DHR Letter from Mark Davis

The below is a letter written by Mark Davis sent to Bob Maddox of the Administrative Office of the Courts and the Alabama Child Support Advisory Committee. The Committee Meets on Friday morning July 25, 2014.


July 22, 2014

Mark D. Davis
[REDACTED]
Florence. Alabama 35633
[REDACTED]@icloud.com

Mr. Bob Maddox, Legal Division AOC
300 Dexter Avenue
Montgomery, Alabama 36104
[REDATED]@alacourt.gov

Re: Advisory Committee, Child Support, July 25, 2014

Dear Mr. Maddox:

I have the following concerns about the state of Alabama??™s application of child support services, child support enforcement and application of Alabama Rule 32 ARJA as related to Federal Title IV-D funding.

I am a voter, Alabama citizen, and an active divorced parent to a 12-year old daughter. In 2002, when our daughter was 18 months old, I was awarded equal custody in the state of Tennessee on a four-day rotating basis and ordered to directly support our daughter. The Tennessee order was implemented consistent to Title IV-D mandates revised in 1997 of the Federal Public law 104-193. I have always fully supported my daughter willingly out of love for her. In 2006, after my daughter??™s mother and I moved to Alabama, and while the 2002 Tennessee judgment remained pending on remand from an appeal in Tennessee, the state of Alabama modified the Tennessee judgment without requiring the Tennessee judgment properly registered pursuant to the Uniform Interstate Family Support Act (UIFSA). Ala. Code 1975, § 30-3A-101 et seq., mandated by Title IV-D of 42 USC 666 and Public Law 104-193.

The 2006 Alabama child support judgment was reversed by the Alabama Appellate Courts in 2007, 2009, 2010, 2012 and 2013.

In July 2012, I filed a federal complaint against three trial court judges, several employees within DHR, the local DHR attorneys and several local attorneys. The federal complaint was dismissed on immunity grounds and that decision was upheld by the 11th Circuit COA in November 2013.

In 2010, the Alabama DHR became involved in the private pending state court legal case to which the mother at all times had two private attorneys for legal representation.

In 2010, with the Alabama child support issue reversed and pending a hearing in the state trial court, the Alabama DHR was provided timely notice that the Tennessee judgment was not UIFSA registered.

At all times, including currently, the Lauderdale County Alabama DHR, Alabama DHR, Lauderdale County District Attorney Chris Connolly and/or AAG Jennifer Mims Bush have argued legal positions to the trial court, in briefs to the appellate courts, and to the State DHR hearing Officer Louise Shaddix in a state level DHR Administrative hearing indifferent to, and inconsistent with, federal Title IV-D law mandates.

A social worker at the Lauderdale County DHR explicitly advised Lauderdale DHR does not act without first seeking, and gaining approval from AAG Bush in individual cases such as mine.

I have multiple documents from my case showing not only is the Alabama DHR not honoring federal Title IV-D mandates, the Alabama DHR is not correctly training its social workers, the District Attorneys, the trial court judges, the appellate court judges and this committee.

In addition, and the purpose of this letter, Rule 32 ARJA conflicts with Alabama Code Section 30-3-150 et seq. Section 30-3-150 was enacted solely due to federal mandates of Title IV-D and Federal Public Law 104-193 for the state of Alabama to receive federal incentive funding. Records show the state of Alabama AOC and DHR are receiving such federal granted funding to implement alternative custody and support arrangements. However, the DHR and the AOC is not training judges and attorneys on this issue.

As for deviations from Rule 32 ARJA at (A)(1) states, “(a) Shared physical custody or visitation rights providing for periods of physical custody or care of children by the obligor parent substantially in excess of those customarily approved or ordered by the court… The existence of one or more of the reasons enumerated in this section does not require the court to deviate from the guidelines, but the reason or reasons may be considered in deciding whether to deviate from the guidelines…”

The Alabama appellate courts are not mandating trial judges or attorneys use parenting plans created with parental involvement on the issue of custody. Instead of making judicial determinations on the narrow facts of a situation that fosters two-parent involvement in children??™s lives, when the parents are no longer living together, absent an agreement by the parents, the trial courts order a “standard visitation schedule”. Despite local Rules have been abolished by the Supreme Court, every Alabama county uses a different standard visitation schedule. These local schedules are created by attorneys and local bar association, approved and used by the court, regardless of situations where one parent wants to be active in their child??™s lives. The appellate courts indicate any disagreement by the parents is a basis for not awarding joint physical custody or alternative parenting plan custody arrangements. This is contrary to the federal intent of Title IV-D that parents not the state should be making these decisions using parenting plans.

The conflict for parents is typically fostered by attorneys, general knowledge the state supports only one parent involvement that mandates fighting a court custody battle, and/or vague and difficult to understand restrictive standard visitation schedules. Often the pick-up and drop off times will vary for certain holidays during pending divorce and post-divorce. Or the schedule is written in a way not even attorneys can agree to its plain and ordinary meaning. This creates strife in the lives of the parents and children.

Federal Health and Human Services Data, Alabama DHR Data and creditable family dynamic research shows children are much better adjusted with two-parent involvement with the closer to equal time in the children??™s best interests when each parent is fit. The same data show Alabama??™s use of standard visitation arrangements is harmful to children and society.

Alabama DHR and US Department of Health and Human Services statistics reveal that children from one parent homes account for: 90% of homeless and runaway children; 85% of youths sitting in prison; 80% of rapists motivated with displaced anger; 75% of adolescent patients in chemical abuse centers; 71% of pregnant teenagers; 71% of high school dropouts and 63% of youth suicides.

The state of Alabama since 1997 has accepted federal Title IV-D grant funding to implement alternative child custody arrangements and parenting plans by placing parents in charge of their children rather than the state. However, Rule 32 ARJA conflicts with Federal mandates. The DHR and AOC is not properly training judges on the importance of two parent involvement.

It appears the state presumes federal child support incentive funding will not arrive should the local courts mandate parents to have more than “standard visitation” with the non-custodial parent as Rule 32 describes or otherwise to order both parents to directly support their children.

In my case, the state of Tennessee honored the federal Title IV-D mandates. Alabama does appear to know what they are. The below shows Alabama DHR and AAG Jennifer Mims Bush is not properly training the DHR nor the judiciary. Facts show the DHR is taking actions to which no statutory or judicial authority has been granted by the legislature. Said acts and omissions are in direct violation to the state of Alabama??™s state plan 42 USC 654 filed with the Federal Government. This violates 42 USC 666, CFR 205.10, due process, equal protection and other federal laws.

Federal Title IV-D mandates citizens must be given a hearing by an independent judicial and/or administrative hearing officer. See 42 USC 666.

Mrs. Louise Shaddix, the DHR administrative hearing officer verbally agreed in a DHR hearing that everyone at DHR is well aware the Tennessee judgment in my case must be properly UIFSA registered before Alabama has legal authority to act. I have audio of her verbal statement.

Mrs. Shaddix admitted she is employed by the Alabama DHR, and her office is located in the DHR headquarters in Montgomery, Alabama. She indicates she has more than 30 years with DHR.

Despite Shaddix??™s verbal statements her administrative order affirmed all DHR acts and omissions in my case.

42 USC 654 and 42 USC 666, CFR 205.10 sets forth due hearing requirements that shall meet due process standards. See CFR 205.10 (“State plan (42 USC 654) under title I, IV-A, X, XIV, or XVI(AABD) of the Social Security Act shall provide for a system of hearings under which: (1) The single State agency responsible for the program shall be responsible for fulfillment of hearing provisions which “shall meet the due process standards set forth in the U.S. Supreme Court decision in Goldberg v. Kelly, 397 U.S. 254 (1970), and other due process standards as set forth in 205.10.”).

The Alabama DHR, including Mrs. Shaddix in the administrative hearing, repeatedly indicated DHR is representing only the Mother. This position is not consistent with Alabama code Section 38-10-1.1 or an Ethics Opinion issued by the State Bar in 1996 that indicates the DHR only interest is in representing the states interests in the child. The same was provided to Shaddix and DHR.

As the facts of my case show, if the state has not paid monies for the direct benefit for the child – the state has no compelling interest to take any legal position inconsistent with federal mandates. Rather, it has a duty under law to advise the judiciary of the Title IV-D requirements including UIFSA mandates.

But, of course, the facts of my case show, the DHR doesn??™t know Title IV-D law, instead does what it wants with no accountability to anyone.

DHR Adverse Action Prior to Due Process Hearing

In December 2012, when the child support issue was pending on appeal in the Courts, the Lauderdale DHR social worker Judith Shelton took administrative action adverse to me prior to providing a due process administrative hearing. This is a federal mandate of the state plan 42 USC 654, 42 USC 666, CFR 205.10 that requires DHR to honor due process requirements of Goldberg v Kelly of the US Supreme Court.

DHR Adverse Acts Prior to Due Process Hearing

Specifically, Judith Shelton reported alleged child support arrears to the credit reporting agencies and issued tax-offsets. Although, I timely filed a due process administrative hearing request in December 2012 out of an abundant of caution because DHR is known to me based upon information and belief not to honor Federal Title IV-D mandates. At that time DHR was acting judicially in the courts. No administrative hearing was granted and the issues of credit reporting or offsets were not before the circuit court. I discovered said adverse acts by Ms. Shelton??™s own admission in a March 3, 2014 administrative hearing with Shaddix. Alabama and federal law show when an administrative hearing request is made a hearing must be given and no adverse action can be taken during the pending hearing request. The DHR Billing notices clearly indicate the same. No administrative hearing was granted on the December 2012 request. The Shaddix hearing was timely requested in July 2013 upon my receiving my very first child support billing notice from DHR. Yes, this is correct. I received no billing notices from DHR prior to and until July 2013. I had no prior notice from DHR of its December 2012 administrative acts until the March 2014 administrative hearing timely requested upon arrival of the first billing notice.

Credit Reporting of Arrears Not Codified by State Statute

As to the reporting to the credit agencies, the Alabama legislature never codified in statute for the reporting of child support arrears to the credit reporting agencies. The Alabama DHR is acting outside the scope of the Title IV-D, and Alabama law in violation of Ala. Constitution 1901, Art. III, Section 43.

The Alabama legislature codified every aspect of 1996 Federal Title IV-D mandates on child support enforcement except for the state reporting alleged arrearages to the credit reporting bureaus.

Title IV-D requires the states to first enact state law that supports Title IV-D. It does not create federal law for the states to enforce without authority from the state legislature.

State Law and State Plan Governs DHR Authority

This is shown by reviewing the Alabama State Plan filed with the federal government mandated by Title IV-D, 42 USC Section 654.

a. Example One:

The State Plan filed under 42 USC 654 shows Alabama elected not to enact a law requiring the use of procedures for enforcement of child support orders with respect to a child of minor parents, if the custodial parent is receiving welfare assistance under Part A of Title IV-D, that shall be enforceable, jointly and severally, against the parents of the non-custodial minor parent of such child in accordance with 42 USC 466(a)(18).

The state of Alabama legislature did not enact this particular Title IV-D mandate and it is not enforceable by the Alabama DHR.

b. Example Two:

The State Plan indicates it has in effect laws requiring the use of procedures authorizing withholding, or suspension or restriction of driver's licenses, professional and occupational licenses and recreational and sporting licenses in accordance with 42 USC 466(a)(16).

However, at the time the State Plan was approved the Ala. Code did not include “Sporting licenses”.

The State Plan notates this fact and said “Sporting licenses” will have to be added to the list of type of licenses and will require amending Alabama's license suspension act in the 1999 session.

c. Example Three:

The State Plan indicates Alabama has procedures in place on the reporting of arrearages.

The Alabama Code the DHR in its child support policy and procedural manual relies upon to grant it authority to report to the credit agencies is Section 38-10-7 enacted in 1979.

A further read of Section 38-10-7 said “(The) Court making the determination” …. “shall retain jurisdiction…”

Nowhere in Ala. Code Section 38-10-7 does it expressly mention credit reporting of arrears or the granting DHR the authority to automatically take enforce actions without court authority.

The consumer credit reporting section of Title IV-D Law 42 USC 666 was not enacted by the federal government until 1997. See Public Law 104-193.

It is a legal impossibility for the DHR to presume the Alabama Legislature intended for Ala. Code Section 38-10-7 to replace the Legislature??™s refusal to enact a 1997 provision of Title IV-D Section 466(a)(7).

It is not within the providence of the Alabama DHR to act as a legislative or judicial body. Ala. Constitution 1901, Art. III, Section 43. Also see US Constitution Art. I, Section 1; Art. II, Section 1; Art. III, Section 1. Also cnf. Ex parte Christopher, (1120387) ___So.3d___ (2013).

DHR Failures to Follow Federal Title IV-D Mandates

Now, back to DHR failures to follow federal mandates. In 2010, 2011, 2012, December 2013 and January 2014, the undersigned requested to view the entire case file the Alabama DHR has on me and our daughter. The DHR refused.

The Lauderdale DHR social worker advised me that Jennifer Mims Bush advised her not to allow review of the case file, although, I had subpoenaed the case file quoting federal case law and US Supreme Court case law of my due process right to view the file. Said subpoena was squashed by the Alabama DHR Hearing officer Louise Shaddix. Shaddix indicated I didn??™t have a right to view my case file. Although, the State Plan 42 USC 654 due process mandates of CFR 205.10 said I have a right to review the entire case file.

In the Administrative hearing Lauderdale DA Chris Connolly said, “We are in the 11th Circuit, I don??™t have to honor 8th Circuit law” which I had provided to the DHR to support my federal legal rights to view the file.

The 8th federal circuit held a plaintiff should have a reasonable opportunity to prepare his defense subject to CFR 205.10 due process safeguards. Page v. Preisser, 585 F. 2d 336, 341 (8th Cir. 1978)(“Reasonably construed, 45 C.F.R. § 205.10 "plainly entitles the [recipients] to examine the entire contents of their files prior to and during an appeals hearing.").

Because a state chose, voluntarily, to participate in the federal program. In doing so, it is obliged, in promulgating regulations, to conform to federal regulations. See Shea v. Vialpando, 416 U.S. at 253. Otherwise the acts are void under the supremacy clause.

In my case, as quoted to the DHR, including Jennifer Mims Bush, the US Supreme Court has specifically held that, under the Supremacy Clause, federal Spending Clause legislation trumps conflicting state statutes or regulations. See Blum v. Bacon, 457 US 132, 145-46, (1982) (holding the provisions of a New York welfare program that conflicted with federal regulations under the Social Security Act invalid under the Supremacy Clause); Carleson v. Remillard, 406 U.S. 598, 604 (1972) (holding a California regulation that conflicted with the Social Security Act invalid under the Supremacy Clause); Townsend v. Swank, 404 U.S. 282, 285 (1971) (holding an Illinois statute and regulation that conflicted with the Social Security Act invalid under the Supremacy Clause). The 8th Circuit Court applied these cases to invalidate state regulations under the Supremacy Clause. Jackson v. Rapps, 947 F.2d 332, 337 (8th Cir.1991) (invalidating a Missouri regulation under the Supremacy Clause because it conflicted with federal regulations under Title IV-A of the Social Security Act, 42 USC §§ 601-615 (1988)), cert. denied, 503 US 960 (1992).

The above cases stand for the proposition that the Supremacy Clause indeed applies to Spending Clause enactments and makes them supreme when challenged by conflicting state enactments. Also see King v. Smith, 392 US 309, 316, 326-27 (1968) ("once a state has accepted federal funds, it is bound by the strings that accompany them").

In June 2013, the DHR Lauderdale District Attorney Chris Connolly filed a petition for contempt in the Lauderdale County Circuit Court against me. The contempt petition indicated I was in contempt of an April 5, 2013 order. All issues of the April 5, 2013 order were on appeal in the Alabama Appellate Courts when the DHR filed its contempt petition in the circuit court.

Despite the above stated Title IV-D, 42 USC 654, CFR 205.10 and Goldberg v Kelly due process violations and contrary to law and regulation, the DHR sought, and the circuit court determined on September 17, 2013, I was in contempt for 60 months and jailed me for 60 days. Although, I provided receipts of direct expenses expended on the child for more than $23,000.

Remember during this time the Alabama child support issue had been reversed multiple times and the only valid order, the Tennessee order that ordered me to directly support our child. The Tennessee order has never been UIFSA registered in Alabama in accordance to 42 USC 666. The record shows state has never paid any monies for the child.

Also, remember the trial court is solely trained by the Alabama DHR on Title IV-D mandates under contract with the AOC.

In my case, the Alabama DHR has repeatedly taken legal positions without affording me an independent hearing.

The DHR has been and is acting contrary to Title IV-D mandates in the taking of legal positions with the trial court and appellate courts that are contrary to federal mandates.

These issues are not presented for resolution by the committee. They are presented to show the committee that the state of Alabama DHR - trained by Jennifer Mims Bush - and the AOC contract with the DHR, and its acts and omissions are out of compliance with Title IV-D mandates on multiple issues.

CONCLUSION

The Alabama AOC receives Federal Title IV-D incentive funding. The AOC has a contract with the Alabama DHR on child support issues, which in turn goes to the County level DHR. My case file shows more than one case number for only one child. I have not been afforded due process protections that Alabama agreed with the federal government. I have not been allowed to review my case file. DHR has taken adverse action to me without affording me a hearing as I timely requested. DHR is not authorized by Alabama statute to report child support arrears to the credit reporting agencies.

The problem: there is no accountability. The judicial branch automatically defers to the executive branch Alabama DHR and Jennifer Mims Bush. The DHR and Jennifer Mims Bush does not honor federal Title IV-D mandates. Nor does the DHR properly inform those placed in charged to educating. Said acts and omissions are violating the separation of powers clause of the Alabama and US Constitutions and the supremacy clause, the due process clause and the equal protection clause of the United States Constitution.

The state of Alabama out of compliance with Title IV-D mandates and these issues must be addressed. The starting point is making Rule 32 ARJA consistent with Alabama Code 30-3-150 et seq. enacted to receive federal funding under Federal Public Law 104-193. That is to do away with standard visitation schedules throughout the state and mandate Rule 32 provide for alternative child custody arrangements and alternative child support orders.

Thank you for your consideration of the above referenced facts and I look forward to hearing from the committee in a timely manner.

Respectfully Submitted,

/s/Mark D. Davis________________________
Mark D. Davis

XC:

Gordon Bailey, Chairman,
300 Dexter Avenue
Montgomery, Alabama 36104

Judge Aubrey Ford, Jr., Co-Chairman
Jennifer Mims Bush, DHR Legal Counsel
Faye Nelson, Alabama Child Support Director
Angela Campbell, DHR Program Mgr Mobile County
Penny Davis, Alabama Law Institute
Mr. James D. Jefferies, Esq,
Mary Moore, Circuit Clerk Perry County, Alabama
Julia Kimbrough, Attorney Shelby County, Alabama
Judge Julie Palmer, Circuit Judge Jefferson County, Alabama
Judge Billy Bell, Circuit Judge Madison County, Alabama
Mr. Stephen Wright, Esq.
Mr. Stephen R. Arnold, Esq.
Mr. Scott Hoyemm Alabama Administrative Office of Courts
Mr. Alex W. Jackson, Esq. Alabama Supreme Court
Michael Polemeni
Ms. Faye Nelson, Child Support Enforcement Division, Alabama DHR

Alabama Senator Paul Sanford
Alabama Senator Cam Ward

Mary Sell, Florence Times Daily
Josh Moon, Montgomery Advertiser
CBS 8 News Montgomery
ABC 32 News Montgomery
WSFA 12 News Montgomery
FOX News Channel
US Health and Human Services Office of Children and Families
US Congressman Mo Brooks

*****

We wonder if we'll be seeing any of this in the TimesDaily?



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