and family etc, which would be a normal part of any process in a custody case. So he needs time to accumulate that. Because that will be the basis of his contesting her request for parenting time, or at least having the decision taken away from him and put before the court. So he has a right to show why he continues to be fit to make that decision.

JMVHO.

 

[BeanE]

BeanE, I don't see the language as changing to less forceful or resolved in the belief. He stated in his RO petition that HE believes that Terri is involved inKyron's disappearance. He states in the recent motion that he STRONGLY believes this.
Jmo

He stated in the RO application that the police had given him probable cause to believe that Terri was involved in Kyron's disappearance. He stresses in this motion the criticality of the situation, yet doesn't mention the probable cause LE gave him. That's not only a change, that's a big change, IMO.

He stated in the RO petition the police have given him probable cause to believe Terri hired someone to kill him. He states in the recent motion that Terri DID(not may have) hire a third party to have him killed. If anything, the language is stronger and more definitive in the recent motion

I'm looking only at Kyron's disappearance atm, because to me, that is far more an indicator that Terri should not be around the baby.

Kaine stated in the RO that LE gave him "probable cause" to believe Terri was involved in Kyron's disappearance. But in this document, in regards to Kyron's disappearance, his statement is weaker to me, far weaker, because lacking the previous info, it appears to be only a belief.

I'm just surprised his attorney would put through this document like that. I don't know if it was deliberate or an oversight, but either way, it shocks me.

This is the time to pull out the big guns and fight for your baby, but you leave out that you have probable cause in hand given to you directly by LE, and say only that you have a belief?

It's shocking and confusing to me. I hope we get more info to clarify it from Kaine or his attorney.

 

[GrainneDhu]

Okay, I'm just going to restate what I posted earlier. Forgive me for trying to make a point. These issues, are issues KH and his lawyer were ready to address a little over 3 months ago. What happened?

That's what I'd like to know, what happened since then that leaves them unprepared and needing more time to address those; specifically, the accusations made in the RO that TH was involved in the disappearance of her stepson, and she the MFHP therefore, she cannot see her natural born child.

What the heck has transpired, since then, that Kaine needs more time? He and his lawyer, knew at the time all these things would need to be addressed, Terri's pscyh eval, etc. PROOF from his side to the accusations he's made, etc, etc. Now he's saying he needs to get depos from people in order to go forward? Why did he expect Terri to jump, when he is not going to take the leap over three months later? (Not being snarky, just wondering what the heck is going on here?)

Something's not making sense to me. I need a lawyer to weigh in here. Desquire/AZ, are you joining us tonight?

I'm not a lawyer but my impression is that it's just typical lawyer jousting for small advantages. Kinda like requesting the other party pay all legal fees in that it's not really based on the specific facts of the case but more of a boilerplate request that is routinely thrown into every motion.

 

[TxLady2]

Seems to me that if Kaine and his lawyer are using the alledged MFH plot plus the belief that Terri kidnapped and harmed Kyron as evidence that Terri cannot see her daughter, then doesn't a judge require some proof that these allegations are true? Or will the judge just take their word for it? That doesn't quite seem fair to me.

And if there is such strong evidence that she did these things, then why has she not been charged for it already? Oh, yeah, right..... there is no evidence! If there had been, the GJ would have indicted her already, if only on the MFH plot and waited for more evidence that she kidnapped Kyron and did whatever she did with/to him. They've got nothing.
JMO, of course, laced with a little common sense. I could be wrong, of course. These legal maneuverings are beyond my comprehension sometimes.