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1. JAMES1 BEGENT was born 1803 in Chancery Lane, London, England, and died January 24, 1868 in 21 Parish Street, Sourhwark, London. He married RACHAEL LAURENCE HALSEY November 16, 1834 in St George the Martyr, Southwark , London. She was born July 8, 1804 in North Mymms, Hertfordshire, England, and died September 30, 1862 in Orange Tree Inn, Stonebridge, Middlesex, England.
2. i. HENRY CHARLES2 BEGENT, b. November 29, 1825, Totteridge, Hertfordshire, England; d. March 30, 1875, Paddington, London, England.
3. iv. JAMES BEGENT, b. December 13, 1832, Marylebone, London; d. 1876, Marylebone, London.
v. EMMA BEGENT, b. 1837, Middlesex, England; m. MR MARTIN OR MASON.
vi. RACHAEL BEGENT, b. November 4, 1840, 59 Chester Mews, St Pancras, London, England; m. ROBERT THOMAS PURVES, December 19, 1858, St James, Sussex Gardens, Paddington, London. They emigrated to Canada in 1871.
4. vii. GILBERT BEGENT, b. 1846, Westmeath, Ireland.
5. i. RHODA AMELIA3 BEGENT, b. November 18, 1855, Wayland District; d. Australia.
ii. HENRY CHARLES BEGENT, b. 1861, Marylebone, London; d. May 25, 1865, St Pancras District, London, England.
iii. EDITH MINNA BEGENT, b. 1865, St Pancras District, London, England; d. Australia; m. JOSEPH PULLING, 1890, New South Wales, Australia.
iv. WILLIAM BEGENT, b. 1867; d. 1875.
6. v. LAURA ALICE BEGENT, b. September 10, 1869, Paddington, London, England; d. 1944, Australia.
7. i. EDWARD JAMES3 BEGENT, b. 1858; d. June 1948.
4. GILBERT2 BEGENT (JAMES1) was born 1846 in Westmeath, Ireland. He married EMILY ANN HAWLEY May 16, 1867 in Shoreditch, London, England. Gilbert’s occupation: Railway stationmaster at Levenshulme, Manchester.
ii. FREDERICK JAMES BEGENT, b. October 12, 1869, Bradwell, Newport Pagnell, England; d. drowned in South Africa. Glyn Jones has a book given for "Good attendance and Conduct" to Frederick from St Peter's school, Levenshulme, Manchester, on Christmas 1888.
8. iii. ARTHUR BEGENT, b. January 2, 1872; d. 1960, Blackburn DIstrict, England.
9. v. GILBERT CHARLES BEGENT, b. June 22, 1876, Newport Pagnell District, England; d. 1961, Crewe District, England.
10. vi. EMILY MINNIE BEGENT, b. June 12, 1878, Newport Pagnell District, England.
vii. HARRY ROBERT BEGENT, b. 1881, Potterspury, Newport Pagnell, England; d. 1894, Chorlton District, England.
viii. KATE RACHEL BEGENT, b. September 9, 1891, Chorlton District, England; m. PETER EDWARDS, 1917, Chorlton District, England.
5. RHODA AMELIA3 BEGENT (HENRY CHARLES2, JAMES1) was born November 18, 1855 in Wayland District, and died in Australia. She married STEPHEN DENTON December 31, 1878 in Australia. He was born 1852, and died January 25, 1916.
i. MAY4 DENTON, b. 1880; d. 1884.
ii. LILLIAN GERTRUDE DENTON, b. 1885; d. 1987.
11. iii. AMY MABEL DENTON, b. November 25, 1888; d. 1962.
iv. STEPHEN DENTON, b. 1891.
6. LAURA ALICE3 BEGENT (HENRY CHARLES2, JAMES1) was born September 10, 1869 in Paddington, London, England, and died 1944 in Australia. She married FLETCHER S BOOTH 1902 in New South Wales, Australia.
12. i. EDWARD BEGENT4 BOOTH.
i. LOUISA4 BEGENT, b. October 1885; d. 1964.
ii. ELSIE BEGENT, b. 1888; d. 1975.
iii. EDWARD BEGENT, b. 1890; d. 1890.
iv. FREDERICK BEGENT, b. 1892; d. 1952.
v. AMY BEGENT, d. 1907.
vi. MAY BEGENT, b. 1894; d. 1955.
13. vii. SIDNEY BEGENT, b. 1898; d. 1988.
viii. HILDA BEGENT, b. November 8, 1901; d. 1953.
ix. NOEL BEGENT, b. 1903; d. 1984.
14A i. ALBERT4 BEGENT, b. 1896, Highworth, England; d. 1936, Liverpool, England.
14. ii. CHARLES BEGENT, b. February 16, 1898.
9. GILBERT CHARLES3 BEGENT (GILBERT2, JAMES1) was born June 22, 1876 in Newport Pagnell District, England, and died 1961 in Crewe District, England. He married ALICE SCRAFTON 1903 in Stockton District, England. She was born December 13, 1878, and died 1973 in Conway District. Gilbert’s occupation: Railway worker in Wolverton and Manchester . Photo of Pipe presented to Gilbert Begent.
15. i. ALICE HODGSON4 BEGENT, b. July 19, 1904, Newport Pagnell District, England; d. January 25, 1974.
ii. FREDERICK BEGENT, b. 1906, Ashton District, England; d. 1909, Ashton District, England.
16. iii. FREDERICK MERVYN BEGENT, b. May 20, 1909, Chorlton District, England; d. 1969, Manchester, England.
17. iv. HARRY HAWLEY BEGENT, b. March 4, 1911, Chorlton District, England.
v. RAYMOND BEGENT, b. 1923, Bucklow District, England; d. 1924, Chorlton District, England.
19. ii. JAMES ARTHUR SANER.
11. AMY MABEL4 DENTON (RHODA AMELIA3 BEGENT, HENRY CHARLES2, JAMES1) was born November 25, 1888, and died 1962. She married CARL ALBERT BOOTH. He was born August 15, 1887, and died August 13, 1965.
i. MARJORIE5 BOOTH, b. April 4, 1909, NSW Australia.
20. ii. RHODA LAURENE BOOTH, b. November 19, 1921, NSW Australia.
12. EDWARD BEGENT4 BOOTH (LAURA ALICE3 BEGENT, HENRY CHARLES2, JAMES1) He married VERA ALICE CURRAN 1934 in New South Wales, Australia.
i. RONALD EDWARD5 BOOTH, b. 1943, New South Wales, Australia.
i. IRIS5 BEGENT, b. 1925; m. TONY CAMBRIDGE.
ii. SYLVIA BEGENT, b. 1928; m. EDWARD STAPLETON.
iii. DAVID BEGENT, b. 1930; d. 1933.
iv. ALAN BEGENT, b. 1932.
v. JUNE BEGENT, b. 1934; m. J. LEONARD MILLS.
21. vi. GEOFFREY BEGENT, b. 1938.
vii. GUY BEGENT, b. 1949.
14. CHARLES4 BEGENT (ARTHUR3, GILBERT2, JAMES1) was born February 16, 1898. He married ETHEL SIDGWICK. She was born December 29, 1896, and died May 1985 in Stockport District, England.
i. JOAN5 BEGENT, b. 1925, Stockport District, England.
ii. DOROTHY BEGENT, b. 1930, Stockport District, England.
He was a chief Pursor/ Chief Steward for Canadian Pacific and travelled some 7000 NM on water in one form or other. He was also with the Royal Yacht Squadron.
15. ALICE HODGSON4 BEGENT (GILBERT CHARLES3, GILBERT2, JAMES1) was born July 19, 1904 in Newport Pagnell District, England, and died January 25, 1974. She married (1) SAM KNOTT 1927 in Bucklow District. She married (2) RALPH JONES 1938 in Great Budworth, Cheshire.
16. FREDERICK MERVYN4 BEGENT (GILBERT CHARLES3, GILBERT2, JAMES1) was born May 20, 1909 in Chorlton District, England, and died 1969 in Manchester, England. He married SYBIL WORRALL 1939 in Manchester District.
i. GILBERT R5 BEGENT, b. 1940, Manchester, England.
ii. MARY E BEGENT, b. 1945, Manchester, England.
17. HARRY HAWLEY4 BEGENT (GILBERT CHARLES3, GILBERT2, JAMES1) was born March 4, 1911 in Chorlton District, England. He married DORIS E. BURTON 1939 in Bucklow District.
i. ANNE E.5 BEGENT, b. 1943, Edmonton District.
ii. RICHARD H. J. BEGENT, b. 1945, Edmonton District.
18. GILBERT SAMUEL4 BEGENT (GILBERT CHARLES3, GILBERT2, JAMES1) was born December 7, 1927 in Hale, Altrincham, Cheshire, England, and died December 2, 2001. He married LINDSAY JANE SLATFORD July 6, 1957 in St Oswald's, Peover, Knutsford, Cheshire.
28. iii. CHRISTOPHER CHARLES ROBERT BEGENT.
19. JAMES ARTHUR4 SANER (EMILY MINNIE3 BEGENT, GILBERT2, JAMES1) He married MARIE.
i. JOHN5 SANER, b. 1940.
20. RHODA LAURENE5 BOOTH (AMY MABEL4 DENTON, RHODA AMELIA3 BEGENT, HENRY CHARLES2, JAMES1) was born November 19, 1921 in NSW Australia. She married GORDON SMITH. He was born June 7, 1918 in Tamerang Shire, NSW, Australia, and died February 8, 2000 in Cessnock, NSW Australia.
22. i. BARRY GORDON6 SMITH, b. July 27, 1942, Fivedock, NSW Australia.
23. ii. LAURENE SHIRLEY SMITH, b. August 15, 1949, Camperdown, NSW Australia.
21. GEOFFREY5 BEGENT (SIDNEY4, EDWARD JAMES3, JAMES2, JAMES1) was born 1938. He married BARBARA MATSON. Residence: Nottingham.
24. i. CAROLE6 BEGENT, b. November 8, 1965.
ii. ELAINE BEGENT, b. July 25, 1967.
22. BARRY GORDON6 SMITH (RHODA LAURENE5 BOOTH, AMY MABEL4 DENTON, RHODA AMELIA3 BEGENT, HENRY CHARLES2, JAMES1) was born July 27, 1942 in Fivedock, NSW Australia. He married MAUREEN DOROTHY WADE March 31, 1962 in Punchbowl, NSW Australia. She was born February 22, 1943 in Paddington, NSW Australia, and died October 5, 2007.
25. i. STEPHEN GREGORY7 SMITH, b. December 29, 1962, Bankstown, NSW Austalia.
26. ii. KAREN-ANNE SMITH, b. February 22, 1967, Bankstown, NSW Austalia.
iii. MICHELE RAE SMITH, b. April 25, 1968, Liverpool, NSW Australia; m. ANDREW GRAEME WATSON, May 30, 1992, Kattatha, WA Australia; b. November 8, 1963, Scotland.
27. iv JACQUELINE SMITH b. October 31, 1972, Liverpool, NSW Austrlia.
23. LAURENE SHIRLEY6 SMITH (RHODA LAURENE5 BOOTH, AMY MABEL4 DENTON, RHODA AMELIA3 BEGENT, HENRY CHARLES2, JAMES1) was born August 15, 1949 in Camperdown, NSW Australia. She married WILFRED RODERICK TAGG June 12, 1971 in Moorebank, NSW Australia. He was born January 15, 1947 in Yorkshire, England.
i. BELINDA LEE7 TAGG, b. February 1, 1979, Maitland, NSW Austrlia.
24. CAROLE6 BEGENT (GEOFFREY5, SIDNEY4, EDWARD JAMES3, JAMES2, JAMES1) was born November 8, 1965.
25. STEPHEN GREGORY7 SMITH (BARRY GORDON6, RHODA LAURENE5 BOOTH, AMY MABEL4 DENTON, RHODA AMELIA3 BEGENT, HENRY CHARLES2, JAMES1) was born December 29, 1962 in Bankstown, NSW Austalia. He married (1) WENDY THOMAS June 9, 1982 in Kattatha, WA Australia. She was born in WA, Australia. He married (2) NORMA PUGH October 9, 1991 in Kattatha, WA Australia. She was born June 3, 1964 in Victoria, Australia.
i. TEGAN LOUISE8 SMITH, b. November 19, 1984.
ii. MALCOLM GORDON8 SMITH, b. May 25, 1993.
iii. CHRISTINA PUGH, b. November 26, 1987.
26. KAREN-ANNE7 SMITH (BARRY GORDON6, RHODA LAURENE5 BOOTH, AMY MABEL4 DENTON, RHODA AMELIA3 BEGENT, HENRY CHARLES2, JAMES1) was born February 22, 1967 in Bankstown, NSW Austalia. She married DARRYL JAMES SCHULTZ July 6, 1991 in Perth, WA Austrlia. He was born June 5, 1960 in Queensland, Australia.
i. CLAUDIA ANNE8 SCHULTZ, b. October 6, 1993, Karratha, WA Australia.
ii. ADELE JOY SCHULTZ, b. December 10, 1994, Perth, WA Australia.
27. JACQUELINE7 SMITH (BARRY GORDON6, RHODA LAURENE5 BOOTH, AMY MABEL4 DENTON, RHODA AMELIA3 BEGENT, HENRY CHARLES2, JAMES1) was born October 31, 1972 in Liverpool, NSW Austalia.
i. JACOB LAURENCE DUBOIS8 ST MARC, b. November 20, 1997, Karratha, WA Australia.
ii. ISABEL RUBY DUBOIS ST MARC, b. September 5, 1998, Karratha, WA Australia.
ii. LAURA MARIE BEGENT, b. June 1st, 2006, Bath, Somerset.
With thanks to Carole Begent, Dorothy Delaney, Barry Smith and Ralph Jones.

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There have been a number of court decisions which are of significance to the practice of insurance law since our last update. These include cases dealing with workers' compensation extra-contractual claims and lifetime benefits, the interpretation of "all risk" policies, and toxic torts.
Always, each case involves different facts and law, and accordingly the following must be taken for general information purposes only, rather than for action upon any specific fact situation.
Workers' Compensation Insurance - Extra-Contractual Claims – Substituted Opinion Upon Rehearing: In Texas Mutual Insurance Company vs. Ruttiger, 08-0751 (Tex. 2011), the Texas Supreme Court examined earlier case law in light of Texas' current workers' compensation statutory scheme, and held (1) that an injured worker has no claim under the Insurance Code against a workers' compensation insurer for unfair claim settlement practices, (2) that claims under the Insurance Code may be made by a plaintiff against an insurer for misrepresenting provisions of an insurer's policy of workers' compensation insurance, and (3) the 2011 court sent the case back to the intermediate court of appeals to determine whether or not the currently existing common law remedy for breach of the covenant of good faith and fair dealing ("bad faith") against a workers' compensation insurer should be overruled in light of the current workers' compensation statutory scheme.
After a rehearing of the case by the Supreme Court in 2012, a new opinion has been handed down by the Supreme Court in 2012 reiterating its rulings on the first two points set forth above, but reversing its decision on the third point.
Insurance - Duty to Defend - Disposition of Remains of Decedent: In Evanston Insurance Company v. Legacy of Life, Inc., 11-0519 (Tex. 2012), the Supreme Court dealt with a situation where Plaintiff daughter and her mother’s estate sued an organ donation charity for transferring Plaintiff’s mother’s organs to an entity which sold the tissues for profit. Defendant charity requested a defense from its insurer claiming a right to coverage under the policy provisions relating to coverage for “personal injury” and “property damage.” The insurer denied coverage, and the Supreme Court agreed that there was no duty to defend.
The court reasoned that since the decedent’s daughter had not suffered a physical injury, the daughter’s claim to mental anguish was not sufficient to trigger coverage with regard to the Defendant charity’s claim for coverage under the “personal injury” section of the policy. Similarly, the court held that under Texas statutes dealing with gifts of organs, human tissues are not the property of either the decedent’s next of kin or the decedent’s estate. Accordingly, there was no coverage under the insurer’s policy for “property damage” under the circumstances of this case.
Governmental Immunity – Failure to Use Safety Component: In the City of North Richland Hills, Texas v. Friend, 11-0367 (Tex. 2012), the Supreme Court dealt with claims against a municipality alleging liability for its failure to use an available piece of property and held that the city could be held liable for negligently using harmful property, but not for failing to use it. The court noted that it had in earlier cases limited the “integral safety component doctrine” to cases where a safety component of a piece of property was completely lacking as opposed to being merely inadequate. Accordingly, the city was not liable for the death of an individual where the city employees responded with oxygen masks and other airway equipment, but did not use an available automatic external defibrillator device.
Governmental Immunity – “Special Defects” in Roadways: In the City of Denton v. Paper, 11-0596 (Tex. 2012), the Supreme Court dealt with injuries arising from alleged “special defects” in roadways, and held that a two to three inch depression or sunken area in a roadway, which resulted from repairs to road by the city, of which depression the city had no actual knowledge, was not such a premises defect as to fall within the same class as an “excavation or obstruction,” which might impose liability upon a city to a bicyclist whose bicycle hit the hole in the road. The court noted that the class of special defects contemplated by the statute is narrow and “does not include common potholes or similar depressions in the roadway.” Accordingly the Supreme Court found in favor of the Defendant City.
Negligent Hiring and Supervision Cause of Action: In Wansey v. Hole, 11-0348 (Tex. 2012), the Supreme Court held, as in negligent entrustment cases, that a negligent hiring claim requires that some harmful or negligent conduct of an employee – hired pursuant to the Defendant’s negligent hiring or supervision practice – proximately caused an injury, and that where a Plaintiff has not suffered any harm at the hands of the employee who was allegedly negligently hired, the Plaintiff may not recover.
Seamen: Available Claims for Personal Injury and Defenses thereto: In Weeks Marine, Inc. v. Garza, 10-0435 (Tex. 2012), the Supreme Court dealt with remedies available to injured seamen, and held that a seaman has four potential claims and causes of action and that these include: (1) a Jones Act negligence claim, (2) an unseaworthiness claim, (3) a claim for unpaid maintenance and cure, and (4) a claim for personal injuries caused by the employer’s failure to provide maintenance and cure. Thus, before a seaman may recover an “unreasonable-failure-to-pay” award, the seaman must show that the employer’s unreasonable failure to pay was a cause of the injury. Further, a seaman may, upon proper proof, recover punitive damages when an employer’s failure to pay is willful and wanton. Moreover, although a seaman’s claim is governed by rules of comparative fault, the seaman can avoid a comparative-fault reduction in a negligence award by proving that he was complying with his superior’s specific orders, but this rule applies only when the seaman is ordered to do a specific task in a specific manner or is ordered to do a task that can be accomplished in only one way.
Age Discrimination Litigation: In Mission Consolidated Independent School District v. Garcia, 10-0802 (Tex. 2012), the Supreme Court considered the question of whether a Plaintiff can establish a prima facie case of age discrimination when the undisputed evidence shows that the Plaintiff had been replaced by someone older. The court held that in this situation such a Plaintiff is not entitled to a presumption of age discrimination but is not precluded from proving a claim of age discrimination by direct evidence of discriminatory animus. In connection with this holding, the Supreme Court held that in order to allege a prima facie case of age discrimination, a plaintiff in a true replacement case must show that he or she was (1) a member of the protected class, (2) qualified for his or her employment position, (3) terminated by the employer, and (4) replaced by someone younger. Absent those facts, Plaintiff is not entitled to the presumption of age discrimination, but rather must, as aforesaid, prove same by direct evidence of discrimination.
Healthcare – Non-Subscriber Employer Liability: In Texas West Oaks Hospital, LP, et al v. Williams, 10-0603 (Tex. 2012), a plaintiff who was himself a healthcare provider sued his employer, which was both a non-subscriber employer under the Texas Workers’ Compensation Act, and a healthcare provider as well, alleging injuries arising out of inadequate training, supervision, risk-mitigation and safety. Our Supreme Court held that the healthcare-provider-employee-Plaintiff was properly characterized as a “claimant” under the Texas Medical Liability Act (TMLA) and that his allegations against his non-subscribing healthcare employer were all healthcare and safety claims under the TMLA, thus requiring Plaintiff to serve a statutory expert report to maintain his lawsuit.
In so holding, our Supreme Court found no conflict between the TMLA and the Texas Workers’ Compensation Act and accordingly, the plaintiff employee’s failure to provide the expert report required by the TMLA required dismissal of all of his claims against his healthcare non-subscribing employer.
Healthcare Claims – Suicide: In Diego Rodriguez-Escobar, M.D. v. Goss, 10-0511 (Tex. 2013), the Supreme Court dealt with claims against a psychiatrist for his negligent failure to involuntarily commit Plaintiff’s decedent to a state mental health care facility, which allegedly was the cause of her subsequent suicide three days after the psychiatrist’s evaluation of the decedent, and the Supreme Court held that a physician’s failure to hospitalize a person who later commits suicide is a proximate cause of the suicide only if the suicide probably would not have occurred if the decedent had been hospitalized. The court noted that a defendant-actor’s negligence “may be too attenuated from the resulting injuries to the plaintiff to be a substantial factor in bringing about the harm,” and held that the factual evidence in this case was legally insufficient to support the jury’s finding that absent the negligence of the defendant psychiatrist, the decedent would not have committed suicide. In other words, the court held that there was no evidence that an involuntary hospitalization of the decedent, by the defendant psychiatrist, had it occurred, probably would have prevented her death.
Healthcare Claims – Informed Consent: In Felton v. Lovett, 11-0252 (Tex. 2013), the Supreme Court dealt with claims against a doctor of chiropractic and held that a healthcare provider may be liable for failing to disclose to a patient the risks “inherent” in the proposed treatment. The court discussed differences between chiropractors and physicians under Texas’ Medical Liability Statute and under the common law of Texas and held that chiropractors are required under common law to satisfy the duty of informing a patient of such risks, i.e., a reasonable healthcare provider must disclose the risks that would influence a reasonable patient in deciding whether to undergo treatment, but not those that would be unduly disturbing to an unreasonable patient. The court also discussed what risks may or may not be an “inherent risk” in medical treatment, and held that an “inherent risk” is one that “exists in and is inseparable from the procedure itself.” Accordingly, the chiropractor’s failure to inform his patient that a chiropractic neck manipulation could result in “vertebral artery dissection” was a breach of the duty to obtain a patient’s informed consent and that such a risk was “inherent” in the chiropractic treatment being administered.
Moreover, since the duty to provide information about such risks is separate and apart from negligence in performing the procedure itself, the court ruled that a jury’s failure to find that the chiropractor’s negligence actually caused the injury did not preclude the chiropractor’s liability for non-disclosure.

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Forensic accounting is a rapidly growing area of accounting concerned with the detection and prevention of financial fraud and white-collar criminal activities. George A. Manning in his book “Financial Investigation and Forensic Accounting” defines Forensic Accounting as the science of gathering and presenting financial information in a form that will be accepted by a court of jurisprudence against perpetrators of economic crimes. The integration of accounting, auditing, and investigative skills yields the specialty known as Forensic Accounting which focuses very closely on detecting or preventing accounting fraud. “Forensic”, according to the Webster’s Dictionary means, “Belonging to, used in or suitable to courts of judicature or to public discussion and debate.” The word accounting is defined as “a system of recording and summarizing business and financial transactions and analyzing, verifying, and recording the results.” The term ‘forensic accounting’ refers to financial fraud investigation which includes the analysis of accounting records to prove or disprove financial fraud and serving as an expert witness in Court to prove or disprove the same. Thus, basically, the forensic accounting is the use of accounting for legal purposes.
The forensic accounting can be traced back as far as 1817 to Meyer v. Sefton, a Canadian case that allowed an ‘expert witness’ to testify in court. The term ‘forensic accounting’ was first published in an article in 1946 “Forensic Accounting- Its Place in Today’s Economy” authored by Maurice E. Peloubet, a partner in Price Waterhouse. He stated that, “during the war both the public and industrial accountant have been and now engaged in the practice of forensic accounting”. Many scholars have traced the roots of investigative accounting to his work. Interest in forensic accounting spread through the United States and England early in the twentieth century. One of the first institutions to use the services of such investigative accountants was the IRS. The story of Al Capone the famous mobster being caught on a tax evasion scheme is well-known. The FBI decided to use forensic accountants and employed nearly 500 such agents during World War II. As a profession, forensic accounting continued to grow during the latter half of the century, as GAAP and tax laws became widespread and mandatory.
Forensic Accounting is a fast emerging field in the “World of Accounting”. Although it has been around for a long time, it has become increasingly popular and much relevant today in view of global financial crisis due to the downfall of the Lehman Brothers and its ripples felt across the globe. Thus, a new avatar of Accountant has emerged known as Forensic Accountant. Although Investigative Accounting has been around for years, it has only recently begun to transform into a new branch of accounting, hence Forensic Accounting. Forensic accountants unlike traditional accountants, look beyond the numbers, put their nose and eye deep into the financial books, records and data to uncover fraud, hidden assets, siphoned funds and the like. The word forensic is defined as the application of scientific knowledge to legal problems and legal proceedings. The word accounting is defined as “a system of recording and summarizing business and financial transactions and analyzing, verifying, and recording the results.” By combining these two definitions it can be concluded that forensic accounting utilizes his regular accounting principles & practices in legal situations. Forensic Accounting is like the bridge which connects accounting system to legal system. Thus, we can say that the forensic accounting is an accounting that is used in a court of law. One of the most notable legal situations in the recent past would be the Enron scandals; where large numbers of American forensic accountants were employed. The wave of financial crisis primarily caused by corporate malfeasance and fraudulent financial activities eroded public trust and investor confidence in financial reports and audit services and need was felt to look beyond the conventional accounting function which only fulfilled the compliance requirements i.e. company’s books of accounts are kept in accordance with rules & regulations. In view of the increasing number of financial frauds committed by conspiracy with complex accounting records manipulation, it was felt that a new tribe of Accountant is needed to detect the financial fraud in companies with his accounting, auditing, and investigative skills and also assist in legal matters. This area of accounting came to be known as ‘forensic accounting’. There is a global awareness to fight the cases of financial frauds. Though many strategies have been formulated and many actions have been taking to fight against it, the problem still persists. One of the major hindrances in fighting financial crime cases is lack of quality forensic analysis of the financial statements and records due to lack of forensic accounting professionals. This author who had been an investigating officer during his tenure with Delhi Police in number of major cases of financial crimes have faced this dearth of quality forensic accounting experts who could have come handy in timely & accurate investigation of the intricate financial crimes and unearth the complex modus operandi adopted by the fraudsters who are themselves in some cases highly qualified financial professionals. The reason why there has been rampant increase in white collar financial crimes because they think that they can get away with it with impunity and the greatest deterrent to thwart the criminal act is law enforcement. However, the conviction rate in the financial fraud cases was very low due to weak law enforcement which is attributable to weak litigation support in prosecution process. Without full support of accounting expert, prosecutors often fail to prove and provide strong evidence to put fraudsters behind bar. Here, the Forensic accounting can play an important role here by providing accounting or financial information or other evidentiary inputs for legal purposes. To achieve the aim, forensic accountant besides having financial accounting expertise, should also have proven skill in law, scientific investigative technique, interpersonal and communication skills etc.
Investigating in the rapidly evolving area of computer and Internet fraud.
However in India, this branch of accounting has not got its due recognition even after alarming increase in the complex financial crimes and lack of adequately trained professionals to investigate and report on the complex financial crimes. The task of Forensic Accountants is handled by Chartered Accountants who apart from handling traditional practice of auditing as required under the Companies Act, 1956 or Income Tax Act are called upon by the law enforcement agencies or the companies or private individuals to assist in investigating the financial crime or scam. The CA or CWAs in India are best suited for this profession due to their financial acumen acquired during their rigorous training which can be further honed by introducing post qualification degree or diploma in Investigating and Forensic Accounting similar to one introduced by CICA. The CA or CWA who acquire post qualification in Investigative & Forensic Accounting can use the designation CA-IFA or CWA-IFA and be legally recognized as the Forensic Accounting Experts to handle the investigation of financial crimes and give expert testimony in the Court of Law. However, no efforts has so far been made by the ICAI and ICWAI, the two leading statutory accounting professional bodies to move in this direction and set up a institute which can offer the post qualification diploma in Investigative and Forensic Accounting to its members.
However, growing financial fraud cases, recent stock marker scams, failure of non financial banking companies, phenomena of vanishing companies and plantation companies and failure of the regulatory mechanism to curb it has forced the Government of India to form Serious Fraud Investigation Office (SFIO) under Ministry of Corporate Affairs which can be regarded the first step of Government of India to recognize the importance and advance the profession of forensic accountants. The SFIO is a multidisciplinary organization having experts from financial sector, capital market, accountancy, forensic audit, taxation, law, information technology, company law, customs and investigation. These experts have been taken from various organizations like banks, Securities & Exchange Board of India, Comptroller and Auditor General and concerned organizations and departments of the Government. However, the main important law enforcement agency involved directly in combating white-collar crimes is the Police, CBI, DRI etc. There is a total lack on the part of these law enforcement agencies to train their investigators in this specialized part of investigating white-collar crimes involving forensic accounting. The investigation of the major financial crimes is handled by ordinary investigating officers who after spending some time in investigation of conventional crimes are shunted to the economic offence wing and they are expected to handle the financial crime cases involving complex & intricate financial records which is required to be analyzed to unearth crime or unique MO adopted by the white collar criminal. The result is obvious, the case dies its natural death and the criminals roam free as the IO given his lack of specialized knowledge & qualification fails to properly investigate the financial crime to its logical conclusion. On the other hand if we look at the western countries particularly USA, the law enforcement agencies of which like DEA, FBI, CIA has well marshaled its pool of special agents having forensic accounting backgrounds that are the backbone of the bureau’s financial crimes and terrorism financing units and investigate with professional acumen, the complex financial crime like money laundering, internet crimes, financial institution fraud and other economic crimes. Today, there are more than 600 FBI agents with accounting backgrounds. Thus, it is highly imperative on the part of law enforcement agencies in India that they follow the suit and engage specialist forensic accountant on its roll whose engagements relating to criminal matters typically arise in the aftermath of financial fraud.
a) Section 235 and 237: There are provisions in Companies Act (Section 235 and 237) which empowers the Central Government to inspect the books of accounts of a company, to direct special audit, to order investigation into the affairs of a company and to launch prosecution for violation of the Companies Act, 1956. Books of accounts and other documents of the companies are inspected by the officers of the Directorate of Inspection and Investigation and the Registrars of Companies. These inspections are designed to find out whether the companies conduct their affairs in accordance with the provisions of the Companies Act, 1956 to see whether any unfair practices prejudicial to the public interest are being resorted to by any company or a group of companies and to examine whether there is any mismanagement which may adversely affect any interest of the shareholders, creditors, employees and others. Wherever inspection reports disclose any information that may be of interest to other Departments or agencies like the Ministry of Commerce and Industry, Central Board of Direct Taxes, Enforcement Directorate, State Government or Provident Fund Authorities, such information is passed on to them. If an inspection discloses a prima facie case of fraud or cheating, action is initiated under provisions of the Companies Act, 1956 or the same is referred to the Central Bureau of Investigation.
b) Provisions of Sick Industrial Companies Act incorporated into the Companies Act, 1956: The Section 424A(5) of the Companies Act, 1956 empowers National Company Law Tribunal (NCLT) to examine as preliminary issue whether the company is a sick industrial company u\s 2(46AA). Thus even before examining the viability of the scheme of revival proposed by the company, NCLT can check the genuineness of the reference made to it. Thus, inquiry by operating agency will only be to enable NCLT to decide the viability of the scheme and to assess whether the company has the ability to revive on its own. Further, Section 424B of the Companies Act, 1956 empowers the tribunal to make such inquiry as it may deem fit for determining whether any industrial company has become a sick industrial company. Further, the Tribunal may, if it deems necessary or expedient so to do for the expeditious disposal of an inquiry, require by order any operating agency to enquire into the scheme for revival and make a report with respect to such matter as may be specified in the order. Operating agency is group of experts consisting of persons having special knowledge in banking & industry in which sick industrial company is engaged and includes public financial institution, State level institution, scheduled bank or any other any other person as may be specified by general or special order as its agency by the Board. Thus, Forensic Accountant can be part of operating agency and investigate whether the reference made by the company is genuine or the accounts are manipulated or fabricated to suit the scheme of reference made to NCLT to declare it as sick company and thereby siphon public funds.
The share market is highly volatile and the brokers indulge into various unfair and fraudulent trade practices like synchronized share trading, manipulate and fabricate the books of accounts and cheat the gullible investors. Regulation 11 C of the SEBI Act, 1992 empowers the SEBI to direct any person to investigate the affairs of intermediaries or brokers associated with the securities market whose transactions in securities are being dealt with in a manner detrimental to the investors or the securities market. Thus fraudulent and unfair trade practices of the brokers or market intermediaries are investigated by the investigator appointed by SEBI which require the broker or market intermediary to furnish information, books of accounts, registers, documents or records etc. which is analyzed by the investigator to find out any manipulation, fraudulent practice or otherwise of the broker. Thus, Forensic Accountant can play a lead role in assisting the SEBI to unearth the complex share related frauds perpetrated by the brokers.
Section 33 of the said Act empowers the IRDA to direct any person (“Investigating Authority”) to investigate the affairs of any insurer. The investigating authority may seek assistance of the auditor (or actuary or both) who shall be the Chartered Accountant within the meaning of Chartered Accountant Act, 1949 for the purpose of assisting him in any investigation. The books of account, registers and other documents are taken by the investigating authority in its custody to analyze it to find out the manipulations or fabrication in the books of accounts. Thus, Chartered Accountants plays a front role as an Forensic Accountant and aid in the investigation conducted into the affairs of the insurer as per the provisions of Insurance Act, 1938.
Placement: Physical disposal of cash acquired from illegal sources by depositing the cash in domestic banks or other kinds of financial institutions.
Layering: Working through complex layers of financial transactions to distance the illicit proceeds from their source and disguise the audit trail.
Integration: Making the wealth derived from crime appears legitimate.
CARO, 2003 requires the auditor to report to the effect that if a substantial part of fixed assets have been disposed off during the year, whether it has affected the going concern status. In order to carry out the duties, the auditor has to draw a corollary and reference to the section 293 Companies Act, 1956, AS 24 (’Discontinuing Operations’) and to AAS 16 (Going Concern) and thereafter make his observations on this matter. It also requires the auditor to report on Frauds i.e.; if any fraud on or by the company has been noticed or reported during the year.
An expert witness is a witness, who by virtue of education, training, skill, or experience, is believed to have knowledge in a particular subject beyond that of the average person, sufficient that others may officially (and legally) rely upon the witness’s specialized (scientific, technical or other) opinion about an evidence or fact issue within the scope of their expertise, referred to as the expert opinion, as an assistance to the fact-finder. Expert evidence is evidence given to a court or tribunal by a person, skilled and experienced in some professional or technical sphere, of the conclusions he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements or similar means. It is commonly given by, for example, doctors, chemists, surveyors, architects, accountants and the like. In a Scottish case, Davie v Edinburgh Magistrates (1953) , it was said that the function of an expert witness “…is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusions, so as to enable the judge to form his own independent judgment by the application of those criteria to the facts proved in evidence” .
Expert witnesses have a different status from ordinary witnesses when giving evidence at a Court or other judicial or quasi-judicial tribunals. The evidence of the “expert” differs from that of the ordinary witness who testifies as to facts observed, in that the expert is permitted to express his/her opinion on a matter that has occurred in the past, or may occur in the future which have not been actually observed by the expert, who is providing evidence. The relevance and weight which the Court or tribunal will attribute to such an opinion within the total evidence which is adduced is a matter for the Court or tribunal.
An expert, unlike other witnesses, is allowed, because of his special qualifications and/or experience, to give opinion evidence. It is for his opinion evidence that he is called, not for his view of the facts or circumstances of the dispute, although his interpretation of the facts is often necessary in order to explain and/or justify his conclusions.
The tradition and law relating to the status of the experts as witnesses dates back to English Courts around 1550. However, the first recorded use of an accountant as an expert witness was in Meyer V. Sefton, 2 Stark. 274 (1817). The use of Forensic Accountant testifying as an expert witness in the Court of law is becoming increasingly prevalent today in view of the rapid increase in the financial fraud cases. In court cases where the knowledge of an expert can help to better explain the facts in issue or relevant facts, an “expert witness” may be called upon to give expert testimony.
Section 45 of the Evidence Act which makes opinion of experts admissible, lays down that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. However, neither the Indian Evidence Act nor there is any seminal judicial pronouncements which clarifies as to when, how and under what circumstances, the testimony of Forensic Accounting Expert would be admissible or inadmissible.
In order, to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. The Cost Accountant or Chartered Accountant can be considered as an expert to give testimony within the meaning of Section 45 of the Evidence Act. Moreover, the draft of “The Companies Bill, 2008” includes the definition u/s 2 (1) (zn) which interalia includes Cost Accountant and Chartered Accountant in the definition of “Expert” which can be also considered/extended for relying upon their testimony in the Criminal/civil cases by the court.
In Frye v. U.S., the Court stated that expert testimony will be admitted if based on a methodology “generally accepted” by the scientific community.
Whether the theory or technique is generally accepted in the relevant scientific community.
Although Daubert focused on the admissibility of scientific expert testimony, its progeny have had a great impact on Financial Expert testimony. In Kumho Tire Co. V. Carmichael, 526 U.S. 137 (1999), the Court made clear that the gatekeeper function applies to all expert testimony, not just scientifically-based testimony.
Rule 702 of the Federal Rules of Evidence effectively codifies the Supreme Court’s decisions in “Daubert” and “Kumho”. Rule 702 provides that if the Court finds that scientific, technical or other specialized knowledge “will assist the trier of fact to understand the evidence or to determine a fact in issue,” and if the Court finds that the witness is qualified as an expert “by knowledge, skill, experience, training, or education,” then the Court may permit the witness to testify — so long as the witness’ testimony is based on “sufficient facts or data,” the testimony “is the product of reliable principles and methods,” and the witness has “applied the principles and methodology reliably to the facts of the case.
The accountant’s testimony will help the jurors or judge understand the evidence or determine a fact in issue.
The accountant is qualified as an expert by knowledge, skill, experience, training, or education.
Thus, under the rule announced in Daubert v. Merrill-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and expanded in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the courts must ensure that experts-scientific and otherwise-will offer testimony that is methodologically sound and relevant to the facts of the case before admitting their expert testimony.
Know the relevant professional standards.
Apply the relevant professional standards.
Know the relevant professional literature.
Know the relevant professional organizations.
Use generally accepted analytical methods.
Synthesize the conclusions of the multiple analytical methods.
Disclose all significant analytical assumptions and variables.
Subject the analysis to peer review.
Test the analysis-and the conclusions-for reasonableness.
Now the various investigation agencies such as Police, CBI etc. are taking the help of CA/CWA as a Forensic Accountant and using their report as evidence in the cases of criminal/civil nature. Whether the aforesaid principles/guidelines laid down by the two US Supreme Court Judgments incorporated into Federal Rules of Evidence would be followed by Indian Courts or not will become clear in the due course of time.
However, no doubt, with the rapid increase in the cases involving misappropriation of funds, manipulation of books of accounts, banking fraud cases, Securities scams etc. involving complex financial transactions, the Forensic Accountants and admissibility of their testimony needs to be elucidated and these would be determining factors for deciding the fate of these cases. The involvement of Forensic Accountant in financial fraud cases and his testimony will not only take these cases to logical conclusion but also will go a long way ahead to put a curb on these menace of white collar offences.
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The Complainant is Global Business Network, Inc., Emeryville, California, United States of America, represented by Bromberg & Sunstein, LLP, United States of America.
The Respondent is Mr. James Pinda, Fremont, California, United States of America.
The disputed Domain Name <gbnlook.com> is registered with eNom, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 23, 2006. On January 24, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the Domain Name. Later that day, eNom transmitted by email to the Center its verification response confirming that the Domain Name was placed under a locked status to prevent any transfers or changes to the registration agreement. eNom also confirmed that any correspondence concerning this case must be in English, that the registrant has consented to the jurisdiction of federal and state courts in Kings County, Washington, and that current contact information for the <gbnlook.com> Domain Name can be found using http://whois.enom.com. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 30, 2006. In accordance with the Rules, paragraph 5(a), the due date for a Response was February�19, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of his default on February 21, 2006.
The Center appointed Lynda M. Braun as the sole panelist in this matter on March�1,�2006. The Sole Panelist finds that the Administrative Panel (hereinafter referred to as the “Panel”) was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
On March 9, 2006, the Center received a Supplemental Submission from the Complainant and asked the Panel if it was willing to review it. On March 10, 2006, the Panel agreed to review the Supplemental Submission.
The Complainant is a business consulting firm located in Emeryville, California, that is a wholly-owned entity of Monitor Company Group in Cambridge, Massachusetts. The Complainant provides services in the field of formulating scenario-based business strategies. Since being founded in 1987, and without interruption, the Complainant has used the GBN and GLOBAL BUSINESS NETWORK names and marks in connection with its business consulting services. Since 1998, the Complainant has operated a web site on a domain name, <gbn.com>, that was registered by the Complainant on August 7, 1998.
The Respondent is an individual with a post office box located in Fremont, California. The Respondent registered the Domain Name <gbnlook.com> on October 4, 2004.
On January 5, 2006, counsel for the Complainant wrote to the Respondent, requesting the removal of all content from <gbnlook.com> and the transfer of the Domain Name to the Complainant. The Complainant received no response to the letter, but on or about January 25, 2006, after the instant proceeding was commenced, the Respondent replaced the content on <gbnlook.com> with click-through advertising content.
The Complainant claims that the GBN mark is widely known throughout the United States and the world for its association with the Complainant’s consulting services.
The Complainant asserts that the Respondent has no affiliation with the Complainant and did not receive any authorization from the Complainant to register a domain name incorporating the GBN mark or to otherwise use the GBN mark.
The Complainant contends that the content posted by the Respondent on <gbnlook.com> not only copied the look and feel of the Complainant’s official website, but included copyrighted text lifted directly from the Complainant’s website. The Complainant further contends that the Respondent’s web site was used as a vehicle to disseminate third-party advertisements and sponsored links to internet users confused by the <gbnlook.com> Domain Name.
- Between late 2004 and April 2005, Jaishan Cui of Changchun, China, was the administrative, technical, and billing contact.
- As of April 2005, James Bond of Berkshire, Great Britain, was the administrative, technical, and billing contact.
- As of June 2005, James Bond of Changchun, China, was the administrative, technical, and billing contact.
- Since January 2006, James Pinda of Fremont, CA has been the administrative, technical, and billing contact.
The Complainant maintains that it holds common law rights in the GBN mark for use in, inter alia, business consulting services, and that these rights have been held since 1987, when Global Business Network was founded and began to use the GBN name. The Complainant therefore maintains that its rights in the GBN mark pre-date and are superior to the Respondent’s rights in the <gbnlook.com> Domain Name.
The Complainant avers that the Domain Name is confusingly similar to the GBN mark because it contains the GBN mark in its entirety, regardless of any other terms (in this case, “look”) also present in the Domain Name.
- The Respondent does not use the Domain Name in connection with the sale of legitimate goods and services; rather, the Domain Name is used to redirect confused internet users to the advertisements and sponsored links present on the Respondent’s web site.
- The Respondent is not affiliated with the Complainant, lacks any authorization by the Complainant to register a domain name incorporating the GBN mark, and is not licensed or otherwise permitted to use the mark.
- The Respondent is not commonly known under the GBN name or any similar term.
- The Respondent did not answer the Complainant’s January 5, 2006, cease and desist letter.
- The Respondent copied the “look and feel” of the Complainant’s “www.gbn.com” web site by employing similar colors, layout, and categories.
- The Respondent included numerous references to Peter Schwartz, one of the founders of GBN.
- The Respondent engaged in wholesale copying of portions of the copyright-protected text contained on the Complainant’s “www.gbn.com” web site, violating both copyright law and the terms and conditions governing the Complainant’s official site.
- The Respondent passed himself off as the Complainant GBN for commercial gain.
- The Respondent ignored the Complainant’s cease and desist letter but changed the content of the ”www.gbnlook.com” web site after the instant complaint was filed.
- The Respondent breached his registration agreement by failing to provide accurate and complete contact information to eNom.
The Respondent has failed to respond to the Complaint or to any other communications from the Complainant.
First, the Complainant must prove that the Domain Name is identical or confusingly similar to the Complainant’s service mark. (Policy, paragraph 4(a)(i)).
While the GBN trademark has not been registered, registration is not a requirement for protection under the Policy; unregistered, common law trademarks are also accorded rights so long as the Complainant can establish sufficient secondary meaning in association with the Complainant and the Complainant’s services. Australian Trade Commission v. Matthew Reader, WIPO Case No. D2002-0786; Imperial College v. Christophe Dessimoz, WIPO Case No. D2004-0322; Crux Scientific Publishers BVBD v. W. Frederic Isler, WIPO Case No. D2000-0575. The Panel is satisfied that the Respondent has carried its burden of establishing the necessary distinctiveness of the GBN mark as garnered through nearly 20 years of sustained use in the business consulting community and as reflected on the official “www.gbn.com” web site.
Turning to the issue of similarity of the Domain Name and the trademark, the only differences between the disputed Domain Name and the Complainant’s GBN mark lie in the addition of the word “look” and the inclusion of the generic top-level domain “.com.”. It is generally accepted that the addition of “.com” in no way distinguishes a domain name which otherwise wholly incorporates another’s trademark. Pomellato S.p.A v. Richard Tonetti, WIPO Case No. D2000-0493 (finding <pomellato.com> identical to the Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name “Pomellato” is not relevant); Oxygen Media, LLC v. Primary Source, WIPO Case No. D2000-0362 (finding <oxygen.com> identical to the Complainant’s mark because the addition of “.com” after the name “Oxygen” was not a distinguishing difference).
As for the appending of “look” to the GBN mark, it is well established that the addition of generic words to a mark does nothing to change an otherwise identical or confusingly similar domain name. PRL USA Holdings, Inc. v. Unasi Management Inc., WIPO Case No. D2005-1027 (descriptive or generic additions do not avoid confusing similarity of domain names and trademarks); International Organization for Standardization ISO v. Quality Practitioners Institute and Website Pros, Inc. and Quality, WIPO Case No. D2005-1028 (the addition of generic words to a mark to form a domain name is insufficient to dispel confusing similarity). To the extent the word “look” is evocative of the similar look and feel of the ”www.gbnlook.com” site to the official GBN site, the likelihood of confusion is even higher.
The Panel therefore concludes that the disputed Domain Name <gbnlook.com> is confusingly similar to the Complainant’s GBN mark.
Once a complainant establishes that a respondent’s domain name is identical or confusingly similar to the complainant’s mark, and that the complainant has not authorized respondent to use the mark, the burden shifts to the respondent to establish some right or legitimate interest in respect of the domain name. Sony Kabushiki Kaisha v. Sony.net, WIPO Case No. D2000-1074. In light of the Respondent’s default, the Panel presumes that the Respondent has no such rights or legitimate interest.
The Respondent’s default notwithstanding, there is no evidence in the record that the Respondent is in any way associated with the Complainant, that the Respondent is now or was ever known by <gbnlook.com>, or that the Respondent has other authority or permission to use the Complainant’s mark. Furthermore, by not submitting a Response, the Respondent has failed to invoke any other circumstance that might demonstrate, pursuant to paragraph 4(c) of the Policy, that it holds some right or legitimate interest in the disputed Domain Name. Ahead Software AG v. Leduc Jean, WIPO Case No. D2004-0323; See also Nintendo of America, Inc. v. Tasc, Inc. and Ken Lewis, WIPO Case No. D2000-1563 (the respondent’s default alone sufficient to conclude that it had no rights or legitimate interest in the domain name).
Moreover, the Respondent’s use of the Domain Name to redirect unsuspecting internet users to click-through advertisements and sponsored links present on <gbnlook.com> fails to constitute a bona fide commercial offering of goods and services under the contested Domain Name. Such use certainly does not constitute a legitimate non-commercial or fair use without any intent either for commercial again, or to mislead or divert consumers or tarnish the trademark at issue. See MSNBC Cable, LLC v. Tysys.com, WIPO Case No. D2000-1204.
Finally, the Respondent’s failure to respond to the Complainant’s cease and desist letter is indication of the Respondent’s lack of legitimate interest in the <gbnlook.com> Domain Name. Pfizer Inc. v. Asia Ventures, Inc., WIPO Case No. D2005-0256.
As such, the Panel finds that the Respondent has no rights or legitimate interest in the disputed Domain Name. Accordingly, the Complainant has proven paragraph 4(a)(ii) of the Policy.
The Complainant must additionally establish that the disputed Domain Name has been registered and is being used in bad faith (Policy, paragraph 4(a)(iii)). Based on the record presented, the Panel concludes that the Complainant has proffered sufficient evidence of bad faith.
As an initial matter, the Panel finds that the Respondent has furnished incomplete and misleading contact information to its Registrar, which constitutes a breach of the registration agreement,1 and is also evidence of bad faith. See, e.g., Women in Military Service for America Memorial Foundation, Inc. v. Russian Web Marketing, WIPO Case No. D2001-0610; Advanced Micro Devices, Inc. v. [No Name], WIPO Case No. D2000-0515. “An obligation exists on each domain name registrant, under its registration agreement, to not only provide its registrar with current, complete and accurate contact information but also to update that information to reflect any subsequent changes in order that the information, accessible through the WhoIs database, is always current, complete and accurate.” Park Place Entertainment Corporation v. Bowno, WIPO Case No. D2001-1410 (panels view erroneous contact information as a deliberate, continuing attempt calculated to conceal that registrant’s identity and location, and thereby frustrate service of process and obstruct the application of the Uniform Policy).
The Panel also finds that the Respondent copied a substantial portion of the look and feel of the Complainant’s “www.gbn.com” web site, providing further indicia of bad faith.
Burlington Networks Inc. v. Igor Sashin, WIPO Case No. D2005-1036 (replicating the look and feel of the complainant’s website suggests that the respondent was engaging in a bad faith deception as to its identity).
Finally, in addition to the copying of stylistic components, the Respondent also engaged in wholesale copying of copyrighted text from “www.gbn.com”, a hallmark of bad faith registration and use. See Amanresorts Ltd. v. Access Bali Online, WIPO Case No. D2004-0219 (use of the complainant’s copyrighted material promotes confusion as to affiliation, sponsorship, and/or endorsement of the respondent by the complainant).
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <gbnlook.com> be transferred to the Complainant.

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§ 200-8 Classes of districts.
§ 200-14 Area and bulk regulations.
§ 200-18 Area and bulk regulations.
§ 200-22 Area and bulk regulations.
§ 200-23 Community facilities for other than single-family detached dwellings.
§ 200-24 Site development standards.
§ 200-28 Area and bulk regulations.
§ 200-30 Site development standards.
§ 200-35 Sewer and water service.
§ 200-37 Use regulations and development standards.
§ 200-40 Area and bulk regulations.
§ 200-41 Sewer and water service.
§ 200-45 Area and bulk regulations.
§ 200-50 Area and bulk regulations.
§ 200-54 Establishment of district.
§ 200-56 Special provisions for certain kinds of development.
§ 200-61 Application procedures and requirements.
§ 200-62 Accessory use regulations.
§ 200-63 Conversion of dwellings.
§ 200-66 Nursing and convalescent homes.
§ 200-67 Agricultural land uses.
§ 200-67.1 Keeping of domesticated chickens.
§ 200-68 Recreational land use.
§ 200-69 Criteria for common and/or restricted open space.
§ 200-70 Shopping center standards.
§ 200-71 Planned residential development.
§ 200-72 Flexible/open space development option.
§ 200-72.1 Adaptive reuse for historic preservation.
§ 200-74 Loading and unloading.
§ 200-75 Access and traffic control.
§ 200-82 Physical performance standards.
§ 200-84 Public utility corporations and authorities.
§ 200-85 Vehicular service establishments.
§ 200-86 Modification of single-family residential front yard requirements.
§ 200-87 Projections into required yards.
§ 200-88 Fences and walls.
§ 200-89 Federal and state owned property.
§ 200-91 Wireless communications facilities.
§ 200-92 Amateur radio antennas, amateur radio stations and amateur radio support structures.
§ 200-93 Compliance and intent.
§ 200-94 Regulations applicable to all signs.
§ 200-96 Temporary sign regulations.
§ 200-97 Signs in residential districts.
§ 200-98 Signs in commercial, limited industrial and planned industrial/office districts.
§ 200-109 Applicability, administration and enforcement; violations and penalties.
§ 200-110 Common permit regulations.
§ 200-117 Conditional use standards.
§ 200-120 Statutory provisions; establishment and membership.
§ 200-122 Applications for hearings.
§ 200-123 Notice of hearings.
§ 200-124 Expenditures for services; fees.
§ 200-127 Expiration of special exceptions and variances.
§ 200-128 Parties appellant before Board.
§ 200-130 Parties to hearing.
§ 200-131 Stay of proceedings.
§ 200-133 Power of amendment.
§ 200-135 Planning Commission referral.
§ 200-136 Curative amendment procedures.
§ 200-138 Decisions of Board of Supervisors.
Driveways — See Ch. 74.
Impact fees — See Ch. 79, Art. I.


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Member: The Florida Bar (Member, Criminal Law Section, 1985—; Trial Lawyers Section, 1990—); Academy of Florida Trial Lawyers; National Association of Criminal Defense Lawyers; Association of Trial Lawyers of America.
Reported Cases: Wild v. Dozier, 672 So.2d 10 (Fla. 1996); Cave v. Slugletary, 84 F.3d 1350 (11th Cir. 1996); Cave v. State, 727 So.2d 227 (Fla. 1998); Cave v. State, 660 So.2d 705 (Fla. 1995); Smith v. State, 743 So.2d 141 (Fla. 4th DCA, 1999); McArthur v. State, 671 So.2d 867 (Fla. 4th DCA 1996); Barnes v. State, 588 So.2d 1076 (Fla. 4th DCA 1991); O’Hara v. State, 642 So.2d 592 (Fla. 4th DCA 1994); Fay v. State, 753 So. 2d 682 (Fla. 4th DCA 2000); Corona v. State, 814 So.2d 1184 (Fla. 4th DCA 2002); Minichino v. State, 776 So.2d 994 (Fla. 3rd DCA 2001).

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§ 838.901 Purpose and scope.
§ 838.911 Identifying the retirement system.
§ 838.912 Specifying an award of a former spouse survivor annuity.
§ 838.921 Determining the amount of a former spouse survivor annuity.
§ 838.922 Prorata share defined.
§ 838.923 Cost-of-living adjustment before the death of a retiree.
§ 838.931 Court orders that provide temporary awards of former spouse survivor annuities.
§ 838.932 Court orders that permit the former spouse to elect to receive a former spouse survivor annuity.
§ 838.933 Payment of the cost of a former spouse survivor annuity.


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[175 U.S. 500, 501] Solicitor General Richards and Mr. Matthew G. Reynolds for appellant.
Messrs. Edward L. Bartlett and T. B. Catron for appellees.
This case comes from the court of private land claims, and the first contention of appellees, made on a motion to dismiss the appeal, is that it was not taken in time. The decree was entered December 1, 1896, and the appeal was not allowed until April 14, 1898. Section 9 of the act creating the court of private land claims (26 Stat. at L. 858), while giving to either party the right of appeal within six months from the date of the decision, also provides that on the rendition of a judgment confirming any claim it shall be the duty of the attorney of the United States to notify the Attorney General in writing of the judgment, giving a clear statement of the case and the points decided,-a statement to be verified by the certificate of the presiding judge of the court; and also that if the Attorney General shall not receive such statement within sixty days next after the rendition of a judgment the right of appeal on the part of the United States shall continue to exist until six months next after the receipt of the statement. It appears in the record, from the certificate of the judge allowing the appeal, that no such statement was sent to the Attorney General until March 9, 1898, or received by him until March 25, 1898. So, within the letter of the statute, the time for an appeal on the part of the United States had not expired. [175 U.S. 500, 502] It is also insisted that it is the duty of the United States attorney to give this notice, and that, therefore, his dereliction cannot enlarge the time within which the government must act if it wishes to appeal. Can he, it is asked, continue indefinitely the right of appeal? In the brief filed by the government is a statement of the reasons for the delay in giving the notice, but it is unnecessary for us to enter into any examination of the matter. It is enough that it was called to the attention of one of the justices of the trial court, who has, by allowing the appeal, approved the action of the attorney. It is for the party challenging such action to show that it was wrong.
A third proposition is that no assignment of errors is annexed to the transcript, as required by 997 and 1012 of the Revised Statutes. But this is not sufficient to comple a dismissal of the appeal. Paragraph 4 of rule 21 of this court provides that the court may at its option notice a plain error not assigned. School District v. Hall, 106 U.S. 428 , 27 L. ed. 237, 1 Sup. Ct. Rep. 417.
A final contention is that the allowance of appeal was not made by the presiding judge but by one of the associate justices of that court. But the provision of 9 is that appeals shall be taken in the same manner and upon the same conditions as appeals from the judgments of a circuit court of the United States, and by 999 of the Revised Statutes any judge of such court has the power to act. The rule is different in cases coming from a state court. Havnor v. New York, 170 U.S. 408 , 42 L. ed. 1087, 18 Sup. Ct. Rep. 631.
There is no sufficient reason for sustainting the motion to dismiss, and it is denied.
Santa F e, February 25, 1836. [175 U.S. 500, 503] Having seen the action of the ayuntamiento of Ojo Caliente of date 22d instant, in which they say there is no objection to granting the applicant and his associates the land mentioned, the former grantees not possessing now any right herein, they having abandoned the same, the alcalde of said place will place those who now apply for the same in possession thereof in the required form and in conformity with the law on the subject, setting forth the general donation, in which shall necessarily be stated the boundaries of said possession, and without prejudice to any third party; also binding the grantees to the obligations prescribed by the laws to acquire title, for which purpose the alcalde shall take charge of the general document of distribution, which shall be for the archives, and he shall give testimonios therefrom, as may be requested of him, on payment of his corresponding fees.
For the years one thousand eight hundred and thirty-six and eight hundred and thirty-seven.
At Santa Cruz del Ojo Caliente, jurisdietion of this name, on the twenty-fifth day of the month of March, one thousand eight hundred and thirty-six, in compliance with the decree of the civil and military governor of the Territory of New Mexico, Alvino Perez, of date February 25th of the same year, in which he directs me to place in possession the petitioners who have applied for the Petaca tract of land, and as is set forth in their petition of date 29th of January of the same year, I proceeded to distribute said land in the presence of the parties interested, giving to each one of those mentioned in the list one hundred and fifty varas in a direct line, designating to them as their boundaries on the south the entrance to the canoncito and lands of Jose Miguel Lucero, on the north the hill commonly called the Tio Ortiz Hill, on the east the creek of the aguaje of the Petaca, and on the [175 U.S. 500, 504] west the boundary of the Vallecito grant, within which limits the said new grantees were located. Of these I donated only to citizen Felipe Jaquez from the boundary of Vicente Martin to that of Eusebio Chaves, the land being a narrow strip and of little utility; thereupon I donated to citizen Manuel Lujan two small valleys, which were not measured with the line and reach to the distribution of the said canoncito, and I donated to citizen Mariano Pena two small valleys, very narrow, without varying; and, continuing, I donated to citizen Antonio Eluterrio Ortiz, in the same canoncito, a small valley, also without varying; following the same course in the said canoncito, I donated to citizen Jose Francisco Lucero a small valley, also without varying, and to Jose Antonio Lucero another small valley, the boundary thereof being on the south the mouth of the same canoncito, leaving therefor a plaza one hundred and fifty varas, and fifty for women's gardens and fifty for ingress and egress, there remaining at the mouth of the canada de la Dorada, for common watering places, one hundred and fifty varas in a direct line, which donation I made in the name of the national sovereignty, in conformity with the law on the subject, the grantees mentioned in the annexed list understanding that the pastures, forests, waters, and watering places are in common, and they were further informed that he who fails to occupy and cultivate the land granted within the term of five years, in order to acquire title, the same cannot be by him sold, exchanged, or alienated, nor will he be admitted in a new settlement; and if any should of their own accord abandon the tract, they remain informed further that they possess no right, such being the requirements of law; and being informed of and agreeing to all this, they received the accepted possession, in virtue of which they plucked up herbs, leaped, cast stones, and shouted with joy, saying, God be praised, long live the nation, long live the sovereign congress and the law that governs and protects us, and other manifestations of pleasure, by virtue of which they took possession; and, that it may so appear, at all times, I, under this decree, signed this grant and donation with all the authority His Excellency was pleased to confer [175 U.S. 500, 505] upon me for the purpose set forth in the above petition and expressed in said decree attached to the present grant, the witnesses being the citizens Jesus Maria Barela and Jose Maria Barela and Jose Francis Lucero, as properly made.
What was the scope and effect of this grant? Obviously we think to give to each individual named in the list the particular tract set apart to him. It was a grant in severalty, and not one of a single large tract to several persons to be by them held in common or distributed among each other. It matters not that the petition for this grant was in the name of only two or three individuals, for it was not an uncommon thing for one or more to appear as the representatives of a body or a number of persons. The language of the order of the governor seems to contemplate a grant in severalty, for it speaks of 'the general donation, in which shall necessarily be stated the boundaries of said possession.' The outer limits within which the grants are to be made are to be stated, and within those limits the several grantees are to have their possessions. Again, the provisions that 'the alcalde shall take charge of the general document of distribution' and 'give testimonios therefrom as may be requested,' carries the same suggestion. The alcalde is to take charge of this general document for filing in the archives, but while holding it he is to give testimonios from it to the several parties who receive grants within the out-boundary limits.
But whatever doubts might arise from an examination of the governor's order, if that was the only document to be considered, the report of the alcalde's proceedings shows affirmatively that he distributed the lands in the presence [175 U.S. 500, 506] of the parties interested, 'giving to each one 150 varas in a direct line.' He evidently understood that he was to distribute this land among certain individuals. He proceeded to do so and gave juridical possession accordingly. Whatever may be thought of his interpretation of the governor's order, the only juridical possession which is shown to have been given is juridical possession in severalty to the parties named in the list. The original petitioners were never put, so far as the record shows, in juridical possession of the entire tract, and such a grant, if it was so intended, was never made effective by any juridical possession. We think it more in consonance with justice and equity to hold, not that the grant was of an entire tract which never became operative because of a failure to give juridical possession, but that the alcalde rightfully understood it as a grant in severalty, and giving juridical possession vested in the grantees the tracts of which they were so placed in possession. United States v. Santa F e, 165 U.S. 675 , 41 L. ed. 874, 17 Sup. Ct. Rep. 472; United States v. Sandoval, 167 U.S. 278 , 42 L. ed. 168, 17 Sup. Ct. Rep. 868; Rio Arriba Land & Cattle Co. v. United States, 167 U.S. 298 , 42 L. ed. 175, 17 Sup. Ct. Rep. 875.
While the evidence as to the possession subsequent to the action of the alcalde is not very specific or entirely satisfactory, yet we think it is a fair conclusion that the parties did go into possession and continued that possession until the cession by the treaty of Guadalupe Hidalgo. It is very likely, as suggested, that during the war between Mexico and the United States the possession was in some respects at least interrupted, but such interruption cannot be adjudged fatal to the validity of the grant. We, therefore, are constrained to hold that this grant should be sustained as a grant in severalty to the individuals named in the list.
In fulfilment of the discharge of your duty you will go to the point of La Petaca to place in possession all the individuals who are noted down in the grant of said possession, which ought to be in the archive under the charge, giving the lots which are found vacant to those persons who ask for them and who are unprovided, the equality in all the possessions, and that they pay you your fees.
To the Alcalde Don Vicente Jaramillo.
General list, formed at the new possession which they commonly call La Petaca, made to-day, the 27th of March, of the year of our Lord 1848, in conformity to the superior decree of the prefect, Don Salvador Lucero, where he orders me that I place in possession those citizens who justly may have died or are not present; thus it is that, having stopped at the first boundary, which consists of the plaza, upwards, accompanied by the retiring justice, Don Bernardo Valdez, and my clerk, Vicente Abilucea y Cordoba, and all the municipality of citizens, and for the exact fulfilment I stated in a loud voice that I was going to measure the land in the name of the Territory of New Mexico, and that they shall receive that concession in the name of the Constitution of the United States, etc., and that measurement to the parties placed in possession was begun by the retiring justice of the peace, Don Bernardo Valdez, of that which he had donated from the year 1843, and they are the following.
And in order that this may in all time appear, which are [175 U.S. 500, 508] required by the law, they took possession of it by the authority and in the name of the Territory of New Mexico and respecting the Constitution of the United States, and I, the attending witness, and the retiring justice signing to-day, the day of the above date ut supra.
Note.-The citizens placed in possession in this grant with 150 varas and with the others who may have more shall have to enjoy them in the name of the Territory of New Mexico and the Constitution of the United States, as this is the authentic disposition of the retiring and new officials, and by superior order there was given and donated to them the said possessions in the regular rule of 150 varas and in a straight line on both sides of the stream. In order that this favor may have the force and validity which the laws cite, we sign and authenticate it with all the powers which are conferred, in order that there may be no change and that it may not be again donated by another justice, except on account of abandonment of five years, or on account of not wishing to work in the fulfilment, benefit, proper, but then through the mayordomo report will be made to this court in order that another may enjoy that which he may reject; and this donation was signed and given to-day, the 27th of March, of the year of our Lord 1848.
of the County of Rio Arriba.
In respect to this it is enough to say that in so far as it was an attempt to create new rights it was beyond the power of the officials who assumed to act. The order of the prefect has a twofold aspect. It directs the alcalde to put in possession those who were named in the original grant, and this may have been within the scope of his authority. But it also attempts to make a grant to additional persons, and this was beyond his power. Crespin v. United States, 168 U.S. 208 , 42 L. ed. 438, 18 Sup. Ct. Rep. 53. Neither could the alcalde make such a grant. Hays v. United [175 U.S. 500, 509] States, 175 U.S. 248 , 20 Sup. Ct. Rep. 80, 44 L. ed. --. Indeed, it may well be doubted whether, since the country was in the possession of the United States forces, and a treaty had already been signed, which was shortly thereafter ratified, for the cession of the entire territory, any Mexican official could by new grants diminish the amount of land which was to become the property of this government. And of course it goes without saying that no such officials had authority under the Constitution and laws of the United States to grant public lands. This whole proceeding may rightfully be ignored except so far as it indicates those who took title under the original grant, or discloses those who were their successors in interest. Further than this it has no significance.

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STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. T.L.C., ET AL.
In this appeal the Appellant, R.L.P, Sr., argues that the Trial Court erred in terminating his parental rights to his son, R.L.P., Jr. We vacate the judgment of the Trial Court and remand.
HOUSTON M. GODDARD, P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and CHARLES D. SUSANO, JR., joined.
James H. Henry, II, Tullahoma, Tennessee, for the Appellant, R.L.P., Sr.
The child in this matter, R.L.P, Jr., was born July 13, 2000. In late November of 2000 the Department of Children's Services ( hereinafter "the Department") in an investigation upon referral became aware that R.L.P., Jr., who has had asthma since birth, was being kept in an apartment which was unlighted and cold, electrical service having been temporarily discontinued the previous day. At the time the whereabouts of his mother, T.L.C., were unknown and he was in the sole care of his father, R.L.P., Sr. According to Debra Phillips, the Department employee conducting the investigation, R.L.P., Jr. "felt warm like he had a fever" and "had a wheezing sound when he breathed." R.L.P., Sr. indicated that he felt his son needed to go to the doctor as soon as he could make an appointment; however, it appears that he was without transportation.
On December 4, 2000, the Department filed a petition for temporary custody of R.L.P., Jr. in the Coffee County Juvenile Court. Based upon its finding that there was probable cause to believe that R.L.P., Jr. was a dependent and neglected child, the Trial Court granted the Department's petition. R.L.P., Jr. was subsequently transferred to a foster home in the care and custody of R.L.P., Sr.'s cousin and was thereafter transferred to another foster home where he was still residing at the time of trial.
The Department began working with and monitoring the family and permanency plans were approved by the Court with the designated goal of reuniting R.L.P., Jr. with his parents. However, the Department ultimately concluded that parental rights should be terminated and on May 1, 2002, it filed a petition seeking that result.
Trial of the petition to terminate was held on August 22, 2002. The Trial Court found that the Department's petition relied upon three grounds for termination - abandonment, substantial non-compliance with the permanency plan and persistence of those conditions which were present at the time of R.L.P., Jr.'s removal from his parents. The Court found that the Department had failed to prove that R.L.P., Jr. was abandoned or that there was substantial non-compliance with the permanency plan. The Court did, however, determine that conditions present at the time of the child's removal persisted at the time of the petition to terminate. After making this determination, the Court further determined that it would be in R.L.P. Jr.'s best interest if parental rights were terminated and granted the Department's petition. Thereafter, R.L.P., Sr. filed this appeal.
Is there clear and convincing evidence to support the Trial Court's determination that there are grounds for termination in this case under T.C.A.(g)(3)(A)?
Our standard of review in this non-jury case is de novo upon the record of the proceedings below and there is no presumption of correctness with respect to the Trial Court's conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996) and T.R.A.P. 13(d). The Trial Court's factual findings are, however, presumed to be correct and we must affirm such findings absent evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn. 1993).
Noting the U. S. Supreme Court's decision in Santosky v. Kramer, 455 U.S. 745 (1982), this Court has hitherto recognized that "[d]ue process requires that the parent's conduct allowing the state to terminate the parent-child relationship must be established by clear and convincing evidence." Stokes v. Arnold 27 S.W.3d 516 (Tenn. Ct. App. 2000). "Clear and convincing evidence" is evidence which "eliminates any serious or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence." O'Daniel v. Messier, 905 S.W.2d 182 (Tenn.Ct. App. 1995).
That termination of the parent's or guardian's rights is in the best interests of the child.
The continuation of the parent or guardian and child relationship greatly diminishes the child's chances of early integration into a safe, stable and permanent home.
R.L.P, Sr. concedes that R.L.P., Jr. has been removed from the home for six months but he denies that there is clear and convincing evidence in this case which supports the Trial Court's finding of the persistence of those conditions which led to his son's removal or "other conditions which in all reasonable probability would cause the child to be subject to further abuse or neglect."
The last ground would be persistent conditions, the conditions which were present at the time this child was removed. As I said earlier, there was obviously an inability for [R.L.P., Sr.] to provide for this child. There was an inability to have adequate money to provide a suitable home for this child. There was apparently an inability or at least some concern about providing medical attention in the appropriate manner, to provide appropriate food and shelter, the basic necessities for this child.
At this point [T.L.C.] was not at the home. She had chosen to leave for whatever reason and there was no evidence to suggest why she left. She just testified she left and had gone with her parents or had gone with some friends. Those are the conditions which we have to look to see if they persisted over a period of time up until the filing of the petition.
The facts are as follows that I find to be pertinent and proven by clear and convincing evidence, the facts as it relates to this particular ground. [R.L.P., Sr.] has had five different residences since this case began. [T.L.C.] has had seven different residences since this case began in 2000. While [T.L.C.] has worked it appears that [T.L.C.] has worked on a more consistent basis than [R.L.P, Sr.], but her employment has been sporadic. At times she has worked more than one job. I think she has made a good faith effort to maintain employment.
[R.L.P., Sr.'s] employment history is more checkered. He is sporadic at best. At one point he apparently voluntarily left employment on at least two occasions, one at Desa and one at Calsonic, both of which were apparently fairly good-paying jobs and his reason at least for one of those occasions was that he did not have transportation.
Neither parent has completed their high school education. The child that's the subject of this litigation, [R.L.P., Jr.] is a special needs child for speech and hearing therapy. The visitation has been inconsistent. I'm speaking primarily of the time frame December of 2000 to April of 2002. There have been sporadic inconsistent visitation.
I feel that there have been times when both [R.L.P., Sr.] and [T.L.C.] have attempted to contact Children's Services and there may have been some confusion, but it's obvious that at other times that simply visitation was not exercised. How many times those are, I can't tell. I don't think anyone could make a determination of that.
The separation of [R.L.P., Sr.] and [T.L.C.] was a contributing factor and a condition which existed in December of 2000. There has been since December of 2000 at least one other separation which occurred in February of 2002.
[R.L.P., Sr.] does not have a driver's license at this point they are suspended and that has apparently contributed to his inability to find consistent employment. [T.L.C.] has been without a valid license for some time, has been aware of it for a shorter period of time, but apparently has taken some measures to get that problem straightened out.
What I'm going to find based upon those facts is that the conditions which existed December 2000 have persisted and existed as of April 2002. I think the facts justify that finding. Those primary conditions being the separation, the failure to have steady employment, and the failure to have a stable, adequate home. Those are the primary conditions that have existed on and off for approximately two years, December until April of 2002.
Q In other words, your investigation was based on the fact that you had a report that there was an inadequate environment. You went there and you found what you felt was, in fact, an inadequate environment.
Q It was cold inside. There was no heat and light and so you further investigated.
Q Okay. But if there had been heat and light in the place, you probably would have said, "Well, okay, maybe he needs a little bit of help, but that's it." Is that my understanding?
Q Okay. So after you did your investigation, it's my understanding that the primary concern then was the capability of the parents in taking care of [R.L.P., Jr.]?
The problem is that [R.L.P., Sr.] at that particular time didn't seem to have skills to take care of a baby and keep that baby safe and healthy. It wasn't that he didn't care about the child.
In summary, it may be stated that the original conditions which led to the child's removal were the father's ignorance of parenting skills, the financial inability of the father to provide certain basic necessities for his child, and the absence of the mother as a result of the parents' separation and the resultant instability in the home.
We now review the findings of the Trial Court which it presented in support of its determination that grounds for termination of parental rights exist under T.C.A. 36-1-113(g).
The first condition designated by the Court is the fact that, since R.L.P., Jr. was removed from the home in December of 2000, the father has had five different residences and the mother has had seven different residences. This finding is confirmed by the parents' own testimony. However, we do not agree that the mere fact that the parents were living in multiple locations during the eighteen month period preceding trial denotes the existence of a condition that in all reasonable probability would cause R.L.P., Jr. to be subject to abuse or neglect. There is no proof that any of the residences in which either R.L.P, Jr. and T.L.C. lived during this period of time presented an environment that was either unsafe or unhealthy for their child. In fact, Jessica Johnson, the Department caseworker who handled this case from December of 2000 until June of 2001 and from April of 2002 until trial, confirmed that the parties maintain a "clean and loving home" and stated " The home is very clean. They've never had a problem with clean." Although there is testimony that one of the residences in which the parents lived with relatives of R.L.P., Sr. was crowded, there is no evidence that that residence or any other residence inhabited by the parents since removal presented an environment that was either unsafe or unhealthy.
The next condition referenced by the Trial Court is the sporadic employment record of each of the parents. R.L.P., Sr. testified that he works "occasionally" and is permanently registered with a staffing agency which places him for work when they have an opening. He further indicated that the jobs he acquires through this agency are of variable duration. It appears that the longest period of time that R.L.P., Sr. has held a job is one year. He lost this job as well as another job of relatively long duration which he had obtained through the agency because his car broke down and he could not secure alternative transportation. He did, however, testify without contest that he now owns a car and a truck. Although he testified that at the time of trial his driver's license had been suspended for failure to pay a ticket, he also testified that he has now paid the ticket and that he will have his license back once he has paid the reinstatement fee. T.L.C.'s license was also suspended but, according to her testimony, had been reinstated at the time of trial. R.L.P., Sr. attested that he was not employed at the time of trial and was most recently employed one month before trial doing carpet and furniture cleaning work. The record shows that T.L.C. has been employed off and on since R.L.P., Jr. was removed from the home. It appears from the record that at some point T.L.C. was working two part time jobs. It also appears that she was working during the first three months of 2002, was employed sporadically thereafter and was employed at the time of trial.
While we find that the record confirms the finding of the Trial Court that both parents have a sporadic work history, we do not agree that this constitutes a condition which warrants termination of their parental rights. Although at the time of R.L.P., Jr.'s removal, power to the home had been cut off because R.L.P., Sr. was unemployed and unable to pay for electrical services, there is no proof that, since that time, he has either had insufficient income to pay for electrical services or been without such services. Nor has it been demonstrated that he has had insufficient resources otherwise to provide for R.L.P., Jr. We do not agree that the Department has presented clear and convincing evidence that the sporadic employment of the parents would in all reasonable probability cause R.L.P., Jr. to be subject to abuse or neglect.
We next address the Trial Court's finding that neither parent has completed high school. Although T.L.C. testified that she only completed the eleventh grade and is endeavoring to obtain a GED, R.L.P., Sr. testified without dispute that he did graduate from high school. Thus, it is our determination that the Trial Court's finding that R.L.P., Sr. did not complete his high school education is erroneous. In any event, we do not agree that the fact that either parent failed to complete high school constitutes a condition that in reasonable probability would cause R.L.P., Jr. to be subject to abuse or neglect.
We next address the matter of the parents' visitation of R.L.P., Jr. after his removal from the home. As the Court indicates, the record is somewhat confusing as to frequency of visitation. The record shows that the Department began working toward extended visitation in September of 2001 and that overnight visitation for two consecutive nights began around Thanksgiving of that year. Visitation appears to have been regular throughout December of 2001 with weekly overnight visitation continuing; however, there seems to have been only one three day visit at the beginning of January. The most extensive period of time the parents failed to visit appears to have been a six week period which began in mid-February of 2002 when Ms. Conley informed the parents. that she would be proceeding with termination of their parental rights. Her testimony is that the parents became very upset at that point. "When I would attempt to speak with [T.L.C.] about it, she would say, "You've already decided you're taking him away. There isn't any reason for me to come visit." Apparently R.L.P., Sr. visited only once during this period. The record shows that visitation resumed the first of April, 2002, and from that time until the first of May there were six visits and two cancellations.
Although we do not disagree with the Court's finding that at times visitation was not exercised by the parents, we do not agree that their failure in this regard was so extreme under the circumstances as to constitute clear and convincing evidence of a condition which would in all reasonable probability cause R.L.P., Jr. to be subject to abuse or neglect.
The next factor we address which was referenced by the Trial Court is the instability of the parents' relationship. The record shows that, as of trial, this relationship had lasted for approximately four years and T.L.C. testifies that she and R.L.P., Sr. have separated a total of three or four times during that period. As to the period of time subsequent to the removal of R.L.P., Jr., the parents apparently remained separated from late November of 2000 until they reunited in June of 2001. In January of 2002 the parents separated again but reunited in March of that year and were continuing to live together at the time of trial.
I've noticed that [the parents] are generally happy to see him and he's happy to see them. I've noticed that [R.L.P., Sr.] is usually the one who holds [R.L.P., Jr.] and takes care of him during the visitation. He's usually the primary caretaker in the visits that I have observed and in the interactions I have observed.
Ms. Conley testified that during the period of time between September and December of 2001 on three days each week the parents would pick R.L.P., Jr. up in the morning and keep him all day. Ms. Conley further testified that during this period of time there would be days when R.L.P., Sr. would have the child by himself. Apparently the Department was satisfied with visitation and R.L.P.' Sr.'s performance during this period because it allowed overnight visitation to begin in late November of 2001. We also note the fact that R.L.P., Sr. had completed parenting classes by the end of March 2002. In view of all this we cannot agree that there is clear and convincing evidence that R.L.P., Jr. would in all reasonable probability be subject to neglect even in the event of the parties' separation.
The Department asserts that there have been instances of domestic violence in the home between R.L.P., Sr. and T.L.C. Although the Trial Court found that there was "some degree of domestic violence in the home" in conducting the "best interest" analysis required under T.C.A. 36-1-113(c)(2) it made no specific findings as to the circumstances of such violence and it did not support its determination that grounds exist for termination under T.C.A. 36-1-113(g)(3)(A) with this finding. In support of its assertion regarding the persistence of domestic violence in the home, the Department cites testimony of R.L.P., Sr. wherein he admits that he has pushed T.L.C. and that on one occasion he struck her. The Department does not state when these events took place nor is this indicated in the referenced testimony. When asked if he fights often with T.L.C., R.L.P., Sr. testified "Not anymore. I try to avoid that." While we condemn any violence which may have occurred between these parents, we do not find that the Department has presented clear and convincing evidence that domestic violence is a persisting condition in the home that in all reasonable probability will subject R.L.P., Jr. to abuse or neglect.
For the foregoing reasons the judgment of the Trial Court is vacated and the cause is remanded for proceedings consistent with this opinion. Costs of appeal are adjudged against the State of Tennessee, Department of Children's Services.