Petition for Writ of Certiorari — Rachel Joanna Evens, Petitioner v. Timothy John Evens

Supreme Court briefApr 7, 2020

Ask Donna

What actually matters in this document.

Text

1236

NoT5

v; crVi r-j - ■:

-vM r;j L

WSBaL

IN THE SUPREME COURT OF THE UNITED STATES

RACHEL J. EVENS - Petitioner

vs.

TIMOTHY J. EVENS - Respondent

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Eighth Circuit

(South Dakota Supreme Court)

PETITION FOR WRIT OF CERTIORARI

FILED

APR 0 7 2020

SUPREEMEFCOi^RTLncK

Rachel J. Evens

pro se litigant

P.O. Box 273

Florence, MT 59833

Tel: 406.945.5551

e-mail: evens.cnm@gmail.com

Disclaimer:

I, Rachel Evens, fully admit that I have absolutely no legal background or

knowledge, except what I have been forced to learn for my defense through my

Court-implemented indigent situation. My only resource is Google. I have

completed this petition to the best of my understanding from on-line instructions,

and request consideration be given as I am sure your Honorable Justices’ will find

numerous mistakes in my petition. However, my children and I both deserve justice

- even though we are now considered indigent and cannot afford legal

representation.

RECEIVED

APR 1 5 2020

I. Questions Presented

1. What constitutes “Due Process of Law”? Can binding orders be implemented,

terminating visitation without any consideration of evidence or a hearing?

a. Is a judge is allowed to exclusively accept hearsay testimony from a

non-legally trained parenting coordinator as fact; refuse to

accept/consider evidence proving the hearsay testimony is false (from

the parents and/or law enforcement personnel). Then, amid parental

objections, implement the “findings and recommendations” of a

licensed clinical social worker “parenting coordinator” into official

orders; including the termination of parental rights, without following

due process of judicial law (considering evidence, holding a hearing to

hear the parties objections or opinions).

2. If the appointment of a non-legally trained, clinical social worker “parenting

coordinator” is:

a. an unlawful delegation of judicial authority, and

b. disregard of complying with the Rules of Evidence; or the

appointment of a parenting coordinator is allowable under the

United States Constitution and current Federal Statutes, useful

in implementing legally binding orders (without judicial

involvement or due process of law) of parental responsibilities,

parental custody and visitation, medical care, and other

significant issues related to minors.

3. Should sanctions only be issued under Federal Rule 11, or should a National

Standard be set with sanctions specific to intentional false reporting of child

abuse for repeat offenders?

II. Table of Contents

Disclaimer:

I. Questions Presented

II. Table of Contents ...

III. Table of Authorities

IV. Petition for Writ of Certiorari

V. Opinions Below

VI. Jurisdiction....

VII. Constitutional Provisions Involved

VIII. Statement of the Case

IX. Reasons for Granting the Writ

Due Process of Law......................

Parenting Coordinator...............

False Reporting of Child Abuse .

X. Conclusion....................................

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

APPENDIX

Appendix A: South Dakota Codified Laws................................................................ 38

Appendix B: United States’ Laws.............................................................................. 40

Appendix C: Order Dismissing Appeal 29245.......................................................... 49

Appendix D: Memorandum Order............................................................................. 50

Appendix E: (Defendant’s Proposed) FINDINGS OF FACT and Conclusions of

Law for 12.10.2019 Hearing........................................................................................ 63

III. Table of Authorities

Cases

A.H. v. C.M., 58 A.3d 823, 824 (Pa.Super.2012)..................................................

Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)

Barrientos v. Barrientos, 196 Ohio App.3d 570, 2011-Ohio-5734, 964 N.E.2d 492, ^[4

(3d Dist.).......................................................................................................................... 27

Bower v. Bournay-Bower, (2014) 469 Mass. 690, 15 N.E.3d 745............................... 28

Gregory v. Gregory, 2019-0hio-5210.............................................................................. 26

Harksen v. Peska, 2001 SD 75, Tf 10, 630 NW2d 98, 101............................................. 24

Harrison v. Harrison (2016), 132 Nev. 564, 573, 376 P.3d 173.................................. 28

Hastings v. Rigsbee, 875 So. 2d 772 - Florida: District Court of Appeals, 2nd Dist.

2004.................................................................................................................................. 30

Hausladen v. Knoche, 2010; 235 P. 3d 399.................................................................... 29

Hickam v. Hickam, 196 P.3d 63 (2008) 223 Court of Appeals of Oregon; 302 ......... 30

In re Estate of Hoffman, 2002 SD 129, f 17, 653 NW2d 94, 100................................ 17

Karen B. v. Clyde M., 151 Misc2d 794, 574 NYS2d 267 (Family Court, Fulton

County, 1991)................................................................................................

Karen PP v. Clyde QQ, 197 AD2d 753, 602 NYS2d 709 (3d Dept., 1993)

Parish v. Kluger, 2016; DOCKET No. A-0485-14T2....

Reaser v. Reaser, 2004 S.D. 116, If28; 688 NW2d 429.,

17, 27

Yates v. Yates, 963 A.2d 535, If 13-15 (Pa.Super.2008)

Statutes

Arizona Citation: Rev. Stat. § 13-3620.01.....................

.... 31, 40

Arkansas Citation: Ann. Code § 12-18-203...................

.... 31, 41

California Citation: Penal Code § 11172(a)..................

31, 32, 41

Colorado Citation: Rev. Stat. § 19-3-304(3.5), (4)........

31, 32, 41

Connecticut Citation: Gen. Stat. § 17a-101e(c)-(d)......

31, 32, 41

Florida Citation: Ann. Stat. §§ 39.205(9); 39.206(1)....

31, 32, 41

Idaho Citation: Ann. Code § 16-1607.............................

31, 32, 42

Illinois Citation: Comp. Stat. Ch. 325, § 5/4..............................................

.... 31, 42

Indiana Citation: Ann. Code § 31-33-22-3(a)-(b)........................................

31, 32, 42

Iowa Citation: Ann. Stat. §§ 232.75(3); 232.71B.................................. .

.... 31, 42

Kansas Citation: Ann. Stat. § 38-2223(e)....................................................

.... 31, 42

Kentucky Citation: Rev. Stat. § 620.050(1)................................................

.... 31, 43

Louisiana Citation: Children’s Code Art. 609; Rev. Stat. § 14:403(A)(3)

31, 32, 43

Maine Citation: Rev. Stat. Tit. 22, § 4014(1).............................................

.... 31, 43

Massachusetts Citation: Gen. Laws Ch. 119, § 51A.................................

31, 32, 43

Michigan Citation: Comp. Laws § 722.633(5)............................................

31, 32, 43

Minnesota Citation: Ann. Stat. § 626.556, Subd. 5..................................

31, 32, 44

Missouri Citation: Ann. Stat. § 210.165(2)-(3)............................................

.... 31, 44

Montana Citation: Ann. Code § 41-3-203(1)..............................................

.... 31, 44

Nebraska Citation: Rev. Stat. § 28-716.......................................................

.... 31, 44

New York Citation: Penal Law § 240.50(4).................................................

.... 31, 44

North Dakota Citation: Cent. Code § 50-25.1-13......................................

31, 32, 44

Ohio Citation: Rev. Code § 2921.14.............................................................

.... 31, 45

Oklahoma Citation: Ann. Stat. Tit. 10A, § l-2-101(D).... ........................ .

31, 32, 45

Oregon Citation: Rev. Stat. § 419B.016.......................................................

Pennsylvania Citation: Cons. Stat. Tit. 18, § 4906.1................................ .

Puerto Rico Citation: Ann. Laws Tit. 8, § 450a.........................................

31, 32, 46

Rhode Island Citation: Gen. Laws § 40-11-3.2.......................................... .

31, 32, 46

South Carolina Citation: Ann. Code §§ 63-7-430; 63-7-440.....................

31, 32, 46

South Dakota §25-4-70...................................................................................

South Dakota §25-4-72...................................................................................

.... 27, 39

South Dakota §25-4A-ll................................................................................

.... 10, 40

South Dakota §25-4A-5...................................................................................

.... 23, 39

South Dakota Standard Guidelines 1.13 Privacy of Residence...............

.... 10, 40

Tennessee Citation: Ann. Code § 37-1-413.................................................

.... 31, 47

Texas Citation: Fam. Code § 261.107...........................................................

31, 32, 47

Virgin Islands Citation: Ann. Code Tit. 14, §§ 2146(c); 2144(a)

31, 32, 47

Virginia Citation: Ann. Code § 63.2-1513(A)..............................

..... 31, 47

Washington Citation: Rev. Code §§ 26.44.060(4); 9A.20.021...

31, 32, 47

Wyoming Citation: Ann. Stat. § 14-3-205(d................................

31, 32, 48

Other Authorities

28 U.S.C. §1257................................................................................

U.S. Department of Health and Human Services, Children’s Bureau; Child Welfare

Information Gateway. (2019)........................

United States Declaration of Independence ...

8, 24

Rules

Federal Rules of Civil Procedure; Rule 11.....

Constitutional Provisions

United States Constitution, Amendment XIV

8, 26

IV. Petition for Writ of Certiorari

COMES NOW Rachel Evens (a court-forced, indigent, pro se litigant) on

behalf of her four children, herself, and parents across the United States (who find

themselves in starkly similar circumstances), and respectfully petitions this Court

for a Writ of Certiorari to review the judgement of the South Dakota Supreme Court

of Appeals, as this judgement directly contradicts the United States Constitution

and previously established case law by other Courts of Appeals.

Judge Connolly has obstructed justice through using his judicial powers of

ruling in favor of the wealthy (those who can afford multiple seasoned attorneys)

and disregarded the long-held standard that allegations must be substantiated by

evidence. It has long been upheld that all American Citizens are entitled to the

same protection of rights and administration of justice. These American citizens

include minor children who have been involuntarily caught in their guardians’

custody disputes. Minor children have the right to be protected from repeated

interrogations by law enforcement, searches for physical abuse, and observing their

mother being handcuffed and placed inside police cars as investigations occur.

When it has repeatedly been demonstrated that a guardian is intentionally making

false allegations of child abuse in a custody situation, it should be very easily

deduced that this guardian is selfishly using his children as pawns, without any

consideration his actions causing traumatic, long-lasting psychological effects on

their well-being.

A Federal Standard is requested regarding this issue, due process of law. and

parenting coordinators, for it is obvious that due to the frequent and directly similar

nature of the stated case law, this exact matter will only continue escalating

nationwide in lower courts until a Federal Standard has been set for lower courts to

follow.

V. Opinions Below

The opinion of the highest state court to review the merits of this Petition

appears at Appendix A to this petition. The Appeal #29245 was dismissed. The

opinion of the South Dakota Supreme Court is unpubhshed.

VI. Jurisdiction

Rachel’s ORDER DISMISSING APPEAL #29245 from the South Dakota

Supreme Court was denied on February 27, 2020 and appears at Appendix C to this

petition. Ms. Evens invokes this Court’s jurisdiction under 28 U.S.C. §1257, having

timely filed this Petition for a Writ of Certiorari within ninety days of the South

Dakota Supreme Court’s judgement.

VII. Constitutional Provisions Involved

United States Constitution, Amendment XIV:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, hberty, or

property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

United States Declaration of Independence:

“We hold these truths to be self-evident, that all men are created

equal, that they are endowed by their Creator with certain unalienable

Rights, that among these are Life, Liberty and the pursuit of

Happiness.-That to secure these rights, Governments are instituted

among Men, deriving their just powers from the consent of the

governed, -That whenever any Form of Government becomes

destructive of these ends, it is the Right of the People to alter or to

abolish it, and to institute new Government, laying its foundation on

such principles and organizing its powers in such form, as to them

shall seem most likely to effect their Safety and Happiness.”

VIII. Statement of the Case

The parties were married on July 9, 2005. This was the first marriage for

Rachel, the second marriage for Timothy. Timothy failed to relay to Rachel that he

was already legally married until a few weeks prior to their marriage. Timothy

was medically discharged from the Navy after four years with Post-Traumatic

Stress Disorder (currently receiving a 50% disability), a police officer for seven

years, a fire fighter for fourteen years, and is presently self-employed in carpet

cleaning and restoration. Rachel is a Registered Nurse, an Advance Practice

Provider, Certified Nurse Midwife (since 2013), and a Family Nurse Practitioner

(since November 2019). Rachel was a full-time student during the timeline of this

case, completing her post-graduate certificate in November 2019. Rachel had

committed her professional nursing career to working in medically underserved

communities and Native American Indian populations.

Rachel was raised in a very traditional, hardworking American farming

family. Rachel has absolutely no previous interaction with law enforcement or

criminal background. Timothy is a self-proclaimed “womanizer” with many onenight stands; stating in July 2018 that he only cared about having sexual

relationships with multiple women, consuming alcohol from a very young age

(twelve years); and claims he chose to marry Rachel “because you were hot” and he

had never previously met someone with Rachel’s traditional family values.

Timothy is fifteen years older than Rachel and only admits to one child (daughter)

prior to his marriage to Rachel. Timothy was not involved in his first daughter’s

life since 2005. Timothy and Rachel jointly had four children during their

marriage (ages 5-12 years), of whom it was found Rachel was the primary care

giver for their entire hves.

Rachel worked away from home as a medical provider for two weeks at a

time, with the children accompanying her since birth. Timothy secretly had affairs

while Rachel and the children were away from home, being caught in the act on

March 17, 2017 by Rachel and house guests. Timothy refused to remain committed

to his marital relationship with Rachel, and subsequently Timothy filed for divorce

from Rachel on January 25, 2018. Timothy requested an uncontested divorce, or if

that was denied then a divorce under the grounds of “Extreme Cruelty”. Timothy

requested the parties’ extensive marital estate and marital business in their

entirety.

Timothy admitted on audio in March 2018 that he had not been involved in

any of his five children’s fives “for twenty years”. However, under oath, Timothy

claimed he was the primary caregiver and requested primary custody of the parties

four minor children, claiming Rachel was physically abusive. Pursuant to SDCL

S25-4A-11 and South Dakota Standard Guidelines 1.13 Privacy of Residence: A

restraining order was entered on January 25, 2018, granting the children to the

previous primary caregiver (Rachel), and prohibiting Timothy from entering

Rachel’s residence without her permission.

Timothy refused to quit forcing his presence in Rachel’s residence and return to his

claimed residence in Havre, Montana. As Timothy also refused to give up his extra

marital affairs, Rachel refused to have intercourse with him. From February 24,

2018 onward Timothy forced sexual contact and intercourse multiple times per day

without Rachel’s consent. Timothy began forcing anal penetration without Rachel’s

consent to the point that Rachel was physically abused. Rachel was scared for both

her fife and the safety of her children if she reported Timothy’s abuse. On March 5,

2018 Rachel requested a protection order from the Pennington County Court House.

Rachel was given papers to return and sent home.

That night Rachel contacted Pennington County Law Enforcement for advice

about enforcing the temporary restraining order which prohibited Timothy from

being in her residence. Rachel was informed until she had the Protection Order

setting the prohibited distance the law enforcement was unable to enforce the

current restraining order (03.05.2018 Pennington County Command Logs [PCCL]

#18-060781). Directly after the Courthouse opened on March 6, 2018 Rachel filed

her request for a Protection Order, specifically requesting protection for herself and

a hearing to determine protection for the children. A temporary order was entered

and served upon Timothy, prohibiting all contact between Timothy and Rachel, and

the children.

On March 8, 2018 at 07:08am Timothy reported to law enforcement that

Rachel was currently “life-threatening” abusing the children. The children were

privately examined and interviewed by law enforcement. The children denied all

abuse by Rachel and no marks or bruises were found (03.08.2018 PCCL #18062854).

On March 8, 2018 Rachel and the children returned to Montana for Rachel’s

two-week employment stretch. On March 12, 2018 at 09:42am Timothy contacted

law enforcement, accusing Rachel of child abuse and neglect. Law enforcement was

dispatched, privately interviewed the children, and reported Timothy’s allegations

were false. Over the course of the next few days Timothy continued to contact law

enforcement and allege abuse (3.12.2018, updated 3.13.2018 Roosevelt County

Command Log #CFS18004082; 03.13.2018 PCCL #18-068004)

On March 23, 2018 Judge Connolly denied Rachel’s protection order request.

Further, despite finding that Timothy had falsely lied under oath claiming he was

the primary care-giver; and despite Timothy’s past history of false child abuse

reporting and not having any evidence to substantiate Timothy’s allegations; Judge

Connolly granted Timothy primary custody of the children “in the interest of

extreme caution”. Judge Connolly also granted Timothy possession of Rachel’s

home, stating it was so the children could remain in their same residence. Rachel

was quickly evicted by Timothy that very hour, without being allowed to remove her

personal possessions. To this date Timothy has refused Rachel her possessions so

Rachel had no resources to obtain money for legal fees.

On March 29, 2018 Timothy refused Rachel visitation, involving law

enforcement (03.29.2018 PCCL #18-084731). An emergency order was obtained

granting Rachel visitation. Judge Connolly wrote “Again, I encourage the parties to

he reasonable regarding modifying the guidelines to accommodate each other’s

schedules and unreasonableness may become an issue when the Court determines

final custody and visitation.”

On April 29, 2018 Timothy came to Rachel’s temporary residence and alleged

domestic violence and physical abuse against Rachel, claiming Rachel “choked”

Timothy. Rachel was placed in handcuffs and “restrained” in a police vehicle due to

Timothy’s allegations; while the children and Timothy could be interrogated and

searched for abuse. No marks could be found. Timothy’s claims were false.

(04.29.2018 PCCL #18-102972).

On May 4, 2018 at 18:18pm, Timothy again alleged domestic violence and

physical abuse against Rachel, claiming Rachel twisted his left nipple and punched

his left shoulder. An immediate in-depth interview and physical examination by

law enforcement occurred and no marks could be found on Timothy (05.04.2018

PCCL #18-103130).

A formal custody evaluation ensued by Mr. Brown, CSW. On both August 14,

2018 and also November 8, 2018, it was found through the custody evaluation that

Rachel had been the children’s primary caregiver since birth, and that Timothy’s

allegations of child abuse were false.

Rachel moved back to her family in Montana. Beginning May 27, 2018

Timothy began making multiple accusations that Rachel was “kidnapping” the

children. Each time it was found the allegations were false. On September 3, 2018

Timothy met Rachel to exchange the children. The children refused to leave Rachel,

Timothy left the scene and alleged to law enforcement that Rachel was kidnapping

the children. Again, this was found to be false. Due to these repetitive

“kidnapping” allegations, pursuant to Rachel’s request, on ORDER was

implemented by Judge Connolly stating that all child exchanges would occur at a

local law enforcement office.

On October 9, 2018, during an exchange at a local office, T.R.E. (five y/o)

independently walked into the police station to object to being forced into returning

to South Dakota with Timothy. T.R.E. was then forcefully removed by two officers

from clinging on Rachel’s vehicle as Rachel tried driving away. Timothy again

blamed Rachel for his son’s actions. Also, on October 9, 2018, Rachel was contacted

by the Pennington County Investigations and informed that law enforcement was

concerned about her safety and believed Timothy had been raping her back in May

2018. A formal investigation ensued (#18-103130).

In March 2018 Judge Connolly ordered Rachel to continue paying bills,

stating he would then divide them up during the divorce trial. Rachel then

supported three households (Timothy’s residence in Havre, Montana that he refused

to occupy, Rachel’s residence in Rapid City, South Dakota that Timothy and the

children were living in, and Rachel’s rented residence in Montana). From February

2018 through October 2018 Rachel paid a total of $85,619 in joint marital expenses

and Tim’s personal expenses, not including her own living expenses. Timothy

received $176,014 of income between the date of filing on 01.25.2018 and 10.31.2018. Judge

Connolly then refused to divide the income and bills like he promised he would. This resulted in

Rachel having no resources to obtain an attorney and has been a court-ordered forced indigent

litigant. Further, at the divorce trial Timothy was allotted the marital assets and ordered to pay a

greatly reduced >$250,000 equalization payment to Rachel, with no deadline for this payment.

As a result, Rachel has been rendered homeless, destitute, and has not received a single penny

from Timothy, while Timothy continues to spend almost $200,000 in attorney fees “prosecuting”

Rachel (as formally documented by Timothy’s submitted “requests for attorney fees” via

multiple motions for Rachel to pay Timothy’s fees in both the lower and Supreme Courts).

On November 29, 2018, after a five-day trial of Timothy “prosecuting” Rachel

for Extreme Cruelty, Judge Connolly ruled that Rachel was not entitled to a divorce

as Rachel had not co-filed for divorce within 30 days of Timothy filing. Timothy’s

extensive use of alcohol and intoxication was testified to by both family friends and

law enforcement. Timothy used his current criminal investigations of domestic

assault and rape in South Dakota and hunting violations in Montana as grounds for

establishing extreme cruelty on behalf of Rachel. Timothy submitted no evidence

establishing these investigations, but claimed Rachell was at fault. Henceforth,

Judge Connolly stated

“I’ve not heard any - seen any evidence to support any - investigation of

an audit or hunting violations or tax evasion or anything like that, or

rape or anything’

and then ruled

“I find statements about accusing Mr. Evens of certain things that may

or may not be true or may or may not be ultimately proven, but I think

in taking in the full context of the marriage I find this amounts to

extreme cruelty and those include allegations of rape, hunting without a

license, tax evasion, so forth”.

After stating on the record that he had not seen evidence or heard the

criminal cases, Judge Connolly entered his Findings of Facts and Conclusions of

Law in the civil divorce trial on December 26, 2018, and ruled that Timothy was

innocent in all Timothy’s pending criminal charges in two states. Primary custody

of the children was granted to Timothy, so that the children could not move back to

Montana with Rachel, where they had spent almost ten years of their lives.

Rachel appealed the Findings of Fact and Conclusions of Law in January

2019 as not substantiated or grounded in evidence. Primary custody was also

appealed to the South Dakota Supreme Court and is still pending a formal

decision.

In January 2019 following the investigation, Pennington County law

enforcement requested a warrant for Timothy’s arrest for committing domestic

violence and rape against Rachel in May 2018 (PCCL Report #18-103130) and

permission to prosecute Timothy for rape before a jury. The request for a warrant

was denied pending an appeal ruling as Judge Connolly had ruled Timothy was

innocent without any information, reviewing the report, or considering any

evidence from current law enforcement investigations.

Timothy was prosecuted by the Montana Fish, Wildlife and Parks. On March

18, 2019 in Hill County Justice Court, Montana, Timothy pled guilty of hunting

violations (Case No: TK-455-2019-0000242).

On January 6, 2019, Timothy left the children home alone and was

unavailable by phone. R.K.E. (lly/o) hurt her knee and required medical care.

The children didn’t have dinner. Rachel called for a medical assessment of her

daughter’s injuries as she wanted to go to the hospital and Rachel was 800 miles

away. The sheriff verified R.K.E. required medical intervention, although not

emergent (PCCL #19-005095). On January 8, 2019, Timothy had yet to take

R.K.E. to a provider. When police contacted Timothy, he agreed to make an

appointment (PCCL #19-006319).

On February 22, 2019 Timothy refused to take R.K.E. to a provider when she

had a fever, difficulty breathing, and said her lungs kept “popping like rice

crispies” (PCCL #19-get). Rachel was visiting South Dakota and came at her

daughter’s request to quickly assess. Rachel insisted on medical intervention.

Timothy retaliated by filing a Trespassing Order prohibiting Rachel from being

able to intervene on behalf of her children (PCCL #19-046873).

Ms. Bruckner, a licensed social worker who was just licensed a few months

prior, was hand-selected by Timothy to be the parties “Parenting Coordinator”. The

ORDER APPOINTING PARENTING COORDINATOR, written and submitted to

the Court by Timothy’s counsel, directly violated the provisions set forth in SDCL

§25-4-70; §25-4-72; and national Supreme Court rulings as set forth later in this

document. This ORDER has never been formally served upon Rachel. Rather, on

November 1, 2019 the Clerk of Court provided the ORDER to Rachel following a

request from Rapid City Police Officers, who stated that there had to be a formal

ORDER appointing the parenting coordinator. As such, Rachel was never granted

the opportunity for a timely objection pursuant to SDCL prior to this ORDER being

signed.

Without any jurisdiction or authority to enter a new judgement which would

change or modify the judgement on appeal, pursuant to extensively quoted South

Dakota case law in Reaser v. Reaser. 2004 S.D. 116. 128: 688 NW2d 429 and In re

Estate of Hoffman. 2002 SD 129. IT 17. 653 NW2d 94. 100. Judge Connolly still

signed and implemented this ORDER on March 22, 2019. According to this

ORDER, either party had fourteen days to object to any decisions made by Ms.

Bruckner. Immediately following her appointment, Ms. Bruckner began submitting

documentation to Judge Connolly, on behalf of Timothy, with serious allegations

against Rachel.

On April 11, 2019 Timothy refused to meet Rachel during the court-ordered

exchange for Spring Break. Judge Connolly refused to intervene, mandate Timothy

give the children to Rachel, or uphold Rachel’s visitation.

On April 21, 2019 Timothy refused to meet Rachel during a child exchange;

instead trying to claim kidnapping. Per Timothy’s attorney’s advice, Rachel had to

involve law enforcement to require Timothy to come collect the children (PCCL #19102392).

Rachel has provided 100%of the children’s medical care since their birth.

Timothy refused to provide basic and preventative medical, dental, optometric, and

psychiatric care to the children since receiving interim custody of them in March

2018. Rachel provided all of their medical care in Montana, both during the interim

divorce period and afterwards in all of 2018 and 2019. The children received

extensive dental work in July and August 2019 — to the point their dentist

questioned Rachel about neglect. Their psychiatric counselor was concerned about

Timothy not allowing Rachel enough visitation and communication and the

detrimental effects it had on the children’s mental health. It was advised by their

counselor that Rachel’s contact with the children increase.

In all, the children received over thirty appointments with their Primary

Care Provider, Pulmonary Function, Cardiology, Optometrist, Dentists, and

Psychiatric providers during July and August 2019 through Rachel’s diligence.

Immediately upon the children’s return to South Dakota in August, Timothy

subjected the children to his newest “female companion” and her children, having

his “companion” spend extensive time alone with Timothy, including overnight

stays. (Timothy now denies he was dating). These stays involved Timothy’s

extensive use of alcohol to the point the children knew Timothy was intoxicated. On

August 27, 2019 Timothy refused to meet Rachel when he had pre-arranged for

child exchange. Instead Timothy was busy with his newest female companion.

(PCCL# 19-253642).

On September 12, 2019 Timothy, Rachel, and Ms. Bruckner had a four-hour

meeting to initiate the parenting coordinator process and reach collaborative

decisions in key issues. Pursuant to SDCL §25-4-70, Ms. Bruckner did not have

authority to make legally binding major decisions regarding either Timothy, Rachel,

or the children, or a substantial change in parenting time.

On September 17, 2019 Timothy wrote to Ms. Bruckner “Rachel should not have our

children in her care and custody at all”, and again “Judge Connolly stated a number of times at

the beginning of this divorce case "Out of an abundance of caution" after which he would allow

her a hearing to tell her side of the story. Where is the abundance of caution in regards to my

children???" and yet again, “I've heard countless stories ofpeople that had supervised visitation

and they did FAR LESS than Rachel has”. Timothy continued to make false allegations of lifethreatening child abuse against Rachel. Without having a single piece of evidence to validate

Timothy’s allegations (and after a prior investigation by Mr. Brown had found Timothy to be

lying) Ms. Bruckner went ahead with Timothy’s allegations and restricted Rachel’s involvement

in her children’s lives.

Timothy objected 100% to the children’s established medical providers;

demanding new, non-covered providers. On October 24, 2019 Ms. Bruckner

provided both parties with a copy of their new “agreement”. Ms. Bruckner

implemented many decisions which directly contradicted the current Divorce

Decree, South Dakota Statutes, South Dakota case law, the United States Supreme

Court statutes and case law, and the United States Constitution. These decisions

removed Rachel’s visitation and joint legal custody decision-making ability of her

four children. Rachel objected to many items that had never been “agreed” on,

including changing the children’s health care providers 100% to brand new, noncovered providers pursuant to Timothy’s request, resulting in thousands of dollars

in out of pocket expenses. Ms. Bruckner’s decisions unilaterally favored Timothy’s

requests, who continued to push for complete legal removal of Rachel’s visitation

and communication with the children based on Timothy’s repeated allegations of

Rachel being abusive. Ms. Bruckner refused to change the agreement.

On October 28, 2019 Rachel filed her timely objection to Ms. Bruckner’s

“agreement” and requested a hearing to uphold the Divorce Decree rulings

currently under appeal. Ms. Bruckner submitted the “agreement” and an “update”

regarding Rachel’s “inappropriate behavior” to the Court on November 1, 2019 for

official filing.

On November 1, 2019 Timothy removed the children from school early to

prohibit Rachel’s visitation after this was arranged back in July 2019. Law

Enforcement said a judge would have to intervene (PCCL# 19-320298). Rachel left

the schools, then when Timothy pulled on the street directly in front of her with all

the children in his vehicle, Rachel followed Timothy directly to a Police Station.

Timothy called ahead requesting Rachel be arrested as Rachel was “following him

all over town” Rachel videoed the drive and proved Timothy was yet again lying to

law enforcement. Ms. Bruckner was contacted by police and Ms. Bruckner

acknowledged that Rachel was allowed visitation when she visited Rapid City.

Then, without any legal authority to do so, Ms. Bruckner refused to let the Police

grant Rachel her monthly visitation (PCCL# 19-320317). Rachel requested Judge

Connolly to intervene, he refused.

On November 7, 2019 Timothy finally agreed Rachel could see her two

youngest boys for a couple hours, but mandated it was during a mental health

counseling session, then Timothy refused to come get the boys as he said he would

so Timothy could again accuse Rachel of kidnapping. Ms. Bruckner “ordered”

Rachel to violate the trespassing notice so Ms. Bruckner and Timothy could have

Rachel arrested. Rachel refused and requested Timothy meet her in town as

previously arranged. Ms. Bruckner contacted police to report Rachel kidnapping

the children. Rachel again requested law enforcement to request Timothy to collect

the children. Timothy initially refused, mandating that Rachel violate his

trespassing notice so he could have Rachel arrested, then finally agreed to meet and

collect the children (CFS# 19-325941).

Ms. Bruckner then emailed Judge Connolly to terminate Rachel’s parental

rights. Without verifying any of Ms. Bruckner’s allegations to be true, or reviewing

Police Reports stating the facts (proving Ms. Bruckner’s allegations were false),

Judge Connolly denied Rachel’s request for a hearing, refused to allow exhibits

demonstrating the truth, dismissed Rachel’s objections, and upheld Ms. Bruckner’s

“agreement” as an official order on November 14, 2019, as well as terminated

Rachel’s parental rights and visitation until further notice. Judge Connolly further

wrote “mother’s inappropriate conduct towards Ms. Bruckner and others”. Judge

Connolly found Rachel guilty of all Ms. Bruckner and Timothy’s allegations without

any due process of law or a chance at defending herself.

Rachel immediately objected, pointing out how this ruling was a violation of

both the children’s and her 14th Amendment rights, in addition to numerous US

Supreme Court and South Dakota Supreme Court opinions and statutes. On

December 10, 2019, following six weeks of Rachel not being allowed to speak or see

two of her children, and four weeks of the other two children, “visitation” was re

instated to begin over Christmas break. Judge Connolly refused to revisit Ms.

Bruckner’s “agreement”, refused to allow evidence proving Ms. Bruckner had lied to

the Court, and refused Rachel a hearing pursuant to law.

On January 3, 2020 Judge Connolly entered his ORDER from December 10,

2019. Judge Connolly specifically wrote that he refused to sign any Findings of Fact

and Conclusions of Law (to justify his refusal in allowing Rachel a due process of

law or a hearing and granting Timothy’s requests 100%, even though these rulings

violated law). On January 9, 2020 Rachel requested a mistrial as she was not

allowed to have a hearing to object to Ms. Bruckner’s “agreement”, which was

upheld as an order. Rachel also requested an ORDER TO SHOW CAUSE be issued

regarding Timothy’s repeated and ongoing refusal to grant Rachel visitation and

abide by the Divorce Decree, pursuant to South Dakota §25-4A-5.

On January 20, 2020, Timothy and Ms. Bruckner jointly petitioned for Rachel

to be incarcerated for “threatening, intimidation, and denigrating behavior” towards

Ms. Bruckner. All of Rachel’s interaction with Ms. Bruckner was through written

communication, yet no such evidence of this “behavior” was submitted to validate

Ms. Bruckner’s allegations against Rachel, justifying the request for incarceration1.

On January 22, 2020 Rachel’s request for a new hearing and ORDER TO

SHOW CAUSE were denied. On January 27, 2020 Rachel filed her NOTICE OF

APPEAL regarding this stark violation of both statute and law. The South Dakota

Supreme Court states “We review conclusions of law under a de novo standard with

1 On February 6, 2020 Rachel filed a MOTION FOR INVOLUNTARY DISMISSAL of Timothy and

Ms. Bruckner’s Contempt of Court Action as it did not meet South Dakota statutory and case law

protocol. The contempt motion against Rachel was dismissed by the Court on February 9, 2020.

no deference given to the circuit court” Harksen v. Peska. 2001 SD 75. 1f 10. 630

NW2d 98. 101. This official stance on de novo review has been extensively

reiterated in almost every officially released opinion since 2001 and is considered

the Gold Standard for deciding an appeal by the South Dakota Supreme Court.

On February 27, 2020, Rachel’s Appeal was dismissed on the grounds that

the “issues raised are either intermediate in nature and not taken from a final

judgement or order”. The South Dakota Supreme Court felt that some of the issues

were also under the jurisdiction of the Divorce Decree appeal; arguably if this was

true, these orders should have been reversed as this decision meant that Judge

Connolly had no jurisdiction to write such an order in the first place.

IX. Reasons for Granting the Writ

The Declaration of Independence states it is the duty of the American people

(Judicial System) to “alter or abolish” any law that has become destructive to the

American people, and implement new laws for the “accommodation of large

districts of people” ...“most wholesome and necessary for the public good”.

The prolific amount of quoted recent Supreme Court decisions from other

states contradict the South Dakota Supreme Court’s decision, as every Supreme

Court ruled that this is considered a final order which hkewise is appealable; this

order of Judge Connolly violates the United States Constitution, violates defined

due process of law, violates previous United States Supreme Court findings which

were reversed as such (although not specifically stating “parenting coordinators”).

No Findings of Fact included in APPEAL #29245 were included in the

Divorce Decree APPEAL #28879, as all events occurred after the Divorce Decree

was filed on December 26, 2018. Even though the South Dakota Supreme Court

found the current orders were “interim”, this exact same scenario and rulings have

been issued as final orders by the circuit court judge, and found to be final, so they

are appealable (Gregory u. Gregory. 2019-Qhio-5210'). Further, Timothy has now

incurred thousands of dollars in non-covered expenses (when he could have had the

children see their covered providers for free) and is requesting payment from

Rachel for these non-covered expenses at both Ms. Bruckner and Judge Connolly’s

approval.

Because this final ruling by the South Dakota Supreme Court is in such gross

disparity with previously established US Supreme Court and other National Court

of Appeal opinions, it is clear that the requirement for a National Standard must

be made by this United States Supreme Court.

Meanwhile, the children have been effectively and repeatedly forced by

Timothy not have a relationship with their mother, participate in activities which

directly violate their constitutional rights, and Timothy continues to be rewarded

for his refusal of allowing Rachel visitation and false allegations of child abuse by

receiving increased custody and legal decision making of the children. Timothy

continues to be rewarded for his lying under oath, and the Circuit Court continues

to disregard Timothy’s convicted criminal and proven physically abusive past.

The following first two Legal Questions are intertwined with the chosen

Supreme Court Case opinions. As such, they should be considered independently,

but also cohesively.

Due Process of Law

The United States Constitution, Amendment XIV clearly states:

“nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws”.

The United States Supreme Court found that the fundamental requirement

of due process in any proceeding is notice

“reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them an

opportunity to present their objections.” Armstrong v. Manzo. 380 U.S.

545. 550. 85 S.Ct. 1187. 14 L.Ed.2d 62 (19651.

In December 2019, The Ohio Supreme Court found that the trial court erred

as a matter of law by overruling his [Father’s] objections of the parenting

coordinator’s decision, without a de novo hearing, violating his Fourteenth

Amendment due-process of law constitutional rights Gregory v. Gregory. 2019-Qhio5210.

“{T]26} Due process requires meaningful and independent judicial

review of a parenting coordinator’s decision. The lack of an independent

review of Swift’s factual findings, and the fact that Swift’s decision was

immediately effective and not stayed by Father’s objections, combined to

deprive Father of meaningful and independent judicial review of his

objections, and therefore deprived him of due process. Because the trial

court erred in overruling father’s objection to the parenting

coordinator’s decision without a hearing, his sole assignment of error is

sustained.” Id.

“’Independent review’ means de novo review” Barrientos v. Barrientos.

196 Ohio Ann .3d 570. 2011-Qhio-5734. 964 N.E.2d 492. U4 (3d Dist.I.

Thus, when reviewing a magistrate’s decision, the trial court must

independently review the record and make its own factual and legal

findings.” Id.

If the South Dakota Supreme Court’s decision was correct in that this was an

“interim order”, then Judge Connolly had no jurisdiction to issue such an order as:

“An appeal from a judgment or order strips the trial court’s jurisdiction

over the subject matter of the judgment or order except as to certain

trivial matters; the Supreme Court then has jurisdiction until

determination of the appeal.” Reaser v. Reaser. 2004 S.D. 116. H28:

688 NW2d 429

Parenting Coordinator

South Dakota has already established that a parenting coordinator does not

retain any legal authority and the district judge retains exclusive jurisdiction over

all custody and support decisions (SDCL §25-4-72)

The United States Supreme Court clearly needs to establish clear boundaries

by which a parenting coordinator is to practice by, if at all. While theoretically it is

helpful to have a mediator in high-conflict and abusive situations; this position

should not be wielded to grant all parental legal and physical custody to a parent

without the use of judicial due process of law. Further, if a parenting coordinator is

expected to operate in a judicial capacity, then it should be expected that this same

parenting coordinator is fully trained and versed in the practice of judicial law,

including Rules of Evidence, Hearsay Testimony, Family Court, and held

accountable to a board or State Bar for the practice of the same judicial law.

If attorneys, who have to be admitted to judicial process by a State Bar, are

not allowed to formulate and implement these decisions without due process of de

novo hearings, why should an inferiorly educated social worker, with a highly

insufficient education of only forty hours in family court law, be allowed to issue

judicial rulings without the established standard of de novo due process of law?

Applicable findings of the Honorable Supreme Courts in the United States of

America are as follows.

In July 2016, the Supreme Court of Nevada found that the parenting

coordinator's authority was limited to resolving non-substantive issues, and the

decisions of the parenting coordinator were not immediately effective. Harrison v.

Harrison (2016). 132 Nev. 564, 573. 376 P.3d 173.

As the New Jersey Superior Court found in Parish v. Kluser. 2016: DOCKET

No. A-0485-14T2

“If, as plaintiff claimed, defendant was preventing him from exercising

parenting time as per the MSA, then he was entitled to a remedy. If, as

defendant claimed, plaintiff failed to exercise his parenting time out of

disinterest, then the court's decision to not alter parenting time was

appropriate. The court should have resolved that dispute. When the

court's decision is considered in its entirety, it could be interpreted — as

plaintiff has interpreted it — to vest in the parenting coordinator the

resolution of the parties' conflicting positions as to why the MSA

parenting plan was not working. The court has no authority to

delegate its decision making to a parenting coordinator. Further, a

trial court has no authority to require parties to "abide by [the

parenting coordinator's] recommendations."

In Bower v. Bournav-Bower. (20141 469 Mass. 690. 15 N.E.3d 745. the

Massachusetts Supreme Court addressed judicial review of a parenting

coordinator’s decision. The court’s order provided that the parenting coordinator’s

decisions were binding unless either party

“comes to court before the decision is to take effect and obtains a

contrary order.”Id. at 704. This provision meant that meaningful

judicial review was unavailable for any decision of the parenting

coordinator that would take effect before the party could obtain review

by the trial court. Id. The court held that the trial court lacked

authority to appoint the parenting coordinator due in part to the

binding nature of the coordinator’s decisions and the lack of meaningful

judicial review. Id. at 701-706.

The Superior Court of Pennsylvania found that the appointment of a

parenting coordinator has been held to not be an improper delegation of judicial

decision-making authority as long as the trial court empowers the parenting

coordinator to resolve only ancillary custody disputes, the parties can appeal

decisions of the parenting coordinator to the trial court, and the trial court conducts

a de novo review (Yates v. Yates. 963 A.2d 535. 1 13-15 (Pa.Super.2008).

Again, in 2012 the Superior Court of Pennsylvania found that any objections

to a parenting coordinator’s “findings” must have a de novo hearing in the lower

courts (A.H. v. C.M., 58 A.3d 823. 824 (Pa.Super.20121. “the mother filed an

objection to the parenting coordinator’s decision and requested a de novo hearing

before the trial court. The superior court found that the trial court’s denial of

mother’s request for a de novo hearing infringed on her due-process rights”. Id. at

827.

The Idaho Supreme Court found in Hausladen v. Knoche. 2010: 235 P. 3d 399 "The goal

of a parenting coordinator is to empower the parties and minimize conflict in resolving

parenting disputes. The judicial function offinal decision-maker remains with the court and is

not delegated through.1"

Hastings v. Riesbee. 875 So. 2d 772 - Florida: District Court of Appeals. 2nd

Dist. 2004 found that "it is never appropriate for a parenting coordinator to act as a

fact-finder or otherwise perform judicial functions" and subsequently the lower court

order that was entered on the hearsay testimony of the coordinator was reversed

and remanded.

The Court of Appeals of Oregon

"conclude[d] that the trial court plainly erred in denying husband

parenting time without making appropriate findings" and reversed the

order that erroneously granted parenting coordinator the "authority to

deny husband parenting time" Hickam v. Hickam, 196 P.3d 63 (2008)

223 Court of Appeals of Oregon: 302.

False Reporting of Child Abuse

It is a well-known fact that claiming child abuse is the “Silver Bullet” to win

primary custody during joint-custody disputes in civil court. The United States

Supreme Court is requested to issue a decision and implement a national standard

for all fifty (50) states and United States Territories are required to follow. Rachel

personally believes that strict sanctions should be imposed across all fifty United

States and US Territories, far above what Federal Rules of Civil Procedure: Rule 11

currently allow. These sanctions should include removal of parental custody with

repeat offenders, as happened in Karen B. v. Clyde M.. 151 Misc2d 794. 574 NYS2d

267 (Family Court. Fulton County, 1991). affd sub nom., Karen PP v. Clyde OO. 197

AD2d 753. 602 NYS2d 709 (3d Dept.. 1993). Unfortunately, South Dakota currently

has no statutes in place that address falsely reporting child abuse, but South

Dakota appears to encourage parents to falsely alleged child abuse in custody

disputes by awarding the false reporting parent primary custody of the children!

Again, this is a nationally necessary decision for the following reasons:

“Approximately 29 States and Puerto Rico carry penalties in their civil

child protection laws for any person who willfully or intentionally

makes a false report of child abuse or neglect2. In New York, Ohio,

Pennsylvania, and the Virgin Islands, making false reports of child

maltreatment is made illegal in criminal sections of State code.

Nineteen States and the Virgin Islands classify false reporting as a

misdemeanor or similar charge3.

In Florida, Illinois, Tennessee, and Texas, false reporting is a felony;

while in Arkansas, Indiana, Missouri, and Virginia, second or

subsequent offenses are upgraded to felonies. In Michigan, false

reporting can be either a misdemeanor or a felony, depending on the

seriousness of the alleged abuse in the report. No criminal penalties

are imposed in California, Maine, Minnesota, Montana, and Nebraska;

however, the immunity from civil or criminal action that is provided to

reporters of abuse or neglect is not extended to those who make a false

report. In South Carolina, in addition to any criminal penalties, the

Department of Social Services may bring civil action against the

person to recover the costs of investigation and any proceedings related

2 Arizona, Arkansas, California, Colorado, Connecticut, Florida, Idaho, Illinois, Indiana, Iowa,

Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana,

Nebraska, North Dakota, Oklahoma, Rhode Island, South Carolina, Tennessee, Texas, Virginia,

Washington, and Wyoming.

3 Arizona, Arkansas, Colorado, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Missouri,

New York, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, Virginia, Washington, and

Wyoming. In Iowa, a person who makes more than three reports regarding the same child victim or

the same alleged abuser that are determined to be false or without merit may be subject to criminal

charges.

to the investigation. Eleven States, Puerto Rico, and the Virgin

Islands specify the penalties for making a false report4.

Upon conviction, the reporter can face jail terms ranging from 90 days

to 5 years or fines ranging from $500 to $5,000. Florida imposes the

most severe penalties: In addition to a court sentence of 5 years and

$5,000, the Department of Children and Family Services may fine the

reporter up to $10,000. In six States, the reporter may be civilly liable

for any damages caused by the report5.” U.S. Department of Health

and Human Services. Children’s Bureau: Child Welfare Information

Gateway. (2019)6

X. Conclusion

For the foregoing reasons, Ms. Evens respectfully requests this Court issue a

Writ of Certiorari to review the judgement of the South Dakota Court of Appeals

and establish a Federal Standard clarifying due process of law and by which

parenting coordinators must implement in their independent practice, if at all.

Further, Ms. Evens respectfully requests this Court to consider what kind of

custody and sanctions a guardian should have, with a documented history of

repetitive false allegations of abuse and refusal of visitation.

4 Connecticut, Florida, Louisiana, Massachusetts, Michigan, Oklahoma, Rhode Island, South

Carolina, Texas, Washington, and Wyoming.

5 California, Colorado, Idaho, Indiana, Minnesota, and North Dakota

6 Child Welfare Information Gateway. (2019). Penalties for failure to report and false reporting of

child abuse and neglect. Washington, DC: U.S. Department of Health and Human Services,

Children’s Bureau. Retrieved from

https://www.childwelfare.gov/pubPDFs/report.pdf#page=3&view=Penalties%20for%20false%20report

ing

DATED this

day of April, 2020.

Respectfully submitted,

Rachel J. Evens -pro se litigant

P.O. Box 273

Florence, MT 59833

Tel: 406.945.5551

e-mail: evens.cnm@gmail.com

ELIZABETH A. JONES

* ISEAL I*

NOTARY PUBLIC for the

State of Montana

Residing at Stevensville, Montana

My Comniission Expires

September 13, 2020

OfiuJt *i,d!0*6

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.