Found Deceased KS - Lucas Hernandez, 5, Wichita, 17 Feb 2018 #19 *Arrest*

[Amonet]

I will try my best to fill in the gaps here: Emily and Jonathan lost custody because the child was considered in police protective custody. That designation can’t continue indefinitely in the state of KS. That means that she is officially a ward of the state, but that does not mean they have lost their rights to her. That process can take years. The reason Jonathan is on record as the “alleged” father is because they were not married when the child was born and there has not been any custody hearings between the two of them. It’s not saying JH isn’t the father or his parentage is being questioned, it’s more of a legal term. Kind of like saying someone is “common law” married.

As far as what happens after the reporter is kicked out of the courtroom, that is typically when the parents will be given their “court orders” in order to get any visitation with their child and guidelines they have to follow in order to continue contact. They will also be given the reasons behind the child continuing to be out of the home and whatever issues are needing to be resolved. The GAL (if there is one) will also speak on behalf of the needs of the child and generally an update on how the child is doing in their placement will be given. It’s common for unmarried couples to each have a lawyer, but if two people are married they are allowed to have their own attorney’s as well. It’s usually an indication that the parents are no longer unified in trying to retain custody together or one parent has more of a responsibility to the child being out of the home than another.

This hearing was more of a formality. Since Emily is still in jail she really doesn’t have much she can really do here. It’s JH that is the big “loser” in this hearing. It’s pretty obvious he isn’t fighting the court to keep custody of his child and that to me is very disturbing. This is where I would hope the family in NM would seek custody of MH now. She had to be considered a ward of the court before that could happen as they are out of state.


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These posts are helping me understand so much better, and thanks for that!

But...you've said that JH doesn't appear to be fighting for custody. Could it not be construed that JH has been advised by his attorney to go through parenting classes, anger management classes, or whatever else the court orders, in order to get on a path to regaining custody in future?

For the time being, with JH working out of state so much, visitation with MH might be a better option until he can make changes in his life circumstances and prove to the court that he can be a good father (without EG in the picture?) in being a good dad at home and also providing for her monetarily with a job.

Would the judge also want to know, in the closed portion of the hearing, whether JH intends to stay with EG or whether he wishes to break up with EG and try for sole custody of the child in the future? I think he would have a much better chance of future custody without EG. Depending on whether he has retained relationships with his relatives in NM maybe the 1-yr old could live with relatives there and JH could relocate to that state and have visitation there and make a nice clean break from EG. He might feel uncomfortable doing that right now with Lucas missing.

I also think that a vindictive EG who's been cut off from JH risks holding onto that secret of what happened to Lucas forever out of pure vindictiveness. She'd probably hold onto the secret for self-preservation, but it's something JH might have been considering all these weeks that keeping her on-side might give a better chance of her revealing what happened.

I'm also sad that MH couldn't be placed with a willing family member in NM straight away due to them being out of state. I have no idea what family JH has there or if anyone is able to care for a 1-yr old child, perhaps indefinitely.

 

[ESO]

Would he not legally be considered the father even if his name is listed on the birth certificate? I remember hearing some quirkiness about all of that in KS.

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MH’s parentage isn’t being questioned, the only one that could would either be JH, EG or someone who would think they could be the father. So unless that happens, JH is the “assumed” father. It really has everything to do with the fact they were not married when MH was born. The only way a paternity test will be ordered would be if JH were to request one but it would be his cost to cover. In Kansas it isn’t technically enough to sign the birth certificate if you aren’t married to the mother when the child is born. But it doesn’t get a father out of an obligation to the child if the parents split up either. It’s just a technicality really. It’s like saying EG is accused of child neglect because she has not been convicted of it. JH is alleged to be MH’s father because there has not been any legal proceedings declaring that he is.


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[flute4peace]

MH’s parentage isn’t being questioned, the only one that could would either be JH, EG or someone who would think they could be the father. So unless that happens, JH is the “assumed” father. It really has everything to do with the fact they were not married when MH was born. The only way a paternity test will be ordered would be if JH were to request one but it would be his cost to cover. In Kansas it isn’t technically enough to sign the birth certificate if you aren’t married to the mother when the child is born. But it doesn’t get a father out of an obligation to the child if the parents split up either. It’s just a technicality really. It’s like saying EG is accused of child neglect because she has not been convicted of it. JH is alleged to be MH’s father because there has not been any legal proceedings declaring that he is.


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That makes sense, thank you!

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[Kuyluc2764]

I wonder if this was why Jonathan wasn't looking at EG it was a ploy to look like he didn't care about her. jmo

I could be reading to much into this also.

You're reading too much into it? Oh my, wait until you hear what I came up with. This is all IMO, BTW. The word alleged screamed at me from the first time I read it in the article talking about Lucas's abuse and stuff. So when it was reported that Jonathan didn't even look at Emily my first thought was that a DNA test came back and that Jonathan wasn't the father. Where is Jerry Springer when you need him? Add that to the fact that DCF said they had not found a suitable family member for M and I was convinced. Because if Jonathan wasn't the father then obviously M couldn't be placed with non-biological family. I'm glad to read all the information here though. While it's not impossible that my theory could be correct, it's just a theory. Lol

I can not say that I'm sorry that this happened. As a matter of fact, it put a big smile on my face and paved the way for a better afternoon. One child is saved, hopefully, from the hellhole she was in. I wish with everything I am that she ends up in the arms of great doting parents.

 

[ESO]

These posts are helping me understand so much better, and thanks for that!

But...you've said that JH doesn't appear to be fighting for custody. Could it not be construed that JH has been advised by his attorney to go through parenting classes, anger management classes, or whatever else the court orders, in order to get on a path to regaining custody in future?

For the time being, with JH working out of state so much, visitation with MH might be a better option until he can make changes in his life circumstances and prove to the court that he can be a good father (without EG in the picture?) in being a good dad at home and also providing for her monetarily with a job.

Would the judge also want to know, in the closed portion of the hearing, whether JH intends to stay with EG or whether he wishes to break up with EG and try for sole custody of the child in the future? I think he would have a much better chance of future custody without EG. Depending on whether he has retained relationships with his relatives in NM maybe the 1-yr old could live with relatives there and JH could relocate to that state and have visitation there and make a nice clean break from EG. He might feel uncomfortable doing that right now with Lucas missing.

I also think that a vindictive EG who's been cut off from JH risks holding onto that secret of what happened to Lucas forever out of pure vindictiveness. She'd probably hold onto the secret for self-preservation, but it's something JH might have been considering all these weeks that keeping her on-side might give a better chance of her revealing what happened.

I'm also sad that MH couldn't be placed with a willing family member in NM straight away due to them being out of state. I have no idea what family JH has there or if anyone is able to care for a 1-yr old child, perhaps indefinitely.

The relatives in NM would not have been able to get custody of MH while she was considered in protective custody. The process to apply for that can be lengthy when it’s out of state so it’s hard to say whether or not they would be a suitable placement right now. Part of a parent maintaining their legal rights is being able to have close access to a child for their court ordered “parenting time” so as long as EG and JH reside here in Wichita, foster placement locally will be preferred. If parental rights are severed, if extended family wants to apply to adopt her they will be considered first. The reason I made the comment he doesn’t seem to be fighting for his child is that he is still working out of town. He couldn’t get custody of MH if he wanted to because he is not in state most of the time. If he was really trying to retain custody of her, he would have tried to change jobs and he would have told the court that instead of not objecting to it. I have seen parents beg, sob, bargain, do anything possible when asked if they object to their child remaining outside of the home and he did not do that. It’s now on record that he didn’t raise any objection to that and if there is any time important to speak up, that’s it. CINC hearings aren’t like criminal court in that not speaking is often times better so you don’t incriminate yourself. The judge is going to want to know if JH is planning to stay in a relationship but the court will also consider his suitability on his own as well. It could be that since this hearing was necessary to change MH’s status from being in protective custody to state custody, Jonathan just decided it was better to not object at this point because he couldn’t take care of her right now anyway.

I think EG will hold onto the secret of where LH is until it no longer “benefits” her. Unfortunately what we might consider a benefit will be very different to her. Power and control tend to be big motivators for people in similar situations.


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[Amonet]

I'm a little bit confused on how this works. If you have something in your car and you give LE permission to examine it and they find contraband (for example), they can use that find against you in the court of law. You gave them permission to search. How is that different from a cell phone?

I am not a lawyer, but....

Say you give verbal permission for the car to be searched and they find contraband...fine...kind of.

But they don't find contraband and want to look in the trunk. So they need a key to get into the trunk. If you don't give permission then they need a warrant.

A house would be a better example. In a house we have multiple rooms. You let LE into your lounge and they see drugs on your coffee table and it's a slam dunk (with the proviso that the drugs have to be in plain sight and the defense can't successfully argue that you were coerced or something into letting LE in).

So you've let LE into your lounge, but what about the rest of the house, which is made up of rooms and hallways and cupboards and closets. Some parts of the house may be protected with locks and keys.

If LE, while in your lounge to talk to you about some matter see drugs in open sight, then they've got you (with the proviso that the defense can still try to have it thrown out). But if the drugs are in a drawer or cupboard, did you give permission for that search? I don't believe you did, therefore it would be thrown out.

Then we have assumption of privacy. And a phone is complicated, it's technology that the law has not been written for. A phone, a modern one, it has compartments and cupboards and rooms and closets. So you give LE permission to check your call log...does that mean they have permission to go into your photo album? While the photo album isn't protected with a password (equivalent to lock and key) neither is it in open sight when looking at the call log on the phone. So with the house analogy that would be like LE being allowed into one room but peeking into a drawer or going into another room into which they were not clearly invited.

I am going to assume that the photo of the two people was sent to JH by FB messenger. I don't use messenger on phone, so we have two options, the photo is taken on the phone and goes into the photo album and is pulled from there to the messenger app, or maybe the photo is taken with the messenger app? Let's assume it's the latter that happened, that EG is on the messenger chatting with JH and while chatting she can hear voices outside, she takes the open messenger window and takes a picture which goes directly, via the messenger app window, to JH. Then LE want to see the picture and that gives LE access to the messenger app and the conversation window with JH. All they have to do is scroll up and down that window to see conversations between EG and JH from the days before and after. In this example there's not a lot of reasonable expectation of privacy.

But, we don't find drugs on the messenger app, we find intent to smoke drugs relayed to JH by EG. LE find the intent message and ask EG about it and she 'confesses' that yes she smoked mj and went to OG with MH. EG's lawyer is attempting to have the confession thrown out. I think they will still have the evidence of intent...if this scenario of the messenger app is correct, then I don't think there's any hope of throwing out the intent. But without the confession there's no proof of follow-through. Without proof of follow-through on smoking the mj, there's no endangerment charge, there's just a trip to OG with MH.

IMO it's always preferable to get a full warrant. But there will be some things, like entering the home of someone who's reported their child missing, that have to happen without a warrant, and you have to ask to look around the home without a warrant and you have to get verbal permission for that search. I can't see anything like that being challenged by a defense lawyer, but going into someone's phone? Looking into different places in the phone? It just gets complicated, and the more complicated it gets the easier it is to open up opportunities for a defense lawyer to try to get something thrown out, and sometimes they will succeed.

 

[Amonet]

Scope was brought up. My opinion would be the opposite, that without a warrant scope would be more limited, not less limited. That would be the example of a closed drawer inside an open room, you let LE into the room, but you didn't give them permission to go into any drawers.

But...I believe LE asked to take EG's phone for examination. At that point she should have had to sign a document to hand over over the phone...for chain of custody purposes. But I would think that scope of what they want to examine on the phone might also be on those documents, that i presume EG and the receiving officer would both have to sign?

I would guess that when the phone is handed over to LE, then the scope on the phone would be open to anything that doesn't have password protection. They would, imo, have to get a warrant for anything with a password.

I don't think the conversations with JH are privileged ... these are both cases regarding the safety of minors, and we assume she allowed LE to have the password to her FB and to see those conversations between JH and herself.

 

[Charliegizmo49]

So does this mean EG has temporarily or permanently lost custody of MH? I'm presuming temporarily at this point, but I just wanted to make sure.

To make what could be a very long post short, the State is moving toward a loss of parental rights. To accomplish it they have to follow certain steps. But for now the State can better protect and care for this child.

There are niw 4-5 attorneys involved. 1 for EG, 1 for JH, 1 for MH, 1 for DCF and a GUARDIAN AD LITEM. PLUS EGs attorney for criminal case.

Mist or all being billed at $250.00-$350.00/hour to the State of KansasOh forgot. They also bill costs. Paralegal time copies postage mileage.

That rough estimate doesnt include cost for MH care

 

[deedee21]

Neither one contested-
This is a little unsettling-
I just would have thought they would have at least “tried” for their daughter.
MOO


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Not a good time to go to trial.

 

[ESO]

To make what could be a very long post short, the State is moving toward a loss of parental rights. To accomplish it they have to follow certain steps. But for now the State can better protect and care for this child.

There are niw 4-5 attorneys involved. 1 for EG, 1 for JH, 1 for MH, 1 for DCF and a GUARDIAN AD LITEM. PLUS EGs attorney for criminal case.

Mist or all being billed at $250.00-$350.00/hour to the State of KansasOh forgot. They also bill costs. Paralegal time copies postage mileage.

That rough estimate doesnt include cost for MH care

Your costs are little inflated.....the attorney’s for JH and EG are private pay, you do not have the right to an attorney in family court. I have not seen if a GAL has been appointed for MH, that is not an automatic thing. There is not a separate GAL and an attorney for MH, they would be one in the same. The attorney for DCF is employed by the state full time (there is more than one) they do not have a private practice outside of that. And the parents will be required to pay child support for MH to the state. True there are costs, but this isn’t going to cost the state anywhere near what those rates are.


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[MsJosie]

Your costs are little inflated.....the attorney’s for JH and EG are private pay, you do not have the right to an attorney in family court. I have not seen if a GAL has been appointed for MH, that is not an automatic thing. There is not a separate GAL and an attorney for MH, they would be one in the same. The attorney for DCF is employed by the state full time (there is more than one) they do not have a private practice outside of that. And the parents will be required to pay child support for MH to the state. True there are costs, but this isn’t going to cost the state anywhere near what those rates are.


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So who is paying for the private attorneys for JH and EG....is there any source for that info? Thanks

 

[Kuyluc2764]

Well it’s not really the same type of evidence. Digital conversations are not the same thing as finding illegal substances in a car. The argument that will probably be made is that the phone was turned over to search for evidence regarding Lucas’s disappearance, reading thru messages from the day before could be argued as outside the scope of searching for a missing child today. I’m not saying I agree or disagree about this, but it is an argument I have seen made in other cases. Also conversations between husband and wife are considered privileged, so if EG and JH are claiming common law married, then there could be the argument that LE were not allowed to read thru those messages.


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I thought that the husband and wife privilege was null and void if a child was involved?

 

[ESO]

So who is paying for the private attorneys for JH and EG....is there any source for that info? Thanks

Those attorney fees will have to be paid by EG and JH. The state will not provide them legal counsel. You are only given an attorney in criminal court if you can not pay for one.


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[ESO]

I thought that the husband and wife privilege was null and void if a child was involved?

That would be an argument for a defense attorney to make. I was just using an example.


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[Busylady]

http://www.dcf.ks.gov/services/PPS/Documents/PPM_Forms/Section_5000_Forms/PPS5137.pdf

This has alot of info in it - discussion of attorney and court process starts on page 22

 

[ScarlettLin]

Scope was brought up. My opinion would be the opposite, that without a warrant scope would be more limited, not less limited. That would be the example of a closed drawer inside an open room, you let LE into the room, but you didn't give them permission to go into any drawers.

But...I believe LE asked to take EG's phone for examination. At that point she should have had to sign a document to hand over over the phone...for chain of custody purposes. But I would think that scope of what they want to examine on the phone might also be on those documents, that i presume EG and the receiving officer would both have to sign?

I would guess that when the phone is handed over to LE, then the scope on the phone would be open to anything that doesn't have password protection. They would, imo, have to get a warrant for anything with a password.

I don't think the conversations with JH are privileged ... these are both cases regarding the safety of minors, and we assume she allowed LE to have the password to her FB and to see those conversations between JH and herself.

To respond to the questions regarding a cabinet or locked door, or trunk, and extending that to password protected areas of a phone - when conducting a voluntary search and LE comes across those, they will (should) ask for permission again for that “key” (password) to access that area to search. If at any point permission is denied then a warrant will usually be obtained for that area.
Comparing to a house is actually better than a car, because it is much easier for LE to compel a search of a car without a warrant with just probable cause.
With digital devices, even when a warrant is obtained it is often quite wide in scope because it is very hard to know what you might find that is relevant (and where- messages, photos, browser history, even deleted files and on and on); and things can be hidden in plain sight that without a properly trained digital forensic expert could easily go missed. And with a missing persons case, it is very common to search through their and those closest to them’s social media accounts especially as those often have information about their last known whereabouts and with who- photos tagged with a location or a post saying they’re with this or that person or even a log in from a new location... yes Lucas is a minor child but even with that social media can be a big tool in locating him which I am almost 100% sure led LE to look in FB and messenger initially.


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[AFTM]

You're reading too much into it? Oh my, wait until you hear what I came up with. This is all IMO, BTW. The word alleged screamed at me from the first time I read it in the article talking about Lucas's abuse and stuff. So when it was reported that Jonathan didn't even look at Emily my first thought was that a DNA test came back and that Jonathan wasn't the father. Where is Jerry Springer when you need him? Add that to the fact that DCF said they had not found a suitable family member for M and I was convinced. Because if Jonathan wasn't the father then obviously M couldn't be placed with non-biological family. I'm glad to read all the information here though. While it's not impossible that my theory could be correct, it's just a theory. Lol

I can not say that I'm sorry that this happened. As a matter of fact, it put a big smile on my face and paved the way for a better afternoon. One child is saved, hopefully, from the hellhole she was in. I wish with everything I am that she ends up in the arms of great doting parents.

This is what I said awhile back.
I wonder???

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[Stacy zelepos]

I think a lot of us came to the same assumption.

 

[AFTM]

May the search for Lucas bring some kind of positive result today. Whether it be more evidence or finding his body so he can be laid to rest. I know his spirit is now free from all pain he suffered in this world. He is surrounded with love forever more.

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[chihuahua]

Thanks for all the comments I get to catch up on now. And a special thanks to ESO for making this so much clearer for me.
Back to catching up.:lookingitup: