As new technologies continue to emerge and threaten to upend long-standing business norms in the cable and satellite industry, both content providers and distributors have turned to the courts in a range of contractual and intellectual property disputes. Various disputes have arisen concerning the ability to stream television programming via the Internet for viewing on non-traditional platforms such as Apple's iPad and other mobile devices, commercial-skipping DVRs, and the use of remote, Internet-enabled DVR technology on personal computers, smartphones, and other transportable media. These new innovations have generated considerable debate and uncertainty as content providers and distributors have struggled to analyze them against the backdrop of pre-existing licensing contracts and the copyright laws.
Last year, Viacom separately sued Time Warner Cable and Cablevision, claiming that these distributors did not have rights to stream Viacom's programming to mobile devices.1 Both of these distributors had launched "apps" that allowed the streaming of television content—including from Viacom-owned channels Comedy Central, Nickelodeon and MTV—directly to iPads and other mobile devices. Viacom alleged that these apps were not authorized under the terms of the parties' licensing agreements, and asserted that it was entitled to an additional license fee.
Viacom claimed that it was harmed by the distributors' innovation because, among other things, Nielsen does not track viewership on mobile devices, and Viacom relies on Nielsen ratings to sell advertising time. Both complaints also included claims for copyright infringement. According to the cable companies, however, iPads are simply additional screens in a household that should be available to the consumer at no extra charge under the terms of existing license agreements.
Viacom settled with Cablevision in August 2011, and due to the confidential nature of the settlement agreement, it is not publicly known whether Cablevision agreed to pay Viacom for streaming rights. While Viacom's lawsuit against Time Warner was temporarily put on hold in the form of a "standstill agreement" in June 2011, that agreement has since been terminated, and the legal issues remain unresolved.
It is unlikely that we have seen the last of litigation among content providers and distributors regarding mobile streaming apps. As distributors continue to promote the concept of "TV Everywhere"—an initiative that allows an "authenticated" subscriber to access via the Internet and mobile devices the same television programming that previously was only accessible through traditional media—as a means of competing with online video services such as Hulu and Netflix, lawsuits similar to Viacom's may well become more common.
Dueling lawsuits were filed in May 2012 in connection with Dish Network's newly announced DVR feature—the "Auto Hop"—which allows Dish customers to skip over commercials while watching most prime-time network programming. Dish filed suit on May 24 in the Southern District of New York, seeking a declaratory judgment that its Auto Hop technology does not infringe upon the copyrights of the broadcast networks, naming ABC, CBS, NBC, and Fox as defendants. Dish Network v. American Broadcasting, 12 CV 4155 (SDNY) filed May 24, 2012.
On the same day, CBS, NBC, and Fox separately sued Dish Network for copyright infringement, among other claims, in the Central District of California. Fox Broadcasting v. Dish Network, CV 12-04520 (CD Cal) filed May 24, 2012; NBC Studios v. Dish Network, CV12-04536 (CD Cal) filed May 24, 2012; CBS Broadcasting v. Dish Network, CV12-4551 (CD Cal) filed May 24, 2012.
While Dish markets Auto Hop as a boon to consumers, broadcasters see it as a considerable threat to their well-established business model, which relies heavily on advertising. Indeed, according to the broadcasters, Dish's technology may ultimately harm the consumer, as advertising revenue streams allow television content providers to finance their original, popular programming. As CBS Chairman Leslie Moonves recently asked, "How does [Dish Network Chairman] Charlie Ergen expect me to produce 'CSI' without commercials?"
Aereo's service, which launched exclusively in New York on March 14, 2012, uses dime-sized antennas connected to a digital video recorder to capture live over-the-air (OTA) content of about 20 major television networks, digitally converts those broadcasts, stores them remotely, and then streams the content to its users' Internet-enabled devices (including personal computers, mobile smartphones, and the iPad). Through Aereo's "Watch Now" offering, consumers can access OTA programming at approximately the same time that it is airing live, or they can later initiate playback through the system's "Record" mode.
According to the plaintiffs, "Aereo is an unauthorized Internet delivery service that is receiving, converting and retransmitting broadcast signals to its subscribers for a fee."5 In moving to enjoin the Aereo service, the broadcasters have argued that Congress has consistently protected against the unauthorized retransmission of OTA programming by "free-riders," and that Aereo's service threatens to irreparably harm the broadcast networks through a potential loss of retransmission and advertising revenue. The broadcasters have sought a preliminary and permanent injunction that would force Aereo to cease all Internet retransmission of plaintiffs' programming.
Aereo filed an answer and counterclaim seeking a declaratory judgment that it does not infringe the copyrights claimed by the broadcasters, and has opposed the broadcasters' motion for a preliminary injunction. Aereo also successfully sought to dismiss the public broadcaster plaintiffs' unfair competition claim under New York state law as preempted by the Copyright Act, but the copyright claims and plaintiffs' motion for a preliminary injunction to enjoin the Aereo service remain pending. Southern District Judge Alison Nathan recently held a hearing on plaintiffs' request for a preliminary injunction, and ordered both sides to submit post-hearing briefs prior to rendering her decision (NYLJ, May 31, 2012).
Aereo submits that the broadcasters' claims should fail because the case "involves nothing more than the application of settled law to updated technology," and that Aereo's service allows consumers "to do no more than what they are entitled to do: access local television broadcasts on the public airwaves using an individual antenna; create unique copies of that broadcast content for their own personal use; and play back their unique recordings to their televisions or other viewing devices for their personal use."6 In short, Aereo contends that it merely supplies the machinery to allow consumers to legally and privately access OTA broadcasting.
Aereo is seeking to replicate the success of Cablevision in a landmark copyright litigation brought by various broadcasters concerning Cablevision's Remote Storage Digital Video Recorder (RS-DVR) technology.7 Indeed, in many key respects, the Aereo litigation will be looked at through the lens of the Second Circuit's 2008 decision in the Cablevision RS-DVR case, which was brought by many of the same broadcasters currently challenging the Aereo service, and defended at the trial level by the same counsel at Goodwin Procter now representing Aereo.
The Second Circuit reversed, holding that Cablevision was not directly infringing the copyright holders' exclusive rights of duplication or public performance. The Second Circuit reasoned that Cablevision's storing of the transmitted content on its servers was not unauthorized "reproduction," and its playback of this content to individual subscribers was not a "public performance."
Aereo relies on this determination in its current dispute with broadcasters, citing the Cablevision decision throughout its responsive papers. Aereo maintains that the same principles of copyright law that, according to the Second Circuit, allowed Cablevision to use its RS-DVR to deliver broadcast content via network-based servers should likewise allow Aereo to deliver broadcast content via the Internet.
It is debatable, though, whether the two technologies are indeed exactly analogous. Cablevision's RS-DVR technology plays back a "unique copy" of specific programming to a single Cablevision subscriber at the subscriber's request (a fact the Second Circuit deemed critical to its analysis), while Aereo's data centers transmit, digitally encode and stream programming content over the Internet without, at that stage, any specific activity on the part of the consumer. Moreover, the real-time nature of Aereo's service may be analyzed differently than a DVR's time-shifting capabilities, and a court could thus potentially distinguish Aereo's "Watch Now" service as a "public performance," without disturbing the Second Circuit's finding to the contrary with regard to Cablevision's RS-DVR.
Licensing and compensation are additional elements that could serve as distinguishing characteristics. Pursuant to licensing agreements, Cablevision had already compensated the content providers for the right to transmit their programming to the same subscribers who could then access it via an RS-DVR. Aereo, by contrast, has neither entered into a license with nor compensated the content providers for transmitting their content for profit.
Aereo's business model arguably places it in direct competition with the plaintiffs, especially due to local broadcasters' reliance on retransmission-consent fees (fees paid by cable and satellite distributors for the right to "re-transmit" the broadcasters' content to their cable and satellite subscribers). Aereo's service, according to the broadcasters, could potentially alter that status quo and disrupt the industry's settled business norms.
Although cable and satellite distributors are not parties in the Aereo lawsuit, they are undoubtedly monitoring developments carefully, as its outcome could potentially impact the way they do business. If Aereo prevails, its service may encourage the growing trend of "cord cutting" (i.e., customers who discontinue cable or satellite subscriptions in favor of less traditional access to television programming such as Hulu and Netflix). Indeed, Aereo's service would enable anyone with a device connected to the Internet to watch local TV stations without the need for an underlying cable or satellite subscription. If Aereo succeeds, however, distributors could attempt to use their own versions of Aereo's technology to deliver local channels to their customers, which could have implications for negotiations with local broadcasters with respect to retransmission-consent fees.
These developments are particularly noteworthy when viewed against the backdrop of recent, acrimonious retransmission-consent negotiations between the largest broadcasters and their distributors. For example, in December 2011, Cordillera Communications, a broadcaster in Corpus Christi, Texas, sought a 300 percent increase in retransmission consent fees from Time Warner Cable and pulled its feeds for NBC affiliate KRIS-TV and three other stations from the cable company, affecting approximately 80,000 Time Warner Cable subscribers. The broadcaster attempted to use NBC's coverage of the Super Bowl in February 2012 as leverage in the negotiations; in response, Time Warner handed out more than 21,000 TV antennas to subscribers who lost local stations because of the dispute.
Whether or not the outcome of the broadcasters' dispute with Aereo provides Time Warner and other distributors with a clearer answer to this legal question, there is little doubt that the cable and satellite industry will continue to grapple with complex contractual and intellectual property issues as similar products and services continue to proliferate.
David L. Yohai is a partner and co-head of the complex commercial litigation group at Weil, Gotshal & Manges. David Yolkut is an associate at the firm. Emily E. O'Hern, an associate at the firm, assisted in preparing this article.
1. Viacom Int'l v. Cablevision Systems , 11-04265 (S.D.N.Y.); Viacom Int'l v. Time Warner Cable , 11-02387 (S.D.N.Y.).
2. The cases are: ABC v. Aereo , No. 12-01540 (S.D.N.Y.) and WNET v. Aereo , No. 12-01543 (S.D.N.Y.).
3. Complaint at ¶¶1, 2, WNET v. Aereo , No. 12-01543 (S.D.N.Y.).
4. Copyright Act, 17 U.S.C. §§101, 106(4).
5. Complaint at ¶3, WNET v. Aereo , No. 12-01543 (S.D.N.Y.).
6. Answer and Counterclaim at pp. 1, 7, ABC v. Aereo , No. 12-01540 (S.D.N.Y.).
7. Cartoon Network v. CSC Holdings , 536 F. 3d 121 (2d Cir. 2008).
8. Copyright Act of 1976, 17 U.S.C. §106(1),(4) (2006).
9. Twentieth Century Fox Film v. Cablevision Sys. , 478 F.Supp.2d 607 (S.D.N.Y. 2007), rev'd sub nom., Cartoon Network v. CSC Holdings , 536 F.3d 121 (2d Cir. 2008), cert. denied, Cable News Network v. CSC Holdings , 129 S. Ct. 2890 (2009).
10. TWC Q4 2011 Earnings Call Transcript, http://www.morningstar.com/earnings/PrintTranscript.aspx?id=34637817.
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14 C.F.R. § 382.61 What are the requirements for movable aisle armrests?
(a) As a carrier, you must ensure that aircraft with 30 or more passenger seats on which passenger aisle seats have armrests are equipped with movable aisle armrests on at least one-half of the aisle seats in rows in which passengers with mobility impairments are permitted to sit under FAA or applicable foreign government safety rules.
(b) You are not required to provide movable armrests on aisle seats of rows which a passenger with a mobility impairment is precluded from using by an FAA safety rule.
(c) You must ensure that these movable aisle armrests are provided proportionately in all classes of service in the cabin. For example, if 80 percent of the aisle seats in which passengers with mobility impairments may sit are in coach, and 20 percent are in first class, then 80 percent of the movable aisle armrests must be in coach, with 20 percent in first class.
(d) For aircraft equipped with movable aisle armrests, you must configure cabins, or establish administrative systems, to ensure that passengers with mobility impairments or other passengers with a disability can readily identify and obtain seating in rows with movable aisle armrests. You must provide this information by specific seat and row number.
(e) You are not required to retrofit cabin interiors of existing aircraft to comply with the requirements of this section. However, if you replace any of an aircraft’s aisle seats with newly manufactured seats, the new seats must include movable aisle armrests as required by this section. However, an aircraft is never required to have movable aisle armrests on more than one half of the aisle seats.
(f) As a foreign carrier, you must comply with the requirements of paragraphs (a) through (d) of this section with respect to new aircraft you operate that were initially ordered after May 13, 2009 or which are delivered after May 13, 2010. As a U.S. carrier, the requirements of paragraphs (a), (b), (d), and (e) of this section applies to you with respect to new aircraft you operate that were initially ordered after April 5, 1990, or which are delivered after April 5, 1992. As a U.S. carrier, paragraph (c) of this section applies to you with respect to new aircraft you operate that were initially ordered after May 13, 2009 or which were delivered after May 13, 2010.
(g) As a foreign carrier, you must comply with the requirements of paragraph (e) of this section with respect to seats ordered after May 13, 2009.
14 C.F.R. § 382.63 What are the requirements for accessible lavatories?
(a) As a carrier, you must ensure that aircraft with more than one aisle in which lavatories are provided shall include at least one accessible lavatory.
(1) The accessible lavatory must permit a qualified individual with a disability to enter, maneuver within as necessary to use all lavatory facilities, and leave, by means of the aircraft’s onboard wheelchair.
(2) The accessible lavatory must afford privacy to persons using the onboard wheelchair equivalent to that afforded ambulatory users.
(3) The lavatory shall provide door locks, accessible call buttons, grab bars, faucets and other controls, and dispensers usable by qualified individuals with a disability, including wheelchair users and persons with manual impairments.
(b) With respect to aircraft with only one aisle in which lavatories are provided, you may, but are not required to, provide an accessible lavatory.
(c) You are not required to retrofit cabin interiors of existing aircraft to comply with the requirements of this section. However, if you replace a lavatory on an aircraft with more than one aisle, you must replace it with an accessible lavatory.
(d) As a foreign carrier, you must comply with the requirements of paragraph (a) of this section with respect to new aircraft you operate that were initially ordered after May 13, 2009 or which are delivered after May 13, 2010. As a U.S. carrier, this requirement applies to you with respect to new aircraft you operate that were initially ordered after April 5, 1990, or which were delivered after April 5, 1992.
(e) As a foreign carrier, you must comply with the requirements of paragraph (c) of this section beginning May 13, 2009. As a U.S. carrier, these requirements apply to you with respect to new aircraft you operate that were initially ordered after April 5, 1990, or which were delivered after April 5, 1992.
14 C.F.R. § 382.65 What are the requirements concerning on-board wheelchairs?
(a) As a carrier, you must equip aircraft that have more than 60 passenger seats, and that have an accessible lavatory (whether or not having such a lavatory is required by § 382.63 of this Part) with an on-board wheelchair. The Aerospatiale/Aeritalia ATR–72 and the British Aerospace Advanced Turboprop (ATP), in configurations having between 60 and 70 passenger seats, are exempt from this requirement.
(b) If a passenger asks you to provide an on-board wheelchair on a particular flight, you must provide it if the aircraft being used for the flight has more than 60 passenger seats, even if the aircraft does not have an accessible lavatory.
(1) The basis of the passenger’s request must be that he or she can use an inaccessible lavatory but cannot reach it from a seat without using an onboard wheelchair.
(2) You may require the passenger to provide the advance notice specified in § 382.27 to receive this service.
(1) On-board wheelchairs must include footrests, armrests which are movable or removable, adequate occupant restraint systems, a backrest height that permits assistance to passengers in transferring, structurally sound handles for maneuvering the occupied chair, and wheel locks or another adequate means to prevent chair movement during transfer or turbulence.
(2) The chair must be designed to be compatible with the maneuvering space, aisle width, and seat height of the aircraft on which it is to be used, and to be easily pushed, pulled, and turned in the cabin environment by carrier personnel.
(d) As a foreign carrier, you must meet this requirement as of May 13, 2010. As a U.S. carrier, you must meet this requirement by May 13, 2009.
14 C.F.R. § 382.67 What is the requirement for priority space in the cabin to store passengers’ wheelchairs?
(b) This space must be other than the overhead compartments and under-seat spaces routinely used for passengers’ carry-on items.
(c) As a foreign carrier, you must meet the requirement of paragraph (a) of this section for new aircraft ordered after May 13, 2009 or delivered after May 13, 2010. As a U.S. carrier, this requirement applies to you with respect to new aircraft you operate that were ordered after April 5, 1990, or which were delivered after April 5, 1992.
14 C.F.R. § 382.69 What requirements must carriers meet concerning the accessibility of videos, DVDs, and other audio-visual presentations shown on-aircraft to individuals who are deaf or hard of hearing?
(a) As a carrier, you must ensure that all new videos, DVDs, and other audiovisual displays played on aircraft for safety purposes, and all such new audio-visual displays played on aircraft for informational purposes that were created under your control, are high contrast captioned. The captioning must be in the predominant language or languages in which you communicate with passengers on the flight.
(b) The requirements of paragraph (a) of this section go into effect with respect to audio-visual displays used for safety purposes on November 10, 2009.
(c) Between May 13, 2009 and November 9, 2009, U.S. carriers must ensure that all videos, DVDs, and other audio-visual displays played on aircraft for safety purposes have open captioning or an inset for a sign language interpreter, unless such captioning or inset either would interfere with the video presentation so as to render it ineffective or would not be large enough to be readable, in which case these carriers must use an equivalent non-video alternative for transmitting the briefing to passengers with hearing impairments.
(d) The requirements of paragraph (a) of this section go into effect with respect to informational displays on January 8, 2010.
14 C.F.R. § 382.71 What other aircraft accessibility requirements apply to carriers?
(a) As a carrier, you must maintain all aircraft accessibility features in proper working order.
(b) You must ensure that any replacement or refurbishing of the aircraft cabin or its elements does not reduce the accessibility of that element to a level below that specified in this Part.
By this order, the Department finds that Southwest failed to act in accordance with the ACAA and Part 382 in failing to provide for a space to stow one passenger's standard-size folding wheelchair inside the cabin on new aircraft with at least 100 seats.
By this order, the Department finds that AirTran failed to act in accordance with the ACAA and Part 382 in failing to provide space for the in-cabin stowage of one passenger's standard-size folding wheelchair on new aircraft with at least 100 seats.


Appellants-Respondents, Monty Ferbert (Monty) and Katherine Ferbert (Katherine) (hereinafter referred to collectively as Ferberts), appeal the trial courts involuntary termination of their parental relationship with their natural children, T.F. and E.F.
1. Whether the Ferberts due process rights were violated because they were not provided with a case plan concerning their children during the CHINS proceedings, resulting in a deprivation of procedural due process rights in the termination proceedings.
2. Whether there was sufficient evidence to support the involuntary termination of the Ferberts parental rights under Ind. Code § 31-35-2-4(b)(2).
Katherine and Monty Ferbert are the biological parents of E.F., born March 19, 1997, and T.F., born January 31, 1994. On March 19, 1997, the Ferberts came to the attention of the Marion County Office of Family and Children (MCOFC) when Monty broke a sleep apnea monitor and called the police because E.F. was having trouble breathing. Neglect was substantiated at this time, however, the children were allowed to remain with the Ferberts, and they entered into a Services Referral Agreement with the MCOFC.
On October 4, 1997, the children were removed from the Ferberts home because Monty struck E.F. in the mouth with a closed fist, threw the baby down, and struck him again. The Indianapolis Police Department was called, and the police arrived at the home to find the house in total disarray and unclean. Based upon the statement of several witnesses on the scene, Monty was arrested and charged with two counts of battery, three counts of neglect of a dependent, See footnote and criminal recklessness. Monty pleaded guilty to battery, and was placed on probation. A criminal no contact order with his children was a condition of his probation.
As a result of Monty beating E.F., the criminal neglect of the children, the Ferberts inability to properly care for the children, the uncleanliness of their home, their failure to meet the requirements of the Services Referral Agreement, and their denial of the beating of E.F., a CHINS petition was filed on October 9, 1997. Following a trial on January 20, 1998, T.F. and E.F. were found to be CHINS and the trial court proceeded to disposition on February 24, 1998, placing T.F. and E.F. in foster care pursuant to the dispositional decree.
As a result of the CHINS proceedings, the Ferberts were provided a Participation Decree, outlining several services they were required to complete in order to attain reunification with their children. However, several Case Managers assigned to the case testified that Katherine refused to separate from Monty in light of the no contact order, their home remained filthy and unsafe for the children, and the Ferberts failed to complete the services required of them. Therefore, on September 8, 1998, the MCOFC filed a petition to involuntarily terminate the Ferberts parental rights to their children. Evidence was heard on January 10, 2000, January 27, 2000, and April 7, 2000. On April 24, 2000, the trial court issued its Order Terminating the Parent-Child Relationship. Additional facts will be supplied when necessary.
First, the Ferberts argue that the MCOFC failed to provide them with a case plan for their children following the CHINS determination. Specifically, the Ferberts contend that procedural irregularities in the CHINS proceedings deprived them of their procedural due process rights in the termination proceedings.
Specifically, the Ferberts claim that the MCOFCs failure to provide them with a case plan following the CHINS determination, to delineate a permanent plan for their children and an estimated date for achieving the goal of the plan, was a procedural irregularity of the CHINS proceedings, nullifying the CHINS determination, and thereby rendering the termination determination void. We disagree.
The involuntary termination of parental rights is an extreme measure that is designed to be used only as a last resort when all other reasonable efforts have failed. In re B.D.J., 728 N.E.2d 195, 199 (Ind. Ct. App. 2000). Choices about marriage, family life, and the upbringing of children are among associational rights the United States Supreme Court has ranked as of basic importance in our society and are rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect. M.L.B. v. S.L.J., 519 U.S. 102, 116-17, 117 S.Ct. 555, 564, 136 L.Ed.2d 473 (1996). A case involving the State's authority to permanently sever a parent-child bond demands the close consideration the Supreme Court has long required when a family association so undeniably important is at stake. Id.
The nature of the process due in parental rights termination proceedings turns on a balancing of the "three distinct factors" specified in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976): the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599 (1982). Finally, we must keep in mind the general proposition that if the State imparts a due process right, then it must give that right. City of Mitchell v. Graves, 612 N.E.2d 149, 152 (Ind. Ct. App. 1993).
The Ferberts argue that because the MCOFC violated their due process rights by failing to follow the statutory procedures of a CHINS proceeding, the trial courts termination determination is void. The Ferberts rest their argument on our holding in A.P. v. Porter County Office of Family and Children, 734 N.E.2d 1107, 1112-1113 (Ind. Ct. App. 2000), rehg denied, that procedural irregularities in a CHINS proceedings may be of such import that they deprive a parent of procedural due process with respect to the termination of his or her parental rights. Id. at 1113.
Our supreme court has concluded that CHINS proceedings are distinct from involuntary termination proceedings in that a CHINS cause of action is separate from and does not necessarily lead to a termination cause of action. State ex. rel. Gosnell v. Cass Cir. Court, 577 N.E.2d 957, 958 (Ind. 1991). Moreover, a CHINS intervention in no way challenges the general competency of a parent to continue a relationship with his or her child, and a termination proceeding is thus of much greater magnitude as to the rights of the parties involved. Id. Also, an involuntary termination of parental rights can occur only after a child has been removed from his or her parent for six months under a CHINS (or juvenile delinquency) dispositional decree, or after a court has made an express determination that reasonable efforts for family preservation or reunification are not required pursuant to Indiana Code Section 31-34-21-5.6, or after the child has been removed from his or her parent for at least fifteen of the most recent twenty-two months. I.C. § 31-35-2-4.
Those three alternative prerequisites to involuntary parental rights termination can only be met through compliance with the CHINS or juvenile delinquency statutes. . . . It would be incongruous to hold that a county, with the assistance of a juvenile court, may commence CHINS proceedings for a child and remove a child from his or her home, yet disregard various portions of the CHINS and termination statutes on several occasions and still terminate parental rights following the passage of time after a CHINS dispositional decree and a child's removal from the home.
Id. at 1112-1113 (emphasis supplied).
Nevertheless, we find the facts of that case distinguishable from the case at hand. First, in A.P., although no case plans were made part of the courts record prior to the termination hearing, the appellate record contained nine case plans. Id. at 1113. However, in our case, the record does not contain a case plan, thus the record does not reflect whether a case plan was ever prepared or whether the Ferberts were ever provided with a copy of a case plan. Therefore, in A.P. we had the opportunity to analyze the case plan concurrently with the original dispositional order and the multiple review hearing orders to determine whether the parents were properly notified of their right to know what conduct could lead to the termination of their parental rights. In fact, in A.P. we found that the original dispositional order and the multiple review hearing orders provided some written notice to the parents, however, the case plans often contained requirements not contained in the court orders. Id. at 1114. Therefore, in A.P. we held that the difference in requirements between the case plans and the court orders heightened the importance of providing copies of case plans to the parents. Id.
we are not convinced that any one of the above irregularities by itself substantially increased the risk of error in the termination proceeding to the extent that appellants were deprived of due process, there is such an inherent risk of error because of the multiplicity of procedural irregularities.
Id. at 1118. Therefore, unlike the case at hand, in A.P. we analyzed a record replete with procedural irregularities throughout CHINS and termination proceedings that are plain, numerous, and substantial, Id. at 1118, thereby reversing a termination judgment as a result of procedural due process errors.
Finally, in holding that the multiplicity of clear and substantial procedural errors relating to the CHINS and termination proceedings deprived the parents of their due process rights in A.P., we specifically noted that we are not adding an additional element to those that an agency seeking to terminate parental rights must prove by clear and convincing evidence as exclusively set forth in Ind. Code § 31-35-2-4. Id. Although the record here fails to afford us with evidence of whether the MCOFC or the trial court failed to follow statutory mandates to provide the Ferberts with a case plan, we do not wish to add an element of providing a case plan to those that an agency must prove by clear and convincing evidence under Ind. Code § 31-35-2-4 in order to terminate parental rights.
Therefore, unlike A.P., in the case at hand, there was no case plan contained in the record for us to analyze concurrently with court orders to determine whether a difference in requirements existed to deprive the Ferberts of their due process right of notice as to what conduct on their part could lead to the termination of their parental rights.
But, the record is replete with evidence that the Ferberts were provided with notice of what conduct could lead to a termination of their parental rights. Moreover, in our case, the record did not contain a multitude of procedural errors to compel us to reverse the trial courts termination determination. In fact, in A.P. we specifically noted that we were not convinced that any one irregularity created a substantial risk of error in the termination proceeding to deprive the appellants of their due process rights. Therefore, this courts holding in A.P. does not stand for the proposition that one procedural irregularity in and of itself, without a multitude of other clear and substantial procedural irregularities, is enough to deprive a parent of his due process rights, resulting in a reversal of the termination determination.
Specifically, the record indicates that following the CHINS determination, the Ferberts were provided with a Predispositional Report (R. 464) and a Parental Participation Decree (R. 466, 467) that outlined the requirements the Ferberts needed to complete that would allow their children to be returned to them. However, following a Dispositional Hearing and a Placement Review Hearing, the trial court determined that reasonable services were offered and made available to the Ferberts to prevent or eliminate the need for removal of their children, but such services were either not effective or not completed to allow the children to be returned home. Thus, the trial court ordered the children to be wards of the MCOFC and terminated the Ferberts parental rights.
Therefore, because proof of a case plan is not an element enunciated in the termination proceedings under Ind. Code § 31-35-2-4, the record of the CHINS proceedings is not before this court in order for us to examine whether a case plan was prepared and provided to the Ferberts. The record in this case does not reflect a multitude of procedural irregularities but only an allegation of one procedural error, and the record indicates that the Ferberts were given adequate notice of what conduct on their part could lead to their children being returned to them. The Ferberts have failed to establish that a procedural irregularity has deprived them of their due process rights.
In reviewing termination proceedings on appeal, this court will not reweigh the evidence nor assess the credibility of witnesses. Egly v. Blackford County Dept. of Public Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider only the evidence that supports the trial court's decision and the reasonable inferences drawn from that evidence. Id. In deference to the trial court's unique position to assess the evidence, we set aside the judgment terminating a parent-child relationship only if it is clearly erroneous. Id. If the evidence and inferences support the trial court's decision, we must affirm. Id.; see also Matter of Adoption of D.V.H., 604 N.E.2d 634, 637 (Ind. Ct. App. 1992), trans. denied.
The involuntary termination of parental rights is the most extreme sanction a court can impose. Matter of D.G., 702 N.E.2d 777, 780 (Ind. Ct. App. 1998). Termination severs all rights of a parent to his or her children. Id. at 781. Therefore, termination is intended as a last resort, available only when all other reasonable efforts have failed. Id. This policy is in recognition of the constitutional rights of the parents to the custody of their children and the State's authority to interfere with this right only in certain limited circumstances. Id. The Fourteenth Amendment to the United States Constitution protects a parent's right to establish a home and raise his children, but these protected interests are not absolute and must be subordinated to the children's interest in determining the appropriate disposition of a petition to terminate the parent-child relationship. Id.
The purpose of terminating parental rights is not to punish parents but to protect their children. Matter of A.N.J., 690 N.E.2d 716, 720 (Ind. Ct. App. 1997). Although parental rights are of a constitutional dimension, the law allows for the termination of those rights when parties are unable or unwilling to meet their responsibility as parents. Id. Parental rights are not absolute and must be subordinated to the child's interests when deciding whether to terminate parental rights pursuant to Ind. Code § 31-35-2-4(b)(2). Termination of parental rights is proper where the children's emotional and physical development is threatened. Matter of A.M., 596 N.E.2d 236, 238 (Ind. Ct. App. 1992), trans. denied. The trial court need not wait until the children are irreversibly harmed such that their physical, mental, and social development is permanently impaired before terminating the parent-child relationship. J.L.L. v. Madison County Dept. of Public Welfare, 628 N.E.2d 1223, 1227 (Ind. Ct. App. 1994).
The Ferberts argue that there is insufficient evidence to support the involuntary termination of their parental rights. The Ferberts contend that the State failed to prove by clear and convincing evidence that the conditions causing the removal of their children were not likely to be remedied or that the continuation of the parent-child relationship posed a threat to the childrens well-being. Specifically, the Ferberts assert that the majority of the States witnesses testified positively in their favor, or did not have an adequate basis to testify regarding the Ferberts home condition or their interaction with their children. Essentially, the Ferberts invite us to reweigh the evidence and judge the credibility of the witnesses. This we will not do.
The trial court found that the parent-child relationship between the Ferberts and their children should be terminated; that the children were found to be CHINS; that the children had been removed from the Ferberts home for at least six (6) months under a dispositional decree; there was a reasonable probability that the conditions that resulted in the removal of the children would not be remedied, that the reasons for continued placement of the children outside the Ferberts home would not be remedied and that the continuation of the parent-child relationship poses a threat to the well being of the children; that termination of the parent-child relationship was in the best interests of the children; and the MCOFC has a satisfactory plan for the care and treatment of the children. (R. 16-17).
The Ferberts do not dispute that there was sufficient evidence to support the first and fourth elements for termination; that their children had been removed from them for at least six (6) months, and that there is a satisfactory plan for the care and treatment of T.F. and E.F. However, the Ferberts do dispute the sufficiency of the evidence for the two parts of the second element of the termination statute. Nevertheless, the termination statute requires the MCOFC to demonstrate a reasonable probability that either the conditions that resulted in the childrens removal will not be remedied or that the condition of the parent-child relationship posed a threat to the childrens well-being. The trial court specifically found that there was a reasonable probability that the conditions that resulted in the removal of T.F. and E.F. would not be remedied, and there is sufficient evidence in the record to support the trial courts conclusion. It was not necessary for the MCOFC to prove or for the trial court to find that the continuation of the parent-child relationship posed a threat to the children.
To determine whether the conditions are likely to be remedied, the trial court must judge a parent's fitness to care for the child as of the time of the termination hearing, taking into account any evidence of changed conditions. Wardship of J.C. v. Allen County Office of Family and Children, 646 N.E.2d 693, 694 (Ind. Ct. App. 1995), rehg denied, trans. denied. The court must also consider the parent's pattern of conduct to determine whether there is a substantial probability of future neglect or deprivation of the children. Id.
Here, the evidence reveals that the Ferberts most serious deficiencies in their ability to care for their children were: 1) their continued and consistent denial that Monty was responsible for striking E.F., resulting in his arrest for two counts of battery, three counts of child neglect and criminal recklessness, 2) the unsafe and life endangering condition that Katherine placed on the children by continuing to cohabitate with Monty in light of a no contact order with the children, and 3) the uncleanliness of their home and their repeated failure to demonstrate a safe and clean home environment.
First, on October 4, 1997, the Indianapolis Police Department was called to the Ferberts home. When the police arrived, they observed a six month old male infant bleeding from the mouth with noticeable swelling. The police noted that the home was in complete disarray and an endangerment to the children. Specifically, there were dirty dishes, bottles and trash scattered throughout the house, and the home had a distinct foul odor. Moreover, the police observed a three year old female with bruises and insect bites all over her body. After treatment at the hospital, the child was found to have body and head lice. The police further observed another six month old male infant in a bassinet unattended and exhibiting poor hygiene. The police interviewed several witnesses at the scene in reference to Monty striking E.F., stating that they observed Monty repeatedly cursing and striking the infant with a closed fist. Thereafter, Monty chased the witnesses down the street cursing and waving a knife. Monty was arrested at the scene for two counts of battery, three counts of child neglect, and criminal recklessness. On October 7, 1997, the Case Manager, Amy Goodwin, received a telephone call from Katherine, explaining that she was not at home when E.F. was struck, but that she would support her husband due to his mental instability.
At trial Monty did not accept responsibility or acknowledge that he struck E.F. In fact, even though he pleaded guilty to battering E.F., at trial Monty stated that a criminal gang had thrown a rock through the window injuring E.F. Moreover, at trial Katherine refused to believe that Monty struck E.F., and instead believed Montys story. Therefore, the Ferberts continued denial of Montys responsibility for striking and endangering their children is evidence that they refuse to believe that Monty presents a danger and further risk to the children.
Next, Katherine acknowledged in her testimony that she was aware her children could not be returned to her home while she was cohabitating with Monty because of the no contact order, however, she continued to live with Monty. Moreover, although she stated that she would be willing to separate from Monty if the children were placed in her care, her pattern of conduct does not support her willingness to do so. Therefore, Katherines pattern of conduct indicates that she is unwilling to refrain from living with Monty in light of a court ordered no contact order as a result of Montys criminal battery of E.F.
Finally, the Ferberts have failed to demonstrate an ability to provide their children with a safe, clean home environment despite the trial courts Predispositional Report recommendation to maintain safe, stable, and sanitary housing with functioning utilities and an appropriate supply of nutritious food for the children placed in her home by this Agency. (R. 464). However, the Ferberts home remained cluttered and filthy for a period of thirteen (13) months despite constant prompting from the home based counselor. Moreover, in September of 1999, the home based counselors progress report indicated that the Ferberts had had plenty of time to clean their house, but their home was not acceptable or safe for the return of the children. Nevertheless, in November 1999, there was an extreme improvement in the cleanliness of the first level of the Ferberts home, however, in January 2000, Katherine denied the case manager access to the house due to its uncleanly condition. Therefore, the Ferberts ignored and failed to provide a safe and clean environment for their children in direct violation of court orders.
Recognizing our deferential standard of review, we find that this evidence supports the trial courts finding that there is a reasonable probability that the conditions that resulted in the childrens removal will not be remedied.
The Ferberts also argue that the State failed to show by clear and convincing evidence that the termination of their parental rights was in their childrens best interests. We are mindful that the MCOFC must present clear and convincing evidence for all four elements of Ind. Code § 31-35-2-4(b)(2), including evidence that termination is in the best interests of the children.
We are also mindful that in determining what is in the best interests of the children, the court is required to look beyond the factors identified by the office of family and children, and to look to the totality of the evidence. J.K.C. v. Fountain County Dept. of Public Welfare, 470 N.E.2d 88, 92 (Ind. Ct. App. 1984). In so doing, the trial court must subordinate the interests of the parents to those of the children involved. Id. at 93. However, the trial court need not wait until the children are irreversibly influenced such that their physical, mental and social growth is permanently impaired before terminating the parent-child relationship. Id.
We find that the record contains sufficient evidence that termination of the Ferberts parental rights is in the best interests of T.F. and E.F. The childrens Guardian ad Litem and the Family Case Manager testified that reunification with the Ferberts was not in the childrens best interests because the Ferberts had not demonstrated an ability to effectively use the services recommended to them to properly care for their children. Moreover, Katherines refusal to separate from Monty in spite of her knowledge of the no contact order is a decision which fails to place the best interests of her children before her own interests.
Recognizing that the trial court listened to the testimony of all the witnesses, observed their demeanor, and judged their credibility, as a reviewing court, we must give proper deference to the trial court. Accordingly, we hold that the trial court was justified in concluding that the MCOFC proved by clear and convincing evidence that the Ferberts parental rights should be terminated.
Based on the foregoing, we conclude that the Ferberts due process rights were not violated and there was sufficient evidence to support the involuntary termination of the Ferberts parental rights under Ind. Code § 31-35-2-4(b)(2).
ROBB, J., concurs with opinion.
proceeding, the lack of a case plan could be so egregious as to affect a partys due process rights. However, the record before us does not indicate that the parties, in this case, were without knowledge of what was expected of them. Therefore, they had fair warning that they were not in compliance. For this reason, I believe the majority is correct.
Footnote: Although Monty and Katherine filed separate briefs in this matter raising slightly different arguments, in this opinion we have consolidated the issues they raise.
Footnote: At the time of this incident, the Ferberts third biological child, E.F.s twin, lived in the home, but later died in foster care.
Footnote: Ind. Code § 31-35-2-2 is the statute that provides for the law governing proceedings for the termination of the parent-child relationship involving a delinquent child or a child in need of services.


§ 1.2 Applicability and scope.
§ 1.4 What terms do I need to know?
§ 1.5 Closures and public use limits.
§ 2.1 Preservation of natural, cultural and archeological resources.
§ 2.4 Weapons, traps and nets.
§ 2.10 Camping and food storage.
§ 2.16 Horses and pack animals.
§ 2.17 Aircraft and air delivery.
§ 2.20 Skating, skateboards, and similar devices.
§ 2.30 Misappropriation of property and services.
§ 2.31 Trespassing, tampering and vandalism.
§ 2.32 Interfering with agency functions.
§ 2.33 Report of injury or damage.
§ 2.35 Alcoholic beverages and controlled substances.
§ 2.52 Sale or distribution of printed matter.
§ 2.60 Livestock use and agriculture.
§ 2.61 Residing on Federal lands.
§ 3.1 What is the applicability and scope of this part?
§ 3.2 Do other boating laws and regulations apply to me when I operate my boat on park waters?
§ 3.3 Am I required to obtain a permit to operate a vessel in a park area?
§ 3.4 For what purposes may my vessel be inspected?
§ 3.5 Do I have to report an accident involving a vessel to the National Park Service?
§ 3.6 What are the requirements to operate a power driven vessel?
§ 3.7 What are the NPS Personal Floatation Device (PFD) requirements?
§ 3.8 What vessel operations are prohibited?
§ 3.9 May I operate my personal watercraft (PWC) in park waters?
§ 3.10 What are the regulations regarding operating a vessel while under the influence of alcohol and/or drugs?
§ 3.11 When is testing for alcohol or drugs required?
§ 3.12 May I use a vessel to tow a person for water skiing or other similar activities?
§ 3.13 What conditions apply to the use of Marine Sanitation Devices (MSD)?
§ 3.14 Am I required to remove a sunken, grounded, or disabled vessel?
§ 3.15 What is the maximum noise level for the operation of a vessel?
§ 3.16 May I swim or wade in park waters?
§ 3.17 What regulations apply to swimming areas and beaches?
§ 3.18 May I snorkel or underwater dive in park waters?
§ 3.19 May I operate a submersible within park waters?
§ 4.1 Applicability and scope.
§ 4.2 State law applicable.
§ 4.3 Authorized emergency vehicles.
§ 4.4 Report of motor vehicle accident.
§ 4.10 Travel on park roads and designated routes.
§ 4.11 Load, weight and size limits.
§ 4.12 Traffic control devices.
§ 4.14 Open container of alcoholic beverage.
§ 4.20 Right of way.
§ 4.23 Operating under the influence of alcohol or drugs.
§ 5.2 Alcoholic beverages; sale of intoxicants.
§ 5.4 Commercial passenger-carrying motor vehicles.
§ 5.5 Commercial filming, still photography, and audio recording.
§ 5.7 Construction of buildings or other facilities.
§ 5.8 Discrimination in employment practices.
§ 5.9 Discrimination in furnishing public accommodations and transportation services.
§ 5.10 Eating, drinking, or lodging establishments.
§ 5.14 Prospecting, mining, and mineral leasing.
§ 6.2 Applicability and scope.
§ 6.4 Solid waste disposal sites not in operation on September 1, 1984.
§ 6.5 Solid waste disposal sites in operation on September 1, 1984.
§ 6.6 Solid waste disposal sites within new additions to the National Park System.
§ 6.8 National Park Service solid waste responsibilities.
§ 6.12 Prohibited acts and penalties.
§ 7.1 Colonial National Historical Park.
§ 7.2 Crater Lake National Park.
§ 7.3 Glacier National Park.
§ 7.4 Grand Canyon National Park.
§ 7.5 Mount Rainier National Park.
§ 7.6 Muir Woods National Monument.
§ 7.7 Rocky Mountain National Park.
§ 7.8 Sequoia and Kings Canyon National Parks.
§ 7.9 St. Croix National Scenic Rivers.
§ 7.10 Zion National Park.
§ 7.11 Saguaro National Park.
§ 7.12 Gulf Islands National Seashore.
§ 7.14 Great Smoky Mountains National Park.
§ 7.15 Shenandoah National Park.
§ 7.16 Yosemite National Park.
§ 7.17 Cuyahoga Valley National Park.
§ 7.18 Hot Springs National Park.
§ 7.19 Canyon de Chelly National Monument.
§ 7.20 Fire Island National Seashore.
§ 7.21 John D. Rockefeller, Jr. Memorial Parkway.
§ 7.22 Grand Teton National Park.
§ 7.23 Badlands National Park.
§ 7.24 Upper Delaware Scenic and Recreational River.
§ 7.25 Hawaii Volcanoes National Park.
§ 7.26 Death Valley National Monument.
§ 7.27 Dry Tortugas National Park.
§ 7.28 Olympic National Park.
§ 7.29 Gateway National Recreation Area.
§ 7.30 Devils Tower National Monument.
§ 7.31 Perry's Victory and International Peace Memorial.
§ 7.32 Pictured Rocks National Lakeshore.
§ 7.33 Voyageurs National Park.
§ 7.34 Blue Ridge Parkway.
§ 7.35 Buffalo National River.
§ 7.36 Mammoth Cave National Park.
§ 7.37 Jean Lafitte National Historical Park.
§ 7.38 Isle Royale National Park.
§ 7.39 Mesa Verde National Park.
§ 7.40 Hopewell Village National Historic Site.
§ 7.41 Big Bend National Park.
§ 7.42 Pipestone National Monument.
§ 7.43 Natchez Trace Parkway.
§ 7.44 Canyonlands National Park.
§ 7.45 Everglades National Park.
§ 7.46 Virgin Islands Coral Reef National Monument.
§ 7.47 Carlsbad Caverns National Park.
§ 7.48 Lake Mead National Recreation Area.
§ 7.49 Cape Lookout National Seashore.
§ 7.50 Chickasaw Recreation Area.
§ 7.51 Curecanti National Recreation Area.
§ 7.52 Cedar Breaks National Monument.
§ 7.53 Black Canyon of the Gunnison National Monument.
§ 7.54 Theodore Roosevelt National Park.
§ 7.55 Lake Roosevelt National Recreation Area.
§ 7.56 Acadia National Park.
§ 7.57 Lake Meredith National Recreation Area.
§ 7.58 Cape Hatteras National Seashore.
§ 7.59 Grand Portage National Monument.
§ 7.60 Herbert Hoover National Historic Site.
§ 7.61 Fort Caroline National Memorial.
§ 7.62 Lake Chelan National Recreation Area.
§ 7.63 Dinosaur National Monument.
§ 7.64 Petersburg National Battlefield.
§ 7.65 Assateague Island National Seashore.
§ 7.66 North Cascades National Park.
§ 7.67 Cape Cod National Seashore.
§ 7.68 Russell Cave National Monument.
§ 7.69 Ross Lake National Recreation Area.
§ 7.70 Glen Canyon National Recreation Area.
§ 7.71 Delaware Water Gap National Recreation Area.
§ 7.72 Arkansas Post National Memorial.
§ 7.73 Buck Island Reef National Monument.
§ 7.74 Virgin Islands National Park.
§ 7.75 Padre Island National Seashore.
§ 7.76 Wright Brothers National Memorial.
§ 7.77 Mount Rushmore National Memorial.
§ 7.78 Harpers Ferry National Historical Park.
§ 7.79 Amistad Recreation Area.
§ 7.80 Sleeping Bear Dunes National Lakeshore.
§ 7.81 Point Reyes National Seashore.
§ 7.82 Apostle Islands National Lakeshore.
§ 7.83 Ozark National Scenic Riverways.
§ 7.84 Channel Islands National Park.
§ 7.85 Big Thicket National Preserve.
§ 7.86 Big Cypress National Preserve.
§ 7.87 Kaloko-Honokohau National Historical Park.
§ 7.88 Indiana Dunes National Lakeshore.
§ 7.89 New River Gorge National River.
§ 7.90 Chattahoochee River National Recreation Area.
§ 7.91 Whiskeytown Unit, Whiskeytown-Shasta-Trinity National Recreation Area.
§ 7.92 Bighorn Canyon National Recreation Area.
§ 7.93 Guadalupe Mountains National Park.
§ 7.94 Bryce Canyon National Park.
§ 7.96 National Capital Region.
§ 7.97 Golden Gate National Recreation Area.
§ 7.100 Appalachian National Scenic Trail.
§ 8.2 Basis and purpose.
§ 8.4 Federal and State labor laws.
§ 8.5 Access for investigators.
§ 8.8 Filing of labor agreements.
§ 8.9 Posting of regulations.
§ 9.1 Purpose and scope.
§ 9.4 Surface disturbance moratorium.
§ 9.6 Transfers of interest.
§ 9.8 Use of water.
§ 9.9 Plan of operations.
§ 9.10 Plan of operations approval.
§ 9.12 Supplementation or revision of plan of operations.
§ 9.15 Use of roads by commercial vehicles.
§ 9.17 Public inspection of documents.
§ 9.18 Surface use and patent restrictions.
§ 9.301 Scope and applicability.
§ 9.303 Coordination of AMRAP activities in National Park System units.
§ 9.306 Application review process and approval standards.
§ 9.307 Permitting requirements and standards.
§ 9.308 Permit modification, suspension, and cancellation.
§ 11.3 Power to revoke.
§ 12.1 Applicability and scope.
§ 12.2 Purpose of National Cemeteries.
§ 12.4 Special events and demonstrations.
§ 12.6 Disinterments and exhumations.
§ 12.7 Headstones and markers.
§ 12.8 Memorial headstones and markers.
§ 12.10 Floral and commemorative tributes.
§ 13.2 Applicability and scope.
§ 13.20 Obstruction of airstrips.
§ 13.30 Weapons, traps and nets.
§ 13.35 Preservation of natural features.
§ 13.40 Taking of fish.
§ 13.42 Taking of wildlife in national preserves.
§ 13.45 Unattended or abandoned property.
§ 13.50 Closure and restriction procedures.
§ 13.300 Applicability and scope.
§ 13.320 Preference to Cook Inlet Region, Incorporated.
§ 13.325 Most directly affected Native Corporation.
§ 13.400 Purpose and policy.
§ 13.430 Determination of resident zones.
§ 13.440 Subsistence permits for persons whose primary, permanent home is outside a resident zone.
§ 13.450 Prohibition of aircraft use.
§ 13.460 Use of snowmobiles, motorboats, dog teams, and other means of surface transportation traditionally employed by local rural residents engaged in subsistence uses.
§ 13.480 Subsistence hunting and trapping.
§ 13.485 Subsistence use of timber and plant material.
§ 13.490 Closure to subsistence uses of fish and wildlife.
§ 13.495 Application procedures for subsistence permits and aircraft exceptions.
§ 13.550 Wildlife distance conditions.
§ 13.602 Subsistence resident zone.
§ 13.604 Wildlife distance conditions.
§ 13.802 Subsistence resident zone.
§ 13.1002 Subsistence resident zone.
§ 13.1008 Solid waste disposal.
§ 13.1404 Preservation of natural, cultural, and archaeological resources.
§ 13.1502 Subsistence resident zone.
§ 13.1602 Subsistence resident zone.
§ 13.1604 Solid waste disposal.
§ 13.1904 Kennecott Mines National Historic Landmark (KNHL).
§ 13.1906 Headquarters/Visitor Center Developed Area (HVCDA).
§ 13.1908 Slana Developed Area (SDA).
§ 13.1910 KNHL and developed area closures and restrictions.
§ 13.1912 Solid waste disposal.
§ 13.1914 Off-road motor vehicle use in the Nabesna District.
§ 14.5 Nature of interest granted; settlement on right-of-way; rights of ingress and egress.
§ 14.6 In form of easement, license, or permit.
§ 14.7 Right of ingress and egress to a primary right-of-way.
§ 14.9 Terms and conditions.
§ 14.10 Areas of National Park System.
§ 14.22 Reimbursement of costs.
§ 14.23 Showing as to organizations required of corporations.
§ 14.24 Showing as to citizenship required.
§ 14.25 Documents which must accompany application.
§ 14.26 Payment required; exceptions; default; revision of charges.
§ 14.27 Application and use procedure.
§ 14.28 Incomplete application and reports.
§ 14.30 Nonconstruction, abandonment or nonuse.
§ 14.31 Deviation from approved right-of-way.
§ 14.32 Revocation or cancellation.
§ 14.33 Order of cancellation.
§ 14.34 Change in jurisdiction over lands.
§ 14.35 Transfer of right-of-way.
§ 14.36 Method of filing.
§ 14.37 Reimbursement of costs.
§ 14.38 Disposal of property on termination of right-of-way.
§ 14.51 Extent of grant.
§ 14.52 Termination of right-of-way no longer needed.
§ 14.55 Consultation with local bureau officials, program values.
§ 14.56 Concurrence by Federal Highway Administration.
§ 14.58 Terms and conditions of allowance.
§ 14.59 Additional rights-of-way within highway rights-of-way.
§ 14.61 Terms of grant.
§ 14.71 Lands subject to grant.
§ 14.75 Nature of interest.
§ 14.76 Terms and conditions.
§ 17.3 Lands subject to disposition.
§ 17.6 Action at close of bidding.
§ 18.1 What is the authority and purpose for this part?
§ 18.2 What definitions do you need to know to understand this part?
§ 18.3 What property may be leased?
§ 18.4 What determinations must the Director make before leasing property?
§ 18.5 May property be leased without receiving fair market value rent?
§ 18.6 Are there limitations on the use of property leased under this part?
§ 18.7 How are lease proposals solicited and selected if the Director issues a Request for Bids?
§ 18.8 How are lease proposals solicited and selected if the Director issues a Request for Proposals?
§ 18.9 When may the Director lease property without issuing a request for bids or a request for proposals?
§ 18.10 How long can the term of a lease be?
§ 18.11 What general provisions must a lease contain?
§ 18.12 What specific provisions must a lease contain?
§ 20.3 Maximum number of permittees.
§ 20.4 Revocation of permits; appeal.
§ 21.3 Use of thermal water.
§ 21.4 Registration of physicians.
§ 21.5 Therapeutic bathing requirements.
§ 21.6 Use of therapeutic pools.
§ 21.9 Solicitation by employees.
§ 21.11 Redemption of bath tickets.
§ 21.12 Lost bath tickets.
§ 25.4 Schedule of rates.
§ 25.5 Badges and uniforms.
§ 27.2 Commercial and industrial activities.
§ 27.4 Variances and exceptions.
§ 28.3 Boundaries: The Community Development District; The Dune District; The Seashore District.
§ 28.10 Permitted and prohibited uses.
§ 28.13 Variance, commercial and industrial application procedures.
§ 28.15 Approval of local zoning ordinances.
§ 28.20 Review by the Superintendent.
§ 28.21 Suspension of condemnation authority in the communities.
§ 28.22 Condemnation authority of the Secretary.
§ 28.23 Certificates of suspension of authority for acquisition by condemnation.
§ 34.2 Applicability and scope.
§ 34.7 Cultivation of controlled substances.
§ 34.10 Saddle and pack animals.
§ 51.1 What does this part cover?
§ 51.2 What is the policy underlying concessions contracts?
§ 51.3 How are terms defined in this part?
§ 51.4 How will the Director invite the general public to apply for the award of a concession contract?
§ 51.5 What information will the prospectus include?
§ 51.6 Will a concession contract be developed for a particular potential offeror?
§ 51.7 How will information be provided to a potential offeror after the prospectus is issued?
§ 51.8 Where will the Director publish the notice of availability of the prospectus?
§ 51.9 How do I get a copy of the prospectus?
§ 51.10 How long will I have to submit my proposal?
§ 51.11 May the Director amend, extend, or cancel a prospectus of solicitation?
§ 51.12 Are there any other additional procedures that I must follow to apply for a concession contract?
§ 51.13 When will the Director determine if proposals are responsive?
§ 51.14 What happens if no responsive proposals are submitted?
§ 51.15 May I clarify, amend or supplement my proposal after it is submitted?
§ 51.16 How will the Director evaluate proposals and select the best one?
§ 51.17 What are the selection factors?
§ 51.18 When must the Director reject a proposal?
§ 51.19 Must the Director award the concession contract that is set forth in the prospectus?
§ 51.20 Does this part limit the authority of the Director?
§ 51.21 When must the selected offeror execute the concession contract?
§ 51.22 When may the Director award the concession contract?
§ 51.23 May the Director extend an existing concession contract without a public solicitation?
§ 51.24 May the Director award a temporary concession contract without a public solicitation?
§ 51.25 Are there any other circumstances in which the Director may award a concession contract without public solicitation?
§ 51.26 What solicitation, selection and award procedures apply when a preferred offeror exists?
§ 51.27 Who is a preferred offeror and what are a preferred offeror's rights to the award of a new concession contract?
§ 51.28 When will the Director determine whether a concessioner is a preferred offeror?
§ 51.29 How will I know when a preferred offeror exists?
§ 51.30 What must a preferred offeror do before it may exercise a right of preference?
§ 51.31 What happens if a preferred offeror does not submit a responsive proposal?
§ 51.32 What is the process if the Director determines that the best responsive proposal was not submitted by a preferred offeror?
§ 51.33 What if a preferred offeror does not timely amend its proposal to meet the terms and conditions of the best proposal?
§ 51.34 What will the Director do if a selected preferred offeror does not timely execute the new concession contract?
§ 51.35 What happens to a right of preference if the Director receives no responsive proposals?
§ 51.36 What conditions must be met before the Director determines that a concessioner is a preferred offeror?
§ 51.37 How will the Director determine that a new concession contract is a qualified concession contract?
§ 51.38 How will the Director determine that a concession contract is an outfitter and guide concession contract?
§ 51.39 What are some examples of outfitter and guide concession contracts?
§ 51.40 What are some factors to be considered in determining that outfitter and guide operations are conducted in the backcountry?
§ 51.41 If the concession contract grants a compensable interest in real property improvements, will the Director find that the concession contract is an outfitter and guide concession contract?
§ 51.42 Are there exceptions to this compensable interest prohibition?
§ 51.43 Who will make the determination that a concession contract is an outfitter and guide contract?
§ 51.44 How will the Director determine if a concessioner was satisfactory for purposes of a right of preference?
§ 51.45 Will a concessioner that has operated for less than the entire term of a concession contract be considered a satisfactory operator?
§ 51.46 May the Director determine that a concessioner has not operated satisfactorily after a prospectus is issued?
§ 51.47 How does a person appeal a decision of the Director that a concessioner is or is not a preferred offeror?
§ 51.48 What happens to a right of preference in the event of termination of a concession contract for unsatisfactory performance or other breach?
§ 51.49 May the Director grant a right of preference except in accordance with this part?
§ 51.50 Does the existence of a preferred offeror limit the authority of the Director to establish the terms of a concession contract?
§ 51.51 What special terms must I know to understand leasehold surrender interest?
§ 51.52 How do I obtain a leasehold surrender interest?
§ 51.53 When may the Director authorize the construction of a capital improvement?
§ 51.54 What must a concessioner do before beginning to construct a capital improvement?
§ 51.55 What must a concessioner do after substantial completion of the capital improvement?
§ 51.56 How will the construction cost for purposes of leasehold surrender interest value be determined?
§ 51.57 How does a concessioner request arbitration of the construction cost of a capital improvement?
§ 51.58 What actions may or must the concessioner take with respect to a leasehold surrender interest?
§ 51.59 Will a leasehold surrender interest be extinguished by expiration or termination of a leasehold surrender interest concession contract or may it be taken for public use?
§ 51.60 How will a new concession contract awarded to an existing concessioner treat a leasehold surrender interest obtained under a prior concession contract?
§ 51.61 How is an existing concessioner who is not awarded a new concession contract paid for a leasehold surrender interest?
§ 51.62 What is the process to determine the leasehold surrender interest value when the concessioner does not seek or is not awarded a new concession contract?
§ 51.63 When a new concessioner pays a prior concessioner for a leasehold surrender interest, what is the leasehold surrender interest in the related capital improvements for purposes of a new concession contract?
§ 51.64 May the concessioner gain additional leasehold surrender interest by undertaking a major rehabilitation or adding to a structure in which the concessioner has a leasehold surrender interest?
§ 51.65 May the concessioner gain additional leasehold surrender interest by replacing a fixture in which the concessioner has a leasehold surrender interest?
§ 51.66 Under what conditions will a concessioner obtain a leasehold surrender interest in existing real property improvements in which no leasehold surrender interest exists?
§ 51.67 Will a concessioner obtain leasehold surrender interest as a result of repair and maintenance of real property improvements?
§ 51.68 If a concessioner under a 1965 Act concession contract is not awarded a new concession contract, how will a concessioner that has a possessory interest receive compensation for its possessory interest?
§ 51.69 What happens if there is a dispute between the new concessioner and a prior concessioner as to the value of the prior concessioner's possessory interest?
§ 51.70 If a concessioner under a 1965 Act concession contract is awarded a new concession contract, what happens to the concessioner's possessory interest?
§ 51.71 What is the process to be followed if there is a dispute between the prior concessioner and the Director as to the value of possessory interest?
§ 51.72 If a new concessioner is awarded the contract, what is the relationship between leasehold surrender interest and possessory interest?
§ 51.73 What is the term of a concession contract?
§ 51.74 When may a concession contract be terminated by the Director?
§ 51.75 May the Director segment or split concession contracts?
§ 51.76 May the Director include in a concession contract or otherwise grant a concessioner a preferential right to provide new or additional visitor services?
§ 51.77 Will a concession contract provide a concessioner an exclusive right to provide visitor services?
§ 51.78 Will a concession contract require a franchise fee and will the franchise fee be subject to adjustment?
§ 51.79 May the Director waive payment of a franchise fee or other payments?
§ 51.80 How will the Director establish franchise fees for multiple outfitter and guide concession contracts in the same park area?
§ 51.81 May the Director include “special account” provisions in concession contracts?
§ 51.82 Are a concessioner's rates required to be reasonable and subject to approval by the Director?
§ 51.83 Sale of Native Handicrafts.
§ 51.84 What special terms must I know to understand this part?
§ 51.85 What assignments require the approval of the Director?
§ 51.86 What encumbrances require the approval of the Director?
§ 51.87 Does the concessioner have an unconditional right to receive the Director's approval of an assignment or encumbrance?
§ 51.88 What happens if an assignment or encumbrance is completed without the approval of the Director?
§ 51.89 What happens if there is a default on an encumbrance approved by the Director?
§ 51.90 How does the concessioner get the Director's approval before making an assignment or encumbrance?
§ 51.91 What information may the Director require in the application?
§ 51.92 What are standard proformas?
§ 51.93 If the transaction includes more that one concession contract, how must required information be provided?
§ 51.94 What information will the Director consider when deciding to approve a transaction?
§ 51.95 Does the Director's approval of an assignment or encumbrance include any representations of any nature?
§ 51.96 May the Director amend or extend a concession contract for the purpose of facilitating a transaction?
§ 51.97 May the Director open to renegotiation or modify the terms of a concession contract as a condition to the approval of a transaction?
§ 51.98 What records must the concessioner keep and what access does the Director have to records?
§ 51.99 What access to concessioner records will the Comptroller General have?
§ 51.100 When will the Director make proposals and evaluation documents publicly available?
§ 51.101 Did the 1998 Act repeal the 1965 Act?
§ 51.102 What is the effect of the 1998 Act's repeal of the 1965 Act's preference in renewal?
§ 51.104 Has OMB approved the collection of information?
§ 60.1 Authorization and expansion of the National Register.
§ 60.2 Effects of listing under Federal law.
§ 60.4 Criteria for evaluation.
§ 60.5 Nomination forms and information collection.
§ 60.6 Nominations by the State Historic Preservation Officer under approved State Historic Preservation programs.
§ 60.9 Nominations by Federal agencies.
§ 60.10 Concurrent State and Federal nominations.
§ 60.11 Requests for nominations.
§ 60.13 Publication in the Federal Register and other NPS notification.
§ 60.14 Changes and revisions to properties listed in the National Register.
§ 60.15 Removing properties from the National Register.
§ 61.3 Implementation of this part.
§ 61.5 Grants to State programs.
§ 61.6 Certified local government programs.
§ 61.7 Subgrants to certified local governments.
§ 62.3 Effects of designation.
§ 62.4 Natural landmark designation and recognition process.
§ 62.5 Natural landmark criteria.
§ 62.6 Natural landmark monitoring.
§ 62.7 Natural landmark modifications.
§ 62.8 Natural landmark designation removal.
§ 63.1 Purpose and authorities.
§ 63.2 Determination of eligibility process.
§ 63.3 Procedures to be applied when the Agency and the State Historic Preservation Officer agree a property is eligible.
§ 63.4 Other properties on which determinations of eligibility may be made by the Secretary of the Interior.
§ 63.5 Federal Register publication of properties determined eligible.
§ 63.6 Review and nomination of properties determined eligible.
§ 64.3 Applicability and authority.
§ 64.7 Project selection and funding procedures.
§ 64.8 Project selection criteria.
§ 64.9 Project costs (State and local projects).
§ 64.12 Standards for grantee financial management systems.
§ 64.15 Financial reporting requirements and reimbursements.
§ 64.16 Retention and custodial requirements for records.
§ 64.17 Project termination and settlement procedures.
§ 64.18 Retention and use.
§ 65.1 Purpose and authority.
§ 65.2 Effects of designation.
§ 65.4 National Historic Landmark criteria.
§ 65.5 Designation of National Historic Landmarks.
§ 65.6 Recognition of National Historic Landmarks.
§ 65.7 Monitoring National Historic Landmarks.
§ 65.8 Alteration of National Historic Landmark boundaries.
§ 65.9 Withdrawal of National Historic Landmark designation.
§ 65.10 Appeals for designation.
§ 67.1 Program authority and function.
§ 67.3 Introduction to certifications of significance and rehabilitation and information collection.
§ 67.4 Certifications of historic significance.
§ 67.5 Standards for evaluating significance within registered historic districts.
§ 67.6 Certifications of rehabilitation.
§ 67.7 Standards for rehabilitation.
§ 67.8 Certifications of statutes.
§ 67.9 Certifications of State or local historic districts.
§ 67.11 Fees for processing certification requests.
§ 71.2 Types of Federal recreation fees.
§ 71.5 Golden Eagle Passport.
§ 71.6 Golden Age Passport.
§ 71.7 Entrance fees for single-visit permits.
§ 71.8 Validation and display of entrance permits.
§ 71.9 Establishment of recreation use fees.
§ 71.10 Special recreation permits and special recreation permit fees.
§ 71.11 Collection of Federal recreation fees.
§ 71.13 Exceptions, exclusions, and exemptions.
§ 71.15 The Golden Eagle Insignia.
§ 72.1 Purpose of regulations.
§ 72.11 Action program components.
§ 72.12 Assessment of needs, problems and issues.
§ 72.15 Preliminary Action Program.
§ 72.16 Preliminary Action Program requirements.
§ 72.17 Preliminary Action Program - commitments to be included.
§ 72.32 Funding and matching share.
§ 72.33 Timing and duration of projects.
§ 72.36 Land ownership, control and conversion.
§ 72.41 Demolition and replacement of existing recreation properties.
§ 72.42 Expansion and new development.
§ 72.43 Fundable elements: Recovery Action Program grants.
§ 72.44 Fundable elements: Rehabilitation and Innovation grant common elements.
§ 72.45 Fundable elements: Innovation grants.
§ 72.46 Citizen participation requirements.
§ 72.50 Grant selection criteria.
§ 72.51 A-95 clearinghouse requirements.
§ 72.52 Recovery Action Program grant applications.
§ 72.53 Preapplication process for Rehabilitation and Innovation grants.
§ 72.54 Rehabilitation and Innovation grants - full application process.
§ 72.56 Grant program compliance requirements.
§ 72.60 Grant administrative procedures.
§ 72.62 Amendments to approved grants.
§ 73.7 World Heritage nomination process.
§ 73.9 World Heritage criteria.
§ 73.11 Federal Interagency Panel for World Heritage.
§ 73.13 Protection of U.S. World Heritage properties.
§ 73.15 International World Heritage activities.
§ 73.17 Public information and education activities.
§ 78.3 Federal Agency decision to waive responsibilities.
§ 78.4 Federal Agency notice.
§ 78.5 Review by the Secretary of the Interior.
§ 79.5 Management and preservation of collections.
§ 79.6 Methods to secure curatorial services.
§ 79.7 Methods to fund curatorial services.
§ 79.8 Terms and conditions to include in contracts, memoranda and agreements for curatorial services.
§ 79.9 Standards to determine when a repository possesses the capability to provide adequate long-term curatorial services.
§ 79.10 Use of collections.
§ 79.11 Conduct of inspections and inventories.


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I mean… are they a believer… a seeker… or someone not at all interested in the spiritual side of life?
Most people assume that Jesus spent the majority of His time “evangelizing unbelievers”… so they naturally conclude that we should do the same. Our generation has focused much of its efforts on evangelism… because we believe “that’s WJD”.
In this post… we’ll look at an interaction Jesus had with Nicodemus. Most understand this guy to be a “seeker” who is coming to Jesus with questions, but is it possible that he is a believer coming to Jesus to understand more about his Messiah?
Let’s see if we can pull Nicodemus out of the shadows.
What’s Going on Behind the Translation?
There is a lot happening “behind the curtain” of the English translations of John 3:1-21. While I won’t be able to take space to unpack all of it here, I would like to give you some things for further study.
First… John, the author, used one word over and over again in verses 3-5. The Greek word “pneuma“, which can mean a “breath”, a “blast of air”, or “wind” but is often interpreted as “spirit”. In scripture, this can often refer to the Holy Spirit. In John 3:5-8… everywhere the English translation says “wind” and/or “Spirit”… it’s the same word (pneuma) in the Greek language. (For a more complete discussion… please read Zane Hodges’ article).
Second… the Greek phrase that’s often translated, “born again” can also be translated “born from above” (meaning Heaven). Jesus was using this linguistic ambiguity to teach a spiritual truth. Nicodemus originally thought Jesus meant “born again” (physical birth) when Jesus really meant “born from above” (spiritual birth). Jesus liked to play with phrases like that.
Third… there are a bunch of “you” statements in the interaction between Jesus and Nicodemus. The Greek language uses two different words to distinguish whether a “you” is singular (directed to one person) or plural (sometimes in English we say “you all”). English is not so clear. The English language only has one “you” that functions as both a singular “you” and a plural “you all”. I believe the English language brings a lack of clarity to Nicodemus’ conversation with Jesus.
With that said… let’s take a look at the interaction Jesus had with Nicodemus.
Nicodemus, a man of the Pharisees, was coming to Jesus as an individual… but, at the same time, he was representing the larger group of “unbelieving Pharisees”… or possibly the whole Sanhedrin. How do we know this? Just look at his first statement in John 3:2. “Rabbi, we know that you have come from God as a teacher…”. That “we” is plural and says that he is speaking on behalf of the entire group of Pharisees, of which he was a member.
v. 5 – “It’s the truth when I say to you (singular… said only to Nicodemus)… unless someone is ‘born from above’ he cannot really understand what’s going on in regards to God’s Kingdom.
v. 6 – Those who are living their lives directed by their ‘flesh’ are only of the ‘flesh’… but those directed by the ‘Spirit’ are of the ‘Spirit of God’.
v. 7 – Don’t be surprised that I said to you (singular…. Nicodemus), ‘All the Pharisees’ (plural you) must be born from above.
v. 8 – The ‘Spirit of God’ blows when and where it wishes… and you (singular… Nicodemus) hear the sound of it… even though you (singular… Nicodemus) aren’t always sure from where it is coming. This is a characteristic of everyone who has had a new birth in the Spirit of God.
v. 10 – Jesus answered, “You (Nicodemus) are supposed to be able to explain this to everyone else… and you don’t really understand it?
v. 11 – It’s the truth when I say this to you (Nicodemus). We (the Father, the Spirit and Jesus) testify about what we know to be true… and the Pharisees (plural ‘you’) don’t accept what we say.
v. 12 – If I talk to the Pharisees (plural ‘you’) in parables about earthly realities… and they (plural ‘you’) don’t understand who I am. Do you expect them (plural ‘you’) to believe me when I talk about spiritual realities?
Now… I know that’s a really rough paraphrase… but I’m trying emphasize what Jesus might really be communicating to Nicodemus, the individual, while also speaking to him as Nicodemus, the representative of a larger group. I think Jesus’ use of singular and plural “you” requires us to make this distinction.
I’d like to focus again on what Jesus said directly to Nicodemus in John 3:8. Understood correctly, I think Jesus is describing Nicodemus as one who has already been “born from above”. Jesus later contrasts that, in John 3:12, with a description of the group of “unbelievers” that Nicodemus is representing.
Most readers agree that Nicodemus is “a believer” later in John’s gospel (see John 7:50 & 19:39). Could it be that the text is suggesting, even here in John 3, Nicodemus was a “believing representative” of a larger “unbelieving group”?
If that’s the way we are supposed to understand this passage… could that begin to change your understanding of Jesus’ ministry… and in turn your ministry?
WHO CALLED THE FIRST DISCIPLES?
← Who Called the First Disciples?
I find that in my life God always works on multiple levels at the same time through a singular problem. To say that Jesus was doing both, taking to Nick and the Pharisees simultaneously would not be out of character. Everything that Christ did resonated on many different levels at once.
Sharing somewhat unique thoughts about the liminal ministry of the incarnate Christ.

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Washington’s Supreme Court held that uncollectability of the underlying judgment is an affirmative defense in legal malpractice claims that must be proved by the attorney. The court also held that emotional distress can be an element of damages in certain legal malpractice cases.
STEPHENS, J. (dissenting) – The attorney-client relationship is vital to the functioning of our justice system. The lead opinion erodes the trust that is central to this relationship by erecting artificial barriers to a client’s ability to fully recover damages against a negligent attorney. Insisting that emotional distress damages require a showing that the attorney’s actions were “particularly egregious,” lead opinion at 14, the lead opinion discounts the special nature of the attorney-client relationship and relies on a faulty analogy between attorney malpractice claims and negligent infliction of emotional distress (NIED) claims involving strangers. It would make more sense to analogize attorney malpractice claims to tort claims in other fiduciary contexts more closely resembling the attorney-client relationship. Because such damages should be allowed, where proved, I respectfully dissent.1I agree with the lead opinion that collectability is an affirmative defense, not an element of every plaintiff-client’s case. Lead opinion at 4. This dissent addresses onlythe issue of emotional distress damages in attorney malpractice cases.
The lead opinion begins its analysis by discussing claims between strangers and noting that historically, Washington courts were cautious to award emotional distress damages. Lead opinion at 9. This reasoning relies on the refrain that “a negligent act should have some end to its legal consequences.” Hunsley v. Giard, 87 Wn.2d 424, 435, 553 P.2d 1096 (1976). But, Washington has moved away from the reasoning of Hunsley and allows recovery “when a plaintiffs emotional distress is ‘within the scope of foreseeable harm … , a reasonable reaction given the circumstances, and … manifest by objective symptomology.'” Lead opinion at 11 (alterations in original) (quoting Bylsma v. Burger King Corp., 176 Wn.2d 555,560,293 P.3d 1168 (2013).
[i]t is not merely economic, and a reasonable person standing in the defendant’s sboes would easily foresee that its breach is likely to cause significant emotional distress. It will support emotional distress damages without proof of pbysical impact or objective symptomatology.
Price v. State, 114 Wn. App. 65, 73, 57 P.3d 639 (2002). In Price the court held that emotional distress damages were available against an agency that negligently facilitated a wrongful adoption. We should recognize that the attorney-client relationship is similarly a special relationship.
Instead, the lead opinion places a new restriction on plaintiffs alleging legal malpractice: they must prove the attorney’s negligence was “particularly egregious.” Lead opinion at 9. “Egregious” means “[elxtremely or remarkably bad.” BLACK’S LAW DICTIONARY 629 (10th ed. 2014). The lead opinion provides no additional guidance on how plaintiffs might show this. Yet, the lead opinion holds as a matter oflaw that Coogan’s actions were not egregious. Lead opinion at 14-15. Coogan failed to file a personal injury lawsuit against the correct defendant before the statute of limitations ran. Schmidt repeatedly inquired about the case, and Coogan ridiculed her for not trusting him. These actions look “remarkably bad” to me.
The lead opinion also characterizes Schmidt’s harm as primarily pecuniary, though her testimony at trial suggested that her personal injury has materially affected every aspect of her life. Id. at 15-16; Pet’r’s Supp!. Br. App. at 22-36. The authorities the lead opinion cites to draw a dividing line between negligence that foreseeably causes emotional distress and negligence that produces only economic losses do not support cutting off Schmidt’s emotional distress damages. Lead opinion at 12-13 (citing Vincent v. DeVries, 2013 VT 34, 193 Vt. 574, 72 A.3d 886, 894-95 (2013); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 53 cmt. g (1998). Rather, they speak to commercial transactions or purely pecuniary losses. A personal injury involves much more. As the Court of Appeals recognized in Price, emotional distress damages are appropriate when negligence occurs in the context of a relationship preexisting the defendant’s duty, i.e., within a special relationship. Price, 114 Wn. App. at 71.
There is a significant difference between the relationship of a tortfeasor and a bystander and between an attorney and a client. While a negligent driver might not foresee that his negligent driving will cause emotional distress to a stranger, an attorney handling a personal injury case can foresee that negligent performance might cause emotional distress to the client. Our NIED rule anticipates the tortfeasorlbystander scenario, and applies in the particular situation where a plaintiff “observ[ es] an injured relative at the scene of an accident after its occurrence and before there is substantial change in the relative’s condition or location.” Hegel v. McMahon, 136 Wn.2d 122, 132,960 P.2d 424 (1998). I do not see why the lead opinion chose to analogize this situation to the present case, where an attorney, who owes specified fiduciary duties to a client, violates those duties and causes both financial and emotional harm to the client.
[I]nsurance contracts are unlike ordinary bilateral contracts. First, the motivation for entering into an insurance contract is different. Insureds enter into insurance contracts for the fmancia1 security obtained by protecting themselves from unforeseen calamities and for peace of mind, rather than to secure commercial advantage. Second, there is a disparity of bargaining power between the insurer and the insured; because the insured cannot obtain materially different coverage elsewhere, insurance policies are generally not the resuIt of bargaining.
Goodson v. Am. Standard Ins. Co. of Wis. , 89 P.3d 409, 414 (Colo. 2004) (citations omitted); see also Miller v. Kenny, 180 Wn. App. 722, 802, 325 P.3d 278 (2014) (explaining that tort damages for insurance bad faith in Washington include emotional distress damages).
Many of the same characteristics are equally prominent in the attorney client relationship. People tum to attorneys to help them recover after calamities occur. People hire attorneys for the peace of mind that comes from having the assistance of a professional, rather than facing a lawsuit alone. Attorneys inherently have more bargaining power than their clients when entering into a contract for service, if for no other reason than such contracts are legal documents; laypeople hire attorneys primarily because they need assistance to understand the legal consequences of events and documents.
These considerations appear in this case as wei!. Schmidt suffered significant injuries from an unexpected slip and fall at a grocery store. Lead opinion at 1; Pet’r’s Supp!. Br. App. at 12-34. These injuries interfered with her relationships and work. Pet’r’s Supp!. Br. App. at 12-34. She sought legal counsel because she needed professional assistance in order to bring her claims. Id. at 40-41. Coogan prepared a contingency fee arrangement without any bargaining with Schmidt. Id. at 39-40. There is no evidence in the record to suggest that Schmidt had a realistic chance of finding a substantially different arrangement with another attorney. See Goodson, 89 P.3d 409. And, Schmidt continued relying on Coogan because she trusted him. Pet’r’s Suppl. Br. App. at 55. Certainly the relationship between attorney and client here was no less one of trust than the insurer/insured relationship. The lead opinion offers no justification for cutting off the emotional distress damages in this true fiduciary relationship when an insured would be entitled to pursue such damages against a negligent insurer in a quasi-fiduciary relationship.
In the end, the lead opinion’s rule rests on the wrong analogy, that of NIED claims between strangers. It reflects nothing more than a judicial determination that emotional distress damages are unforeseeable in this context. The proffered rationale for erecting a barrier to recovery is the lead opinion’s conclusion that Schmidt suffered merely a “pecuniary loss” and that the subject matter of her personal injury suit “was not particularly sensitive” because “she did not lose her freedom and Coogan’s actions were not egregious.” Lead opinion at 14. Given that other classes of fiduciaries and quasi-fiduciaries do not receive the special protections that attorneys do under the lead opinion’s rule, I find this unsatisfying. The special relationship between attorneys and their clients should not shield attorneys whose malpractice foreseeably causes emotional distress. Rather, the special relationship should allow for greater recovery because of the greater harm that a negligent attorney may inflict upon a trusting client. I respectfully dissent.
1. ↑ I agree with the lead opinion that collectability is an affirmative defense, not an element of every plaintiff-client’s case. Lead opinion at 4. This dissent addresses onlythe issue of emotional distress damages in attorney malpractice cases.


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The legal basis for the collection and storage of personal data is Article 6 (1) sentence 1 (b) DSGVO.
The collection of personal data takes place outside of our website, and is mandatory for the conclusion of the contract and serves exclusively for the mutual fulfillment of common contractual obligations.
first name, name, postal address, residential address, (possibly delivery address, if necessary fulfillment address), E -Mail address, telephone number, (if necessary, further telephone numbers, fax numbers, ordered services, ordered products and thus authorize their use exclusively in the sense of this contract.
Assplemented by performance, billing, payment and account data, all these data form the scope of a usual bill.
If the data processing for the implementation of pre-contractual measures that take place at your request, or, if you are already our customer, for the execution of the contract, the legal basis for this data processing is also Art. 6 para 1 p. 1 b) GDPR.
These invoice data are held exclusively in the company for the processing time in digital form, then in paper form. The deletion of this data takes place after the expiry of legal retention periods and on request of the person concerned (s.u.) Further processing in the sense of a database comparison does not take place.
This personal data is neither accessible to a processor, nor a hoster nor a cloud computing provider and is not part of our website. Our hosting provider only operates the storage space of our website. Since our website does not contain any customer data, the hosting provider also does not receive any customer data.
Our website is (since its inception) purely passive and does not collect information about the visitor or anything else.
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Our website offers payment links to a payment service provider. The traffic to this service provider is encrypted and is self-constructed by the latter. Your data stored there remains only known to this payment service provider and can neither be obtained nor passed on by us.
Our website offers (since its existence) no internal contact form.
Instead, please use the e-mail address provided under "Contact" and we will respond to your e-mail address as shown by the sender. (legitimate interest according to Art. 6 para. 1 p. 1 f) GDPR).
Under applicable law, you have various rights to your personal information. If you would like to assert these rights, please send your request by e-mail, stating your identity clearly, to the e-mail address mentioned in point 1 above.
You have the right to clear information about the processing of your personal data under Art. 15 DSGVO.
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You have the right to restrict the processing.
You have the right to a consent to object to the processing of personal data as well as the lawful processing of your personal data by us, if this is based on your particular situation and if our interests in processing do not predominate (can only occur before commissioning or after conclusion of a contract), see DSVGO.
You have the right to non-submission to automated decisions including profiling according to Art.22 GDPR.
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