IN THE SUPREME COURT OF FLORIDA
CASE NO.: SC10-982
KARL E. HINDLE
Petitioner
VS.
SHEILA KAY FUITH, N.K.A.
SHEILA KAY SWINDELL
Respondent
__________________________/
PETITIONER’S BRIEF ON JURISDICTION
On review from an opinion rendered by the Fifth District Court of Appeal in Case No. 5D08 - 3850
Karl E. Hindle
Pro Se Petitioner
TABLE OF CONTENTS
TABLE OF CONTENTS i
TABLE OF CITATIONS ii
PREFACE 1
STATEMENT ON THE CASE AND FACTS 2
SUMMARY OF ARGUMENT 2
ARGUMENT 3
CONCLUSION 10
CERTIFICATE OF SERVICE 11
CERTIFICATE OF FONT COMPLIANCE 11
APPENDIX 12
Copy of Hague Convention Order of British High Court (Supreme Court)
Copy of Fifth District Court of Appeal Opinion
TABLE OF CITATIONS
14th Amendment of the Constitution of the United States of America 2, 5
The Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention) 2, 3, 4
The U.N. Convention on the Rights of the Child 1989 (CRC) 2, 3, 8
Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) 3, 7, 8
Florida Statute s. 61.514 2, 3, 5
DeClaire v. Yohanan 453 So.2d 375 2, 3, 4
Cerniglia v. Cerniglia 679 So.2d 1160 3
T.B. v. Department of Children & Families 718 So.2d 397 2, 6
Aguirre 985 So.2d 3, 8
Matajek v. Skrowonska 927 So.2d 981 3, 8
United States v. Throckmorton 98 U.S. 61 (1878) 4
Vagenas v. Continental Gin Company 988 F.2d 104 (11th Cir 1993) 7
Feder v. Evans-Feder (866 F.Supp. 860) 5
PREFACE
The Petitioner/father, Karl Ernest Hindle, respectfully requests this Honorable Court to invoke its discretionary jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(a)(2)(A) (i) and (iv).
The Fifth District’s decision conflicts with the following:
· 14th Amendment of the Constitution of the United States of America
· The Hague Convention on the Civil Aspects of International Child Abduction 1980 (the “Hague Convention”)
· The U.N. Convention on the Rights of the Child 1989 (“CRC”)
· International Child Abduction Remedies Act (42 U.S.C. 11601 et seq) (“ICARA”)
· Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”)
· DeClaire v. Yohanan 453 So.2d 375
· Cerniglia v. Cerniglia 679 So.2d 1160
· T.B. v. Department of Children & Families 718 So.2d 397
· Aguirre 985 So.2d
· Matajek v. Skrowonska 927 So.2d 981
· Treaty making authority of the United States Congress
STATEMENT OF THE CASE AND FACTS
The facts of the case are not completely put forth in the opinion of the Fifth District Court of Appeal; the child at issue arrived in Florida as a consequence of a fraudulent Hague Convention application by the mother and Barbara Greig of the U.S. Government which falsely claimed Florida held jurisdiction. Further, the child was ordered to receive medical treatment for a congenital eye defect by the British Supreme Court; however no treatment or enforcement has ensued rendering the child permanently blinded. The petitioner moves separately for an extension in length for the brief and attaches separately with that motion a statement of facts to be addended hereto if so ordered.
ARGUMENT
SUMMARY OF ARGUMENT
1. The Lower Courts exercise of jurisdiction in accordance with s 61.514 is in conflict with the 14th Amendment of the U.S. Constitution (Due Process), and not in conformity with the Hague Convention on the Civil Aspects of International Child Abduction (1980) (as enacted by the International Child Abduction Remedies Act 42 U.S.C. 11601 et seq) or the UN Convention on the Rights of the Child (1989), based upon a fraudulent application under the aforesaid Hague Convention to have the child “returned” to the jurisdiction of the State of Florida when there was no such jurisdiction. The 5th DCA decision further directly conflicts with DeClaire v Yohanan (453 So.2d 375).
2. The decision of the 5th DCA directly conflicts with the decision in T.B.-v-Department of Children and Families (718 So.2d 397) in that the child has been allowed no medical treatment for a treatable eye condition rendering her permanently blinded and is directly analogous to the referenced case where said conduct was ground for termination of parental rights but in the case at review, is not grounds for reversing a custody decision.
3. The 5th DCA ruling opines that there are no errors on the face of the judgment which accordingly restricts their review, however there are substantial errors on the face of the judgment, including the omission of enforcement of medical treatment for the child and the claim that one of the parties had resided in the State for more than 6 months prior to filing. Further, the Fifth District Court of Appeal’s ruling relies on, and yet is in conflict with Aguirre (985 So 2d).
4. The 5th DCA decision conflicts with Matajek v. Skrowonska (927 So.2d 981) that the trial court abuses its discretion only where no reasonable person would take the view it adopts based upon the evidence before it.
ARGUMENT
1. The Fifth District Court of Appeals ruling which states that jurisdiction can be exercised in Florida in accordance with s 61.514 (as implementing the UCCJEA), creates a dangerous conflict with international law (notably the Hague Convention and the UN Convention on the Rights of the Child) and directly conflicts with DeClaire v. Yohanan, 453 S0.2d 375 (FLA. 1984) and Cerniglia v. Cerniglia, 679 So.2d 1160 (Fla. 1996) because a false claim of the child’s habitual residence vesting in the State of Florida is intrinsic fraud. Yet the Fifth District Court of Appeal’s decision incorrectly holds that as no other state of the United States held jurisdiction, the State of Florida could seize it when clearly there was jurisdiction in the child’s habitual state of England but for a fraud on the British Supreme Court under the Hague Convention.
In DeClaire v. Yohanan 453 So.2d 375 (Fla. 1984) the Florida Supreme Court followed the ruling in the seminal case on fraud, United States v. Throckmorton, 98 U.S. 61 (1878) wherein the court held, “Where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent…”, the judgment may be set aside. The father has consistently and continuously argued that the trial court and the State of Florida has no jurisdiction to hear the underlying custody issues because of the fraudulent use of the Hague Convention. The mother and Ms Greig of the U.S. Government have sought to deny him access to the court by means of denying his entry into the country, removing his liberty when he legally did so and deporting him, placing him subject to a lifetime ban on travel to the United States in order to delay and deny justice and court ordered access to the child at issue.
The Fifth District Court of Appeal correctly opines (at p.3) that there was no jurisdiction at the time of filing in neither the State of Florida nor any other state of the United States (but ignores the UK). That Honorable Court then proceeds to rule that the trial judge did not abuse his discretion in seizing jurisdiction, “…because no court of any other state would have jurisdiction under section 61.514, the Florida trial court had jurisdiction to make an initial custody determination.” p.3 5DCA opinion at issue. This ruling directly conflicts with the father’s (and child’s) 14th Amendment right to due process under the law, that is, the mother in tandem with the U.S. Government, have engaged in a series of acts to deprive the father and child of their right to have proceedings to determine the child’s future take place in the child’s country of habitual residence, i.e. England. (see Feder v. Evans-Feder (866 F.Supp. 860) for the purpose of the Hague Convention).
When the mother and Ms Greig filed a Hague Convention application with the British authorities in September 2003, the child had been voluntarily returned to the UK after the British courts had seized jurisdiction of the matter and issued parental rights to the father and after the child’s “unilateral removal” from the UK to the US by the mother claiming to be a victim of domestic violence and thereby securing the assistance of the U.S. Embassy London. Further, the mother confirmed and represented to the British court and authorities that the mother and child had resided for more than 180 days in the State of Florida and both the mother and Ms Greig of the U.S. Department of State represented that Florida did indeed hold jurisdiction over the child.
There are therefore two frauds at work here; firstly, a domestic violence fraud to initially remove the child to the United States, and, secondly, a fraudulent claim to the British Supreme Court that jurisdiction lay in Florida when it did not, and after the child had voluntarily been returned to the UK once the British courts had seized jurisdiction and issued orders (said orders quashed based on the same fraudulent claim Florida held jurisdiction).
2. The decision of the 5th DCA directly conflicts with the decision in T.B.-v-Department of Children and Families (718 So.2d 397) in that the child has been allowed no medical treatment for a treatable eye condition rendering her permanently blinded and is directly analogous to the referenced case where said conduct was ground for termination of parental rights but in the case at review, is not grounds for reversing a custody decision.
Further, the Fifth District Court of Appeal’s ruling is not in conformity with the order of the British Supreme Court of October 3rd, 2003 that the child would receive “forthwith upon her return” medical treatment for the eye condition. For the purposes of the UCCJEA, a foreign country is treated, “as if it were a state of the United States” for the purposes of applying the provisions of the UCCJEA, which includes recognition and enforcement of the orders of “sister states”.
Further, the British Supreme Court order submitted to the Lower Court should have been granted full faith and credit by the State of Florida. See Vagenas v. Continental Gin Company, 988 F.2d 104 (11th Cir. 1993) (treaty between the United States and Greece elevated foreign judgment to status of sister state judgment). The UK is to be treated as a sister state in this instance. The British Supreme Court ordered medical treatment for the child’s blindness. There has been no enforcement by the Lower Courts. The child has received nine medical examinations by British and US doctors who recommended treatment. There has been no treatment for the condition in the U.S. The child is now permanently blinded in her affected eye. The order of the British Supreme Court was one to be enforced by the lower courts of this State, not ignored.
3. The 5th DCA ruling opines that there are no errors on the face of the judgment which accordingly restricts their review, however there are substantial errors on the face of the judgment, including the omission of enforcement of medical treatment for the child as ordered by a superior court of a sister state and the claim that one of the parties had resided in the State for more than 6 months prior to filing. Further, that the father “wrongly retained” the child from the jurisdiction of Florida, and yet the Fifth District Court of Appeal has correctly opined there was no jurisdiction in Florida. Further, the Fifth District Court of Appeal’s ruling relies on, and yet is in conflict with Aguirre, 985 So 2d at 1206 where a finding that primary residential custody is in the “best interests” of the child is sufficient to uphold a custody determination so long as there is substantial competent evidence in the record that permits the court to properly evaluate the relevant factors. The record is silent on any evidence to support the mother’s claim to primary residential custody because there is absolutely no evidence in support of her claim. The record on appeal has been supplemented by a mountain of evidence on behalf of the father demonstrating the mother’s unfitness for an award of primary residential custody. The record on appeal was supplemented because the trial court would not consider any depositions or medical evidence of the father and they were excluded by the trial judge after final hearing though submitted at trial.
4. The 5th DCA decision to affirm an award of primary residency to the mother conflicts with Matajek v. Skrowonska (927 So.2d 981) in that the trial court abused its discretion because no reasonable person would take the view it adopted based upon the evidence before it.
The mother:
· according to the Fifth District Court of Appeal, at p.6 of its ruling, “The child was born in the United Kingdom … and removed to Florida by the mother’s unilateral decision.” (emphasis added) – “unilateral removal” is the language of the UCCJEA (and UN Convention on the Rights of the Child) for child abduction;
· further abducted the child out of state and concealed the child from the father when he had a legal custody order and made efforts to change the child’s identity (both with the assistance of Ms Greig of the Department of State);
· has neglected the child to the point of blindness;
· attempted to sell/adopt the child and placed her into the care of strangers and including into the care and contact of a convicted pedophile;
· has severely abused the domestic violence protection system and falsely accused the father of sexual abuse of the child, including coaching of the child in the making of said allegations as well as falsely accusing him of making child pornography with his children in England;
· has abused the child by coaching her in the making of false sexual abuse statements against her father, and subjecting the child to a forensic sexual battery regime, including vaginal and anal examinations, based upon her false claims of sexual abuse knowing none had in fact occurred; and
· The mother conspired with Barbara Greig of the US Department of State to abduct the child under “color of law”, to deny the father entry to the country to litigate or enjoy court ordered visitation, to have the father arrested, incarcerated and deported, to repeatedly file false police complaints resulting in numerous investigations/prosecutions all of which have found no basis for any offense and false allegations on the part of the mother.
No reasonable person would agree that an award of custody to the mother is reasonable and therefore, the trial judge abused his discretion in rendering such an award.
CONCLUSION
For all the foregoing arguments and authorities, the Petitioner, Karl Ernest Hindle, respectfully requests this Honorable Court to accept jurisdiction and address the adverse international, national and local consequences of the Fifth District’s decision.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by First Class U.S. Mail to: Kim Banister, Esq., Community Legal Services of Mid-Florida, Inc, 128 Orange Avenue, Suite 100, Daytona Beach, Florida 32114
on this 4th day of June 2010
_______________________________
KARL E. HINDLE
Pro Se Petitioner
CERTIFICATE OF FONT COMPLIANCE
I HEREBY CERTIFY that the instant brief has been prepared with Times
New Roman 14-point font in compliance with Fla.R.App.P. 9.210(a)(2).
_______________________________
KARL E. HINDLE
Pro Se Petitioner
APPENDIX
Copy of Hague Convention Order of British High Court (Supreme Court)
Copy of Fifth District Court of Appeal Opinion
CASE NO.: SC10-982
KARL E. HINDLE
Petitioner
VS.
SHEILA KAY FUITH, N.K.A.
SHEILA KAY SWINDELL
Respondent
__________________________/
PETITIONER’S MOTION TO SUPPLEMENT JURISIDCTION BRIEF WITH STATEMENT OF CASE AND FACTS IN EXCESS OF PERMITTED BRIEF LENGTH PER Rule 9.120
On review from an opinion rendered by the Fifth District Court of Appeal in Case No. 5D08 - 3850
Here comes the petitioner, Karl E. Hindle, a pro se party who has filed his brief on jurisdiction and respectfully requests that the attached statement of the case and facts be appended to the jurisdiction brief which would otherwise be in excess of the 10 page length allowed by Rule 9.120. The Fifth District Court of Appeal has not properly or completely enunciated the case in its opinion.
The respondent mother shall not be prejudiced, nor will the petitioning father gain any advantage, by the granting of this motion.
Respectfully submitted,
_______________________ Dated: June 4th 2010
Karl E. Hindle
Pro Se Petitioner
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by First Class U.S. Mail to: Kim Banister, Esq., Community Legal Services of Mid-Florida, Inc, 128 Orange Avenue, Suite 100, Daytona Beach, Florida 32114
on this Fourth day of June 2010
_______________________________
KARL E. HINDLE
Pro Se Petitioner
The facts of the case are not put forth completely by the opinion of the Fifth District Court of Appeal.
The child was born in England to unmarried parents on March 1st, 2002 – the mother is American, the father is British. At age 6 months, the child was diagnosed with an eye condition known as amblyopia and which was rendering the little girl blinded in her right eye, but for which treatment was available and provided at the local British hospital.
On January 7th, 2003, the American mother left the home shared with the father and arranged a US passport without the father’s knowledge or consent from the American Embassy, London claiming domestic violence. Said passport was issued in violation of federal law requiring both parents signature. The child was removed from the UK to Maryland in February 2003 and all medical treatment for the child’s blindness ceased. To date, no medical treatment has been provided for the child’s blindness in the United States despite numerous examinations resulting in advice to treat the child.
The mother attempted to sell the child in an unlawful adoption arrangement in Wisconsin in and around March/April 2003. This unlawful adoption resulted in the then one year old child being placed with her “adoptive parents” and this also brought the child into the care and contact of a convicted pedophile, Leslie Merriam. The father and British Government sought the intervention of law enforcement and social services, however police reports indicate that the US Department of State had advised that the father was an abuser and as a consequence the child had been removed from the UK and the father was not to know the whereabouts of his child and the mother. The mother recovered the child and disappeared once more.
The father sought to petition the court in Minnesota, in March 2003 and where the mother had also been spending time as she hopped from state to state. Contemporaneously, the father also sought to petition the court in Wisconsin in connection with the issues confronting the child where the mother had also spent some time. In both cases he was unsuccessful and advised jurisdiction lay in the UK.
The father petitioned the UK court which did seize the matter and he was awarded parental rights on August 14th, 2003, no other court having jurisdiction. The mother was given the option of voluntarily returning the child or facing the FBI as the father was seeking their intercession due to his missing child and concerns for her safety and care.
The mother returned to the UK with the child on September 19th, 2003 whereupon the child was removed from the mother by British police and handed to the father. The father then returned to the British court, however the proceedings where stayed by order of the High Court (the British Supreme Court).
Barbara J. Greig of the Office of Childrens Issues, U.S. Department of State filed an application for the return of the child to Florida under the Hague Convention on the Civil Aspects of International Child Abduction (1980). The application was based on the mother and Ms Greig’s claim that Florida held jurisdiction over the child, the father, therefore, was wrongly retaining the child in the UK. This was a fraudulent claim on the part of Ms Greig and the mother – the mother having been “resident” in Florida for six weeks at most, having moved through several US states since unilaterally removing the child in February 2003 from the UK.
The British Supreme Court accepted the representations of the mother and US Government that Florida held jurisdiction, and the child was “returned” to the state of Florida for proceedings to take place, but with a conditional order, notably for the child to receive medical attention for her eye condition, “forthwith” and the filing of proceedings in Florida. On October 5th, 2003, the child was flown to Florida and the father then filed the action in Volusia County Court which forms the basis for these proceedings in November 2003.
The father was then advised by Ms Greig’s supervisor, Mr Glen Keiser (Chief, Child Abduction Section) that he could no longer travel to the US without a visa. He duly applied for a visa to travel for visitation ordered by the British Supreme Court and to commence the litigation process in Florida. The initial hearing was to take place in January 2004.
The father was denied a visa to travel for court ordered visitation and to attend court hearings on the recommendation of Ms Greig and Mr Kesier.
A renewed effort was made to procure a visa, this time with the assistance of the British Government who reminded the US authorities of their Hague treaty obligations. A visa was issued to travel for court hearings in April 2004.
The father entered the US and dealt with his court business but was not allowed visitation until his day of departure. Barbara J. Greig of the US Department of State advised the mother and her attorney of the father’s visa conditions and terms, and together it was arranged to summons him to court to defend against an application for a domestic violence injunction. It was also discovered that the mother had not been resident in the State of Florida as claimed before the British Supreme Court by her and Ms Greig.
The father applied to extend his visa and remained to defend against the domestic violence action as a default judgment would have been used to justify denying him further entry to the country.
The domestic violence proceedings were heard on April 20th, 2004 and the father successfully defended himself against the allegations of the mother. Further, the mother was admonished for her dishonest conduct and for misusing the domestic violence process to gain advantage in the custody proceedings. The father was also awarded unsupervised visitation with the child, however the trial court refused to deal with the issue of the jurisdictional defect nor with the enforcement of the child’s medical treatment for her blindness.
On May 28th 2004, as the father was waiting at the visitation pick-up point, he was approached by two US Government officers and arrested. The arrest was carried out at the request of Barbara Greig to US Immigration, claiming, along with the mother and her attorney, that the father was a threat and a menace to the child and mother. The father was incarcerated for 5 weeks and given the option of voluntary departure or facing 6 months in jail pending the US Government appeal against his proposed release by the Federal immigration judge. The father accepted the former and departed the US in July 2004 not wishing to spend 6 months in prison.
This incident caused a diplomatic exchange between the US and British authorities.
The father was repeatedly denied visas to travel to the US for further court hearings on the grounds he was a threat to the American mother. After questions were asked in the British Parliament and further diplomatic intercession, including the assistance of the offices of Congressman Mica, a visa was procured to travel to the US and the father did enter the US in January 2005.
At this point, the mother did flee the state and the child was classified as “Missing & Endangered” by F.D.L.E., however witness depositions demonstrate the mother and child were concealed with the assistance and knowledge of Ms Greig of the Office of Childrens Issues, extending to consideration of changing the mother and child’s identities to avoid detection. The father was compelled to return to the UK in January 2005 due to visa restrictions imposed by the Department of State, but was then denied visas to return to the country to look for the child or to litigate.
The child was eventually located in Kansas/Missouri and returned with her mother to Florida in January 2006. The father was allowed a visa to travel to the US for court hearing of January 13th, 2006 whereupon the mother was found guilty of criminal contempt of court, but retained custody of the child and escaped jail to avoid traumatizing the child by separating her from her mother. The father was ordered to have “reunification visitation” with the child with the mother and her observer present.
On January 28th, 2006 the father was accused of having vaginal, anal and masturbatory sex with the child during one of these reunification sessions. He was accused of this by the mother in a hand written police report filed with Daytona Beach P.D.
The father cooperated with the child sexual abuse investigation, though went into hiding when persons unknown, but associated with the mother, were brought to a further visitation session and proceeded to threaten to kill him. As a consequence of the fear the father felt, all visitation ceased, but not because his rights were suspended by the investigating authorities and with whom he extended full cooperation.
In May 2006, a further hearing was held to deal with the medical issue after an independent medical examination was conducted and which found the child had been treatable but was now probably permanently blinded. The court was also asked to deal with the false sexual abuse allegations of the mother which by now had been found by the investigation team to be the product of coaching of the then 4 year old child by the mother and the father had not abused the child.
Judge Doyle had the DCF investigator removed from the court at the commencement of this hearing and then proceeded to have the father removed when he claimed the child was going blind. No further consideration of the child’s medical condition was allowed except that a further medical examination was ordered. However, the father was compelled to return to the UK due to visa conditions, but immediately sought a visa to return to continue litigation. The child had by now been held in the US for two and half years despite lack of jurisdiction and without any enforcement of the British Supreme Court order for medical treatment for her blindness and which by now had become permanent.
The father was again denied visas to return to the US, again on the grounds he had harassed the American mother.
Finally, a visa was issued for the father to attend a belated final hearing to determine custody issues, in May 2008 – some 5 years after the child had been unilaterally removed from the UK by the mother and US Embassy, London.
At trial, Judge Doyle stated that “In this County, we’re provincials. We don’t do the Hague Convention” and refused to address the jurisdictional defect. Judgment was rendered by that court in October 2008, the delay due to Judge Doyle seeking to unblock the mother’s and Barbara Greig’s work in having the father permanently barred from entering the country.
Final judgment awarded primary residency to the mother with visitation to the father, approximately $30,000 in back child-support (ignoring child support already paid), assessed monthly child support on disability income of the father and all visitation costs against the father with said visitation only taking place in Panama City, Florida where the child now resides. The judgment brazenly claimed that one of the parties had been resident in the State of Florida for more than 6 months as the basis for claiming jurisdiction – a blatant untruth, the trial court having been advised throughout proceedings of the lack of jurisdiction. It should be noted that Judge Doyle was compelled to resign amidst controversy for not hearing evidence, issuing summary judgment without proper hearing and after being removed from family court, then foreclosure issues and finally, Marchman and Baker Act hearings by the Chief Judge.
It should also be noted, that to date the father has been the victim of over 300 false police reports filed by the mother and her proxies which have resulted in six major investigations and/or prosecutions for stalking, harassment, sexual abuse of his children in the UK, sexual abuse of the child in Florida, and a host of other allegations, ALL of which have resulted in findings of no offense, dismissal with prejudice and that the mother has been making false allegations. The latest prosecution being for stalking but resulting in dismissal with prejudice in January 2010 by Bay County Court, Florida after it was ascertained the father was out of State when the alleged offenses occurred (and he was in the UK when the prosecution was launched). All visitations have ceased due to the father’s fear for his safety and liberty and the mother’s continuing non-compliance with court ordered visitation.
The father appealed the ruling to the Fifth District Court of Appeal on a timely basis in November 2008 which ruled that Florida did not hold jurisdiction at the time of filing the case (and therefore at the time of the Hague Convention hearings in London) but nevertheless, jurisdiction could be claimed because no other US state had jurisdiction. Certain aspects of the final judgment were reversed (the child support award (both back support and monthly award) and visitation costs issue), though allowing the mother to continue to retain primary residency of the child. That court claimed no transcript had been provided and so could not deal with the issues unless an error occurred on the face of the judgment, but that court had previously denied the petitioner’s motion to supplement the record with said transcript after he realized the clerk of the lower court did not do this automatically when compiling the record (he is not a lawyer).
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