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

[believe09]

Okay, my turn to be confused. What is now proven? Are you saying that Kaine's allegations in the RO have been proven or am I misunderstanding?

I am not speaking for germaine-the way I read the post was that since TH conceded the claims in the RO, they were "proven." Just my interpretation.

 

[citigirl]

I genuinely believe that Kaine will produce a number of documents and that they may have to be reviewed by the judge in camera. I remember when a friend of mine was divorced. Her ex made allegations that needed to be refuted with material my friend did not want her ex to see. The judge reviewed the material in camera. My friend won that round without having to provide her ex with material that he was not entitled to.

OK, did the judge then ask the ex questions about what was in the material? (Trying to understand how this could play out with Kaine and Terri)

 

[germaine]

Okay, my turn to be confused. What is now proven? Are you saying that Kaine's allegations in the RO have been proven or am I misunderstanding?

I thought I read a post or two saying that because she didn't contest the r/o, the allegations are accepted as true. Conceded in effect and binding. I thought the posts, or at least one of them was by a lawyer ws'er, but I could be mistaken about that. I'll try to find them. I think she can still challenge them in criminal court because the burden of proof is lower for the R/O, so I didn't mean she can't challenge the allegations if she's ever charged with a crime. Just not in the hearing on visitation with baby.

It makes sense to me though. Like if you sue someone for money saying you provided services but weren't paid just for example. You go to court, the other guy doesn't show up and you get a judgment in your favor saying that he must pay you the money you asked for. The reason for that, I think, is because you've met your burden of proving the services were provided and the money owed by swearing to it in court, and the other party didn't refute it. So for all time it's established that the guy has to pay you the money. jmoo

eta: one of the posts is 402 in this thread. Sorry, don't know how to bring it here. It's the last sentence of the second paragraph of desquire's post. I assume she's a lawyer by her "name" but I don't know that for sure.

 

[believe09]

OK, did the judge then ask the ex questions about what was in the material? (Trying to understand how this could play out with Kaine and Terri)

In my friends case there was no need. Her ex was trying to prove a negative-my friend could prove it was not so without giving the ex information he was not legally entitled to...he was on a fishing expedition.

Now, in this case I could see this as a fishing expedition if we removed the emotionally charged subject of Baby K. Just for a moment, imagine that TH was looking for the right to something more neutral. She wants Kaine to provide documentation of the hand he is holding and she wants a judge to rule that what he has proves what he says it does. But she wants this to happen without being questioned herself.

Which was some what like my friends situation FWIW.

 

[citigirl]

In my friends case there was no need. Her ex was trying to prove a negative-my friend could prove it was not so without giving the ex information he was not legally entitled to...he was on a fishing expedition.

Now, in this case I could see this as a fishing expedition if we removed the emotionally charged subject of Baby K. Just for a moment, imagine that TH was looking for the right to something more neutral. She wants Kaine to provide documentation of the hand he is holding and she wants a judge to rule that what he has proves what he says it does. But she wants this to happen without being questioned herself.

Which was some what like my friends situation FWIW.

I am thinking that if the judge cannot reveal what he reads it will be difficult for him to ask questions about it. And less likely for TH to be put in a position to incriminate herself.

What's to prevent anyone testifying in a civil court to incriminate themselves if police bring charges on something related later? Why should TH have an advantage because of her foreknowledge that she is being investigated?

Being separated from your child is not a criminal punishment, it is a civil consequence for dangerous behavior...it can be undone. The safety of your child should come before your constitutional rights--that's why the threshold is lower.

 

[germaine]

The Ohio Supreme Court, in 2000, for example, ruled that someone who had denied all guilt or who would deny all guilt to questions posed could not invoke the Fifth Amendment. That decision was soundly reversed by a unanimous US Supreme in 2001 in Ohio v. Reiner. The Court in that case (which contained Scalia, Thomas, Rehnquist and O’Connor, hardly flaming liberals) reaffirmed that one of the Amendment’s “basic functions … is to protect innocent men … ‘who otherwise might be ensnared by ambiguous circumstances.” The Court went on to add that “truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth. ”

I know what you’re thinking: How can truthful answers from an innocent person incriminate that person? The answer lies in the meaning of “incriminate”; it does not mean to prove one guilty as most folks think.

incrimination of oneself; specifically: the giving of testimony which will likely subject one to criminal prosecution”

(emphasis added by [author]).

So that it is an innocent person who might be wrongfully prosecuted through his own testimony that the Amendment tries to protect; not a criminal with something to hide. In fact, the Supreme Court views very expansive protection under the Fifth. In Hoffman v. United States, the Court held that The Fifth does not protect just potential answers to questions that may be enough to support a conviction (“I shot him”, for example) but in fact “embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant.” That’s the ticket: the testimony need only furnish a link needed not to convict but merely to prosecute the potential defendant.

http://www.courtroomstrategy.com/2010/04/on-taking-the-fifth/

whenever a criminal defense attorney has a blog touting the 5th amendment as protecting innocents, you know all of his clients are guilty lol

I knew there had to be more to this so I bothered to read the case. It's a shaken baby case where a 2-month infant died within weeks of the 5th amendment sitter being hired. According to the mother, the children were healthy and well both before and since (other than the one who died:sick. After she was hired, the baby twins, including the one who died, had broken ribs. And the one who died had a broken leg on top of that. There were conflicting expert report as to whan the baby's injuries were suffered, and the expert prosection witness testimony was significantly questionable.

It was a choice between sitter and the dad as to who was guilty and the prosecution, who chose to prosecute the dad, told the court beforehand that sitter would plead the 5th. So she was granted transactional immunity and testified only to the fact that she was innocent. How that could possibly incriminate her is anyone's guess, but I digress. The father was convicted and appealed and he won because the court found that the grant of transactional immunity significantly prejudiced his defense. And guess what, guilty girl can't be prosecuted because she was granted immunity. So lose, lose, lose. Baby is dead, dad's life is ruined and guilty girl carries on. jmoo

eta a relevant link: http://www.enquirer.com/editions/2002/07/21/loc_father_will_not_be.html

 

[Billylee]

This is directly from Kaine Horman's petition for dissolution:

12.

Petitioner should be awarded sole custody of the child. Petitioner is a fit and proper person to have sole custody of the minor child subject to a parenting plan based on the child's best interest.


http://www.koinlocal6.com/media/lib...148787/SharpNews_koin_com_20100629_114449.pdf


Thus, even Kaine Horman himself, agrees that in the interest of his own children, perhaps a parenting plan might be okay. Now, this is an agreement he goes into when he has already been made aware of whatever he was made aware of by whichever LE told him there was a MFHP and that TH was most likely involved in Kyron's disappearance. So, if it is okay with him that perhaps Terri Horman can be part of the parenting plan, who else is to judge?

 

[Pensfan]

In this case the court will determine the parenting plan and what is in the best interest of the toddler. The court will determine if contact with Terri would be harmful to the child's best interests. In making this determination, the court will consider evidence of physical abuse or threat of physical abuse by one parent against the other parent or the child. The court will also consider the following crimes:

-homicide,
-sexual assault,
-sexual intercourse without consent,
-deviate sexual conduct with an animal,
-incest,
-prostitution of a child,
-endangering the welfare of children,
-partner or family member assault, and
-sexual abuse of children.

Terri bingos on threat of physical abuse of her spouse and her conviction for child endangerment.

 

[pittsburghgirl]

Certainly, TH is a de facto suspect.

However, I don't think the most pertinent issue is her rights or Kaine's rights, but the child's rights. Let's postulate, for a moment, that TH is responsible for Kyron's disappearance, and that eventually there will be a prosecution for that involvement which will lead to a guilty verdict. (I am only postulating, here.)

How does any of that change the baby's right to know her mother? I don't think it's common practice for the courts to sever parental rights of murderers or other convicted felons. If a felon goes to jail, certainly the child may have no real opportunity to know the parent except for family visitation or through letters. But the child still has a right, unless the court severs the tie completely. I can see why people say TH should not be able to see her child, and I think the court should err on the side of supervised visitation. But I think it is a very radical step to take actions that cut a very small child's bond to his or her mother. Just my opinion. If TH ends up in prison, it won't matter much anyway; she will have, in effect, cut the tie herself. And I still don't like how the civil matters in this situation are used to provide fuel for the criminal case.

 

[Calliope]

I thought it meant exactly what he said. Nothing more, nothing less. That she IS a de facto suspect.

Of course I wouldn't expect a person's attorney to imply (s)he thought their client was guilty. Even a rookie wouldn't (or shouldn't!) make that mistake. But no one here has implied that.

I disagree. There seems to be such in posts proclaiming "but her OWN attorney called her a de-facto suspect!!!" in the context of conversations regarding her guilt or innocence.

 

[germaine]

Certainly, TH is a de facto suspect.

However, I don't think the most pertinent issue is her rights or Kaine's rights, but the child's rights. Let's postulate, for a moment, that TH is responsible for Kyron's disappearance, and that eventually there will be a prosecution for that involvement which will lead to a guilty verdict. (I am only postulating, here.)

How does any of that change the baby's right to know her mother? I don't think it's common practice for the courts to sever parental rights of murderers or other convicted felons. If a felon goes to jail, certainly the child may have no real opportunity to know the parent except for family visitation or through letters. But the child still has a right, unless the court severs the tie completely. I can see why people say TH should not be able to see her child, and I think the court should err on the side of supervised visitation. But I think it is a very radical step to take actions that cut a very small child's bond to his or her mother. Just my opinion. If TH ends up in prison, it won't matter much anyway; she will have, in effect, cut the tie herself. And I still don't like how the civil matters in this situation are used to provide fuel for the criminal case.

does your pov change if it's your child? Idk if you're married or single, have children or not, but assuming that you're married and have children, put yourself in KH's shoes and ask whether you would willingly put you baby into TH's hands. Then ask yourself what you would ask the court to do if you were KH. Then put that responsibility on the judge. He will grant supervised visits imo ONLY because he can't possibly say that court ordered supervised visits are inherently unsafe. And we shall see, much to the extreme risk to baby K, imo.

 

[Calliope]

One can answer nothing if one is not charged, the point is her husband has made allegations against her that have never been substantiated. To refute that, she must have all the information available to her, but that has not been forthcoming.

So to successfully answer the allegation she tried to have her husband murdered, " no I didn't" isn't going to cut it when both LE and her husband are professing this.

LE needs to provide proof or her husband needs to provide the details by which he took out that order supported by LE.

If this doesn't happen how can she possibly take the stand.

Thank you.

Very basic premise, and one that is being overlooked here.

 

[germaine]

Thank you.

Very basic premise, and one that is being overlooked here.

She is accused, which is all that's required in civil court. And she has chosen not to respond.

 

[Calliope]

In this case the court will determine the parenting plan and what is in the best interest of the toddler. The court will determine if contact with Terri would be harmful to the child's best interests. In making this determination, the court will consider evidence of physical abuse or threat of physical abuse by one parent against the other parent or the child. The court will also consider the following crimes:

-homicide,
-sexual assault,
-sexual intercourse without consent,
-deviate sexual conduct with an animal,
-incest,
-prostitution of a child,
-endangering the welfare of children,
-partner or family member assault, and
-sexual abuse of children.

Terri bingos on threat of physical abuse of her spouse and her conviction for child endangerment.

The child endangerment charge was from over 5 years ago.

An RO under FAPA is granted for allegations of abuse that occur within a specific timeframe. Even the alleged MFH plot fell outside these guidelines.

 

[Calliope]

She is accused, which is all that's required in civil court. And she has chosen not to respond.

That doesn't change one iota the absolute truth of scamp's statement.

 

[germaine]

That doesn't change one iota the absolute truth of scamp's statement.

It changes her entire premise. The allegations don't need to be substantiated. They just need to be made and, if possible, refuted. Scamp's premise is that she needs to see the evidence to refute the allegations, but ingores the fact that she chose NOT to force KH to show his hand because if she saw it and had to refute it, that could lead to her criminal prosecution. TH could easily have seen the evidence against her by challenging the R/O or, if KH and his attorney refused to disclose the evidence in that context, she would have won and not had an R/O that completely prevents her from seeing her baby in the first place. jmoo,

 

[mmmagique]

I disagree. There seems to be such in posts proclaiming "but her OWN attorney called her a de-facto suspect!!!" in the context of conversations regarding her guilt or innocence.

I see what you're saying, but that's not why *I* personally said it. I said it because the point was being made that she is not a named suspect, not a named person of interest, and many people think since she has not been named by LE, this whole mfh thing shouldn't be considered, nor should the fact that many people, including her husband, think that she is responsible for "disappearing" a child in her care. A child she claimed to love.

These things *should* be taken into account in this civil case, imo.

 

[mmmagique]

Thank you.

Very basic premise, and one that is being overlooked here.

She very certainly had the opportunity to answer the allegations her husband brought to the court. She chose to remain silent, as was her right.

 

[mmmagique]

It changes her entire premise. The allegations don't need to be substantiated. They just need to be made and, if possible, refuted. Scamp's premise is that she needs to see the evidence to refute the allegations, but ingores the fact that she chose NOT to force KH to show his hand because if she saw it and had to refute it, that could lead to her criminal prosecution. TH could easily have seen the evidence against her by challenging the R/O or, if KH and his attorney refused to disclose the evidence in that context, she would have won and not had an R/O that completely prevents her from seeing her baby in the first place. jmoo,

Absolutely.

 

[citigirl]

Certainly, TH is a de facto suspect.

However, I don't think the most pertinent issue is her rights or Kaine's rights, but the child's rights. Let's postulate, for a moment, that TH is responsible for Kyron's disappearance, and that eventually there will be a prosecution for that involvement which will lead to a guilty verdict. (I am only postulating, here.)

How does any of that change the baby's right to know her mother? I don't think it's common practice for the courts to sever parental rights of murderers or other convicted felons. If a felon goes to jail, certainly the child may have no real opportunity to know the parent except for family visitation or through letters. But the child still has a right, unless the court severs the tie completely. I can see why people say TH should not be able to see her child, and I think the court should err on the side of supervised visitation. But I think it is a very radical step to take actions that cut a very small child's bond to his or her mother. Just my opinion. If TH ends up in prison, it won't matter much anyway; she will have, in effect, cut the tie herself. And I still don't like how the civil matters in this situation are used to provide fuel for the criminal case.

TH's attorney is arguing that the mother's constitutional rights come before the child's rights. I agree with you...the child's rights should come before the mother's constitutional rights.

I honestly don't know what is is a proper parenting plan. I don't know what TH has done. I believe she's done something less egregious than murder and something more egregious than bad judgment.