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COVID-19: Saving Pets with Special Contracts and Addendums

As a result of the coronavirus crisis, rescues, shelters, animal control facilities, dog wardens, and humane societies have an increased need for volunteer foster homes, who are a lifeline to alleviate overcrowding and economic hardships, as employees and volunteers are unable to come in and care for pets as they normally do.

Complicating matters is that in some situations, routine spay/neuter surgeries have been deemed “non-essential” in order to preserve supplies, such as PPE and oxygen, and to promote staff safety by encouraging social distancing.

Some rescue and shelter operations do not release pets into foster homes until they are spayed or neutered. Most do not release pets into permanent adoptive homes until they are spayed or neutered. Given the lack of available spay/neuter surgeries, a strong foster home, foster-to-adopt, or adoption contract with special spay/neuter provisions can be used to ensure that rescue and shelter operations are able to continue to place pets into foster and adoptive homes while still safeguarding their mission of reducing pet overpopulation. Such agreements give the shelter or rescue the ability to enforce the delayed spay/neuter and reclaim the pet (and/or its unintended offspring) if necessary.

The following sample language is a volunteer foster home agreement addendum. This is a supplement to a foster home contract and is only as strong as the foster home contract is itself. This addendum is not formatted to be used on its own and may not be legally enforceable on its own.  An effective and enforceable foster home contract will include additional critical provisions pertaining to the foster program, such as jurisdiction for enforcement and reimbursement for expenses such as food, transport, and medical care.

This sample addendum is provided for informational use only and should be reviewed by legal counsel in conjunction with the organization’s foster home contract. Rescues and shelters may also consider foster-to-adopt or adoption contracts with special addendums related to spay/neuter and COVID-19.

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Animal Care Exemption Letter during Coronavirus

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Some animal shelter, rescue, and humane society employees and volunteers have reported that they are uncomfortable traveling during Ohio’s Stay at Home COVID-19 order, effective March 24th, because they fear being pulled over by law enforcement without documentation about their activities.

While most law enforcement agencies do not seem to be aggressively questioning citizens, a letter explaining that animal care activities are exempt may help quell these fears.

Here is a sample which you may wish to review with your own legal counsel:

To Whom It May Concern:

Please be advised that _____________ is a current employee/volunteer at ABC ANIMAL RESCUE (the Rescue) located at ___________________.  The Rescue is committed to taking responsible action to combat the spread of the COVID-19 virus, including compliance with all orders from the Ohio Department of Health (ODH.)

The Rescue is aware of the “Director’s Stay at Home Order” issued by ODH requiring all persons to stay at home unless they are engaged in an “essential work or activity.”  Paragraph 12(c) of that order specifically exempts “businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, kennels, and adoption facilities.”  Furthermore, Paragraph 7 of the order permits travel for the purpose of providing “veterinary care and all healthcare services provided to animals.”  Finally, Paragraph 5(e) permits travel in order to provide care for and the transportation of pets. 

The Rescue is an organization described in Paragraph 12(c) and is therefore exempt for the activities described above.  The person named above is authorized by the Rescue to travel for the purpose of providing these essential services.

Please call _______________ if you have questions or concerns.

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Ohio’s Coronavirus “Stay at Home” order and Animal Care

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Ohio’s COVID 19 “Stay at Home” order does not prevent you from caring for animals.

The Ohio Department of Health issued an emergency order effective March 24, 2020 requiring all Ohio citizens to shelter at home to prevent the spread of the coronavirus. But there are exceptions:

  • Paragraph 5(e) permits a person to travel in order to provide care for or for the transportation of pets.
  • Paragraph 7 permits travel for the purpose of providing “veterinary care and all healthcare services provided to animals.
  • Paragraph 12(c) specifically permits people to engage in “essential work or activity,”  including “businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, kennels, and adoption facilities.”  This means that humane societies, dog shelters, animal rescues and animal boarding facilities can continue their important work.

Remember, anyone who keeps, harbors or confines an animal has a legal duty to provide care to prevent unnecessary suffering. Failure to do so could result in criminal penalties. (See O.R.C. 959.13 and 959.131.)

We urge everyone in this time of emergency to use social distancing and to take extra efforts to clean and sanitize to avoid spreading the virus while you care for your pets, and while you continue the vital work of animal rescue.

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How do I prepare for my child’s IEP conference?

Meeting with school officials about your child’s Individual Education Plan (IEP) can feel like your worst nightmare. Sitting alone across from five or six administrators and experts has all the markings of a bad dream. But, it doesn’t have to be like that.

Preparing for an IEP

You can prepare for the meeting in a few simple ways.

First, familiarize yourself with the form used for every IEP. The Ohio Department of Education offers a sample at http://education.ohio.gov/getattachment/Topics/Special-Education/Federal-and-State-Requirements/Ohio-Required-and-Optional-Forms-Updated/iep-pr-07-form-static.pdf.aspx?lang=en-US .

This is the form the school will complete and review with you at the IEP meeting. Read through the 16 sections and think about how you would answer regarding your child. Above all, consider what is right for your child.

Knowing the players

Next, consider who may be at the meeting. The school district can include your child’s general education teacher, a Special Education teacher, any experts such as the school psychologist or a therapist, an administrator from the school, among others. Therefore, you may be know one or more of them, and this may relieve some of your angst.

Also, request an advanced copy of your child’s IEP. If the school has prepared a draft IEP, ask them to provide you with a copy. This extra time can help you formulate questions or seek additional information about the matters discussed in the IEP.

Be prepared to disagree

Finally, make yourself ready to disagree with part or all of the plan the school has developed for your child. When the conference is over, the school district will ask you to sign in Section 15, found at the end of the plan. Your signature acknowledges that you attended the meeting, and another signature indicates you agree with the plan.

Before signing, read this section carefully. If you agree with the school’s ideas and plans for your child, sign it in the appropriate place. However, if you do not agree, make sure that is clear in this signature area.

Preparation beforehand can take the turmoil out of the IEP conference. The shear number of school officials can be overwhelming. Remember, you can bring other people to these meetings including family members, friends, other professionals or even an attorney.

Let us help

At Holland & Muirden, we understand how overwhelming the IEP process can be. We can help at any stage of the process to make the IEP less of a nightmare. Contact us today. http://holland-muirden.com/contact-ohio-law-firm-free/

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When I’m gone, who will speak for my disabled child?

Every parent of a child with a disability worries – what happens when I’m gone?   Other children grow up to become self-sufficient. A child with a disability grows into an adult with a disability. They will need someone there for them. Who will speak for your disabled child when you’re gone?

Finding someone who “gets it”

Caring for a special needs child is tough enough. Parents know their own child. They know what they need now and what they will need as an adult.  Along the way, there are family or friends who also “get it.” These are people the parent would entrust with their child.

Parents planning for the future can ensure their child –whether a minor or an adult – is looked after by one of these trusted people.  Ohio law permits them to nominate a specific guardian for their disabled child, even if their son or daughter has entered adulthood.   

Parents nominate a guardian for the future when they may not be there. A guardian who will speak for their disabled child.

Who will speak for your child?

An adult with disabilities may need a guardian whether they live independently, in a group home or in an institution.  Even if a guardian doesn’t provide direct care, they will need to make important decisions about health care, living quarters or special educational needs.  A guardian oversees their care and steps in if something goes wrong. They become the disabled person’s voice.

If you pass away or are unable to make decisions for your child, the court can appoint a guardian.  If you have nominated someone for the post, the judge must consider that person, ask if they meet the legal requirements and determine it is in the best interest of your child.   Without a nomination, the court must consider whoever applies to be the guardian of your child.

We can help

At Holland & Muirden, we understand that the future – and estate planning – is different when you care for someone with special needs.  Contact us today to make your plans. http://holland-muirden.com/ohio-law-areas-of-practice/ohio-estate-planning-probate-attorneys/

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What happens to my Facebook page when I die?

By now, you’ve probably seen someone’s Facebook page change to memorial status when they pass away.  Facebook even lets you appoint a “Legacy contact” to manage your memorialized account.  Or, you can choose to delete your account completely once you die.

This Online Tool handles your Facebook account, but what about everything else?  Snapchat? Google Hangouts? Amazon? The online electric bill?  What happens to your email when you die? If you die, can someone else sign on to your account and pay your bills? Or turn off an automatic payment?

Ohio has a law to help answer these questions and let you plan for your Digital Assets if you die or become disabled.   In 2017, Ohio legislators passed the Digital Assets Act which gives you the tools to include online information in your estate planning.

If I am incapacitated…

 First, the newest Statutory Power of Attorney (a POA) form includes “Digital Assets” and “the content of electronic communication sent or received by me.”   In a POA, you select an agent to handle your affairs if you are alive but not able to make decisions. 

  The Digital Assets option gives them access to everything EXCEPT the content of your emails.  So, your agent can pay your electric bill or use your email address book to send health updates to some or all of your contacts.  So, if you want your agent to actually read your emails, you select the “content of electronic communication” option.  State lawmakers felt email content was highly personal and need to be chosen separately.

If I pass away…

However, a POA expires when you die.  So, to ensure someone has access to your Digital Assets and/or “the content of electronic communication” you should specify this in your will.  This language can be as general or as specific as you want.  It can be for all of your accounts or for a specific account, such as LinkedIn.

In conclusion, you can make sure someone has all your passwords, but accounts and passwords change.  Using “online tools” such as the Facebook options helps manage some accounts.   However, adding digital assets to your estate planning can ensure that all of your accounts are covered.  Your POA agent or the executor of your estate will be able to open and use your accounts to do what you wish or what’s best for your estate.

We can help

So, contact us today to talk about your Digital Assets and all your estate planning needs.

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Ohio Nonprofits Beware– “OH Certificate Service”

Nonprofits Beware!
This very official-looking letter purports to provide your new Ohio nonprofit organization a Certificate of Good Standing for the fee of $67.50. This letter is NOT from the Ohio Secretary of State and is extremely misleading. Similar letters are being sent to nonprofits across the country with state-matched names such as “MI Certificate Service” (Michigan) and “CA Certificate Service” (California).

The letter suggests that your organization may need this certificate as “official evidence” of your organization’s existence. In reality, when an Ohio nonprofit organization is formed, you receive an approval certificate with your charter number from the Ohio Secretary of State.

Please review solicitations like this carefully before sending funds and when in doubt, reach out directly to the governmental agency rather than using the contact information contained in the letter. OH Certificate Service’s website does not exist and its address is a UPS Shipping Store. The website uses a “.com” domain, rather than “.gov.” In a tiny font in the middle of the letter under “Business Information,” there is a line that reads “This is not a government agency.” Are they referring to the nonprofit organization or “OH Certificate Service”?

Certificates of Good Standing are rarely needed for Ohio nonprofits and are most often used when dealing with financial institutions. If your organization needs a Certificate of Good Standing, it can be obtained online from the Ohio Secretary of State website for $5.00 (https://www.sos.state.oh.us/businesses/business-reports/#gref) or contact an attorney for help (it won’t cost you $67.50!).

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PACT Act is now federal law–but what does it really cover?

The PACT Act (Preventing Animal Cruelty and Torture Act) was signed into federal law yesterday! This is a great law that builds on 2010’s Animal Crush Prohibition Act by making any activity defined as “animal crushing” potentially a federal crime, whether or not the act is committed as part of a crush video.

Unfortunately, there are lots of misleading and confusing headlines on this law, including that the PACT Act:
“makes animal cruelty a federal felony”
“Mak[es] Cruelty To Animals A Federal Crime”
“Bans Cruelty”
“Make[s] Animal Abuse a Federal Offense”
is a “Sweeping Federal Ban on Animal Cruelty”
covers “Most animal cruelty”

The PACT Act does make some animal cruelty a federal offense, but it isn’t that simple! Here are the basics:

✏️ What is “Animal Crushing”?
➡️ Animal crushing commonly refers to extreme fetish videos depicting animal abuse—where small animals are crushed, ripped apart, burned, or otherwise tortured to death. Usually, this is designed for the sexual gratification of the viewer. In 2010, a federal law was passed that banned the creation or depiction of such videos/acts, but NOT the actual underlying act of animal cruelty.

✏️ What does the PACT Act cover?
➡️  It outlaws purposeful crushing, burning, drowning, suffocation, impalement and other purposeful acts that cause “serious bodily injury” to animals other than fish. It also prohibits some acts of sexual abuse against animals other than fish, but this particular provision seems to have a qualifier that such acts are only prohibited if committed in the “special maritime and territorial jurisdiction of the United States” (federal property). The rest of the PACT Act applies to acts “in or affecting interstate or foreign commerce,” in addition to federal property. This limitation on the jurisdiction of animal sexual abuse crimes seems to negatively affect the federal prosecution of, for example, bestiality videos that are distributed online.
➡️ It outlines exemptions for humane euthanasia; slaughter for food; recreational activities such as hunting, trapping, and fishing; medical and scientific research; normal veterinary, agricultural husbandry, or other animal management practice; unintentional acts; and acts that are necessary to protect the life or property of a person.
➡️ It does not apply to anything other than the specific acts of cruelty listed above.
➡️ It does not cover all acts of animal cruelty.
➡️ It does not cover acts of neglect, abandonment, extreme weather, filthy conditions, or tethering issues.
➡️ It does not cover “puppy mill” issues.

✏️ Does the PACT Act change state and local law?
➡️ No. An offender can only be prosecuted pursuant to the PACT Act if the criminal act occurs on federal property (ex: national parks, military bases) or “in or affecting interstate or foreign commerce.” Federal property (“special maritime and territorial jurisdiction of the United States”) is defined in 8 subsections of 18 U.S.C. § 7: maritime jurisdiction, 18 U.S.C. §§ 7(1), 7(2); lands and buildings, 18 U.S.C. § 7(3); Guano Islands, 18 U.S.C. §7(4); aircraft, 18 U.S.C. § 7(5); spacecraft, 18 U.S.C. § 7(6); places outside the jurisdiction of any nation, 18 U.S.C. § 7(7); and foreign vessels en route to and from the United States, 18 U.S.C. § 7(8)).
➡️ The PACT Act was designed not to preempt or interfere with local/state animal cruelty laws or enforcement. The PACT Act is merely a federal overlay, exactly like the federal animal fighting law(s).

✏️ Who enforces the PACT Act?
➡️ Federal law enforcement in federal courts.

✏️ What are the possible punishments for violation of the PACT Act?
➡️ Violations could result in a fine and up to seven years’ imprisonment.

✏️ Does the PACT Act make all animal cruelty a felony?
➡️ No. As noted above, the PACT Act only applies in a narrow set of circumstances. State and local legislation to strengthen animal cruelty and neglect laws are still needed and very much necessary.

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Courts may order forfeiture of horses in animal cruelty case

On September 20, 2019, the 11th District Court of Appeals in Ohio held that a sentencing court may order an animal cruelty offender to forfeit horses as a condition of probation without going through the more cumbersome process of a full forfeiture proceeding.

The history of this case is complicated. Defendant Bianca Marcellino was convicted after a jury trial of two counts of animal cruelty for neglecting two horses, which were found to be emaciated and suffering from rain rot. Bianca Marcellino stated in a sworn affidavit that she was the sole owner of the horses. However, just before her sentencing hearing, Bianca’s mother, Karen Marcellino, filed a motion claiming to be the owner in an attempt to block forfeiture of the horses to the Geauga County Humane Society. The Court found that there was no evidence supporting Karen’s claim and ordered the horses to be forfeited.

The horses were rehabilitated by the Humane Society and placed in a new home. 

Karen filed an appeal. The Court of Appeals dismissed her case, finding that the case was moot, as the horses were already placed with a new home. State v. Marcellino, 11th Dist. Geauga Nos. 2019-G-0199, 2019-G-0200, 2019-Ohio-3329. Karen filed a motion to reconsider, claiming that there should have been a separate forfeiture proceeding beyond the sentencing in her daughter’s case.

The Court of Appeals denied the motion to reconsider. This appears to be the first appellate case in Ohio holding specifically that a sentencing court may order forfeiture of livestock as a condition of probation under R.C. 959.99(D) without further court proceedings.

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Ashland County Resident Found Guilty in Cockfighting Case

State v. Benny Craft, a case we prosecuted which was investigated by the Ashland County Sheriff and the Ohio Department of Agriculture, with assistance from the Humane Society of Ashland County Ohio

Craft was found guilty after a jury trial of cockfighting, two counts of animal cruelty and one count of possession of criminal tools. Craft was found not guilty of 3 counts of criminal tools and 4 counts of cruelty.

Craft was sentenced to a total of 90 days in jail, $350 in fines, courts costs, forfeiture of the roosters seized and items found to be criminal tools. He was ordered to pay $1,070 restitution for veterinary and other care provided to the animals. Jail is suspended on condition that he successfully complete one year probation. During probation he may not possess chickens or other poultry, and he is subject to inspections.

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