Gilbert Jallad

Will the Indian Child Welfare Act Survive In Its Current Form

Has the Indian Child Welfare Act (ICWA) made it harder to remove Native American children from abusive homes?  That exact issue is now pending before the United States Supreme Court when next month the Court will hear the case of Haaland v. Brackeen, in which the Supreme Court will consider whether the ICWA discriminates on the basis of race and whether the law exceeds Congress’s powers by commandeering state courts and agencies to carry out a federal child-placement program. 

In this important case, the states of TexasLouisiana, and Indiana, as well as individual plaintiffs, are seeking to declare the ICWA unconstitutional. This matter was originally taken up in a Texas District Court on an adoption petition filed by the Brackeen family after their initial efforts to adopt a Native American child were challenged by the Navajo Tribe.  As a matter of utmost importance, the Cherokee NationOneida NationQuinault Indian Nation, and Morongo Band of Mission Indians all intervened in the case in an effort to preserve the ICWA in its current form. 

In the first strike against the ICWA, earlier this year the U.S. District Court in Texas declared that the ICWA was unconstitutional, and later, before a whole panel of judges, the Fifth Circuit Court of Appeals held parts of the law, including those that set federal standards for lower and state courts, were constitutional, while finding that the parts of the law that required state agencies to perform certain acts were unconstitutional as a violation of the Tenth Amendment, which details that those powers not delegated to the federal government by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.  

To understand where we are presently, it’s important to know a little about the history of the ICWA.  First enacted in 1978, Congress passed the Indian Child Welfare Act with the underlying, noble purpose of trying to keep Native American families intact.  Congress felt forced to intervene as a response to thousands of Native American children being removed from their families and placed into non-Native American homes, displacing Native American children from their cultural and historical communities and customs.  The Act’s stated goal remains to strengthen and safeguard tribal nations for future generations by ensuring Native American children remain in indigenous homes for the stabilization and continuation of the Native American family.  But, as the current lawsuit questions, at what cost to Native-American children?

Native American

The States leading this lawsuit argue that the ICWA is responsible for a separate and unequal child welfare system that applies different legal standards for Native American children than it does for non-Native American children. For example, in most states, including in Florida, when non-Native American children are permanently separated from abusive parents using a “termination of parental rights” (TPR) proceeding, the State has to find “clear and convincing evidence” to proceed and terminate parental rights.  However, under the ICWA, when there are allegations that Native American children have been abused, abandoned, or neglected, the ICWA dictates that the State must prove its case beyond a reasonable doubt and that it must do so with expert witness testimony.  In practice, this represents a substantially higher legal standard that makes it more burdensome to prove such abuse than it does for cases involving abused non-Native American children, thus making it that much more difficult to remove Native American children from abusive homes.  As many have noted, the ICWA’s standards of proof present an even higher legal standard those that apply in criminal cases, and may represent one of the highest legal standards and burden of proofs in American jurisprudence.    

In addition to the higher legal standards used for Native-American children under the ICWA, the States are also arguing that the Federal Government is without constitutional authority to implement a law such as the ICWA, as those specific powers were not granted to the Federal Government in the U.S. Constitution. It will be interesting to follow this case as the U.S. Supreme Court hears oral arguments in less than one month.  With the Court taking a fresh look at these provisions, I would like to think that the Court will consider the arguments presented in an effort to ensure that Native-American children are not put at even more risk by a law whose intended purpose was to protect them and their heritage.  

Attorney Russell J. Frank is a Board Certified Family and Marital Law Attorney at CPLS. P.A. focuses his practice areas on family and marital law and dependency law.  Contact Attorney Frank today to discuss any family or marital legal issues you may be experiencing at rfrank@cplspa.com

Russell Frank

Russell Frank

Family Law Attorney
rfrank@cplspa.com

10 Lessons from Hurricane Ian for Business Owners

10 Lessons from Hurricane Ian for Business Owners

Even the worst disasters and challenges give us a few lessons that will serve us well in our personal lives, relationships, families, profession, jobs, and businesses. Hurricane Ian is no exception.  During our Firm’s Monday morning leadership team’s level 10 meetings, every team leader identified lessons they learned from the Hurricane Ian experience.  These lessons were personal and had implications for our Firm, and every business we serve.  Here they are:
 
1. Gratitude – After every natural disaster we see stories of others who did not fear as well as we did, and say to ourselves “but for the grace of God, …” It is in these moments we recognize that we have lots to be grateful for.  Gratitude, it is said, is the mother of all virtues, and the parent of all others.  All other virtues that we aspire towards – happiness, hope, justice, respect, beauty, safety, etc… are made paler, hallowed, and less inspired without gratitude. That is because gratitude, the affirmation that indiscriminate goodness exists everywhere, is a state of being, a state of thankfulness.  It helps us remember to not take anything for granted and be inspired.  
 
2. Perspective – There are many different perspectives to consider when handling the issues businesses face.  When there is an impending natural disaster, business leaders should try to consider not only their perspectives, but also the perspectives of their people, their customers, their vendors, and other stakeholders, as the perspective of all of these groups impact a business. Some of the impacts are predictable, while others are not.  If we just focus on the entrepreneurs’ or executives’ perspectives, we may develop “tunnel vision” and create solutions for the “wrong problems” leaving the business more vulnerable than necessary.
 
3. No Two Storms are the same – Unlike hurricanes of the past, Hurricane Ian brought an overwhelming amount of rain to Central Florida, causing massive flooding and leaving many homes and businesses with tremendous water damage.  While we can try to predict the future based on our experiences with prior hurricanes, we must be prepared for the unexpected.
 
4. Control – There are some things, which we do not have control of, and others that we do.  While we did not have any control over the direction, intensity, rainfall, and other aspects of Hurricane Ian, we did have control over how we chose to react, and what we did to prepare to protect our family, our property, our business assets, systems and processes, and other resources.  Understanding what you can and cannot control is the first step for every business facing an anticipated natural disaster.
 
5. Vulnerability  – During the storm, we have seen countless examples of neighbors helping neighbors, businesses helping other businesses, and strangers helping strangers.  Regardless of how well we prepare, how proactive we are, and what resources we have, we are all vulnerable in one way or another.  Exposing and embracing our vulnerabilities allows us to share our experiences, our thoughts, and our fears, and helps others understand how they can help us through difficult times.  When our vulnerability is exposed, the best of our circle of colleagues, friends, and families come to our aid and do what they can to help us through the challenges we face.  
 
6. Prioritize –There were numerous things we could do at home and in our businesses to prepare for the potential impacts of Hurricane Ian.  The priority was taking care of our people, making sure that they had the time and resources to prepare at home so that their families would be safe. Once we addressed this priority, then we turned our attention to the preparations needed to ensure that the business’ assets, systems, processes, and other resources were protected and that we had contingency plans, depending on the possible impacts of the storm.  
 
7. Planning –Benjamin Franklin said: “if you fail to plan, you plan to fail.”  This popular adage is true meaning when a natural disaster is expected.  Weaving a disaster plan into your business’s strategic plan is a good way to consciously think and focus on the issues incidental to possible and probable challenges.   While many larger businesses implement this process into their planning sessions, many smaller businesses do not take the time to consider how to plan for a natural disaster.  As a result, they may not have the right insurance in place, enough cash reserves, the proper backup systems, or alternative ways to provide their services to their customers.  A good planning session can take as little as 1 hour, and the impact can be overwhelmingly positive on a business. 
 

8. Preparation  – We have to get prepared before we can start talking about staying prepared.  For our people, getting prepared may mean that we help them develop a checklist of the items they need at home in case of electricity loss, emergency contact lists, and a healthy stock of non-perishable foods and dry goods, and toiletries.  For our business getting prepared may mean that we make also make a list of all the business’ assets, systems, processes, and other resources. It may also mean that you have to make sure that you have the right equipment. It may require taking pictures before the

storm and creating a checklist of what to do before, during, and after the storm to ensure that our people are doing ok, that our assets are protected, that our systems and processes are redundant, and that all other resources are considered.  Having concrete defined lists and checklists can help you automate the process and reduce the risk of error, enduring that you are prepared as you can be.
 
9. Don’t Take Anything For Granted  – Where our focus goes, our energy flows.  At times, we are so focused on the day-to-day tasks that we do not take time to reflect on the other aspects of our business and we take it for granted that our people will show up and do their jobs, that our vendors will always deliver what we need, that our customers will pay on time, etc…  By consciously taking the time to meet on a regular basis with your team, and actively seeking their input and listening to them, you can widen your focus and raise your awareness, both of which are critical to business leadership, especially before, during and after a natural disaster.
 
10. Avoid Procrastination – “Don’t wait for the last minute!” Everyone has heard this from his or her mother. This life lesson is equally important to businesses.  There is no time like the present to prioritize, plan, get prepared, obtain the right insurance coverage, and do everything you need to do to prepare for the next storm.  In Florida, it is not a matter of “if” but a matter of “when.”  
 
Tee Persad, Esq. is a CPLS, P.A. lawyer, mediator, and business consultant. He works hand in hand with businesses as one of the Firm’s Private Corporate Counsels, helping businesses tackle the crisis, mitigate losses, improves, and grow.  For a free consultation, call him at 407-647-7887.
Tee Persad

Tee Persad

Attorney | Mediator | Executive Consultant
attorneypersad@cplspa.com

What Mediators Need to Instinctively Know

Can and/or Should every Mediation result in an Agreement?
 
While I hate not being able to help parties in mediation come to an agreement, the fact of the matter is that it isn’t my mediation to decide. It is the party’s mediation.
 
Every Mediation cannot and should not result in an agreement and Mediators need to become comfortable with this fact.
 
Mediators need to instinctively know:
– How to be Flexible
– When to Listen
– How to be Empathetic
– When to Push
– How to Play Devil’s Advocate
– Even when to be Directive . . . among many other things
 
To learn more click here Mediation Moment Video

If you would like additional training in building a more profitable mediation practice while earning CLE/CME credits, check out our Mediation Mastery seminars.  

Tye Bourdony

Tye Bourdony

Mediator
tbourdony@cplspa.com

Single Parent Estate Planning

Questions I hear almost weekly from potential clients:

“I am a single mother and the father of my baby is not in his life, nor on the birth certificate. Will he get the baby when I die or will he get the baby’s inheritance?”

This question comes to me at least weekly and is complex. I am an estate planning attorney in Florida and work with many young people to establish an estate plan, should they die unexpectedly.     

We live in a world where the traditional nuclear family has changed. Children are raised by two fathers, children are raised by single mothers, whose father is not in the picture, and the child does not know the father.  Children are raised by single fathers, whose mother is not in the picture or their lives.  As an estate planning attorney, I can do some great planning that can keep the children’s inheritance out of the hands of the uninvolved parent.  

So many times, I see the results of no planning or poor planning. For example, if a child’s mother dies, she has done no planning at all, and the wealth will go through guardianship court, where the child’s other parent can petition the court for legal guardianship, over the property, and be appointed.   That can be avoided completely, by setting up a trust for the child, where you have the ability to name who is in charge of those assets (the Trustee). And the other parent cannot get anywhere near those assets. A Trust is a private document that passes your property to your loved ones and heirs and allows control over how your heirs use the trust property.  I do not recommend being in guardianship court, as no one is happy, and the extra attorney fees and court costs can diminish the child’s inheritance.

As far as who gets to raise the child, a natural parent is, by law, a legal guardian, of the person of the child.  The family court would decide who will be the guardian of the person of the child, but anything you put in writing in your Last Will and Testament or Pre Need Guardian Document, would carry great weight with the court. As I do not practice family law, we need a family attorney to weigh in on these issues.  Planning through legal documents for your minor children, when you are gone, is one of the important acts you can do for your children as a parent.

Are You Really Ready to Sell Your Business?

Whether you started your business with the intent to sell it one day or have simply decided its time to move on after years of hard work, many business owners eventually want to sell. Sometimes the potential buyer is right in front of you, like a co-owner or employee with sufficient purchasing power and the necessary expertise to seamlessly step into your shoes. If not, you can take several important steps to make your business more appealing to a wider audience, increase its value in the marketplace, and help facilitate a smooth transition. 


The first place to look are your business records. Potential buyers will want to review documents like tax returns, profit and loss statements, balance sheets, cash flow statements, accounts receivable, and accounts payable. If you already have excellent record keeping practices, then you are in good shape. If not, then now is the time to make a change. Consider seeking professional help from an accountant or other qualified financial expert to organize your books. These records will show potential buyers how much your business has prospered and give them a good idea of its future potential. 


Next, you will want to look at your operations from an outsiders perspective. If your business is turnkey and will not require long hours or extensive hiring for the new owner, then it is inherently more valuable and easier to sell. Have you developed a loyal base of customers? Do you have marketing in place to acquire more? Are your employees happy at work, and do they do a good job? Will the existing team be able to continue providing great service to current and future clients, even if the company is under new ownership? Does your business have solid relationships with important vendors and other third parties, separate from you as the owner? Do you have thorough written policies and procedures, handbooks, and training manuals ready to go? Have you secured valuable intellectual property, like your businesss name and logo?


Taking these steps can enhance your businesss value. When the time comes to determine a sale price, you can choose from several methods of valuation. These may vary by industry, especially if your business is unique, but in general you can use annual revenue as a way to determine your businesss value. One common calculation looks at recent sale prices of similar businesses compared to their annual revenue. You can price your business based on these sales by plugging in your own financials. Then you can examine your businesss other strengths, like the soft factors described above, to determine if buyers might pay an additional premium. A professional business valuator can offer assistance in obtaining a fair and appropriate valuation that you can trust. 


Finally, its important to discuss your plans with a team of experts, including an accountant, an attorney, and other trusted advisors, like a mental health professional or business coach. You might discover that it does not make financial sense to sell your business at this time. Maybe you can find another way to step back if you are suffering from burnout or lack of interest. If the time is right, though, then your team will help you through the next steps. If you are interested in learning about my experience as a corporate law attorney assisting business leaders and entrepreneurs in our community, please email me at mcannon@cplspa.com or call me at 407-647-7887.

Building a Better Workplace Environment and Culture

As an employer in our community, you are responsible for cultivating a positive working environment for your team. Not only is it the right thing to do, and it will therefore bring significant personal satisfaction to you as a business leader, but it’s also a vitally important step you can take to protect your business interests. Let’s take a look at some strategies you can implement today to improve your workplace environment and culture. 

  • Create (or update) your employee handbook

Your handbook is not a “set it and forget it” type of document. It must be reviewed and updated with regularity to ensure you are complying with all of the latest recommendations and requirements. Furthermore, you should take care to make the handbook easily accessible to your employees. Ideally, you would provide each of them with a hard copy on their first day of work, along with an electronic version that can be updated as needed and accessed anywhere, anytime. These written policies and procedures are essential for keeping your business running smoothly and protecting you from liability. They help you set the tone and establish expectations for how employees behave in the workplace.

  • Lead by example

Your employees are looking to you to set the bar in terms of how they will interact amongst themselves and with your clients, vendors, and other important third parties. It is key to have a leadership team in place that is not only competent but kind as well. Workplace culture starts at the top, and by treating your team with the respect they deserve, you can create an environment that is both productive and pleasant. Take care to demonstrate the behaviors you want to see in your employees, such as being patient, polite, and helpful, and seek out managers who share your values. 

  • Conduct exit interviews 

When employees leave your business, do not miss the opportunity to review the details of their experiences working for you. Even if you sense some unresolved tension in the employment relationship, that is all the more reason to investigate what went wrong and why your employee has chosen to seek work elsewhere. These insights will help you to retain current and future employees, avoiding the significant time and financial burdens of the hiring and training processes. Do not be afraid to ask for feedback from employees who are on their way out. It may be humbling, but it will ultimately help you to excel as a business leader and as an organization. 

  • Hold training and other events

Once a positive culture is in place, you can maintain it by holding development programs on relevant topics like workplace civility, stress management, and communication skills. The benefits of these are twofold: first, the direct results of the training, and second, the overall values you are able to demonstrate, like caring about your employees and being committed to providing a respectful work environment. Another good idea is to hold events specifically for the sake of employee appreciation, whether it’s a weekend of travel to a seminar with all expenses paid or a simple Friday afternoon pizza party in the break room. 

  • Review your hiring and onboarding procedures

Another important way to establish a healthy workplace culture is to hire people who align themselves with your values and whose personalities will help you foster cooperation and harmony on a broader scale. The interview process is a key part of identifying the right fit for your organization. Some candidates look great on paper, but even applicants with the best qualifications may have a negative attitude that could be disruptive or even destructive to your business. When you do find the right people for the job, ensure that your training process will make them feel comfortable and welcome. Consider assigning a designated mentor, whether that person is a peer or a more senior leader, to go to for help as needed. 

These are just a few ideas to get you started with developing and improving the culture in your business environment. The possibilities are endless and can be tailored to your unique concerns and challenges. You have the power to implement positive changes that will increase employee satisfaction and protect your business operations, and you can start today. If you are interested in learning about my experience as a corporate law attorney assisting business leaders and entrepreneurs in our community, please email me at mcannon@cplspa.com or call me at 407-647-7887.

The Importance of Plain English Business Agreements

Much of our American legal system comes from the English common law, where early lawyers (called “scriveners”) were literally paid by the word. This history helps to explain why some legal writing tends to be so verbose. 
 
Today’s attorneys are often paid by the hour. It would be prohibitively expensive for clients to have their lawyers write lengthy agreements from scratch, and this is another reason why legal documents tend to be very wordy. Instead of coming up with a contract out of thin air, attorneys usually start with a template or sample. It may be something they have worked on before, received from another attorney, or obtained from a reputable source, like their state bar association. While this practice is efficient, it tends to perpetuate some of the archaic language that has been passed down by lawyers from one generation to the next. 
 
These days, a growing trend has emerged opposing the old status quo. One significant reason for this is that courts generally analyze contracts using plain English, i.e. the dictionary definition of every single word. Another reason is that savvy lawyers strive to write contracts that can be easily understood by everyone who reads them, which can be impossible if the agreement is filled with complicated, overly formal legalese. In other words, judges and non-lawyers may prefer a more concise, clear, and direct style. The parties to the contract absolutely must be able to understand and carry out its terms. After all, this is the purpose of having a contract. 
 
If you are an attorney, how can you adopt this approach? The primary consideration should be giving the parties to your contract the precise information they need in a way that is easy to understand and implement, leading to fewer disputes down the road. Try to avoid long sentences that attempt to cover too much ground at once. Use as few words as possible, leaving less room for debate and confusion. Make sure every word has a clear meaning and purpose and is truly essential to the agreement, keeping in mind that a judge may be analyzing your language choices down the road.  
 
If you are a business owner, you can easily improve your operations by using plain English contracts. Your employees, clients, and vendors should appreciate being presented with agreements that are as brief as possible and simple to understand. Should you inevitably receive a complicated document, though, it is important to have a qualified business attorney review it before signing. Your lawyer can act as a translator and guide, helping you to understand the agreement’s terms and requesting any necessary changes on your behalf. 
 
Are you interested in learning about my experience as a corporate law attorney assisting business leaders and entrepreneurs in our community? Please email me at mcannon@cplspa.com or call me at 407-647-7887.

How to Protect Your Business With Client Services Agreements

One of the most important assets you will acquire as a business owner is your roster of clients and customers. These relationships often take years to develop and are the foundation for everything you do. Satisfied customers play an important role in helping your business prosper by returning to you for repeat business and by referring their friends and family to you. 

If you are a service provider, how can you take action to protect these valuable relationships? Ideally, you will enter into them with a clearly-defined Client Services Agreement specifically tailored to you and your business. By providing your customers with a detailed written agreement outlining the scope of your services and other important terms and conditions, you are setting your work relationships up for success.

Through your Client Services Agreement you can set clear expectations, making it easier to prevent any potential disputes in the future. Should a conflict arise, you will likely be able to refer to your Client Services Agreement to provide clarity and context to the issue at hand. This helps you provide your customers the best and most comfortable experience possible, even in the event of an unforeseen conflict.

Some important terms to consider including in Client Services Agreements across various industries are: a detailed description of the scope of your services (i.e., what is and is not included); the amount of your compensation, when it is due, and the method of payment; a timeline of when the services will be performed; and any necessary waivers to protect you from liability in the event of personal injury or property damage. Depending on the exact nature of your business, a knowledgeable corporate attorney can make additional, more specific recommendations.

Your Client Services Agreement also has the added benefit of enhancing your credibility and reputation as a business leader. By presenting a well-written agreement that makes both sides feel thoroughly informed and protected, your business increases its authority and trustworthiness with your customers and in the community at large. It demonstrates that you care about your relationships and have taken proactive steps to nurture confidence and trust.

Although a Client Services Agreement is legally binding, it does not need to be excessively formal or confusing. In fact, many experienced business attorneys understand that simplicity and transparency are essential for this type of agreement. Whether you are an athletic trainer, landscaper, web developer, or accountant, most of your clients are likely to want the same thing: an agreement they can easily understand, with terms that are thorough and fair to both sides. The right agreement makes them feel comfortable starting a relationship with you now and continuing to work with you in the future.

Are you in need of a Client Services Agreement for your new or established business? If you are interested in learning about my experience as a corporate law attorney assisting business leaders and entrepreneurs in our community, please email me at mcannon@cplspa.com or call me at 407-647-7887.