Thursday, March 17, 2011

Mother bringing abuse case to Supreme Court (Daytona Beach, Florida)

If your organization is able to supply an amicus brief in support of this mother, please do. Although I've read about many outrageous miscarriages of justice when it comes to custody/visitation issues, Linda Marie Sacks' case is clearly one of the more outrageous.

Mother bringing case to US Supreme Court/ Constitutional Violations/ Rights of Mothers/Linda Marie Sacks
Human Rights Violations Rampant in the Family Courts of America
Questions Presented are of National Importance to America’s Children
March 3, 2011
Amicus Brief Requests

On May 6, 2011 the Friday before Mother's Day, Linda Marie Sacks will file a petition for certiorari with the U.S. Supreme Court. After years of legal hearings, this mother's only legal option is to ask our highest court to hear why she is concerned about her daughters' safety and should not be on court-ordered supervised visitation seeing her children for only two hours each month, for the last 4 years.

Family court judges should not end or severely restrict parent-child relationships because a parent fears their child is being abused. In Linda Marie's case, she was not the only adult concerned that her daughter was sexually acting out. The court had written documents from a Sunday School volunteer who overheard the then 8-year-old say she sucks her father's penis and reports of suspected child abuse from a therapist who watched as the girl drew the family picture below depicting her father as an erect penis with legs.

Justice for Children, a national organization that advocates for children when “official avenues” have failed to protect them, wrote a letter to the investigating agencies outlining concerns that the allegations of sexual child abuse were not properly investigated.

In the U.S. Supreme Court, few petitions are granted certiorari but the chances increase when multiple Amicus Briefs are filed with the petition. If your organization can help with gathering Amicus Briefs for this case that would be greatly appreciated. The questions to be presented are:
1. If a parent makes a good faith allegation of abuse, with documented evidence,
in an effort to protect her children, should that parent be deprived of physical
custody of her children, or have their contact supervised, indefinitely without a
case plan, or reunification plan provided by the trial court?

2. Does a state court violate the First, Fifth and Fourteenth Amendments when it
deprives a parent of physical custody, and limits that parents contact to Supervised
Visitation with her children, for taking the reasonable action based upon a belief,
supported by facts that her children need protection from abuse?

3. Does a state court’s custody decision that deprives a parent of access to her
children indefinitely, unless supervised, without a finding of unfitness by clear and convincing evidence, which effectively terminates a party’s parental rights,
violate the Fifth and Fourteen Amendments?

It is difficult to get a case to this point in our legal system. All other avenues must be exhausted which requires years of hearings and a substantial financial burden. This is a chance to tell our highest court that parents should not be punished for trying to protect their children.

Below is a legal summary of the case concerning the constitutional issues being appealed.

1) A finding that the mother's due process rights were violated and the custody was reversed

In May 2007, Mother, Linda Marie Sacks, appealed the decision of Judge Shawn L. Briese. The Fifth District Court of Appeals on 8/08 (Case 5D07-1682) in Daytona Beach, Florida issued a written opinion and REVERSED AND REMANDED the decision of custody of R.S. and S.S, back to the lower court. In the opinion it noted that Mothers due process rights were violated, and the hearing to determine custody should never have taken place, and when it did it violated Mothers constitutional rights. 2007 Sacks v. Sacks 991 So. 2d 922 (Fla. 5th DCA 2008)

2) The Fifth District denied a request to prohibit Judge Briese from again being the presiding judge

Immediately after the 8/ 08 REVERSAL AND REMAND in 1st appeal, a Writ of Prohibition,(Case 5D08-3668) was filed in the Fifth District Court of Appeals. The writ requested that Judge Shawn L. Briese be prohibited from being allowed to be the presiding judge on this case any further. The writ showed documented evidence of judicial misconduct, violations of judicial canon #3, violations of Fl Ad Code 2.330 and ex parte communications by the judge and the 2 attorneys of record for the former Husband. On 11/13/08 it was denied, without a written opinion or citation……just DENIED and thus it sent this Mother right back to Judge Shawn L. Briese for the retrial., the same Judge who violated her due process rights, as he refused to be disqualified, and he demanded to have her case back on his docket.

3) Judge Briese again violated the mother's due process rights

In the Retrial of Custody in April 2009, Father's two attorney firms did not present a case but simply rested when their turn to present arrived. Judge Briese issued his oral ruling in June 2009 and gave Father, Sole physical custody and continued to place Mother on Supervised visitation because she did a TV interview with Chan 9 News in Albany New York, at the Battered Mothers Custody Conference, and didn’t buy greeting card for the father while on Supervised refused to allow Mother any contact with her children UNLESS supervised at the local visitation center. Judge Briese, once again, ignored, suppressed and dismissed documented evidence of abuse to the minor children by the father…..and kept Mother on Supervised Visitation.

Mother filed a pro se appeal and in her Amended Brief of Appellant p.48 it says:

“Due process requires that the ruling from the trial court support its conclusions by clear and convincing evidence. Trial court “abuses its discretion” with respect to a child custody determination only when a reasonable person would take the view adopted by the trial court. Would any reasonable person agree with the trial court’s ruling that the primary custody of the minor children R.S. and S.S. should be with the father and the mother should only have supervised visitation? The court is bound to by law to apply the test that if no reasonable person could differ as to the appropriateness of the trial court’s ruling then the ruling must not stand. As a reminder, this court already found the mother’s due process rights were violated when her children were taken away in April of 2007 Sacks v. Sacks 991 So. 2d 922 (Fla. 5th DCA 2008). When the trial court gave the oral ruling on June 26, 2009 regarding the “Retrial of Custody of Children” it disregarded documented abuse. It is clear that this was a blatant disregard of abuse and evidence was suppressed, dismissed and ignored. This strongly suggests bias, discrimination in making the decision regarding the custody of R.S. and S.S.”

4) Constitutional Issues were also raised

Amended Brief of Appellant p. 4 states:

“The fundamental constitutional equal right of a loving, caring Mother is to be able to raise and nurture their children. The standard of review is abuse of discretion. In Bevil v. Carson 966 So. 2nd 1007, 1009 (Fla. 5th DCA 2007), in reviewing a custody determination the appellate court considers whether there is substantial competent evidence to support the factual finding by the trial court and whether its in the best interests of the children. Id.

If substantial evidence does not support the factual finds then the court abused its discretion, Fuller v. Fuller 13 So. 3d 1108 (Fla. 5th DCA 2009). A parent has a constitutionally protected inherent right to a meaningful relationship with his or her children, and must be treated equally under all of the 4th, 9th and 14th Amendments to the Constitution of the United States of America. (Exhibit B) There is no reason to excuse the judiciary participating in depriving the parents of the care and custody and time with their children, and sadly, in this case mother and R.S. and S.S have only had 68 hours of contact at the Supervised Visitation center.

The record is clear, Linda Sacks is a loving , caring, devoted Mother who was concerned for the safety and well being of her children and tried to protect them, and in doing so was placed on supervised visitation unjustly.”

Constitutional rights of a parent were also in other parts of the briefs as well. Abuse of Discretion issues were also raised, as well as the “best interest of children.”

Abuse of discretion was raised as it is the Standard of Review. The standard of review for the trial courts finding and determination regarding primary parental responsibility is abuse of discretion. The trial court finds regarding the best interests of the child must be supported by competent, substantial evidence. Knifley v. Knifley, 944 So. 2d 1136 (Fla. 5th DCA 2006).

Also stated:

The trial court abused its discretion by not terminating the supervised visitation imposed on Linda Sacks and compounded that error by refusing to allow contact unless it was supervised, and knowing their was no detriment to the children, and no evidence to support the trial courts ruling on custody of Linda sacks, Appellant’s Minor children, R.S. and S.S

The trial court abused its discretion when substantial competent evidence does not support the erroneous findings of the trial court in the final judgment of the retrial of custody of children.

The trial on April 24 and 28, 2009 on the retrial of Custody of children and the evidence presented does not support the oral ruling or written final judgment showing clear bias and prejudice and abuse of trial discretion.

The Court compounded that error in granting primary residential responsibility and sole physical custody to the father and supervised visitation to mother once again.

In the briefs these arguments were supported by the record and case law to support the argument.

A transcript from the Retrial in April 2009, was submitted showing the father admitting on the stand to verbal abusing the mother in front of the children, to an altercation in the kitchen of the family home with R.S. at 8 years old that resulted in this child getting a split lip and blood, to wiping down the vaginas of R.S. and S.S. (school age children), to being in the bathroom again with S.S. as she was naked in the tub, with him having her stand on one leg, with her other leg in the air, after just being told by a licensed psychologist to STAY out of the bathroom, and on the way home from that very office, came in the house with S.S. and did it again…within minutes of arriving home.

All of these admissions collaborated the Dept and Children Child Abuse Hotline Calls the police reports and Mothers Domestic Violence Injunction of Protection. But Judge Briese dismissed all and said in his oral ruling on June 26, 2009, and this is included in the Appeal briefs (Reply Brief of Appellant p. 6 and 7) states:

Judge Briese states: “He testified that nothing, ever inappropriate happened, sexually or physically, and the court finds it to be the case, as it did the first time.(R. Vol. 2. T. p. 189, 1. 18-20)

This is an erroneous finding by the trial court, and in Donn v. Donn, 733 So. 2nd 581 (Fla 4th DCA, 1999) the appeals court noted that there were numerous inconsistencies between the Final Judgment and fact as presented in the Final hearing and this was reversed and remanded for a new hearing.

Thank you for taking the time to review this summary. Should you need copies of any documents, simply ask and they will be provided to you quickly. Linda Marie Sacks raised these issues in her court case and the appeal to preserve the issues on appeal to go to the US Supreme Court for the Cert Petition, and has preserved the trial record as she has $17,000 worth of trial transcripts.

For Information on Amicus Briefs
Please contact:

Linda Marie Sacks

For Press
Please contact:

Kathleen Russell
Executive Director
Center for Judicial Excellence

495 Miller Avenue, Suite 304
Mill Valley, CA 94941
Main 415.388.9600 Fax 415.388.4610