For seven years after LaFon gave my ex-wife custody of my daughter, relegating me to an every other weekend visitor in Maggie’s life, I made the roundtrip drive from Memphis, Tennessee to Huntingdon, Tennessee without fail.
On May 27, 2000, I remarried; her name is Glenda. Before I asked Glenda to marry me, I talked to Maggie (then 5) and asked her if it would be okay, and Maggie shouted “yes!”. I asked Glenda to marry me at 12:00:15 am on January 1, 2000; earlier that evening I got Maggie a “Happy New Year” balloon. When Glenda said “yes”, of course, I gave her an engagement ring, and I gave Maggie her balloon. Later, when Maggie would tell people that Glenda and I were getting married, she would say, “Glenda got a ring, but I got a BALLOON!” Of course, that balloon was more important than any old ring.
At our wedding, Maggie was the flower girl. But more importantly, Maggie was a part of the ceremony. Before Glenda and I said our vows, Maggie came up and I knelt down to her and said, “Maggie, I love you more than any daddy could love his daughter, and I love Glenda more than any husband could love his wife. Nothing will ever change that.” I then picked Maggie up and held her close to Glenda, who told Maggie that she loved her and that she is not a replacement for Maggie’s mother; she then thanked Maggie for letting her be a part of her family. During the reception, in addition to the wedding cake and the groom's cake, Maggie had a "Barney" cake (Maggie used to love Barney).
My second daughter, Cayla, was born in June, 2001. Prior to her birth, we made sure that Maggie was involved as much as possible. There was a sibling class at Baptist Women’s Hospital that we took her to so she could learn how to help with the baby. During one of my two weeks of summer visitation, we took Maggie with us to a prenatal doctor’s visit, and Maggie got to see an ultrasound of her baby sister and listen to the amplified heartbeat. We also got Maggie a “I’m the BIG SISTER” t-shirt. Cayla was born the day after I had to take Maggie back to her mother’s house in Huntingdon. On the following Tuesday evening (I was “privileged” to have the court order my ex-wife to allow me to call Maggie every Tuesday and Thursday at 7:00 pm for 10 minutes), when I called Maggie, I gave the phone to Glenda, and Cayla sort of gurgled. Maggie started giggling and asked if that were Cayla, and Glenda said yes. Maggie was excited to hear her baby sister.
The next weekend that I had Maggie, we had a “Welcome Home” party for Cayla, and Maggie made a big sign which we put on the door. In July, when I had my second week in the summer, I took Maggie for a three day trip for some father-daughter time because I did not want her to feel neglected because of the new addition to our family.
In 2006, I ran for the office of Juvenile Court Judge for Memphis and Shelby County (I did not win, but that is another story). During the summer campaign, Maggie (then 11) wanted to help, which I let her do. She even designed a flyer which I printed and handed out. She also went to some of the campaign events to help.
I am telling these events for one reason - to show that Maggie was never made to feel less important than any other member of the family. Maggie was, rather is, loved by Glenda, Cayla, her extended family (and there are a lot of them), and ME.
Thanksgiving of 2006 was the last time I saw Maggie. As I alluded to in my last post, in September 2006, everything went crazy. The reason is PAS - Parental Alienation Syndrome. I will detail the events in my next couple of posts, but the players are:
Judge - Madison County Circuit Court Judge Don Allen
Psychologist - Robert W. Kennon, of Jackson, Tennessee
GAL - Angela Snider, of Jackson, Tennessee
ex-wife’s attorney - Steve West, of McKenzie, Tennessee
In order to understand the psychodynamics of PAS, here is a link to the Social Work Today journal, with an article entitled: Parental Alienation Syndrome — The Parent/Child Disconnect, by Amy J. L. Baker, PhD. The signs and symptoms described by Dr. Baker are the classic signs, and were ever present in my own case.
http://www.socialworktoday.com/archive/102708p26.shtml
Thursday, June 23, 2011
Wednesday, June 22, 2011
My Story: For the Love of a Child - Part 4 (revised)
This posting was previously posted under the heading, Psychologists that go Psycho - Part 2 of 2. Since these examples are directly from my own case, I am now incorporating it into My Story: For the Love of a Child.
On February 13, 2011, I posted a link to the American Psychological Association’s website which has the APA Guidelines for Child Custody Evaluations. http://www.apa.org/practice/guidelines/child-custody.pdf . Guideline #12 is critical in child custody evaluations because its content means that psychologists should not give psychological opinions about people they have not evaluated, and the psychologists should not make custody recommendations when they have not evaluated both parents and the child or children. The Guidelines also address conflicts of interests, and all of these issues came up in Anna Mae He and Malmquist (refer back in the blogstream to Psychologists that go Psycho - Part 1 of 2).
In my own case, years apart, two psychologists crossed over the line.
First, in 1994, Dr. Elias King Bond of Jackson, Tennessee, was ordered to evaluate my ex-wife only; not our daughter nor me. Dr. Bond stated that my ex-wife had “a personality disorder, probably best characterized as a mixed diagnostic picture, with histrionic and passive/aggressive and dependent features.” He then went on to recommend that my ex-wife be given custody of our daughter and that I have reasonable visitation. Can you say UNETHICAL? He did not conduct an evaluation of me, nor was he supposed to make a custody evaluation or recommendation.
This seems to be a recurring problem with Dr. Bond. Further, Dr. Bond has admitted that he is biased towards mothers in custody cases. In 2007 in In re Mikayla Grace Clark; Samuel Kent Clark v. Leah Joy Cerden, the Tennessee Court of Appeals stated:
Mother called Elias King Bond ("Dr. Bond"), a psychiatrist, to testify as an expert on her behalf. Dr. Bond was contacted by Mother's attorney to give an opinion as to whether Mother was sufficiently stable and capable of being Mikayla's primary residential parent. Dr. Bond interviewed Mother in November 2004, and at that time obtained Mother's account of her history. He noted that she had undergone counseling in the past. He also said that, prior to December 2003, Mother had tried two antidepressants; however, she was not on medication at the time of the interview. Dr. Bond saw Mother's ability to recognize her problems, to ask Father to care for the child in her time of need, and to seek help for her depression as positive signs indicative of maturity. From his interview with Mother, Dr. Bond said, he saw no indications of abnormal thought patterns or emotional patterns to suggest that she was unstable. He opined that there was "no psychiatric reason [Mother] should not have custody of her child. I do not consider her having any psychiatric diagnosis at this time and, thus, see no way that I consider her unstable or unfit." Over objection, Dr. Bond stated his opinion that, generally, it is best for a "child's psychological development to be with the mother unless there are overriding reasons to feel that the mother is the more unstable parent." He said that he was unaware that, by statute, parent gender may not be considered in making custody determinations. Dr. Bond acknowledged that his recommendation was made without interviewing Father or evaluating Mother further.
So Dr. Bond believes that a child should be with its mother, and he continues to make recommendations without evaluating fathers. In my own case, he (just like the GAL Christy R. Little) just submitted a written report to the court and did not bother to attend the trial.
Now, again in my own story, in 2006, enter Dr. Robert W. Kennon. As will be detailed in the next installment of My Story: For the Love of a Child, in 2006 my ex-wife and I were back in court regarding my then 11 year old daughter. Judge Don Allen ordered Dr. Robert Kennon (of Jackson, Tennessee) to do a full custody evaluation. Prior to my appointment I mailed Dr. Kennon a CD with photos and videos of my 11 year old with me, my current wife, and our then 5 year old daughter. When I arrived for my appointment, he gave me paperwork to fill out, including a waiver that I would not object to him submitting a written report directly to the judge. WAIT. Isn’t that what I fought against and prevailed in the case of Toms v. Toms (posted January 30, 2011)? The Tennessee Supreme Court held that a GAL’s report was inadmissible hearsay; likewise, so is a psychologist’s report. I told Dr. Kennon that I would not sign the waiver, and he said that there was no reason for him to evaluate me then. I asked him if he had viewed the CD, and he said there was no reason for him to view it. What kind of psychologist is this? Maybe one that is afraid to be cross-examined in court? Maybe one that has already made up his mind?
Before I left, I did mention to Dr. Kennon that my daughter is being subjected to Parental Alienation by her mother, my ex-wife. He said, then, it is probably better that I have no contact with my daughter, then. WHAT! So, based on that, apparently Dr. Kennon believes that you reward an alienating parent by doing just what that parent wants - eliminating contact between the child and the target parent.
Dr. Kennon ended up filing a report favoring my ex-wife and recommending me to have no contact with my oldest daughter. No evaluation of me, and no reviewing pertinent evidence - videos of the interactions between my oldest daughter and me, my current wife, and my oldest daughter’s younger sister. Once again, can you say UNETHICAL?
On February 13, 2011, I posted a link to the American Psychological Association’s website which has the APA Guidelines for Child Custody Evaluations. http://www.apa.org/practice/guidelines/child-custody.pdf . Guideline #12 is critical in child custody evaluations because its content means that psychologists should not give psychological opinions about people they have not evaluated, and the psychologists should not make custody recommendations when they have not evaluated both parents and the child or children. The Guidelines also address conflicts of interests, and all of these issues came up in Anna Mae He and Malmquist (refer back in the blogstream to Psychologists that go Psycho - Part 1 of 2).
In my own case, years apart, two psychologists crossed over the line.
First, in 1994, Dr. Elias King Bond of Jackson, Tennessee, was ordered to evaluate my ex-wife only; not our daughter nor me. Dr. Bond stated that my ex-wife had “a personality disorder, probably best characterized as a mixed diagnostic picture, with histrionic and passive/aggressive and dependent features.” He then went on to recommend that my ex-wife be given custody of our daughter and that I have reasonable visitation. Can you say UNETHICAL? He did not conduct an evaluation of me, nor was he supposed to make a custody evaluation or recommendation.
This seems to be a recurring problem with Dr. Bond. Further, Dr. Bond has admitted that he is biased towards mothers in custody cases. In 2007 in In re Mikayla Grace Clark; Samuel Kent Clark v. Leah Joy Cerden, the Tennessee Court of Appeals stated:
Mother called Elias King Bond ("Dr. Bond"), a psychiatrist, to testify as an expert on her behalf. Dr. Bond was contacted by Mother's attorney to give an opinion as to whether Mother was sufficiently stable and capable of being Mikayla's primary residential parent. Dr. Bond interviewed Mother in November 2004, and at that time obtained Mother's account of her history. He noted that she had undergone counseling in the past. He also said that, prior to December 2003, Mother had tried two antidepressants; however, she was not on medication at the time of the interview. Dr. Bond saw Mother's ability to recognize her problems, to ask Father to care for the child in her time of need, and to seek help for her depression as positive signs indicative of maturity. From his interview with Mother, Dr. Bond said, he saw no indications of abnormal thought patterns or emotional patterns to suggest that she was unstable. He opined that there was "no psychiatric reason [Mother] should not have custody of her child. I do not consider her having any psychiatric diagnosis at this time and, thus, see no way that I consider her unstable or unfit." Over objection, Dr. Bond stated his opinion that, generally, it is best for a "child's psychological development to be with the mother unless there are overriding reasons to feel that the mother is the more unstable parent." He said that he was unaware that, by statute, parent gender may not be considered in making custody determinations. Dr. Bond acknowledged that his recommendation was made without interviewing Father or evaluating Mother further.
So Dr. Bond believes that a child should be with its mother, and he continues to make recommendations without evaluating fathers. In my own case, he (just like the GAL Christy R. Little) just submitted a written report to the court and did not bother to attend the trial.
Now, again in my own story, in 2006, enter Dr. Robert W. Kennon. As will be detailed in the next installment of My Story: For the Love of a Child, in 2006 my ex-wife and I were back in court regarding my then 11 year old daughter. Judge Don Allen ordered Dr. Robert Kennon (of Jackson, Tennessee) to do a full custody evaluation. Prior to my appointment I mailed Dr. Kennon a CD with photos and videos of my 11 year old with me, my current wife, and our then 5 year old daughter. When I arrived for my appointment, he gave me paperwork to fill out, including a waiver that I would not object to him submitting a written report directly to the judge. WAIT. Isn’t that what I fought against and prevailed in the case of Toms v. Toms (posted January 30, 2011)? The Tennessee Supreme Court held that a GAL’s report was inadmissible hearsay; likewise, so is a psychologist’s report. I told Dr. Kennon that I would not sign the waiver, and he said that there was no reason for him to evaluate me then. I asked him if he had viewed the CD, and he said there was no reason for him to view it. What kind of psychologist is this? Maybe one that is afraid to be cross-examined in court? Maybe one that has already made up his mind?
Before I left, I did mention to Dr. Kennon that my daughter is being subjected to Parental Alienation by her mother, my ex-wife. He said, then, it is probably better that I have no contact with my daughter, then. WHAT! So, based on that, apparently Dr. Kennon believes that you reward an alienating parent by doing just what that parent wants - eliminating contact between the child and the target parent.
Dr. Kennon ended up filing a report favoring my ex-wife and recommending me to have no contact with my oldest daughter. No evaluation of me, and no reviewing pertinent evidence - videos of the interactions between my oldest daughter and me, my current wife, and my oldest daughter’s younger sister. Once again, can you say UNETHICAL?
Tuesday, June 21, 2011
My Story: For the Love of a Child - Part 3 (revised)
At the end of Part 2, Judge Whit LaFon had awarded my ex-wife sole custody of my daughter, Maggie, with me being granted standard visitation. So I went from having my daughter every other week to only having her every other week-end, two weeks during the summer, and alternating holidays. LaFon’s decision was affirmed by the Tennessee Court of Appeals (judges Holly Kirby Lillard, W. Frank Crawford, and Alan E. Highers), even with the documented actions that the Disciplinary Counsel to the Court of the Judiciary found to be judicial misconduct.
Remember from Part 2, LaFon “retired” from the bench, thus circumventing a trial before the Court of the Judiciary (see the letter from the Court of the Judiciary posted on the “An Attorney’s Tale” Facebook page), the text of the letter is as follows:
As you know, our firm is employed as Disciplinary Counsel to the Tennessee Court of the Judiciary. This letter is to advise you that the complaint you filed against Judge Whit LaFon was submitted to an Investigative Panel of the Court of the Judiciary for consideration. During the pendency of the matter before the Investigative Panel, the Court voted at its semi-annual meeting on August 26, 1998, to dismiss all pending complaints against judges who retired from the bench. The reasoning underlying the decision was that the only punishment the Court could impose following a pubiic [sic] trial of an individual who is no longer a sitting judge would be a private admonition. See Tenn. Code Ann. 17-5-301(f), 17-5-309(a). Therefore, your complaint has been dismissed.
Thanking you for your interest in preserving the integrity of the judicial system.
That last line, as a friend commented, is really ironic. Thanks for wanting to preserve the integrity of the judicial system; however, your complaint is being dismissed because the judge retired and we do not want to be bothered with it now. The question arises, how many judges at the time had complaints pending against them and then decided to retire? The answer, I don’t know, maybe one. Don’t forget, LaFon was the uncle of former vice president Al Gore.
Also, during the trial in front of LaFon, LaFon stated several times that unless I could prove my ex-wife unfit, she would get custody. That is NOT the law - comparative fitness is the law. Even though the trial transcript showed LaFon making those statements, the Court of Appeals disregarded those words because the actual court order did not mention them; since the order did not mention them, that is not how LaFon thought when giving my ex-wife custody. All I can say about that is STU-PID! Or rather, corruption.
Since LaFon "retired" from the bench, my case was reassigned to Circuit Court Judge Don Allen.
In 2000, I filed a Motion for Relief from Judgment based on, among other things, LaFon’s judicial misconduct in my case and I attached most of the documentation from the Court of the Judiciary to the motion. Judge Don Allen DENIED the motion. So now we have three appellate judges and another circuit judge given documentation of judicial misconduct (not my words but the words of the Disciplinary Counsel of the Court of the Judiciary), and THEY ALL look away. Judges protecting judges, and punishment (via the child custody decision) to the person who reports the judge to the proper authority.
So far in my own case:
1. The guardian ad litem, now juvenile judge Christy Little, does not show up for the first trial, but instead files a report that contains many false statements.
2. The Tennessee Board of Professional Responsibility, when given documentary evidence of Christy Little’s false statements, dismisses the complaint against her.
3. In a civil lawsuit against Christy Little (represented by the law firm of Rainey, Kizer, Butler, Reviere & Bell), the Tennessee Court of Appeals (judges Alan E. Highers, David R. Farmer, and Holly Kirby Lillard) gives Christy Rauchle Little “absolute quasi-judicial immunity” so that she does not have to stand trial for her misconduct while assigned as guardian ad litem in my case.
4. Judge Whit LaFon commits judicial misconduct in my case, and four judges, three appellate and one circuit, look the other way.
5. The Court of the Judiciary dismisses the complaint against Whit LaFon because he “retired” from the bench.
Surely, all of this cannot have happened in our system of justice. Well it did, and still does, on a daily basis. The reason - judicial corruption - favoritism, good ole boys, sexism, racism, money, power trips, vindictiveness.
Woe is he who stands up against a judge that has done wrong.
End of Part 3.
Remember from Part 2, LaFon “retired” from the bench, thus circumventing a trial before the Court of the Judiciary (see the letter from the Court of the Judiciary posted on the “An Attorney’s Tale” Facebook page), the text of the letter is as follows:
As you know, our firm is employed as Disciplinary Counsel to the Tennessee Court of the Judiciary. This letter is to advise you that the complaint you filed against Judge Whit LaFon was submitted to an Investigative Panel of the Court of the Judiciary for consideration. During the pendency of the matter before the Investigative Panel, the Court voted at its semi-annual meeting on August 26, 1998, to dismiss all pending complaints against judges who retired from the bench. The reasoning underlying the decision was that the only punishment the Court could impose following a pubiic [sic] trial of an individual who is no longer a sitting judge would be a private admonition. See Tenn. Code Ann. 17-5-301(f), 17-5-309(a). Therefore, your complaint has been dismissed.
Thanking you for your interest in preserving the integrity of the judicial system.
That last line, as a friend commented, is really ironic. Thanks for wanting to preserve the integrity of the judicial system; however, your complaint is being dismissed because the judge retired and we do not want to be bothered with it now. The question arises, how many judges at the time had complaints pending against them and then decided to retire? The answer, I don’t know, maybe one. Don’t forget, LaFon was the uncle of former vice president Al Gore.
Also, during the trial in front of LaFon, LaFon stated several times that unless I could prove my ex-wife unfit, she would get custody. That is NOT the law - comparative fitness is the law. Even though the trial transcript showed LaFon making those statements, the Court of Appeals disregarded those words because the actual court order did not mention them; since the order did not mention them, that is not how LaFon thought when giving my ex-wife custody. All I can say about that is STU-PID! Or rather, corruption.
Since LaFon "retired" from the bench, my case was reassigned to Circuit Court Judge Don Allen.
In 2000, I filed a Motion for Relief from Judgment based on, among other things, LaFon’s judicial misconduct in my case and I attached most of the documentation from the Court of the Judiciary to the motion. Judge Don Allen DENIED the motion. So now we have three appellate judges and another circuit judge given documentation of judicial misconduct (not my words but the words of the Disciplinary Counsel of the Court of the Judiciary), and THEY ALL look away. Judges protecting judges, and punishment (via the child custody decision) to the person who reports the judge to the proper authority.
So far in my own case:
1. The guardian ad litem, now juvenile judge Christy Little, does not show up for the first trial, but instead files a report that contains many false statements.
2. The Tennessee Board of Professional Responsibility, when given documentary evidence of Christy Little’s false statements, dismisses the complaint against her.
3. In a civil lawsuit against Christy Little (represented by the law firm of Rainey, Kizer, Butler, Reviere & Bell), the Tennessee Court of Appeals (judges Alan E. Highers, David R. Farmer, and Holly Kirby Lillard) gives Christy Rauchle Little “absolute quasi-judicial immunity” so that she does not have to stand trial for her misconduct while assigned as guardian ad litem in my case.
4. Judge Whit LaFon commits judicial misconduct in my case, and four judges, three appellate and one circuit, look the other way.
5. The Court of the Judiciary dismisses the complaint against Whit LaFon because he “retired” from the bench.
Surely, all of this cannot have happened in our system of justice. Well it did, and still does, on a daily basis. The reason - judicial corruption - favoritism, good ole boys, sexism, racism, money, power trips, vindictiveness.
Woe is he who stands up against a judge that has done wrong.
End of Part 3.
My Story: For the Love of a Child - the case of Toms v. Toms (revised)
In order to shed some insight on the next installments of My Story: For the Love of a Child, I am going to discuss the following case. Remember, in my first child custody trial, the GAL (Christy R. Little) filed a report to the court and did not even attend the trial. In an upcoming installment, another report will be filed in my case over my objections and without a hearing which ended any contact between Maggie and me and any of my family.
As I mentioned before, I argued my first case before the Tennessee Supreme Court in 2002 in the case of Toms v. Toms, 98 S.W.3d 140 (Tenn. 2003). The case is posted on An Attorney’s Tale Facebook page. The case made its way to the state’s highest court via what is known as an Extraordinary Appeal, an appeal where the trial court “has so far departed from the accepted and usual course of judicial proceedings as to require immediate review.” R.10 Tenn.R.App.Proc. I filed the appeal on behalf of my client, the mother of two young children whom were taken from her and given to the paternal grandparents by the court based solely on the report of a guardian ad litem ("GAL").
I was retained by the mother after she was summonsed to defend an action by the paternal grandparents in a divorce. The grandparents filed a motion to intervene because they were aware that given the actions of the father, that he would not get custody. The circuit court judge to whom the case was assigned was Robert “Butch” Childers; however, the grandparents filed their “emergency” motion while he was out of town, so the case ended up before Judge James Russell. The grandparents’ attorney was William Monroe, the father’s attorney was Wendy Dabbous, and the GAL was Susan Hinsley.
At the “so-called” hearing, the judge only took in the GAL’s written report, over my vehement objections of hearsay and lack of veracity (truthfulness) of the report. The judge called the attorneys to the bench and looked at me and said, “You need to crack open the books and learn how we do things in Shelby County.” I thought, “well the law books say I am right; what other books do I need to look at?” The judge ordered the immediate change of custody from the mother to the grandparents, and deputies were dispatched to ensure that it occurred.
I filed an application to the Tennessee Court of Appeals for an Extraordinary Appeal; however, they denied the application. I then filed the application with the Tennessee Supreme Court, which granted the application. Both sides had to simultaneously file an expedited brief, and oral arguments were set soon thereafter.
During the time period in which the briefs were being prepared, the grandparents’ attorney, William Monroe, filed a complaint against me with the Tennessee Board of Professional Responsibility (“TBPR“), the “policing arm” of the Tennessee Supreme Court; this was clearly his response to the granting of the appeal. He complained that I allowed my client to secretly record Hinsley’s visit to the mother’s home to inspect the home and interview my client. Prior to the visit by Hinsley, my client did inform me that she was going to secretly videotape the visit for her own protection against any mistruths made by Hinsley; I did not advise her to do it, nor did I have any position on it. The TBPR issued a Public Censure against me for NOT advising my client to NOT do something that she had every legal right to do. Under federal law and Tennessee law, a person that is involved in a conversation or meeting may secretly record it as long as that person stays in the conversation or meeting. My client did nothing illegal; however, I was censured for NOT telling her to not do it. This shows the political nature of the TBPR; the law does not matter, only the politics of the people who have the connections matter. Of course, after having filed complaints against Madison County attorney Christy Little and Madison County Circuit Court Judge Whit LaFon, the TBPR had zeroed in on me as a person who will “buck the system”, which is not “politically correct.” The trial judge ordered my client to turn over the original and all copies of the tape to Hinsley. Of course, my client’s fears were correct since Hinsley made many “erroneous” statements in her report.
During oral arguments before the high court, William Monroe stated to the court that it is rare for attorneys to be arguing constitutional issues in a family law matter. When I heard that statement, I thought to myself, “why“? Does the Constitution not apply to family law cases? My answer to myself was, “of course not”. I have first hand experience of the utter disregard of supposedly protected constitutional parental rights in child custody matters. I have also seen the same disregard day in and day out in the Shelby County courts, the disregard being hidden in the legal fiction of deciding cases “in the best interests of the child.” The Tennessee Supreme Court did rule in my client’s favor; however, getting her children back was still an issue.
After the high court’s decision, the case was sent back to the original trial judge, Judge Childers, the judge who was REVERSED by the Tennessee Supreme Court in the Anna Mae He case (an international termination of parental rights / adoption case that spanned 8 years; this story is posted on this blogsite at February 1, 2011). Judge Childers was not at all happy about the Extraordinary Appeal nor at the fact that my client, the mother, won the case. The Tennessee Supreme Court ordered the grandparents to pay my fees, which totaled around $12,000; however, Childers knocked that amount down to two to three thousand. Childers also dismissed the divorce case, and when I stated that we needed an order to transfer custody of the children back to the mother, he just smugly raised his shoulders and said the case is over. These actions were clearly vindictive, and the refusal to issue a transfer order was a slap in the face of the Tennessee Supreme Court and created a “race” to the Juvenile Court.
Prior to a hearing on the matter in Juvenile Court, the grandparents finally relinquished custody to my client.
As I mentioned before, I argued my first case before the Tennessee Supreme Court in 2002 in the case of Toms v. Toms, 98 S.W.3d 140 (Tenn. 2003). The case is posted on An Attorney’s Tale Facebook page. The case made its way to the state’s highest court via what is known as an Extraordinary Appeal, an appeal where the trial court “has so far departed from the accepted and usual course of judicial proceedings as to require immediate review.” R.10 Tenn.R.App.Proc. I filed the appeal on behalf of my client, the mother of two young children whom were taken from her and given to the paternal grandparents by the court based solely on the report of a guardian ad litem ("GAL").
I was retained by the mother after she was summonsed to defend an action by the paternal grandparents in a divorce. The grandparents filed a motion to intervene because they were aware that given the actions of the father, that he would not get custody. The circuit court judge to whom the case was assigned was Robert “Butch” Childers; however, the grandparents filed their “emergency” motion while he was out of town, so the case ended up before Judge James Russell. The grandparents’ attorney was William Monroe, the father’s attorney was Wendy Dabbous, and the GAL was Susan Hinsley.
At the “so-called” hearing, the judge only took in the GAL’s written report, over my vehement objections of hearsay and lack of veracity (truthfulness) of the report. The judge called the attorneys to the bench and looked at me and said, “You need to crack open the books and learn how we do things in Shelby County.” I thought, “well the law books say I am right; what other books do I need to look at?” The judge ordered the immediate change of custody from the mother to the grandparents, and deputies were dispatched to ensure that it occurred.
I filed an application to the Tennessee Court of Appeals for an Extraordinary Appeal; however, they denied the application. I then filed the application with the Tennessee Supreme Court, which granted the application. Both sides had to simultaneously file an expedited brief, and oral arguments were set soon thereafter.
During the time period in which the briefs were being prepared, the grandparents’ attorney, William Monroe, filed a complaint against me with the Tennessee Board of Professional Responsibility (“TBPR“), the “policing arm” of the Tennessee Supreme Court; this was clearly his response to the granting of the appeal. He complained that I allowed my client to secretly record Hinsley’s visit to the mother’s home to inspect the home and interview my client. Prior to the visit by Hinsley, my client did inform me that she was going to secretly videotape the visit for her own protection against any mistruths made by Hinsley; I did not advise her to do it, nor did I have any position on it. The TBPR issued a Public Censure against me for NOT advising my client to NOT do something that she had every legal right to do. Under federal law and Tennessee law, a person that is involved in a conversation or meeting may secretly record it as long as that person stays in the conversation or meeting. My client did nothing illegal; however, I was censured for NOT telling her to not do it. This shows the political nature of the TBPR; the law does not matter, only the politics of the people who have the connections matter. Of course, after having filed complaints against Madison County attorney Christy Little and Madison County Circuit Court Judge Whit LaFon, the TBPR had zeroed in on me as a person who will “buck the system”, which is not “politically correct.” The trial judge ordered my client to turn over the original and all copies of the tape to Hinsley. Of course, my client’s fears were correct since Hinsley made many “erroneous” statements in her report.
During oral arguments before the high court, William Monroe stated to the court that it is rare for attorneys to be arguing constitutional issues in a family law matter. When I heard that statement, I thought to myself, “why“? Does the Constitution not apply to family law cases? My answer to myself was, “of course not”. I have first hand experience of the utter disregard of supposedly protected constitutional parental rights in child custody matters. I have also seen the same disregard day in and day out in the Shelby County courts, the disregard being hidden in the legal fiction of deciding cases “in the best interests of the child.” The Tennessee Supreme Court did rule in my client’s favor; however, getting her children back was still an issue.
After the high court’s decision, the case was sent back to the original trial judge, Judge Childers, the judge who was REVERSED by the Tennessee Supreme Court in the Anna Mae He case (an international termination of parental rights / adoption case that spanned 8 years; this story is posted on this blogsite at February 1, 2011). Judge Childers was not at all happy about the Extraordinary Appeal nor at the fact that my client, the mother, won the case. The Tennessee Supreme Court ordered the grandparents to pay my fees, which totaled around $12,000; however, Childers knocked that amount down to two to three thousand. Childers also dismissed the divorce case, and when I stated that we needed an order to transfer custody of the children back to the mother, he just smugly raised his shoulders and said the case is over. These actions were clearly vindictive, and the refusal to issue a transfer order was a slap in the face of the Tennessee Supreme Court and created a “race” to the Juvenile Court.
Prior to a hearing on the matter in Juvenile Court, the grandparents finally relinquished custody to my client.
Monday, June 20, 2011
My Story: For the Love of a Child - Part 2
The Tennessee Court of Appeals vacated the trial court’s award of joint custody and ordered a new trial. While the appeal was pending, due to the lawsuit against Christy Little, the GAL, Chancellor Morris recused himself. The case was transferred to Circuit Court Judge Whit LaFon; Lafon was the uncle of former vice-president Al Gore. To make a long story short, Lafon was a shining example of why state judges should have to undergo the same scrutiny and appointment processes as federal judges. Many in the area referred to him as “Twit LaFon”. A google search of Whit Lafon reveals articles that LaFon was the subject of federal and state drug trafficking investigations; I do not know the veracity of those articles, but they make for some interesting reading. I was observing LaFon in court one time while he was berating a defendant for several minutes because of the defendant’s alleged actions overnight since the previous days hearing, and LaFon was about to put him in jail. The court clerk continually tried to get LaFon’s attention during this time when the clerk finally stated very loudly, “Your honor, this is not the same person from yesterday.”
While the appeal was pending, I became actively involved with the DAD organization, and wrote many Letters to the Editor advocating reform in child custody laws that were published in area newspapers. At the first pre-trial hearing in front of LaFon, LaFon strongly advised me to stop writing Letters to the Editor. It was clear at that time that LaFon had already made his decision in my case. I filed a complaint with the Tennessee Court of the Judiciary against LaFon. LaFon was aware of the complaint at the new custody trial and actually questioned me for several minutes from the bench about the complaint. This was clearly improper and unethical. Lafon denied to the Court of the Judiciary that he had questioned me about the complaint, see Lafon’s response to the complaint attached on the Facebook page https://www.facebook.com/media/set/?set=a.131082636956778.26988.100001651287428; however, the trial transcript proves otherwise, with the pertinent section starting with:
THE COURT: All right. Have you reported any judge to the disciplinary board?
MR. WINCHESTER: Yes, your Honor.
THE COURT: Who was that?
MR. WINCHESTER: Your Honor.
The Court of the Judiciary was actually prepared to hold a hearing against LaFon in 1998; however, LaFon decided not to run for re-election (1998 was a judicial election year; this occurs in Tennessee every 8 years). Since LaFon was “retiring from the bench”, the Court of the Judiciary dismissed the complaint because the only thing that they could do to a retired judge would be a private reprimand, and the time and costs involved would not be worth it. See letter from Disciplinary Counsel on Facebook page https://www.facebook.com/media/set/?set=a.134319363299772.28758.100001651287428#!/photo.php?fbid=134319366633105&set=a.134319363299772.28758.100001651287428&type=1&theater.
Once again, the truth was legally suppressed.
Not surprisingly, LaFon awarded my ex-wife sole custody of my daughter, with me being granted standard visitation. So I went from having my daughter every other week to only having her every other week-end, two weeks during the summer, and alternating holidays. The day that decision was made was the worst day of my life at that point in time.
End of Part 2.
While the appeal was pending, I became actively involved with the DAD organization, and wrote many Letters to the Editor advocating reform in child custody laws that were published in area newspapers. At the first pre-trial hearing in front of LaFon, LaFon strongly advised me to stop writing Letters to the Editor. It was clear at that time that LaFon had already made his decision in my case. I filed a complaint with the Tennessee Court of the Judiciary against LaFon. LaFon was aware of the complaint at the new custody trial and actually questioned me for several minutes from the bench about the complaint. This was clearly improper and unethical. Lafon denied to the Court of the Judiciary that he had questioned me about the complaint, see Lafon’s response to the complaint attached on the Facebook page https://www.facebook.com/media/set/?set=a.131082636956778.26988.100001651287428; however, the trial transcript proves otherwise, with the pertinent section starting with:
THE COURT: All right. Have you reported any judge to the disciplinary board?
MR. WINCHESTER: Yes, your Honor.
THE COURT: Who was that?
MR. WINCHESTER: Your Honor.
The Court of the Judiciary was actually prepared to hold a hearing against LaFon in 1998; however, LaFon decided not to run for re-election (1998 was a judicial election year; this occurs in Tennessee every 8 years). Since LaFon was “retiring from the bench”, the Court of the Judiciary dismissed the complaint because the only thing that they could do to a retired judge would be a private reprimand, and the time and costs involved would not be worth it. See letter from Disciplinary Counsel on Facebook page https://www.facebook.com/media/set/?set=a.134319363299772.28758.100001651287428#!/photo.php?fbid=134319366633105&set=a.134319363299772.28758.100001651287428&type=1&theater.
Once again, the truth was legally suppressed.
Not surprisingly, LaFon awarded my ex-wife sole custody of my daughter, with me being granted standard visitation. So I went from having my daughter every other week to only having her every other week-end, two weeks during the summer, and alternating holidays. The day that decision was made was the worst day of my life at that point in time.
End of Part 2.
Sunday, June 19, 2011
My Story: For the Love of a Child - Part 1 (revised)
My name is William Winchester. I decided to go into the practice of law to “change the system” after being crushed by a system of corruption during my own divorce and child custody case in Henderson, Tennessee (15 miles south of Jackson, Tennessee, and all in the 26th Judicial District of Tennessee). Nine years later, after losing my first daughter for the second time in a corrupt system, and then suffering a heart attack, I stopped practicing law; however, it will not leave me alone.
I argued my first case before the Tennessee Supreme Court in 2002 in the case of Toms v. Toms, 98 S.W.3d 140 (Tenn. 2003). The case made its way to the state’s highest court via what is know as an Extraordinary Appeal, an appeal where the trial court “has so far departed from the accepted and usual course of judicial proceedings as to require immediate review.” R.10 Tenn.R.App.Proc. I filed the appeal on behalf of my client, the mother of two young children whom were taken from her and given to the paternal grandparents by the court based solely on the report of a guardian ad litem. During oral arguments before the high court, the grandparents’ attorney, William Monroe, stated to the court that it is rare for attorneys to be arguing constitutional issues in a family law matter. When I heard that statement, I thought to myself, “why“? Does the Constitution not apply to family law cases? My answer to myself was, “of course not”. I have first hand experience of the utter disregard of supposedly protected constitutional parental rights in child custody matters. I have also seen the same disregard day in and day out in Tennessee courts, the disregard being hidden in the legal fiction of deciding cases “in the best interests of the child.” The Tennessee Supreme Court did rule in my client’s favor and she did get her children back. The Constitution actually prevailed in that case; unfortunately, that was the exception and it was not what normally occurs in child custody cases. Toms v. Toms will be discussed in depth in a future posting.
The facts of the Toms case solidified my disgust with the court system in child custody cases, especially when an extra attorney is involved - the guardian ad litem, “GAL”. In my own child custody case, Winchester v. Winchester, a GAL (then attorney and now Madison County Juvenile Court Judge Christy Rauchle Little) filed her “report” to the court with many false statements. My attorney at that time, Nancy Nelson, told me that Little favored mothers in child custody cases. Little did not show up for the trial, but just filed her “report” with the court, which recommended that my ex-wife (Rachelle Coleman Collier Winchester Winbush Coleman) be awarded custody of my daughter, Maggie. The trial judge, Chancellor Joe Morris, awarded joint custody, and Rachelle and I both appealed.
Interestingly, the only live witnesses at the trial were there to testify on my behalf (except for Rachelle). A psychologist who did an evaluation of me testified for me, and also explained the meaning of the written report of the psychologist who evaluated Rachelle. Particularly, that psychologist (that evaluated Rachelle) stated that Rachelle had “a personality disorder, probably best characterized as a mixed diagnostic picture, with histrionic and passive/aggressive and dependent features.”
A private investigator also testified regarding Rachelle’s violation of a court order prohibiting her from having her “boyfriend” overnight while my daughter was present. This occurred on multiple occasions. A nurse from the hospital in Huntingdon, Tennessee testified about an event that occurred in the Emergency Room. Rachelle took another daughter (Katie, from her previous marriage), then 3, to the ER for asthma the same year that Maggie was born. The nurse gave Rachelle a sealed bottle of asthma medication to hold while the nurse went to get a piece of equipment. When the nurse returned, the bottle was open and Katie had swallowed the liquid medicine from the bottle. The nurse asked Rachelle why she gave Katie the medicine, and Rachelle stated that Katie wanted it, so she gave it to her. Katie had to be treated for poisoning with activated charcoal, cardiac monitoring, etc.
Rachelle’s previous husband also testified about how she prevented him from seeing his daughter (Katie). One of my aunt’s testified about my relationship with my extended family, and especially my relationship with Maggie. She also testified that she had never been contacted by the GAL (Christy R. Little); Little wrote in her report that I had no extended family support, even though I gave her a list of family members available throughout west Tennessee (she never called a single one).
Nonetheless, Chancellor Morris awarded joint custody, which would be fine while Maggie was still not school age, but clearly would not work once Maggie became school age because my ex-wife and I lived in different towns. With the overwhelming evidence in my favor, my attorney and I decided that we should appeal; Rachelle also appealed.
While the appeal was pending, I met a Memphis attorney, Tim Edwards, through a group called DAD, which stands for Dads Against Discrimination. We discussed my case and he said I should file a complaint against Christy Little with the Tennessee Board of Professional Responsibility, “BPR”, the attorney policing arm of the Tennessee Supreme Court (in future postings, an in-depth look at the workings of the BPR, and the politics involved, will be made). Shortly after I filed the complaint against Little, my attorney called me and told me that Little had called her and that Little was upset about the complaint. My attorney told me that Little was her friend, and my attorney told me that I needed to find another attorney to finish my appeal. Edwards completed the appeal, but having to change attorneys in the middle of an appeal just does not look good to the court. Edwards and I also discussed the possibility of filing a lawsuit against Little, but when I was ready to do so, he decided not to do it, so I did it myself (at this time I was not an attorney, but I was in law school). By the way, the BPR, despite being furnished with documentary proof that Little had made false statements in her “report”, dismissed my complaint against her.
I filed a civil lawsuit, Winchester v. Little, 996 S.W.2d 818 (Tenn.Ct.App. 1998), against Little in the Madison County Circuit Court for violation of federal constitutional and civil rights, as well as state claims. The attorneys that represented Little were Thomas H. Rainey, John D. Burleson, and Dale Conder, Jr., all with the law firm Rainey, Kizer, Butler, Reviere & Bell. (You will hear a lot more about that law firm, as well as Christy Little, in future postings.) The trial judge, Julian P. Guinn, dismissed the lawsuit on the basis of immunity. In other words, it did not matter what Little did or did not do; since she was appointed by the court as a GAL, she was immune from liability - she could not be sued.
I appealed to the Tennessee Court of Appeals, and the appellate court affirmed the dismissal, holding that a GAL is not a “state actor” for purposes of the federal claims, but then holding that a GAL is entitled to “absolute quasi-judicial immunity” for purposes of the state claims because a GAL is an integral part of the judicial process. WHAT? If a GAL is part of the judicial process, does that not necessarily mean that the GAL is performing a state function, and, therefore, is a state actor? So, on the one hand, a GAL IS NOT a state actor if the GAL is being sued under federal law, but, on the other hand, that same GAL IS a state actor if being sued under state law, all in the same lawsuit.
Since the courts decided that Christy R. Little was immune from liability, and therefore could not be sued, the actual facts stated in the lawsuit were never addressed by the courts, and the truth was legally suppressed.
End of Part 1.
I argued my first case before the Tennessee Supreme Court in 2002 in the case of Toms v. Toms, 98 S.W.3d 140 (Tenn. 2003). The case made its way to the state’s highest court via what is know as an Extraordinary Appeal, an appeal where the trial court “has so far departed from the accepted and usual course of judicial proceedings as to require immediate review.” R.10 Tenn.R.App.Proc. I filed the appeal on behalf of my client, the mother of two young children whom were taken from her and given to the paternal grandparents by the court based solely on the report of a guardian ad litem. During oral arguments before the high court, the grandparents’ attorney, William Monroe, stated to the court that it is rare for attorneys to be arguing constitutional issues in a family law matter. When I heard that statement, I thought to myself, “why“? Does the Constitution not apply to family law cases? My answer to myself was, “of course not”. I have first hand experience of the utter disregard of supposedly protected constitutional parental rights in child custody matters. I have also seen the same disregard day in and day out in Tennessee courts, the disregard being hidden in the legal fiction of deciding cases “in the best interests of the child.” The Tennessee Supreme Court did rule in my client’s favor and she did get her children back. The Constitution actually prevailed in that case; unfortunately, that was the exception and it was not what normally occurs in child custody cases. Toms v. Toms will be discussed in depth in a future posting.
The facts of the Toms case solidified my disgust with the court system in child custody cases, especially when an extra attorney is involved - the guardian ad litem, “GAL”. In my own child custody case, Winchester v. Winchester, a GAL (then attorney and now Madison County Juvenile Court Judge Christy Rauchle Little) filed her “report” to the court with many false statements. My attorney at that time, Nancy Nelson, told me that Little favored mothers in child custody cases. Little did not show up for the trial, but just filed her “report” with the court, which recommended that my ex-wife (Rachelle Coleman Collier Winchester Winbush Coleman) be awarded custody of my daughter, Maggie. The trial judge, Chancellor Joe Morris, awarded joint custody, and Rachelle and I both appealed.
Interestingly, the only live witnesses at the trial were there to testify on my behalf (except for Rachelle). A psychologist who did an evaluation of me testified for me, and also explained the meaning of the written report of the psychologist who evaluated Rachelle. Particularly, that psychologist (that evaluated Rachelle) stated that Rachelle had “a personality disorder, probably best characterized as a mixed diagnostic picture, with histrionic and passive/aggressive and dependent features.”
A private investigator also testified regarding Rachelle’s violation of a court order prohibiting her from having her “boyfriend” overnight while my daughter was present. This occurred on multiple occasions. A nurse from the hospital in Huntingdon, Tennessee testified about an event that occurred in the Emergency Room. Rachelle took another daughter (Katie, from her previous marriage), then 3, to the ER for asthma the same year that Maggie was born. The nurse gave Rachelle a sealed bottle of asthma medication to hold while the nurse went to get a piece of equipment. When the nurse returned, the bottle was open and Katie had swallowed the liquid medicine from the bottle. The nurse asked Rachelle why she gave Katie the medicine, and Rachelle stated that Katie wanted it, so she gave it to her. Katie had to be treated for poisoning with activated charcoal, cardiac monitoring, etc.
Rachelle’s previous husband also testified about how she prevented him from seeing his daughter (Katie). One of my aunt’s testified about my relationship with my extended family, and especially my relationship with Maggie. She also testified that she had never been contacted by the GAL (Christy R. Little); Little wrote in her report that I had no extended family support, even though I gave her a list of family members available throughout west Tennessee (she never called a single one).
Nonetheless, Chancellor Morris awarded joint custody, which would be fine while Maggie was still not school age, but clearly would not work once Maggie became school age because my ex-wife and I lived in different towns. With the overwhelming evidence in my favor, my attorney and I decided that we should appeal; Rachelle also appealed.
While the appeal was pending, I met a Memphis attorney, Tim Edwards, through a group called DAD, which stands for Dads Against Discrimination. We discussed my case and he said I should file a complaint against Christy Little with the Tennessee Board of Professional Responsibility, “BPR”, the attorney policing arm of the Tennessee Supreme Court (in future postings, an in-depth look at the workings of the BPR, and the politics involved, will be made). Shortly after I filed the complaint against Little, my attorney called me and told me that Little had called her and that Little was upset about the complaint. My attorney told me that Little was her friend, and my attorney told me that I needed to find another attorney to finish my appeal. Edwards completed the appeal, but having to change attorneys in the middle of an appeal just does not look good to the court. Edwards and I also discussed the possibility of filing a lawsuit against Little, but when I was ready to do so, he decided not to do it, so I did it myself (at this time I was not an attorney, but I was in law school). By the way, the BPR, despite being furnished with documentary proof that Little had made false statements in her “report”, dismissed my complaint against her.
I filed a civil lawsuit, Winchester v. Little, 996 S.W.2d 818 (Tenn.Ct.App. 1998), against Little in the Madison County Circuit Court for violation of federal constitutional and civil rights, as well as state claims. The attorneys that represented Little were Thomas H. Rainey, John D. Burleson, and Dale Conder, Jr., all with the law firm Rainey, Kizer, Butler, Reviere & Bell. (You will hear a lot more about that law firm, as well as Christy Little, in future postings.) The trial judge, Julian P. Guinn, dismissed the lawsuit on the basis of immunity. In other words, it did not matter what Little did or did not do; since she was appointed by the court as a GAL, she was immune from liability - she could not be sued.
I appealed to the Tennessee Court of Appeals, and the appellate court affirmed the dismissal, holding that a GAL is not a “state actor” for purposes of the federal claims, but then holding that a GAL is entitled to “absolute quasi-judicial immunity” for purposes of the state claims because a GAL is an integral part of the judicial process. WHAT? If a GAL is part of the judicial process, does that not necessarily mean that the GAL is performing a state function, and, therefore, is a state actor? So, on the one hand, a GAL IS NOT a state actor if the GAL is being sued under federal law, but, on the other hand, that same GAL IS a state actor if being sued under state law, all in the same lawsuit.
Since the courts decided that Christy R. Little was immune from liability, and therefore could not be sued, the actual facts stated in the lawsuit were never addressed by the courts, and the truth was legally suppressed.
End of Part 1.
Facebook Event - Day One
This week I will make at least seven posts to this site. The posts will chronicle the twists and turns in my own divorce and custody case near Jackson, Tennessee, from 1994 to the present day. They will show how judicial corruption and PAS (Parental Alienation Syndrome) work together to destroy people's lives and brainwash children.
Some of the posts were already posted in January and February, but I am re-posting them for continuity. They will show how judicial politicking and influence spans several courtrooms, from the juvenile court to the circuit court, and how one current juvenile judge and one law firm is the epicenter of it all. This week's posts will complete My Story: For the Love of a Child.
In the Facebook Event Invitation, I stated that there would be seven posts this week; however, over the past several days I have learned some additional information that will be added, so there may be eight or nine posts this week.
In order to post any comments, liking or disliking any posts, you must be registered with this site. Anonymous posts are not allowed. If you have something to say, stand behind it and it will be posted.
Next up is My Story: For the Love of a Child - Part 1.
Some of the posts were already posted in January and February, but I am re-posting them for continuity. They will show how judicial politicking and influence spans several courtrooms, from the juvenile court to the circuit court, and how one current juvenile judge and one law firm is the epicenter of it all. This week's posts will complete My Story: For the Love of a Child.
In the Facebook Event Invitation, I stated that there would be seven posts this week; however, over the past several days I have learned some additional information that will be added, so there may be eight or nine posts this week.
In order to post any comments, liking or disliking any posts, you must be registered with this site. Anonymous posts are not allowed. If you have something to say, stand behind it and it will be posted.
Next up is My Story: For the Love of a Child - Part 1.
Preamble - revised repost
My name is William Winchester. I decided to go into the practice of law to “change the system” after being crushed by a system of corruption during my own divorce and child custody case in Jackson, Tennessee. Nine years later, after suffering a heart attack and losing my first daughter again in a corrupt system, I stopped practicing law; however, it will not leave me alone.
The beginning of the end started at the end of 2006 when my first daughter, just turning 12, began exhibiting the signs of Parental Alienation Syndrome, which ultimately led to me not having any contact with her. This, of course, created great psychological trauma for me, just as the death of a child would have to any parent. In June 2007, I suffered a heart attack, and for the next year I was on a roller coaster of medications and side effects from the various heart and blood pressure medications. At this point, I decided that for my health and the well-being of my family, that I had to close my law practice and leave Memphis, Tennessee.
With continuous health and emotional issues, as I was closing my practice, I know that I let a few people down. It is my intent to remedy those few matters as best as I can; however, with the health and emotional drains that I was experiencing, I had no choice if I were to maintain my sanity.
This blog site is a preview of a tell all book I am writing, preliminarily entitled “The Shelby County Way”. The book is a collection of actual cases from the following Tennessee counties: Shelby, Madison, and Fayette. The decisions of judges and juries in these cases defy all reason, and can only be explained by one word - corruption. The corruption does not necessarily involve monetary payoffs, but can include “good ole boy” politics, “back room” deals, racism, sexism, and elitism. My definition of corruption is the influence of any factor in making a legal decision by a judge or jury that is not legally permissible.
This week the posts (some of them were already posted in January and February) will chronicle the details of my own case with its twists and turns in and around Jackson, Tennessee, from 1994 through today. It will show how judicial politicking and influence spans several courtrooms, from the juvenile court to the circuit court, and how one current juvenile judge and one law firm is the epicenter of it all. This week's posts will complete My Story: For the Love of a Child.
The beginning of the end started at the end of 2006 when my first daughter, just turning 12, began exhibiting the signs of Parental Alienation Syndrome, which ultimately led to me not having any contact with her. This, of course, created great psychological trauma for me, just as the death of a child would have to any parent. In June 2007, I suffered a heart attack, and for the next year I was on a roller coaster of medications and side effects from the various heart and blood pressure medications. At this point, I decided that for my health and the well-being of my family, that I had to close my law practice and leave Memphis, Tennessee.
With continuous health and emotional issues, as I was closing my practice, I know that I let a few people down. It is my intent to remedy those few matters as best as I can; however, with the health and emotional drains that I was experiencing, I had no choice if I were to maintain my sanity.
This blog site is a preview of a tell all book I am writing, preliminarily entitled “The Shelby County Way”. The book is a collection of actual cases from the following Tennessee counties: Shelby, Madison, and Fayette. The decisions of judges and juries in these cases defy all reason, and can only be explained by one word - corruption. The corruption does not necessarily involve monetary payoffs, but can include “good ole boy” politics, “back room” deals, racism, sexism, and elitism. My definition of corruption is the influence of any factor in making a legal decision by a judge or jury that is not legally permissible.
This week the posts (some of them were already posted in January and February) will chronicle the details of my own case with its twists and turns in and around Jackson, Tennessee, from 1994 through today. It will show how judicial politicking and influence spans several courtrooms, from the juvenile court to the circuit court, and how one current juvenile judge and one law firm is the epicenter of it all. This week's posts will complete My Story: For the Love of a Child.
Wednesday, May 25, 2011
"Kids for Cash" in a Pennsylvania Juvenile Court
From http://abcnews.go.com/US/mark-ciavarella-pa-juvenile-court-judge-convicted-alleged/story?id=12965182&sms_ss=facebook&at_xt=4ddb0bffa851ca3c%2C0
By LINDSEY DAVIS, FRANK MASTROPOLO and LAUREN SHER
Feb. 21, 2011
A former juvenile court judge in Pennsylvania could face more than 10 years in prison after being convicted in what prosecutors called a "kids for cash" scheme.
Prosecutors say former Luzerne County Judge Mark Ciavarella used children as pawns, locking them up unjustly in a plot to get rich. Ciavarella is accused of taking nearly $1 million in kickbacks from owners of private detention centers in exchange for placing juvenile defendants at their facilities, often for minor crimes. Ciavarella claims that the payment he received from a developer of the PA Child Care facility was legal and denies that he ever incarcerated kids for money.
"Absolutely never took a dime to send a kid anywhere," said Ciavarella.
Ciavarella, 61, was found guilty of 12 out of 39 charges on Friday, including racketeering, money laundering and conspiracy, in connection with the nearly $1 million payment from Robert Mericle, the developer of the PA Child Care center. He plans to appeal. Ciavarella was acquitted on charges of bribery and extortion in relation to additional payments from the center's builder and owner.
Families complain of Ciavarella's rapid-fire brand of justice and trials that lasted only minutes with even first-time offenders sent to detention centers.
In one reported case, Ciavarella sentenced a child to two years for joyriding in his mom's car. In another, he sentenced a college-bound high school girl to three months in juvenile detention for creating a website that made fun of her assistant principal. Some of the kids he ordered locked up were as young as 10.
"The numbers of children going into placement in Luzerne County tended to be two to three times higher than in other counties," said Marsha Levick, deputy director of the Juvenile Law Center in Philadelphia.
In October 2009, the Pennsylvania Supreme Court dismissed 4,000 juvenile delinquency cases Ciavarella handled from Jan. 1, 2003 to May 31, 2008. The court said that it "cannot have any confidence that Ciavarella decided any Luzerne County juvenile case fairly and impartially while he labored under the specter of his self-interested dealings with the facilities," and called Ciavarella's actions a "travesty of juvenile justice."
Though most of the affected youth have already served their time, many parents were outraged by Ciavarella's sentence, including Sandy Fonzo, who could not contain her anger.
Fonzo's son Edward Kenzakoski was sentenced by Ciavarella to juvenile detention in 2003 for possession of drug paraphernalia. Fonzo said her 17-year-old son had no prior record when he landed in Ciavarella's courtroom. She claims Kenzakoski never recovered from the months he served behind bars and years later, at 23, he killed himself.
"Do you remember me? Do you remember me? Do you remember my son? He was an all-star wrestler and he's gone," Fonzo screamed to Ciavarella as he exited the courthouse Friday.
Ciavarella remains free until sentencing. Fonzo said she expected to see Ciavarella carted off in handcuffs as the former judge often did to juveniles he sentenced.
Ciavarella is expected to get a minimum prison sentence of 12 years behind bars, according to prosecutors. To Fonzo, that is not justice.
"You know what he told everybody in court? They need to be held accountable for their actions," she yelled to Ciavarella Friday. "You need to be!!"
By LINDSEY DAVIS, FRANK MASTROPOLO and LAUREN SHER
Feb. 21, 2011
A former juvenile court judge in Pennsylvania could face more than 10 years in prison after being convicted in what prosecutors called a "kids for cash" scheme.
Prosecutors say former Luzerne County Judge Mark Ciavarella used children as pawns, locking them up unjustly in a plot to get rich. Ciavarella is accused of taking nearly $1 million in kickbacks from owners of private detention centers in exchange for placing juvenile defendants at their facilities, often for minor crimes. Ciavarella claims that the payment he received from a developer of the PA Child Care facility was legal and denies that he ever incarcerated kids for money.
"Absolutely never took a dime to send a kid anywhere," said Ciavarella.
Ciavarella, 61, was found guilty of 12 out of 39 charges on Friday, including racketeering, money laundering and conspiracy, in connection with the nearly $1 million payment from Robert Mericle, the developer of the PA Child Care center. He plans to appeal. Ciavarella was acquitted on charges of bribery and extortion in relation to additional payments from the center's builder and owner.
Families complain of Ciavarella's rapid-fire brand of justice and trials that lasted only minutes with even first-time offenders sent to detention centers.
In one reported case, Ciavarella sentenced a child to two years for joyriding in his mom's car. In another, he sentenced a college-bound high school girl to three months in juvenile detention for creating a website that made fun of her assistant principal. Some of the kids he ordered locked up were as young as 10.
"The numbers of children going into placement in Luzerne County tended to be two to three times higher than in other counties," said Marsha Levick, deputy director of the Juvenile Law Center in Philadelphia.
In October 2009, the Pennsylvania Supreme Court dismissed 4,000 juvenile delinquency cases Ciavarella handled from Jan. 1, 2003 to May 31, 2008. The court said that it "cannot have any confidence that Ciavarella decided any Luzerne County juvenile case fairly and impartially while he labored under the specter of his self-interested dealings with the facilities," and called Ciavarella's actions a "travesty of juvenile justice."
Though most of the affected youth have already served their time, many parents were outraged by Ciavarella's sentence, including Sandy Fonzo, who could not contain her anger.
Fonzo's son Edward Kenzakoski was sentenced by Ciavarella to juvenile detention in 2003 for possession of drug paraphernalia. Fonzo said her 17-year-old son had no prior record when he landed in Ciavarella's courtroom. She claims Kenzakoski never recovered from the months he served behind bars and years later, at 23, he killed himself.
"Do you remember me? Do you remember me? Do you remember my son? He was an all-star wrestler and he's gone," Fonzo screamed to Ciavarella as he exited the courthouse Friday.
Ciavarella remains free until sentencing. Fonzo said she expected to see Ciavarella carted off in handcuffs as the former judge often did to juveniles he sentenced.
Ciavarella is expected to get a minimum prison sentence of 12 years behind bars, according to prosecutors. To Fonzo, that is not justice.
"You know what he told everybody in court? They need to be held accountable for their actions," she yelled to Ciavarella Friday. "You need to be!!"
Monday, May 16, 2011
Judicial Accountability Report Card
Here is a link to the HALT Judicial Accountability Report Card:
http://www.halt.org/jip/2008_jarc/
It is from 2008, but is very telling.
Tennessee received an overall grade of "C-", with a resounding "F" for Availability of Meaningful Sanctions, as well as a "F" for Gift Restrictions.
Maine and Mississippi received overall grades of "F".
Indiana received an overall "C+". No state received an "A".
When you go to the link, you can click on a state and get its "report card".
http://www.halt.org/jip/2008_jarc/
It is from 2008, but is very telling.
Tennessee received an overall grade of "C-", with a resounding "F" for Availability of Meaningful Sanctions, as well as a "F" for Gift Restrictions.
Maine and Mississippi received overall grades of "F".
Indiana received an overall "C+". No state received an "A".
When you go to the link, you can click on a state and get its "report card".
Sunday, May 15, 2011
Judging the Judges: Referee Harold Horne (Memphis, TN)
PUBLIC REPRIMAND - aka "a slap on the wrist"
Below is the link to the Public Reprimand of Juvenile Court Referee Harold W. Horne.
http://tennessee.watchdog.org/files/2009/12/2005-4-12-REPRIMAND-Juvenile-Referee-Harold-W.-Horne.pdf
While a case was on appeal, Referee Horne entered an "Order to Correct Record on Appeal." The problem was that Referee Horne DID NOT notify the parties (one of which was the State of Tennessee) nor their attorneys that he had entered the order. Further, the order contained facts that were not supported by the court record or the transcripts of the hearing.
It appears, then, that he just made up "facts" in an attempt to bolster his decision so that the Tennessee Court of Appeals would affirm his decision.
Since fabrication of evidence and perjury by litigants is a crime, why isn't making up "facts" by a judge or referee and filing it with a higher court a crime????
Oh, I forgot, we are talking about the Juvenile Court of Memphis and Shelby County, Tennessee, where politics prevail.
For more on the politics of the Memphis and Shelby County Juvenile Court, see my February 15, 2011 post entitled, "Misery Funds a Legal Fiefdom" by Nina Berstein. It also includes an open letter from Judge Joe Brown, former Criminal Court Judge and current TV personality.
Below is the link to the Public Reprimand of Juvenile Court Referee Harold W. Horne.
http://tennessee.watchdog.org/files/2009/12/2005-4-12-REPRIMAND-Juvenile-Referee-Harold-W.-Horne.pdf
While a case was on appeal, Referee Horne entered an "Order to Correct Record on Appeal." The problem was that Referee Horne DID NOT notify the parties (one of which was the State of Tennessee) nor their attorneys that he had entered the order. Further, the order contained facts that were not supported by the court record or the transcripts of the hearing.
It appears, then, that he just made up "facts" in an attempt to bolster his decision so that the Tennessee Court of Appeals would affirm his decision.
Since fabrication of evidence and perjury by litigants is a crime, why isn't making up "facts" by a judge or referee and filing it with a higher court a crime????
Oh, I forgot, we are talking about the Juvenile Court of Memphis and Shelby County, Tennessee, where politics prevail.
For more on the politics of the Memphis and Shelby County Juvenile Court, see my February 15, 2011 post entitled, "Misery Funds a Legal Fiefdom" by Nina Berstein. It also includes an open letter from Judge Joe Brown, former Criminal Court Judge and current TV personality.
Saturday, May 14, 2011
The Tennessee Court of the Judiciary
The Tennessee Court of the Judiciary is the organization that is supposed to police the judges in Tennessee. It is comprised of mainly judges, some attorneys, and a few civilians - however, it is basically run by the judges.
As you have read in earlier posts, many things that would lead to criminal charges for everyday people have only warranted "private reprimands" by the Tennessee Court of the Judiciary. What a JOKE!
There is currently legislation in the General Assembly that would abolish the Tennessee Court of the Judiciary and replace it with another entity to police and investigate judges. However, and organization is only as good as the people who are running it.
The members of the Tennessee Court of the Judiciary (listed on the side of the reprimands that are linked in the below posts) are:
Don R Ash
Presiding Judge
Timothy R. Discenza
Disciplinary Counsel
Patrick J. McHale
Assistant Disciplinary Counsel
Chris Craft
David M. Cook
Angelita Blackshear Dalton
Joe F. Fowlkes
Christy R. Little
Richard A. Manahan
Paul Neely
Pamela L. Reeves
Kathy McMahan
Mary Martin Schaffner
Steve Stafford
Jean A. Stanley
Dwight E. Stokes
D. Michael Swiney
Thomas T. Woodall
Well, if we are examining the integrity of the Tennessee Court of the Judiciary, look no further than Christy R. Little. Judge Christy, before she became Madison County Juvenile Court Judge, was the guardian ad litem in my own child custody case. She is mentioned in my January 24, 2011 post: My Story: For the Love of a Child, Part 1 of 4.
I filed a civil lawsuit, Winchester v. Little, 996 S.W.2d 818 (Tenn.Ct.App. 1998), against Judge Christy in the Madison County Circuit Court for violation of federal constitutional and civil rights, as well as state claims. The attorneys that represented Little were Thomas H. Rainey, John D. Burleson, and Dale Conder, Jr., all with the law firm Rainey, Kizer, Butler, Reviere & Bell. (You will hear a lot more about that law firm, as well as Little, in future postings.) The trial judge, Julian P. Guinn, dismissed the lawsuit on the basis of immunity. In other words, it did not matter what Christy did or did not do; since she was appointed by the court as a GAL, she was immune from liability - she could not be sued. The Tennessee Court of Appeals also agreed that Christy was entitled to absolute quasi-judicial immunity - so no matter how many lies she told, no matter how vexatious they were, she cannot be sued.
JUDGES PROTECTING JUDGES!
As you have read in earlier posts, many things that would lead to criminal charges for everyday people have only warranted "private reprimands" by the Tennessee Court of the Judiciary. What a JOKE!
There is currently legislation in the General Assembly that would abolish the Tennessee Court of the Judiciary and replace it with another entity to police and investigate judges. However, and organization is only as good as the people who are running it.
The members of the Tennessee Court of the Judiciary (listed on the side of the reprimands that are linked in the below posts) are:
Don R Ash
Presiding Judge
Timothy R. Discenza
Disciplinary Counsel
Patrick J. McHale
Assistant Disciplinary Counsel
Chris Craft
David M. Cook
Angelita Blackshear Dalton
Joe F. Fowlkes
Christy R. Little
Richard A. Manahan
Paul Neely
Pamela L. Reeves
Kathy McMahan
Mary Martin Schaffner
Steve Stafford
Jean A. Stanley
Dwight E. Stokes
D. Michael Swiney
Thomas T. Woodall
Well, if we are examining the integrity of the Tennessee Court of the Judiciary, look no further than Christy R. Little. Judge Christy, before she became Madison County Juvenile Court Judge, was the guardian ad litem in my own child custody case. She is mentioned in my January 24, 2011 post: My Story: For the Love of a Child, Part 1 of 4.
I filed a civil lawsuit, Winchester v. Little, 996 S.W.2d 818 (Tenn.Ct.App. 1998), against Judge Christy in the Madison County Circuit Court for violation of federal constitutional and civil rights, as well as state claims. The attorneys that represented Little were Thomas H. Rainey, John D. Burleson, and Dale Conder, Jr., all with the law firm Rainey, Kizer, Butler, Reviere & Bell. (You will hear a lot more about that law firm, as well as Little, in future postings.) The trial judge, Julian P. Guinn, dismissed the lawsuit on the basis of immunity. In other words, it did not matter what Christy did or did not do; since she was appointed by the court as a GAL, she was immune from liability - she could not be sued. The Tennessee Court of Appeals also agreed that Christy was entitled to absolute quasi-judicial immunity - so no matter how many lies she told, no matter how vexatious they were, she cannot be sued.
JUDGES PROTECTING JUDGES!
Judging the Judges: Donna Fields, Part 2 (Memphis, TN)
PRIVATE REPRIMAND - aka “not even a slap on the wrist”
On Friday, April 1, 2011, I posted a blog regarding Shelby County Circuit Court judge Donna Fields. That blog mentioned private reprimands that Judge Donna received from the Tennessee Court of the Judiciary (“TCOJ“). A copy of the TCOJ’s decision to one of four complainants is posted on the An Attorney’s Tale Facebook page.
https://www.facebook.com/update_security_info.php?wizard=1#!/photo.php?fbid=156824207715954&set=a.134319363299772.28758.100001651287428&type=1&theater
All four complainants received the same “form letter” with the exception of the complaint number and the complainant’s name and address (which I redacted in the post).
A judge can publicly, in open court, commit ethical violations or worse against someone and get a "private" slap on the wrist. Where is the justice in that????
The Tennessee Court of the Judiciary - judges policing judges. No justice there.
On Friday, April 1, 2011, I posted a blog regarding Shelby County Circuit Court judge Donna Fields. That blog mentioned private reprimands that Judge Donna received from the Tennessee Court of the Judiciary (“TCOJ“). A copy of the TCOJ’s decision to one of four complainants is posted on the An Attorney’s Tale Facebook page.
https://www.facebook.com/update_security_info.php?wizard=1#!/photo.php?fbid=156824207715954&set=a.134319363299772.28758.100001651287428&type=1&theater
All four complainants received the same “form letter” with the exception of the complaint number and the complainant’s name and address (which I redacted in the post).
A judge can publicly, in open court, commit ethical violations or worse against someone and get a "private" slap on the wrist. Where is the justice in that????
The Tennessee Court of the Judiciary - judges policing judges. No justice there.
Judging the Judges: Gale B. Robinson (Nashville, TN)
PRIVATE REPRIMAND - aka “not even a slap on the wrist”
This is a link to private reprimand of Nashville judge Gale B. Robinson. Judge Robinson was "privately reprimanded" for working at a family owned funeral home while court was supposed to be in session, thereby NOT attending to the cases the judge was supposed to preside over. In other words, Judge Gale was drawing a judge's salary while working at the funeral home.
http://wtvf.images.worldnow.com/images/incoming/Investigates/RobinsonLetter.pdf
wtvf.images.worldnow.com
Judge Robinson was also cited for not reporting "significant extrajudicial income" from the funeral home business.
If an ordinary person clocks in at work and then leaves to go somewhere else, isn't that called "theft"? Doesn't that person get fired. In Tennessee, The Tennessee Court of the Judiciary just thinks it deserves a "private" slap on the wrist.
This is a link to private reprimand of Nashville judge Gale B. Robinson. Judge Robinson was "privately reprimanded" for working at a family owned funeral home while court was supposed to be in session, thereby NOT attending to the cases the judge was supposed to preside over. In other words, Judge Gale was drawing a judge's salary while working at the funeral home.
http://wtvf.images.worldnow.com/images/incoming/Investigates/RobinsonLetter.pdf
wtvf.images.worldnow.com
Judge Robinson was also cited for not reporting "significant extrajudicial income" from the funeral home business.
If an ordinary person clocks in at work and then leaves to go somewhere else, isn't that called "theft"? Doesn't that person get fired. In Tennessee, The Tennessee Court of the Judiciary just thinks it deserves a "private" slap on the wrist.
Judging the Judges: Casey Moreland (Nashville, TN)
PRIVATE REPRIMAND - aka “not even a slap on the wrist”
This is a link to private reprimand of Nashville judge Casey Moreland. Judge Moreland allowed court officers under Judge Casey's supervision "to be paid public funds while engaging in private activities." Some of the activities included assisting Judge Casey at the judge's "personal residence."
http://wtvf.images.worldnow.com/images/incoming/Investigates/MorelandLetter.pdf
wtvf.images.worldnow.com
Isn't this some type of criminal activity????? Allowing court officers to be paid while helping the judge at the judge's "personal residence." Of course, this only merits a "private" slap on the wrist by the Tennessee Court of the Judiciary.
Judge Casey was also cited for "failure to disclose extrajudicial income" from "football officiating activities."
Not reporting income and using public employees (namely the judge's own court officers) for personal business. Graft and corruption. Are any criminal investigations being conducted???
This is a link to private reprimand of Nashville judge Casey Moreland. Judge Moreland allowed court officers under Judge Casey's supervision "to be paid public funds while engaging in private activities." Some of the activities included assisting Judge Casey at the judge's "personal residence."
http://wtvf.images.worldnow.com/images/incoming/Investigates/MorelandLetter.pdf
wtvf.images.worldnow.com
Isn't this some type of criminal activity????? Allowing court officers to be paid while helping the judge at the judge's "personal residence." Of course, this only merits a "private" slap on the wrist by the Tennessee Court of the Judiciary.
Judge Casey was also cited for "failure to disclose extrajudicial income" from "football officiating activities."
Not reporting income and using public employees (namely the judge's own court officers) for personal business. Graft and corruption. Are any criminal investigations being conducted???
Friday, May 13, 2011
Judging the Judges: Jim T. Hamilton (Columbia, TN)
LETTER OF REPRIMAND, aka, “Slap on the Wrist”.
Below is the text of a “Letter of Reprimand” issued by the Tennessee Court of the Judiciary against Columbia, Tennessee judge Jim T. Hamilton.
According to the Letter of Reprimand, Judge Hamilton entered orders dismissing criminal cases and expunging (erasing) criminal court records without approval or even notice to the district attorney’s office.
This occurred during the years 2006 and 2007; the Reprimand was issued May 4, 2011. The unanswered question is how many attorneys knew that Judge Jim was doing this and how many attorneys presented orders dismissing cases and expunging cases without notifying the district attorney’s office?
When orders are presented to judges, the signatures of all attorneys involved must be on the order, or a certificate of service stating that all attorneys were notified must be on the order, especially the DISTRICT ATTORNEY in criminal cases. All attorneys and all judges know this.
This reminds me of former Tennessee governor Ray Blanton. As stated in www.en.wikipedia.org:
"[Ray Blanton’s] administration seemed rife with 'cronyism', and this became more apparent when Roger Humphreys, a convicted double murderer, was pardoned for his crimes and it became public knowledge that his father was a county chairman for Blanton. It was later discovered that members of Blanton's staff were involved in the apparent sale of pardons. Several of them were subsequently convicted of selling pardons. Blanton himself was never charged, and seemed unfazed by any criticism."
Just wondering if there was any criminal investigation into Judge Jim’s case in which he just got a slap on the wrist for signing ex parte orders dismissing and expunging criminal cases.
The Tennessee Court of the Judiciary: judges overseeing judges - no justice there!
Text of the Letter of Reprimand:
The Honorable Jim T. Hamilton
22 Public Square, Suite 3
P.O. Box 413
Columbia, Tennessee 38402-0413
RE: Complaint of Mike Bottoms
File No. 10-4316
Dear Judge Hamilton:
This shall serve as a letter of reprimand pursuant to your agreement with the investigative panel of this court.
This reprimand relates to your handling of certain cases in 2006 and 2007, in which you signed ex-parte orders of dismissal and ex-parte orders expunging convictions.
Upon receiving notice of the complaint from the Disciplinary Counsel to the Tennessee Court of the Judiciary, you responded and admitted that you had entered these orders without first personally determining that they had been presented to, and first approved by, the appropriate District Attorney General. You have further indicated that you now are aware these orders were not authorized under the current law, and that you did not exercise appropriate diligence in determining the correctness of the orders prior to entering them. You have indicated that you intend to ensure that all orders entered are in fact approved or known to all parties prior to their entry and that you will be diligent in ascertaining that all orders signed by you are appropriate under the law.
The entry of improper ex-parte orders in this case is a violation of Canon 2A which requires that a "Judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary." Canon3B (2) also requires that "A judge shall be faithful to the law and maintain professional competence in it." Accordingly, this letter constitutes a public reprimand for your actions. In the future, you are to continue to follow the Code of Judicial Conduct in regards to the signing and entry of orders submitted to you for your approval.
Sincerely yours,
Don R. Ash
Presiding Judge
Below is the text of a “Letter of Reprimand” issued by the Tennessee Court of the Judiciary against Columbia, Tennessee judge Jim T. Hamilton.
According to the Letter of Reprimand, Judge Hamilton entered orders dismissing criminal cases and expunging (erasing) criminal court records without approval or even notice to the district attorney’s office.
This occurred during the years 2006 and 2007; the Reprimand was issued May 4, 2011. The unanswered question is how many attorneys knew that Judge Jim was doing this and how many attorneys presented orders dismissing cases and expunging cases without notifying the district attorney’s office?
When orders are presented to judges, the signatures of all attorneys involved must be on the order, or a certificate of service stating that all attorneys were notified must be on the order, especially the DISTRICT ATTORNEY in criminal cases. All attorneys and all judges know this.
This reminds me of former Tennessee governor Ray Blanton. As stated in www.en.wikipedia.org:
"[Ray Blanton’s] administration seemed rife with 'cronyism', and this became more apparent when Roger Humphreys, a convicted double murderer, was pardoned for his crimes and it became public knowledge that his father was a county chairman for Blanton. It was later discovered that members of Blanton's staff were involved in the apparent sale of pardons. Several of them were subsequently convicted of selling pardons. Blanton himself was never charged, and seemed unfazed by any criticism."
Just wondering if there was any criminal investigation into Judge Jim’s case in which he just got a slap on the wrist for signing ex parte orders dismissing and expunging criminal cases.
The Tennessee Court of the Judiciary: judges overseeing judges - no justice there!
Text of the Letter of Reprimand:
The Honorable Jim T. Hamilton
22 Public Square, Suite 3
P.O. Box 413
Columbia, Tennessee 38402-0413
RE: Complaint of Mike Bottoms
File No. 10-4316
Dear Judge Hamilton:
This shall serve as a letter of reprimand pursuant to your agreement with the investigative panel of this court.
This reprimand relates to your handling of certain cases in 2006 and 2007, in which you signed ex-parte orders of dismissal and ex-parte orders expunging convictions.
Upon receiving notice of the complaint from the Disciplinary Counsel to the Tennessee Court of the Judiciary, you responded and admitted that you had entered these orders without first personally determining that they had been presented to, and first approved by, the appropriate District Attorney General. You have further indicated that you now are aware these orders were not authorized under the current law, and that you did not exercise appropriate diligence in determining the correctness of the orders prior to entering them. You have indicated that you intend to ensure that all orders entered are in fact approved or known to all parties prior to their entry and that you will be diligent in ascertaining that all orders signed by you are appropriate under the law.
The entry of improper ex-parte orders in this case is a violation of Canon 2A which requires that a "Judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary." Canon3B (2) also requires that "A judge shall be faithful to the law and maintain professional competence in it." Accordingly, this letter constitutes a public reprimand for your actions. In the future, you are to continue to follow the Code of Judicial Conduct in regards to the signing and entry of orders submitted to you for your approval.
Sincerely yours,
Don R. Ash
Presiding Judge
Sunday, May 1, 2011
Judging the Judges: Can You Say BOONDOGGLE?
According to the Merriam-Webster On-Line Dictionar http://www.merriam-webster.com/dictionary/boondoggle , a Boondoggle is “a wasteful or impractical project or activity often involving graft.”
Where will 200 Memphis, Shelby County, Tennessee JUDGES and ATTORNEYS be from Wednesday, May 4, 2011 until Saturday, May 7, 2011 be? DESTIN, FLORIDA!
The event: The 2011 Bench Bar & Boardroom Conference, which according to the Memphis Bar Association’s website “is a great opportunity for all attorneys to interact with each other - and with judges - in a casual atmosphere.”
Some of the events, listed at the end of this post, include Yoga, Beach Volleyball, Beach Party, Cocktails, and Golf.
Arguably, there will be some continuing education legal seminars presented, but the underlying theme is PARTY TIME WITH THE JUDGES!
So if you are looking for a JUDGE next week, don’t bother going to the Shelby County Courthouse - go to Destin, Florida at Tops'l Beach Resort, 9011 Hwy. 98 West, Destin, FL 32550. (Although there are a few dedicated judges that are not going to the boondoggle.)
In May 2007, former Criminal Court Judge Axley was banned from a Destin, Florida resort for propositioning a professional massage therapist for oral sex:
“Now he has been banned from a resort in Destin, FL, after an employee there says he sexually harassed her last week. On Wednesday, the Okaloosa Sheriff's Department was called to the Silver Shells Beach Resort in Destin because of Axley. He was not arrested, but he was given a written trespassing warning. On it, a manager at the resort said ‘this subject is barred permanently for sexual harassment of employees.’ The Okaloosa Sheriff's Department says if he returns to the resort again, he will be arrested.” http://www.legalreader.com/blog/2007/5/14/memphis-judge-banned-from-florida-resort-for-harassment.html
Questions:
Who is paying the “conference” fees for the judges to attend?
Who is paying the transportation and lodging fees for the judges?
Are the judges using personal vacation time, or are they still on government time?
SO MUCH FOR JUDICIAL INDEPENDENCE! These type of activities should be banned! Judges and attorneys that practice in front of them SHOULD NOT BE partying together! I guess the practice of law in Shelby County, Tennessee falls under the “Friends and Family” plan. (There is no guessing about it, though.)
Wednesday, May 4
1:00 p.m. - Registration opens (Centre Court Conference Center)
6:30 p.m. - Welcome Reception sponsored by Decosimo Advisory Services - Tides pool area
Thursday, May 5
7:00 a.m. - Yoga with Cindy
Join certified yoga instructor Cindy Pensoneau for a workout to renew your body and refresh you mind.
8:00 a.m. - Continental breakfast - Centre Court
1:30 p.m. - Fun on the Beach
Join your colleagues for some exercise and relaxation on the beach. Enjoy bocce ball, frisbee and other "beach" games!
Friday, May 6
8:00 a.m. - Continental breakfast - Center Court
2:00 p.m. - Beach Volleyball Tournament
Whether you play or not, come enjoy the action and cheer on your favorite team (and have a few libations!)
6:30 p.m. - Beach Party (Tides pool area)
Okay, it's not technically on the beach, but you can enjoy the view and watch the sunset while enjoying cocktails and heavy hors d'oevures.
Saturday, May 7
7:00 a.m. - One Mile Fun Run/Walk (t-shirts provided to all who participate)
8:00 a.m. - Continental Breakfast - Centre Court
1:30 p.m. - Golf Tournament - Links Course at Sandestin
6:00 p.m. - U of M Alumni Reception
Hosted by the University of Memphis law school, the reception is open to all attendees and their guests.
Where will 200 Memphis, Shelby County, Tennessee JUDGES and ATTORNEYS be from Wednesday, May 4, 2011 until Saturday, May 7, 2011 be? DESTIN, FLORIDA!
The event: The 2011 Bench Bar & Boardroom Conference, which according to the Memphis Bar Association’s website “is a great opportunity for all attorneys to interact with each other - and with judges - in a casual atmosphere.”
Some of the events, listed at the end of this post, include Yoga, Beach Volleyball, Beach Party, Cocktails, and Golf.
Arguably, there will be some continuing education legal seminars presented, but the underlying theme is PARTY TIME WITH THE JUDGES!
So if you are looking for a JUDGE next week, don’t bother going to the Shelby County Courthouse - go to Destin, Florida at Tops'l Beach Resort, 9011 Hwy. 98 West, Destin, FL 32550. (Although there are a few dedicated judges that are not going to the boondoggle.)
In May 2007, former Criminal Court Judge Axley was banned from a Destin, Florida resort for propositioning a professional massage therapist for oral sex:
“Now he has been banned from a resort in Destin, FL, after an employee there says he sexually harassed her last week. On Wednesday, the Okaloosa Sheriff's Department was called to the Silver Shells Beach Resort in Destin because of Axley. He was not arrested, but he was given a written trespassing warning. On it, a manager at the resort said ‘this subject is barred permanently for sexual harassment of employees.’ The Okaloosa Sheriff's Department says if he returns to the resort again, he will be arrested.” http://www.legalreader.com/blog/2007/5/14/memphis-judge-banned-from-florida-resort-for-harassment.html
Questions:
Who is paying the “conference” fees for the judges to attend?
Who is paying the transportation and lodging fees for the judges?
Are the judges using personal vacation time, or are they still on government time?
SO MUCH FOR JUDICIAL INDEPENDENCE! These type of activities should be banned! Judges and attorneys that practice in front of them SHOULD NOT BE partying together! I guess the practice of law in Shelby County, Tennessee falls under the “Friends and Family” plan. (There is no guessing about it, though.)
Wednesday, May 4
1:00 p.m. - Registration opens (Centre Court Conference Center)
6:30 p.m. - Welcome Reception sponsored by Decosimo Advisory Services - Tides pool area
Thursday, May 5
7:00 a.m. - Yoga with Cindy
Join certified yoga instructor Cindy Pensoneau for a workout to renew your body and refresh you mind.
8:00 a.m. - Continental breakfast - Centre Court
1:30 p.m. - Fun on the Beach
Join your colleagues for some exercise and relaxation on the beach. Enjoy bocce ball, frisbee and other "beach" games!
Friday, May 6
8:00 a.m. - Continental breakfast - Center Court
2:00 p.m. - Beach Volleyball Tournament
Whether you play or not, come enjoy the action and cheer on your favorite team (and have a few libations!)
6:30 p.m. - Beach Party (Tides pool area)
Okay, it's not technically on the beach, but you can enjoy the view and watch the sunset while enjoying cocktails and heavy hors d'oevures.
Saturday, May 7
7:00 a.m. - One Mile Fun Run/Walk (t-shirts provided to all who participate)
8:00 a.m. - Continental Breakfast - Centre Court
1:30 p.m. - Golf Tournament - Links Course at Sandestin
6:00 p.m. - U of M Alumni Reception
Hosted by the University of Memphis law school, the reception is open to all attendees and their guests.
Wednesday, April 20, 2011
Nashville News Coverage of Judicial Corruption
Channel 4 News story about judge who did not recuse herself in conflict of interest case before her courtroom: http://www.youtube.com/watch?v=Jw_Aopn-mJQ JUDGE BARBARA HAYNES - CLEAR CONFLICT OF INTEREST
Channel 4 Coverage of lawyer being retaliated against for requesting a judge recuse him/herself: http://www.youtube.com/watch?v=aUNKbwyz8ZQ THIS IS WHY ATTORNEYS PUT THEIR INTERESTS ABOVE THEIR CLIENTS' INTERESTS - FEAR OF RETALIATION.
The Board of Professional Responsibility is a joke - good old boy politics, friends helping friends, unbalanced handling of cases, and FAILING TO FOLLOW THEIR OWN RULES.
Channel 4 Coverage of Senate Judiciary subcommittee hearings last fall regarding Judicial retaliation and ineffectiveness of the Court of the Judiciary: http://www.youtube.com/watch?v=lx9Ms70d5Vc&feature=related JUDGES INVESTIGATING JUDGES - LOL
Channel 4 Coverage of lawyer being retaliated against for requesting a judge recuse him/herself: http://www.youtube.com/watch?v=aUNKbwyz8ZQ THIS IS WHY ATTORNEYS PUT THEIR INTERESTS ABOVE THEIR CLIENTS' INTERESTS - FEAR OF RETALIATION.
The Board of Professional Responsibility is a joke - good old boy politics, friends helping friends, unbalanced handling of cases, and FAILING TO FOLLOW THEIR OWN RULES.
Channel 4 Coverage of Senate Judiciary subcommittee hearings last fall regarding Judicial retaliation and ineffectiveness of the Court of the Judiciary: http://www.youtube.com/watch?v=lx9Ms70d5Vc&feature=related JUDGES INVESTIGATING JUDGES - LOL
Tuesday, April 19, 2011
Comments
In order to post any comments, liking or disliking any posts, you must be registered with this site. There are a number of comments in my inbox for moderation, but they are not from registered users. Anonymous posts are not allowed. If you have something to say, stand behind it and it will be posted.
Saturday, April 9, 2011
Judging the Judges: Joe Dale Walker
Judge Joe Dale Walker is a judge for the 13th Chancery District of Mississippi. The 13th District serves Covington, Jefferson Davis, Lawrence, Simpson, and Smith counties.
The following article is by Holly Craw and the citation information follows the article.
Judge Joe Dale Walker of the Chancery Court of the Thirteenth District in Mississippi may not have known with whom he was dealing when he sent an order to the attendance officers of five counties requiring a list of all the homeschoolers and their addresses in each jurisdiction. There was no cause or case that merited the action.
In a highly commendable move, the attendance officers as a group acted wisely, and sent a letter to the homeschooling families with the judge's order. They asked to be notified by April 8 if the families wanted to take legal action against the judge.
Homeschool Legal Defense Association was immediately contacted, and they went to the state Supreme Court to ask for a stay of all proceedings. This was granted on April 7. The court also turned the tables on Judge Walker, asking him to respond by April 18, 2011 with an explanation of the authority that he used to issue the order to the attendance officers.
Much concern has been generated in the homeschool community about the judge's abuse of power and possible ramifications had the Mississippi Supreme Court not been willing to grant the stay of proceedings. No one yet knows why the judge was wanting the information, nor what he may have planned to do with it.
April 9th, 2011 4:09 pm MT
Holly Craw
Phoenix Homeschooling Examiner
http://www.examiner.com/homeschooling-in-phoenix/mississippi-judge-under-question-for-requiring-id-of-all-local-homeschoolers
The following article is by Holly Craw and the citation information follows the article.
Judge Joe Dale Walker of the Chancery Court of the Thirteenth District in Mississippi may not have known with whom he was dealing when he sent an order to the attendance officers of five counties requiring a list of all the homeschoolers and their addresses in each jurisdiction. There was no cause or case that merited the action.
In a highly commendable move, the attendance officers as a group acted wisely, and sent a letter to the homeschooling families with the judge's order. They asked to be notified by April 8 if the families wanted to take legal action against the judge.
Homeschool Legal Defense Association was immediately contacted, and they went to the state Supreme Court to ask for a stay of all proceedings. This was granted on April 7. The court also turned the tables on Judge Walker, asking him to respond by April 18, 2011 with an explanation of the authority that he used to issue the order to the attendance officers.
Much concern has been generated in the homeschool community about the judge's abuse of power and possible ramifications had the Mississippi Supreme Court not been willing to grant the stay of proceedings. No one yet knows why the judge was wanting the information, nor what he may have planned to do with it.
April 9th, 2011 4:09 pm MT
Holly Craw
Phoenix Homeschooling Examiner
http://www.examiner.com/homeschooling-in-phoenix/mississippi-judge-under-question-for-requiring-id-of-all-local-homeschoolers
Tuesday, April 5, 2011
Excellent case decided by New Hampshire Supreme Court on PAS issues.
In the Matter of James J. Miller and Janet S. Todd
No. 2009-806
SUPREME COURT OF NEW HAMPSHIRE
2011 N.H. LEXIS 33
March 31, 2011
Vacated and remanded.
Hicks, J. The petitioner, James J. Miller, currently a resident of New York, appeals an order of the Portsmouth Family Division (DeVries, J.), recommended by the Master (Cross, M.), requiring the parties' two minor daughters to continue to live primarily with the respondent, Janet S. Todd, in New Hampshire. We vacate and remand.
We have reviewed the extensive record in this case and set forth the facts most relevant to the issues on appeal. Miller and Todd met in 1999 over the internet and established a relationship. At that time, Miller lived in Michigan and Todd lived in New Hampshire. Although they never married, their relationship produced two daughters, Laurel born in 2002 and Lindsay born in 2003. During 2002 and 2003, the parties spent some time living together in Michigan, Todd and the children spent some time alone in New Hampshire [*2] living with Todd's parents, and the parties all spent some time together at Todd's parents' house in New Hampshire.
Toward the end of 2003, the parties' relationship broke down. On December 23, 2003, Miller obtained an ex parte order in the circuit court in Michigan granting him sole temporary legal and physical custody of his daughters. That same day, Todd took the children to her parents' home in Hampton, New Hampshire. On January 6, 2004, Todd was served with the Michigan custody order. On January 15, the Rockingham County Superior Court, in response to Miller's petition for enforcement of the Michigan custody decree, ordered Todd to appear at a hearing and on January 26, the trial court ordered Todd to bring the children to Miller within twenty-four hours for the purpose of transferring custody to him.
Sometime in January, Todd's mother told her that, four months earlier, she saw Miller molest Laurel by inserting his forefinger into her. On January 27, on the advice of her attorney, Todd took the children to the emergency department at Exeter Hospital and requested a “well baby check.” The physician's report states: “[P]atient here for well child check-up; told by Lawyer to have [*3] evaluated for custody issue.” There is no evidence in the record that Todd notified the hospital staff of any concerns regarding sexual abuse. The physical exam indicated the children's condition was good. Todd then transferred the children to Miller's custody.
On February 5, 2004, a report was filed with the Family Independence Agency of Michigan, Child Protective Services, alleging that maternal grandparents recalled an incident that occurred in New Hampshire between 10/03/03 and 10/05/03 when father was rubbing diaper cream on Laurel because she had a diaper rash. Maternal grandmother states she did not have [a] diaper rash. Maternal grandmother stated father inserted his fore-finger inside of Laurel. This was never reported to anyone.The agency investigated the report, including having pelvic examinations of both children administered. No indications of sexual abuse of either child were found and the investigation was closed.
In November 2004, the Rockingham County Superior Court issued a temporary decree awarding the parties joint legal custody of the children. In that order, the trial court questioned the credibility of both parties. Regarding Todd, the court found “most troubling” [*4] the allegations of sexual abuse raised by her. As the court stated, “It is simply far too convenient to believe the testimony put forth by [Todd]: that her mother [chose] not to reveal the allegations of [Miller's] alleged sexual assault until custody of the minor children was awarded to [Miller].” The court noted that neither party “appears to care to whom they lie so long as they achieve favorable results.”
In June 2005, Todd's father reported to the Hampton police that while he was lying in bed with Lindsay and Laurel watching a movie, Laurel tried to “straddle” him on his chest and stated, “I'm f— you.” When the grandfather asked Laurel where she heard that she said nothing. When the grandfather then asked, “from your father,” Laurel said “yes.” The police noted the report as a “possible disclosure” of sexual abuse, but took no action.
In September 2005, a friend of Todd's made a statement to the police that Laurel had reported that Miller had spanked her in the groin area. Todd filed an ex parte petition for temporary stay of visitation between Miller and the children alleging that the children reported being spanked by Miller and a third party in the groin area and that Laurel [*5] had displayed “other alarming behavior of a sexual nature,” referring to the grandfather's report to the police in June. As a result of these allegations, the court issued an order prohibiting Miller from having any contact with the children “until this matter is duly investigated and any and all allegations of abuse are deemed unfounded.” After an investigation that included a second pelvic examination of Laurel, the New Hampshire Division for Children, Youth, and Families (DCYF) closed the matter as unfounded. Details of the alleged abuse were sent to the Manchester Police Department which, after investigation, also concluded that the charges were unfounded. A copy of the report was sent to the Hillsborough County Attorney.
In November 2005, Todd and the children's therapist reported to DCYF that Laurel had stated that Miller took “pictures of her with her clothes off,” made her “eat his pee pee” and “panks her in the front.” On January 30, 2006, DCYF sent a letter to Miller stating that it had determined that he was “the individual responsible for the abuse” and that his name would be entered “on its central registry of founded child abuse and neglect reports.” Miller appealed the [*6] finding and, on February 24, 2006, DCYF rescinded its initial determination. In a letter to Todd, DCYF informed her that new evidence had come to its attention and that “the assessment regarding your children has been closed unfounded.” DCYF stated that “[t]here has been a concern that Laurel has been coached with the information that she has been disclosing. Please understand that this … type of coaching, if proven, is equally as abusive to a child as if the abuse had actually occurred.” The matter was also referred to the Manchester Police Department, which investigated but did not pursue charges.
In July 2006, the parties agreed to be evaluated by psychologist Peggie Ward “to investigate and make recommendations … on the issues of a parenting/custody assess[ment], abuse allegations by both parties, parental alienation issues, scripting issue[s] and any and all other issues … which she deems relevant.” On December 18, 2007, Dr. Ward issued an eighty-eight page report in which she considered several hypotheses. First, Dr. Ward posed the hypothesis that “Laurel was not sexually abused by her father or anyone else.” Dr. Ward noted that both children were subjected to multiple [*7] examinations and questioning and that Laurel's statements to the Child Advocacy Center “do not appear to be consistent with her initial statement nor do they have a good deal of context.” Dr. Ward opined that “this hypothesis may be supported by the data” in that “Laurel's presentation is less consistent with a child who has been repeatedly sexually abused.”
Second, Dr. Ward posed the hypothesis that “Laurel was sexually abused or inappropriately touched by Mr. Miller.” Dr. Ward noted that “Laurel's statements and behaviors are less consistent with child sexual abuse than they are of premature focus on the genital area followed by a good deal of anxiety and distress about sexual abuse from both Janet Todd as well as [Todd's mother].” Due to the “lack of context and the lack of memory regarding abusive behavior, combined with multiple physical exams and multiple interviews,” it was “impossible to determine whether Laurel was sexually abused by her father.” Dr. Ward's opinion was that “Laurel's presentation is less consistent with a child sexually abused by her father and more consistent with other hypotheses.”
Third, Dr. Ward posed the hypothesis that Todd “has deliberately coached the [*8] children in what to say and scripted their responses.” It was Dr. Ward's opinion that “this hypothesis is not the hypothesis best supported by the data.”
Fourth, Dr. Ward posed the hypothesis that “Todd came to believe that Laurel, not Lindsay, was sexually abused by Mr. Miller.” It was Dr. Ward's opinion that this hypothesis “is the most likely hypothesis supported by the data. That is, that Ms. Todd, after experiencing her parent's concerns about Mr. Miller and after having experienced her own negative interactions with Mr. Miller, became increasingly convinced that Mr. Miller was harming Laurel.” Referring to a psychological report on Todd that was prepared in August 2007 by Dr. David Medoff, Dr. Ward noted that [p]sychological testing shows that Ms. Todd has a “serious impairment in her ability to accurately process the information she takes in from her surroundings and the degree of misperception she demonstrates has major implications for her adaptive functioning. Ms. Todd's level of distortion is substantial and predisposes her to misunderstanding and misconstruing intentions, motivations and actions of other people. This places her at great risk for faulty judgment, for errors [*9] in decision-making, and for behaving in ways that are based on inaccurate information. These data indicate that Ms. Todd will not only fail to recognize or foresee the consequences of her actions at times, but that she will also become confused at times in separating fantasy from reality.”As Dr. Ward explained,
Ms. Todd has the liability of distortion of information and failure to accurately identify intentions, motivations and behavior of others. Ms. Todd's emotional state placed her at risk for misinterpreting information that she gained from her environment, adamantly believing that Laurel was sexually abused, and acting with full force on this information.Dr. Ward thus concluded that “the hypothesis that Ms. Todd unintentionally but clearly caused Laurel to come to believe that she has been sexually abused by her father is the hypothesis best supported by the data.”
In making her recommendations, Dr. Ward cautioned that “[w]hile it is unlikely that Mr. Miller has sexually abused Laurel, it is not possible to say with an absolute certainty that he did not.” She concluded, however, that while it is “likely that Janet Todd did influence her children with her negative beliefs about Mr. [*10] Miller, from her psychological profile, it is most likely that her feelings colored her perceptions and that she not only came to see Mr. Miller as harmful to Laurel but also did not protect the children from her feelings.” In addition, Dr. Ward noted that “Ms. Todd's parents appear to have wholly and adamantly accepted that Mr. Miller is a pervasive negative influence on his children. Mrs. Todd in particular is active in helping her daughter prove that Mr. Miller sexually abused the children.” Finally, Dr. Ward noted that “Laurel's therapist is convinced that Laurel has been sexually abused, and may have inadvertently reinforced the abuse by making a ‘book’ with Laurel about her abuse.”
At the time Dr. Ward submitted her report in late December 2007, Miller had not seen his children, outside of Dr. Ward's office, since September 2005. Because the children had no present relationship with Miller, Dr. Ward recommended therapeutic reunification. Dr. Ward noted that the “children and their father have lost time that they cannot bring back. Once the relationship between Mr. Miller and the children is both more positive and more stable a parenting plan should be worked out wherein the children [*11] can spen[d] significant periods of time with their father.”
On January 7, 2008, the trial court issued an order addressing Dr. Ward's evaluation and recommendations. The court noted that as a result of Todd's allegations of sexual abuse, Miller “has had little meaningful parenting time for the past two years, other than when he and the children met with Dr. Ward as part of her evaluation.” The court expressed its intent to set a course for the immediate therapeutic reunification of the children with their father. Too much time has already passed and too much opportunity has been lost. The children certainly deserve better. [Todd] asserts that she accepts the goal of reunification, but wants it to proceed at a slow pace. The court is convinced that [Todd's] pace for reunification is far too slow and is premised on assertions which may not be true.The court noted that although Miller had already identified a reunification therapist, Todd had “made no such effort whatsoever.” The court ordered that the parties immediately contact Kelly Khachadourian to begin the therapeutic reunification process, that Todd immediately reenroll in counseling, and that her therapist be given a copy of Dr. [*12] Ward's evaluation and Todd's own psychological evaluation. The court found “that the children's best interests require that they ‘normalize’ their relationship with their father. It is extraordinarily harmful to them to deprive them of a relationship with one parent, especially when the reasons for doing so appear to be wholly unjustified.” The court expressed that it did not doubt that [Todd] feels justified in objecting to [Miller] having parenting time because of her concerns about sexual abuse, but the objective evidence does not corroborate her concerns. In fact, Dr. Ward's evaluation and the parties' psychological evaluations raise the very real possibility that unless the children's circumstances are immediately addressed, they risk abuse from a different source.
On March 6, 2008, following a hearing, the trial court issued an order stating that its “hope that progress could be made in [Miller's] reunification with the parties' minor children was misguided.” The January 7, 2008 order setting forth a plan for restoring the relationship “failed in relatively short order.” The court attributed responsibility for its failure to both parties: “[Miller] because of his insistence and [*13] belligerence with the reunification therapist” and Todd “because of her fanciful concern about the therapist's ‘fraudulent billing’ of insurance.” The court ordered that the parties enroll in reunification counseling with a new therapist and that they develop a schedule which gives Miller “some increasingly longer periods of parenting time” during the reunification process. The court stated that it was “growing increasingly convinced that [Todd's] insistence that [Miller] sexually abused the children is the single biggest obstacle to restoring [Miller's] relationship with them. If her insistence continues to be so intractable, [it] may be left with no alternative short of modifying the children's primary residence.” Further, the court denied Todd's request to depose the children's former therapist, stating that Todd's “representation that [the therapist] is the source for her conviction that the children were sexually abused is, at this point, irrelevant; whatever the source of her belief, the fact is that she continues to hold to it no matter the evidence to the contrary.”
On May 15, 2008, following a hearing, the court, after noting that the parties “have no interest to cooperate [*14] in what they both profess to believe — that the children need [to] rebuild their relationship with their father,” ordered that they begin reunification therapy near Miller's home in New York no later than July 1, 2008. Following an ex parte motion filed by Miller alleging that Todd's continued interference with the reunification process required immediate modification of residential custody, the court stated that if Todd and the children did not appear for the July 8, 2008 appointment, it would consider Miller's request for sole decision-making and residential responsibility.
On August 25, 2008, following a hearing, the court recognized that although the parties “agree that they have made considerable progress since the [May] hearing … in reunifying the minor children with [Miller],” that “good news quickly degenerated into a heated argument about the next step in the process.” Miller wanted temporary primary residential responsibility of the children so he could bring them to New York to complete the reunification therapy, while Todd contended that request was “decidedly not in the children's best interests.” [*15] The court stated that it understood that Miller is convinced that Todd has alienated the children and is responsible for the children's estrangement from him; he may be right, but that does not change the fact that the children will require time to adjust to the change(s). The process of restoring his contact with the children has begun [and] is proceeding reasonably well, and the children's best interests require that he be patient with the process.As for Todd, the court stated that she continues to be unwilling to recognize the damage she has done to the children's relationship with their father. She offers no real practical suggestions for how to continue the restoration of the relationship; rather, she leaves it up to him to work out the arrangements, presumably by his traveling to New Hampshire to continue the reunification therapy.Accordingly, the court set forth a schedule to allow Miller to continue the reunification therapy and appointed a guardian ad litem.
In October 2008, Miller filed an ex parte motion again seeking modification of residential responsibility “made necessary due to the fact that [he] ha[d] not had any contact with his children since August 14, 2008.” Following [*16] a hearing on the motion, the court stated that it remained “convinced that [Todd] is not invested in the process of reunifying [Miller] with the parties' minor children.” The “uncontroverted evidence” demonstrated that Miller had not seen the children since August “for reasons entirely unclear to the court,” that Todd had offered parenting time to Miller for a couple of days in August “but then reneged,” and that Todd neither met Miller in New Hampshire when he came to pick up the children, nor did she bring the children to New York. The court noted that Miller was not blameless in that he “unreasonably insists that his reunification with the children be done on his terms, and his impatience with the process has now caused the second reunification therapist to withdraw from this case. He chose both therapists, but his conduct has made their work nearly impossible.” Concluding that only a specific schedule of parenting time would guarantee Miller's contact with the children, the court set forth a visitation schedule.
In March 2009, the guardian ad litem filed an ex parte motion to cancel the custodial time the children were scheduled to have with their father during the weekend beginning [*17] March 20, 2009. The motion indicated that “[o]n 3/18/09 Janet Todd told the GAL that the children disclosed to her inappropriate touching by their father … during their last custodial time with [him].” In response, the trial court scheduled a hearing and, in the interim, ordered that the “father shall not have parenting time.” At the hearing, the guardian stated that Todd claimed Lindsay reported that “daddy touched her pee-pee. She told him not to and he did it anyway, and that there was also a threat in there that if they told anyone, he would kill their mother.” Following the hearing, the court ordered that Miller's parenting time was not suspended but ordered the guardian ad litem and Todd to report the disclosures to DCYF “immediately.” DCYF investigated and closed the matter as unfounded. In a letter to the parties, DCYF recommended that both Laurel and Lindsay engage in individual therapy and that the parents participate in a Child Impact Seminar to understand “the impact it has on children to have a relationship with both parents.” DCYF also stated that “[i]f we shall get another report in with further concerns for Lindsay and Laurel and they have not started therapy, [t]he [*18] Division for Children, Youth and Families may be forced to take a different course of action.”
In April 2009, the guardian ad litem filed a statement with the court indicating that Laurel's first grade teacher had reported that on April 20 Laurel began to cry in class and disclosed that during her most recent visit with her father he said that he was going to hurt her mother and there was nothing she could do to stop him. In response, Miller filed a motion to modify custody of the children due to new acts of child abuse. Following a hearing, the court denied the motion. The court noted that it understood that [Miller] fears that this new allegation, when combined with previous ones and the recent one in March, is a “slippery slope” spiraling into new and more serious ones. The court will carefully consider all that has happened before March and since. The Final Hearing is scheduled in July, only two months away. Until then, the court does not find a risk of imminent harm to justify the uprooting of the children, especially so close to the end of the school year.
Following a three-day hearing, the master issued his recommendations regarding custody, which were approved by the trial court [*19] on September 8, 2009. The master found that in 2005 the court had “suspended father's parenting time because of mother's allegations that he sexually abused Laurel” but that “DCYF investigated and ultimately made no findings of sexual abuse.” The master found that Dr. Ward's “thorough and extraordinarily perceptive” parenting assessment included the conclusion “that the girls are being exposed to something that undermines their relationship with father.” The master found that Miller's expert, Dr. Garber, shared this conclusion. The master also found that Todd “believes that ‘something sexual definitely happened (to Laurel) by [Miller]’ ” and that Dr. Ward “opine[d] that mother ‘influence(d) her children with her negative beliefs about (father) … (and) did not protect the children from her feelings.’ ”
Regarding the children, the master found that they have lived primarily with their mother in New Hampshire for nearly five years, where they have attended school. He found that they have friends in New Hampshire and a close relationship with their maternal grandparents. In addition, he found that although they have reestablished a healthy bond with their father, have made friends in New [*20] York, and enjoy their time with their father's brother and mother, a move to New York would be a drastic change requiring them to leave most of what they have known during their formative years and would not be in their best interest. Accordingly, the master concluded that “the girls' best interests require that they continue living primarily with their mother in New Hampshire.”
Miller raises three issues on appeal. First, he argues that the trial court erred in awarding Todd parenting responsibility when she has “engaged in a sustained campaign to alienate the children from [him], and to interfere with his parenting rights, by making multiple accusations of sexual abuse.” Second, he argues that the trial court erred in not providing him a timely opportunity to view videotaped interviews with Laurel. Third, he argues that Supreme Court Rule 3 providing for mandatory review of appeals involving married parents but discretionary review of appeals involving non-married parents is unconstitutional.
[1] The trial court has wide discretion in matters involving custody and visitation. In the Matter of Choy & Choy, 154 N.H. 707, 713, 919 A.2d 801 (2007); see RSA 461-A:20 (Supp. 2010) (“Any provision of law that [*21] refers to the ‘custody’ of minor children shall mean the allocation of parental rights and responsibilities as provided in this chapter.”). Our review is limited to determining whether it clearly appears that the trial court engaged in an unsustainable exercise of discretion. This means that we review only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made, and we will not disturb the trial court's determination if it could reasonably be made.Choy, 154 N.H. at 713 (quotation and citations omitted). We review a trial court's statutory interpretation de novo. Id. at 711.
[2] “When determining matters of child custody, a trial court's overriding concern is the best interest of the child.” In the Matter of Martin & Martin, 160 N.H. 645, 647, 8 A.3d 60 (2010), cert. denied, 79 U.S.L.W. 3434 (Jan. 24, 2011). RSA chapter 461-A, the Parental Rights and Responsibilities Act, states that “children do best when both parents have a stable and meaningful involvement in their lives.” RSA 461-A:2, I (Supp. 2010). Accordingly, it is the policy of this state to “[s]upport frequent and continuing contact between each child and both parents” and to “[e]ncourage parents [*22] to share in the rights and responsibilities of raising their children.” RSA 461-A:2, I(a), (b). The Act codifies the “best interests of the child” criteria, setting forth twelve factors that the court must consider, including:
(e) The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written and telephonic contact with the other parent, except where contact will result in harm to the child or to a parent.
(f) The support of each parent for the child's contact with the other parent as shown by allowing and promoting such contact.
(g) The support of each parent for the child's relationship with the other parent.RSA 461-A:6, I(e)-(g) (Supp. 2009) (amended 2010).
[3] “Across the country, the great weight of authority holds that conduct by one parent that tends to alienate the child's affections from the other is so inimical to the child's welfare as to be grounds for a denial of custody to, or a change of custody from, the parent guilty of such conduct.” Renaud v. Renaud, 168 Vt. 306, 721 A.2d 463, 465-66 (Vt. 1998). “[A] child's best interests are plainly furthered by nurturing the child's relationship with both parents, and a sustained course of [*23] conduct by one parent designed to interfere in the child's relationship with the other casts serious doubt upon the fitness of the offending party to be the custodial parent.” Id. at 466. As we have recognized, “the obstruction by a custodial parent of visitation between a child and the noncustodial parent may, if continuous, constitute behavior so inconsistent with the best interests of the child as to raise a strong possibility that the child will be harmed.” Webb v. Knudson, 133 N.H. 665, 673, 582 A.2d 282 (1990); see also In the Matter of Kosek & Kosek, 151 N.H. 722, 728, 871 A.2d 1 (2005).
[4] In addition, many courts have held that unfounded allegations of sexual abuse made by one parent can be grounds for granting custody to the other parent. See, e.g., Young v. Young, 212 A.D.2d 114, 628 N.Y.S.2d 957, 962 (App. Div. 1995); Hartman v. Hartman, 252 Ill. App. 3d 481, 621 N.E.2d 917, 920, 190 Ill. Dec. 464 (Ill. App. Ct. 1993), appeal denied, 631 N.E.2d 708 (Ill. 1994); Mack-Manley v. Manley, 122 Nev. 849, 138 P.3d 525, 531 (Nev. 2006); Turner v. Turner, 260 A.D.2d 953, 689 N.Y.S.2d 269, 270 (App. Div. 1999).
In Beekman v. Beekman, 96 Ohio App. 3d 783, 645 N.E.2d 1332, 1336 (Ohio Ct. App. 1994), the court reasoned:
[5] Although a court grants one parent custody and the other visitation, the children need to know that they [*24] are loved by both parents regardless of the antagonism the parents might feel for each other. It is the duty of each parent to foster and encourage the child's love and respect for the other parent, and the failure from that duty is as harmful to the child as is the failure to provide food, clothing, or shelter. Perhaps it is more harmful because no matter how well fed or well clothed, a child cannot be happy if he or she feels unloved by one parent.
When a court makes a custodial decision, it makes a presumption that the circumstances are such that the residential parent will promote both maternal and paternal affection. The residential parent implicitly agrees to foster such affection, not out of any good feeling toward the nonresidential parent, but out of the need of the child for both parent's love. Where the evidence shows that after the initial decree the residential parent is not living up to the court's presumption and is attempting to poison the relationship between the ex-spouse and the child, this is a change of circumstances that warrants a modification of the prior custody decree. Unsubstantiated allegations of abuse are the worst kind of poisoning of the relationship.
[6] The [*25] trial court's order in the case before us does not cite RSA chapter 461-A, nor does it mention the application of the statutory factors to the specific facts before it. There is no clear indication in the court's order whether it considered “[t]he ability and disposition of each parent to foster a positive relationship … with the other parent,” RSA 461-A:6, I(e), “[t]he support of each parent for the child's contact with the other parent,” RSA 461-A:6, I(f), or “[t]he support of each parent for the child's relationship with the other parent,” RSA 461-A:6, I(g), in determining the best interests of the children. See In the Matter of Rossino & Rossino, 153 N.H. 282, 284, 893 A.2d 666 (2006) (trial court's determination as to custody apparently did not take into account actions of the wife and impact of wife's repeated lawsuits on husband's ability to maintain contact with his children).
Based upon the record before us, the negative ramifications of Todd's unfounded belief that Miller has sexually abused his children, and continues to do so, are several and serious. First and foremost, the false allegations of abuse significantly interfered with Miller's visitation and deprived him of any relationship [*26] with his children for years. Further, as a result of the false allegations, both children have been subjected repeatedly to invasive physical examinations, they have been interviewed by DCYF and law enforcement, they have been evaluated by Dr. Ward, they have had two guardians ad litem and they have twice participated in reunification therapy. These actions were not in the children's best interests. See Watson v. Poole, 329 S.C. 232, 495 S.E.2d 236, 239 (S.C. Ct. App. 1997) (numerous physical examinations and counseling sessions for unfounded sexual abuse are not in the child's best interest); Ellis v. Ellis, 747 S.W.2d 711, 715 (Mo. Ct. App. 1988) (mother's attempt to deprive child of opportunity to know and love father by interfering with father's visitation is not in child's best interest); Theisen v. Theisen, 405 N.W.2d 470, 474 (Minn. Ct. App. 1987) (mother created and maintained atmosphere of unwarranted suspicion and accusation regarding conduct of father toward children resulting in psychological damage); C.J.L. v. M.W.B., 879 So. 2d 1169, 1178 (Ala. Civ. App. 2003) (not in child's best interests to be raised by a mother so bitterly opposed to child's father).
Despite Todd's admissions that [*27] she does not know whether any of the alleged incidents actually occurred, that she has no evidence that Miller has done anything wrong, and that she may not believe the allegations herself, there is no indication in the record that Todd's conduct of pursuing unfounded allegations of sexual abuse will cease. See Theisen, 405 N.W.2d at 472 (mother's repeated attempts to alienate the children from their father and her pattern of conduct, having existed over the years, is unlikely to change); cf. Renaud, 721 A.2d at 467-68 (mother's reports of alleged sexual and physical abuse of son by father, although unsubstantiated, were wholly reasonable and her actions were transitory, unlikely to be repeated, and subject to cure).
The trial court awarded custody to Todd primarily because the children have spent the majority of their lives with her and that is where they are most comfortable. However, it was because of the unfounded allegations of sexual abuse that Miller was denied any contact with his children for over two years and had little opportunity to establish a home life with them between 2004 and 2009. This raises the question whether Todd has benefitted from her misbehavior. In Begins v. Begins, 168 Vt. 298, 721 A.2d 469, 470-71 (Vt. 1998), [*28] the children's relationship with their mother deteriorated following the parents' separation due to the fact that the father unfairly blamed her for the parties' marital problems and made disparaging remarks about her lifestyle. The trial court concluded that the boys' hostility toward their mother, encouraged and fueled by their father, precluded an award of custody to mother. Id. at 471. Although the court found that father did not “deserve to win custody,” it concluded that it had no choice but to award custody to him. Id. (quotations omitted). The Vermont Supreme Court rejected such reasoning. Id. at 472. As the court stated:
Although obviously well intended, the court's decision effectively condoned a parent's willful alienation of a child from the other parent. Its ruling sends the unacceptable message that others might, with impunity, engage in similar misconduct. Left undisturbed, the court's decision would nullify the principle that the best interests of the child are furthered through a healthy and loving relationship with both parents.Id.; see Mack-Manley, 138 P.3d at 528 (trial court found children's best interests not served by ignoring mother's unsubstantiated child abuse [*29] and neglect allegations); Young, 628 N.Y.S.2d at 963 (trial court's decision noticeably silent as to mother's false allegations and it was clear the court failed to consider evidence that mother willfully interfered with father's relationship with the children).
Dr. Ward's report, characterized by the master as “thorough and extraordinarily perceptive,” contains several conclusions particularly relevant to Todd's inability to foster a positive relationship with Miller and to support the children's contact with him. These include her conclusions that Todd caused Laurel to believe that she has been sexually abused by her father, that it is likely that Todd influenced her children with her negative beliefs and did not protect the children from her feelings, that Todd's parents have “wholly and adamantly” accepted that Miller is a pervasive negative influence on the children, and that Todd's mother is active in helping her daughter prove that Miller sexually abused the children.
We conclude that the award of parental rights and responsibilities must be vacated and the case remanded for reconsideration in light of this opinion. On remand, the trial court must consider the factors set forth [*30] in RSA 461-A:6, I(e)-(g) in determining the children's best interests in this case. Also, the court should consider the applicability of the recent amendment to RSA 461-A:6, IV (Supp. 2010). It is within the trial court's discretion to take into consideration any additional circumstances that may have occurred while this appeal was pending.
The second issue Miller raises on appeal is whether the trial court erred in not providing him a timely opportunity to view videotaped interviews conducted by the Child Advocacy Center in Portsmouth with his daughter Laurel. However, Miller's attorney conceded at oral argument that this issue is moot. Accordingly, we need not address it further.
The final issue raised is whether Supreme Court Rule 3 is unconstitutional because it provides differing treatment to married and unmarried parents with respect to issues involving children.
Supreme Court Rule 3 provides in part:
“Mandatory appeal”: A mandatory appeal shall be accepted by the supreme court for review on the merits. A mandatory appeal is an appeal filed by the State pursuant to RSA 606:10, or an appeal from a final decision on the merits issued by a superior court, district court, probate court, [*31] or family division court, that is in compliance with these rules. Provided, however, that the following appeals are NOT mandatory appeals:
…
(9) an appeal from a final decision on the merits issued in, or arising out of, a domestic relations matter filed under RSA Title XLIII (RSA chapters 457 to 461-A); provided, however, that an appeal from a final divorce decree or decree of legal separation shall be a mandatory appeal.
Having exercised our discretion and accepted this appeal, we hold that the question concerning the constitutionality of Rule 3 as applied to this case is moot. Any consideration regarding amending Rule 3 should be accomplished in accordance with the rule-making procedures set forth in Supreme Court Rule 51, thereby providing the public, the bench and the bar an opportunity to offer comments and suggestions.
Vacated and remanded.
Dalianis, C.J., and Duggan and Conboy, JJ., concurred.
No. 2009-806
SUPREME COURT OF NEW HAMPSHIRE
2011 N.H. LEXIS 33
March 31, 2011
Vacated and remanded.
Hicks, J. The petitioner, James J. Miller, currently a resident of New York, appeals an order of the Portsmouth Family Division (DeVries, J.), recommended by the Master (Cross, M.), requiring the parties' two minor daughters to continue to live primarily with the respondent, Janet S. Todd, in New Hampshire. We vacate and remand.
We have reviewed the extensive record in this case and set forth the facts most relevant to the issues on appeal. Miller and Todd met in 1999 over the internet and established a relationship. At that time, Miller lived in Michigan and Todd lived in New Hampshire. Although they never married, their relationship produced two daughters, Laurel born in 2002 and Lindsay born in 2003. During 2002 and 2003, the parties spent some time living together in Michigan, Todd and the children spent some time alone in New Hampshire [*2] living with Todd's parents, and the parties all spent some time together at Todd's parents' house in New Hampshire.
Toward the end of 2003, the parties' relationship broke down. On December 23, 2003, Miller obtained an ex parte order in the circuit court in Michigan granting him sole temporary legal and physical custody of his daughters. That same day, Todd took the children to her parents' home in Hampton, New Hampshire. On January 6, 2004, Todd was served with the Michigan custody order. On January 15, the Rockingham County Superior Court, in response to Miller's petition for enforcement of the Michigan custody decree, ordered Todd to appear at a hearing and on January 26, the trial court ordered Todd to bring the children to Miller within twenty-four hours for the purpose of transferring custody to him.
Sometime in January, Todd's mother told her that, four months earlier, she saw Miller molest Laurel by inserting his forefinger into her. On January 27, on the advice of her attorney, Todd took the children to the emergency department at Exeter Hospital and requested a “well baby check.” The physician's report states: “[P]atient here for well child check-up; told by Lawyer to have [*3] evaluated for custody issue.” There is no evidence in the record that Todd notified the hospital staff of any concerns regarding sexual abuse. The physical exam indicated the children's condition was good. Todd then transferred the children to Miller's custody.
On February 5, 2004, a report was filed with the Family Independence Agency of Michigan, Child Protective Services, alleging that maternal grandparents recalled an incident that occurred in New Hampshire between 10/03/03 and 10/05/03 when father was rubbing diaper cream on Laurel because she had a diaper rash. Maternal grandmother states she did not have [a] diaper rash. Maternal grandmother stated father inserted his fore-finger inside of Laurel. This was never reported to anyone.The agency investigated the report, including having pelvic examinations of both children administered. No indications of sexual abuse of either child were found and the investigation was closed.
In November 2004, the Rockingham County Superior Court issued a temporary decree awarding the parties joint legal custody of the children. In that order, the trial court questioned the credibility of both parties. Regarding Todd, the court found “most troubling” [*4] the allegations of sexual abuse raised by her. As the court stated, “It is simply far too convenient to believe the testimony put forth by [Todd]: that her mother [chose] not to reveal the allegations of [Miller's] alleged sexual assault until custody of the minor children was awarded to [Miller].” The court noted that neither party “appears to care to whom they lie so long as they achieve favorable results.”
In June 2005, Todd's father reported to the Hampton police that while he was lying in bed with Lindsay and Laurel watching a movie, Laurel tried to “straddle” him on his chest and stated, “I'm f— you.” When the grandfather asked Laurel where she heard that she said nothing. When the grandfather then asked, “from your father,” Laurel said “yes.” The police noted the report as a “possible disclosure” of sexual abuse, but took no action.
In September 2005, a friend of Todd's made a statement to the police that Laurel had reported that Miller had spanked her in the groin area. Todd filed an ex parte petition for temporary stay of visitation between Miller and the children alleging that the children reported being spanked by Miller and a third party in the groin area and that Laurel [*5] had displayed “other alarming behavior of a sexual nature,” referring to the grandfather's report to the police in June. As a result of these allegations, the court issued an order prohibiting Miller from having any contact with the children “until this matter is duly investigated and any and all allegations of abuse are deemed unfounded.” After an investigation that included a second pelvic examination of Laurel, the New Hampshire Division for Children, Youth, and Families (DCYF) closed the matter as unfounded. Details of the alleged abuse were sent to the Manchester Police Department which, after investigation, also concluded that the charges were unfounded. A copy of the report was sent to the Hillsborough County Attorney.
In November 2005, Todd and the children's therapist reported to DCYF that Laurel had stated that Miller took “pictures of her with her clothes off,” made her “eat his pee pee” and “panks her in the front.” On January 30, 2006, DCYF sent a letter to Miller stating that it had determined that he was “the individual responsible for the abuse” and that his name would be entered “on its central registry of founded child abuse and neglect reports.” Miller appealed the [*6] finding and, on February 24, 2006, DCYF rescinded its initial determination. In a letter to Todd, DCYF informed her that new evidence had come to its attention and that “the assessment regarding your children has been closed unfounded.” DCYF stated that “[t]here has been a concern that Laurel has been coached with the information that she has been disclosing. Please understand that this … type of coaching, if proven, is equally as abusive to a child as if the abuse had actually occurred.” The matter was also referred to the Manchester Police Department, which investigated but did not pursue charges.
In July 2006, the parties agreed to be evaluated by psychologist Peggie Ward “to investigate and make recommendations … on the issues of a parenting/custody assess[ment], abuse allegations by both parties, parental alienation issues, scripting issue[s] and any and all other issues … which she deems relevant.” On December 18, 2007, Dr. Ward issued an eighty-eight page report in which she considered several hypotheses. First, Dr. Ward posed the hypothesis that “Laurel was not sexually abused by her father or anyone else.” Dr. Ward noted that both children were subjected to multiple [*7] examinations and questioning and that Laurel's statements to the Child Advocacy Center “do not appear to be consistent with her initial statement nor do they have a good deal of context.” Dr. Ward opined that “this hypothesis may be supported by the data” in that “Laurel's presentation is less consistent with a child who has been repeatedly sexually abused.”
Second, Dr. Ward posed the hypothesis that “Laurel was sexually abused or inappropriately touched by Mr. Miller.” Dr. Ward noted that “Laurel's statements and behaviors are less consistent with child sexual abuse than they are of premature focus on the genital area followed by a good deal of anxiety and distress about sexual abuse from both Janet Todd as well as [Todd's mother].” Due to the “lack of context and the lack of memory regarding abusive behavior, combined with multiple physical exams and multiple interviews,” it was “impossible to determine whether Laurel was sexually abused by her father.” Dr. Ward's opinion was that “Laurel's presentation is less consistent with a child sexually abused by her father and more consistent with other hypotheses.”
Third, Dr. Ward posed the hypothesis that Todd “has deliberately coached the [*8] children in what to say and scripted their responses.” It was Dr. Ward's opinion that “this hypothesis is not the hypothesis best supported by the data.”
Fourth, Dr. Ward posed the hypothesis that “Todd came to believe that Laurel, not Lindsay, was sexually abused by Mr. Miller.” It was Dr. Ward's opinion that this hypothesis “is the most likely hypothesis supported by the data. That is, that Ms. Todd, after experiencing her parent's concerns about Mr. Miller and after having experienced her own negative interactions with Mr. Miller, became increasingly convinced that Mr. Miller was harming Laurel.” Referring to a psychological report on Todd that was prepared in August 2007 by Dr. David Medoff, Dr. Ward noted that [p]sychological testing shows that Ms. Todd has a “serious impairment in her ability to accurately process the information she takes in from her surroundings and the degree of misperception she demonstrates has major implications for her adaptive functioning. Ms. Todd's level of distortion is substantial and predisposes her to misunderstanding and misconstruing intentions, motivations and actions of other people. This places her at great risk for faulty judgment, for errors [*9] in decision-making, and for behaving in ways that are based on inaccurate information. These data indicate that Ms. Todd will not only fail to recognize or foresee the consequences of her actions at times, but that she will also become confused at times in separating fantasy from reality.”As Dr. Ward explained,
Ms. Todd has the liability of distortion of information and failure to accurately identify intentions, motivations and behavior of others. Ms. Todd's emotional state placed her at risk for misinterpreting information that she gained from her environment, adamantly believing that Laurel was sexually abused, and acting with full force on this information.Dr. Ward thus concluded that “the hypothesis that Ms. Todd unintentionally but clearly caused Laurel to come to believe that she has been sexually abused by her father is the hypothesis best supported by the data.”
In making her recommendations, Dr. Ward cautioned that “[w]hile it is unlikely that Mr. Miller has sexually abused Laurel, it is not possible to say with an absolute certainty that he did not.” She concluded, however, that while it is “likely that Janet Todd did influence her children with her negative beliefs about Mr. [*10] Miller, from her psychological profile, it is most likely that her feelings colored her perceptions and that she not only came to see Mr. Miller as harmful to Laurel but also did not protect the children from her feelings.” In addition, Dr. Ward noted that “Ms. Todd's parents appear to have wholly and adamantly accepted that Mr. Miller is a pervasive negative influence on his children. Mrs. Todd in particular is active in helping her daughter prove that Mr. Miller sexually abused the children.” Finally, Dr. Ward noted that “Laurel's therapist is convinced that Laurel has been sexually abused, and may have inadvertently reinforced the abuse by making a ‘book’ with Laurel about her abuse.”
At the time Dr. Ward submitted her report in late December 2007, Miller had not seen his children, outside of Dr. Ward's office, since September 2005. Because the children had no present relationship with Miller, Dr. Ward recommended therapeutic reunification. Dr. Ward noted that the “children and their father have lost time that they cannot bring back. Once the relationship between Mr. Miller and the children is both more positive and more stable a parenting plan should be worked out wherein the children [*11] can spen[d] significant periods of time with their father.”
On January 7, 2008, the trial court issued an order addressing Dr. Ward's evaluation and recommendations. The court noted that as a result of Todd's allegations of sexual abuse, Miller “has had little meaningful parenting time for the past two years, other than when he and the children met with Dr. Ward as part of her evaluation.” The court expressed its intent to set a course for the immediate therapeutic reunification of the children with their father. Too much time has already passed and too much opportunity has been lost. The children certainly deserve better. [Todd] asserts that she accepts the goal of reunification, but wants it to proceed at a slow pace. The court is convinced that [Todd's] pace for reunification is far too slow and is premised on assertions which may not be true.The court noted that although Miller had already identified a reunification therapist, Todd had “made no such effort whatsoever.” The court ordered that the parties immediately contact Kelly Khachadourian to begin the therapeutic reunification process, that Todd immediately reenroll in counseling, and that her therapist be given a copy of Dr. [*12] Ward's evaluation and Todd's own psychological evaluation. The court found “that the children's best interests require that they ‘normalize’ their relationship with their father. It is extraordinarily harmful to them to deprive them of a relationship with one parent, especially when the reasons for doing so appear to be wholly unjustified.” The court expressed that it did not doubt that [Todd] feels justified in objecting to [Miller] having parenting time because of her concerns about sexual abuse, but the objective evidence does not corroborate her concerns. In fact, Dr. Ward's evaluation and the parties' psychological evaluations raise the very real possibility that unless the children's circumstances are immediately addressed, they risk abuse from a different source.
On March 6, 2008, following a hearing, the trial court issued an order stating that its “hope that progress could be made in [Miller's] reunification with the parties' minor children was misguided.” The January 7, 2008 order setting forth a plan for restoring the relationship “failed in relatively short order.” The court attributed responsibility for its failure to both parties: “[Miller] because of his insistence and [*13] belligerence with the reunification therapist” and Todd “because of her fanciful concern about the therapist's ‘fraudulent billing’ of insurance.” The court ordered that the parties enroll in reunification counseling with a new therapist and that they develop a schedule which gives Miller “some increasingly longer periods of parenting time” during the reunification process. The court stated that it was “growing increasingly convinced that [Todd's] insistence that [Miller] sexually abused the children is the single biggest obstacle to restoring [Miller's] relationship with them. If her insistence continues to be so intractable, [it] may be left with no alternative short of modifying the children's primary residence.” Further, the court denied Todd's request to depose the children's former therapist, stating that Todd's “representation that [the therapist] is the source for her conviction that the children were sexually abused is, at this point, irrelevant; whatever the source of her belief, the fact is that she continues to hold to it no matter the evidence to the contrary.”
On May 15, 2008, following a hearing, the court, after noting that the parties “have no interest to cooperate [*14] in what they both profess to believe — that the children need [to] rebuild their relationship with their father,” ordered that they begin reunification therapy near Miller's home in New York no later than July 1, 2008. Following an ex parte motion filed by Miller alleging that Todd's continued interference with the reunification process required immediate modification of residential custody, the court stated that if Todd and the children did not appear for the July 8, 2008 appointment, it would consider Miller's request for sole decision-making and residential responsibility.
On August 25, 2008, following a hearing, the court recognized that although the parties “agree that they have made considerable progress since the [May] hearing … in reunifying the minor children with [Miller],” that “good news quickly degenerated into a heated argument about the next step in the process.” Miller wanted temporary primary residential responsibility of the children so he could bring them to New York to complete the reunification therapy, while Todd contended that request was “decidedly not in the children's best interests.” [*15] The court stated that it understood that Miller is convinced that Todd has alienated the children and is responsible for the children's estrangement from him; he may be right, but that does not change the fact that the children will require time to adjust to the change(s). The process of restoring his contact with the children has begun [and] is proceeding reasonably well, and the children's best interests require that he be patient with the process.As for Todd, the court stated that she continues to be unwilling to recognize the damage she has done to the children's relationship with their father. She offers no real practical suggestions for how to continue the restoration of the relationship; rather, she leaves it up to him to work out the arrangements, presumably by his traveling to New Hampshire to continue the reunification therapy.Accordingly, the court set forth a schedule to allow Miller to continue the reunification therapy and appointed a guardian ad litem.
In October 2008, Miller filed an ex parte motion again seeking modification of residential responsibility “made necessary due to the fact that [he] ha[d] not had any contact with his children since August 14, 2008.” Following [*16] a hearing on the motion, the court stated that it remained “convinced that [Todd] is not invested in the process of reunifying [Miller] with the parties' minor children.” The “uncontroverted evidence” demonstrated that Miller had not seen the children since August “for reasons entirely unclear to the court,” that Todd had offered parenting time to Miller for a couple of days in August “but then reneged,” and that Todd neither met Miller in New Hampshire when he came to pick up the children, nor did she bring the children to New York. The court noted that Miller was not blameless in that he “unreasonably insists that his reunification with the children be done on his terms, and his impatience with the process has now caused the second reunification therapist to withdraw from this case. He chose both therapists, but his conduct has made their work nearly impossible.” Concluding that only a specific schedule of parenting time would guarantee Miller's contact with the children, the court set forth a visitation schedule.
In March 2009, the guardian ad litem filed an ex parte motion to cancel the custodial time the children were scheduled to have with their father during the weekend beginning [*17] March 20, 2009. The motion indicated that “[o]n 3/18/09 Janet Todd told the GAL that the children disclosed to her inappropriate touching by their father … during their last custodial time with [him].” In response, the trial court scheduled a hearing and, in the interim, ordered that the “father shall not have parenting time.” At the hearing, the guardian stated that Todd claimed Lindsay reported that “daddy touched her pee-pee. She told him not to and he did it anyway, and that there was also a threat in there that if they told anyone, he would kill their mother.” Following the hearing, the court ordered that Miller's parenting time was not suspended but ordered the guardian ad litem and Todd to report the disclosures to DCYF “immediately.” DCYF investigated and closed the matter as unfounded. In a letter to the parties, DCYF recommended that both Laurel and Lindsay engage in individual therapy and that the parents participate in a Child Impact Seminar to understand “the impact it has on children to have a relationship with both parents.” DCYF also stated that “[i]f we shall get another report in with further concerns for Lindsay and Laurel and they have not started therapy, [t]he [*18] Division for Children, Youth and Families may be forced to take a different course of action.”
In April 2009, the guardian ad litem filed a statement with the court indicating that Laurel's first grade teacher had reported that on April 20 Laurel began to cry in class and disclosed that during her most recent visit with her father he said that he was going to hurt her mother and there was nothing she could do to stop him. In response, Miller filed a motion to modify custody of the children due to new acts of child abuse. Following a hearing, the court denied the motion. The court noted that it understood that [Miller] fears that this new allegation, when combined with previous ones and the recent one in March, is a “slippery slope” spiraling into new and more serious ones. The court will carefully consider all that has happened before March and since. The Final Hearing is scheduled in July, only two months away. Until then, the court does not find a risk of imminent harm to justify the uprooting of the children, especially so close to the end of the school year.
Following a three-day hearing, the master issued his recommendations regarding custody, which were approved by the trial court [*19] on September 8, 2009. The master found that in 2005 the court had “suspended father's parenting time because of mother's allegations that he sexually abused Laurel” but that “DCYF investigated and ultimately made no findings of sexual abuse.” The master found that Dr. Ward's “thorough and extraordinarily perceptive” parenting assessment included the conclusion “that the girls are being exposed to something that undermines their relationship with father.” The master found that Miller's expert, Dr. Garber, shared this conclusion. The master also found that Todd “believes that ‘something sexual definitely happened (to Laurel) by [Miller]’ ” and that Dr. Ward “opine[d] that mother ‘influence(d) her children with her negative beliefs about (father) … (and) did not protect the children from her feelings.’ ”
Regarding the children, the master found that they have lived primarily with their mother in New Hampshire for nearly five years, where they have attended school. He found that they have friends in New Hampshire and a close relationship with their maternal grandparents. In addition, he found that although they have reestablished a healthy bond with their father, have made friends in New [*20] York, and enjoy their time with their father's brother and mother, a move to New York would be a drastic change requiring them to leave most of what they have known during their formative years and would not be in their best interest. Accordingly, the master concluded that “the girls' best interests require that they continue living primarily with their mother in New Hampshire.”
Miller raises three issues on appeal. First, he argues that the trial court erred in awarding Todd parenting responsibility when she has “engaged in a sustained campaign to alienate the children from [him], and to interfere with his parenting rights, by making multiple accusations of sexual abuse.” Second, he argues that the trial court erred in not providing him a timely opportunity to view videotaped interviews with Laurel. Third, he argues that Supreme Court Rule 3 providing for mandatory review of appeals involving married parents but discretionary review of appeals involving non-married parents is unconstitutional.
[1] The trial court has wide discretion in matters involving custody and visitation. In the Matter of Choy & Choy, 154 N.H. 707, 713, 919 A.2d 801 (2007); see RSA 461-A:20 (Supp. 2010) (“Any provision of law that [*21] refers to the ‘custody’ of minor children shall mean the allocation of parental rights and responsibilities as provided in this chapter.”). Our review is limited to determining whether it clearly appears that the trial court engaged in an unsustainable exercise of discretion. This means that we review only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made, and we will not disturb the trial court's determination if it could reasonably be made.Choy, 154 N.H. at 713 (quotation and citations omitted). We review a trial court's statutory interpretation de novo. Id. at 711.
[2] “When determining matters of child custody, a trial court's overriding concern is the best interest of the child.” In the Matter of Martin & Martin, 160 N.H. 645, 647, 8 A.3d 60 (2010), cert. denied, 79 U.S.L.W. 3434 (Jan. 24, 2011). RSA chapter 461-A, the Parental Rights and Responsibilities Act, states that “children do best when both parents have a stable and meaningful involvement in their lives.” RSA 461-A:2, I (Supp. 2010). Accordingly, it is the policy of this state to “[s]upport frequent and continuing contact between each child and both parents” and to “[e]ncourage parents [*22] to share in the rights and responsibilities of raising their children.” RSA 461-A:2, I(a), (b). The Act codifies the “best interests of the child” criteria, setting forth twelve factors that the court must consider, including:
(e) The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written and telephonic contact with the other parent, except where contact will result in harm to the child or to a parent.
(f) The support of each parent for the child's contact with the other parent as shown by allowing and promoting such contact.
(g) The support of each parent for the child's relationship with the other parent.RSA 461-A:6, I(e)-(g) (Supp. 2009) (amended 2010).
[3] “Across the country, the great weight of authority holds that conduct by one parent that tends to alienate the child's affections from the other is so inimical to the child's welfare as to be grounds for a denial of custody to, or a change of custody from, the parent guilty of such conduct.” Renaud v. Renaud, 168 Vt. 306, 721 A.2d 463, 465-66 (Vt. 1998). “[A] child's best interests are plainly furthered by nurturing the child's relationship with both parents, and a sustained course of [*23] conduct by one parent designed to interfere in the child's relationship with the other casts serious doubt upon the fitness of the offending party to be the custodial parent.” Id. at 466. As we have recognized, “the obstruction by a custodial parent of visitation between a child and the noncustodial parent may, if continuous, constitute behavior so inconsistent with the best interests of the child as to raise a strong possibility that the child will be harmed.” Webb v. Knudson, 133 N.H. 665, 673, 582 A.2d 282 (1990); see also In the Matter of Kosek & Kosek, 151 N.H. 722, 728, 871 A.2d 1 (2005).
[4] In addition, many courts have held that unfounded allegations of sexual abuse made by one parent can be grounds for granting custody to the other parent. See, e.g., Young v. Young, 212 A.D.2d 114, 628 N.Y.S.2d 957, 962 (App. Div. 1995); Hartman v. Hartman, 252 Ill. App. 3d 481, 621 N.E.2d 917, 920, 190 Ill. Dec. 464 (Ill. App. Ct. 1993), appeal denied, 631 N.E.2d 708 (Ill. 1994); Mack-Manley v. Manley, 122 Nev. 849, 138 P.3d 525, 531 (Nev. 2006); Turner v. Turner, 260 A.D.2d 953, 689 N.Y.S.2d 269, 270 (App. Div. 1999).
In Beekman v. Beekman, 96 Ohio App. 3d 783, 645 N.E.2d 1332, 1336 (Ohio Ct. App. 1994), the court reasoned:
[5] Although a court grants one parent custody and the other visitation, the children need to know that they [*24] are loved by both parents regardless of the antagonism the parents might feel for each other. It is the duty of each parent to foster and encourage the child's love and respect for the other parent, and the failure from that duty is as harmful to the child as is the failure to provide food, clothing, or shelter. Perhaps it is more harmful because no matter how well fed or well clothed, a child cannot be happy if he or she feels unloved by one parent.
When a court makes a custodial decision, it makes a presumption that the circumstances are such that the residential parent will promote both maternal and paternal affection. The residential parent implicitly agrees to foster such affection, not out of any good feeling toward the nonresidential parent, but out of the need of the child for both parent's love. Where the evidence shows that after the initial decree the residential parent is not living up to the court's presumption and is attempting to poison the relationship between the ex-spouse and the child, this is a change of circumstances that warrants a modification of the prior custody decree. Unsubstantiated allegations of abuse are the worst kind of poisoning of the relationship.
[6] The [*25] trial court's order in the case before us does not cite RSA chapter 461-A, nor does it mention the application of the statutory factors to the specific facts before it. There is no clear indication in the court's order whether it considered “[t]he ability and disposition of each parent to foster a positive relationship … with the other parent,” RSA 461-A:6, I(e), “[t]he support of each parent for the child's contact with the other parent,” RSA 461-A:6, I(f), or “[t]he support of each parent for the child's relationship with the other parent,” RSA 461-A:6, I(g), in determining the best interests of the children. See In the Matter of Rossino & Rossino, 153 N.H. 282, 284, 893 A.2d 666 (2006) (trial court's determination as to custody apparently did not take into account actions of the wife and impact of wife's repeated lawsuits on husband's ability to maintain contact with his children).
Based upon the record before us, the negative ramifications of Todd's unfounded belief that Miller has sexually abused his children, and continues to do so, are several and serious. First and foremost, the false allegations of abuse significantly interfered with Miller's visitation and deprived him of any relationship [*26] with his children for years. Further, as a result of the false allegations, both children have been subjected repeatedly to invasive physical examinations, they have been interviewed by DCYF and law enforcement, they have been evaluated by Dr. Ward, they have had two guardians ad litem and they have twice participated in reunification therapy. These actions were not in the children's best interests. See Watson v. Poole, 329 S.C. 232, 495 S.E.2d 236, 239 (S.C. Ct. App. 1997) (numerous physical examinations and counseling sessions for unfounded sexual abuse are not in the child's best interest); Ellis v. Ellis, 747 S.W.2d 711, 715 (Mo. Ct. App. 1988) (mother's attempt to deprive child of opportunity to know and love father by interfering with father's visitation is not in child's best interest); Theisen v. Theisen, 405 N.W.2d 470, 474 (Minn. Ct. App. 1987) (mother created and maintained atmosphere of unwarranted suspicion and accusation regarding conduct of father toward children resulting in psychological damage); C.J.L. v. M.W.B., 879 So. 2d 1169, 1178 (Ala. Civ. App. 2003) (not in child's best interests to be raised by a mother so bitterly opposed to child's father).
Despite Todd's admissions that [*27] she does not know whether any of the alleged incidents actually occurred, that she has no evidence that Miller has done anything wrong, and that she may not believe the allegations herself, there is no indication in the record that Todd's conduct of pursuing unfounded allegations of sexual abuse will cease. See Theisen, 405 N.W.2d at 472 (mother's repeated attempts to alienate the children from their father and her pattern of conduct, having existed over the years, is unlikely to change); cf. Renaud, 721 A.2d at 467-68 (mother's reports of alleged sexual and physical abuse of son by father, although unsubstantiated, were wholly reasonable and her actions were transitory, unlikely to be repeated, and subject to cure).
The trial court awarded custody to Todd primarily because the children have spent the majority of their lives with her and that is where they are most comfortable. However, it was because of the unfounded allegations of sexual abuse that Miller was denied any contact with his children for over two years and had little opportunity to establish a home life with them between 2004 and 2009. This raises the question whether Todd has benefitted from her misbehavior. In Begins v. Begins, 168 Vt. 298, 721 A.2d 469, 470-71 (Vt. 1998), [*28] the children's relationship with their mother deteriorated following the parents' separation due to the fact that the father unfairly blamed her for the parties' marital problems and made disparaging remarks about her lifestyle. The trial court concluded that the boys' hostility toward their mother, encouraged and fueled by their father, precluded an award of custody to mother. Id. at 471. Although the court found that father did not “deserve to win custody,” it concluded that it had no choice but to award custody to him. Id. (quotations omitted). The Vermont Supreme Court rejected such reasoning. Id. at 472. As the court stated:
Although obviously well intended, the court's decision effectively condoned a parent's willful alienation of a child from the other parent. Its ruling sends the unacceptable message that others might, with impunity, engage in similar misconduct. Left undisturbed, the court's decision would nullify the principle that the best interests of the child are furthered through a healthy and loving relationship with both parents.Id.; see Mack-Manley, 138 P.3d at 528 (trial court found children's best interests not served by ignoring mother's unsubstantiated child abuse [*29] and neglect allegations); Young, 628 N.Y.S.2d at 963 (trial court's decision noticeably silent as to mother's false allegations and it was clear the court failed to consider evidence that mother willfully interfered with father's relationship with the children).
Dr. Ward's report, characterized by the master as “thorough and extraordinarily perceptive,” contains several conclusions particularly relevant to Todd's inability to foster a positive relationship with Miller and to support the children's contact with him. These include her conclusions that Todd caused Laurel to believe that she has been sexually abused by her father, that it is likely that Todd influenced her children with her negative beliefs and did not protect the children from her feelings, that Todd's parents have “wholly and adamantly” accepted that Miller is a pervasive negative influence on the children, and that Todd's mother is active in helping her daughter prove that Miller sexually abused the children.
We conclude that the award of parental rights and responsibilities must be vacated and the case remanded for reconsideration in light of this opinion. On remand, the trial court must consider the factors set forth [*30] in RSA 461-A:6, I(e)-(g) in determining the children's best interests in this case. Also, the court should consider the applicability of the recent amendment to RSA 461-A:6, IV (Supp. 2010). It is within the trial court's discretion to take into consideration any additional circumstances that may have occurred while this appeal was pending.
The second issue Miller raises on appeal is whether the trial court erred in not providing him a timely opportunity to view videotaped interviews conducted by the Child Advocacy Center in Portsmouth with his daughter Laurel. However, Miller's attorney conceded at oral argument that this issue is moot. Accordingly, we need not address it further.
The final issue raised is whether Supreme Court Rule 3 is unconstitutional because it provides differing treatment to married and unmarried parents with respect to issues involving children.
Supreme Court Rule 3 provides in part:
“Mandatory appeal”: A mandatory appeal shall be accepted by the supreme court for review on the merits. A mandatory appeal is an appeal filed by the State pursuant to RSA 606:10, or an appeal from a final decision on the merits issued by a superior court, district court, probate court, [*31] or family division court, that is in compliance with these rules. Provided, however, that the following appeals are NOT mandatory appeals:
…
(9) an appeal from a final decision on the merits issued in, or arising out of, a domestic relations matter filed under RSA Title XLIII (RSA chapters 457 to 461-A); provided, however, that an appeal from a final divorce decree or decree of legal separation shall be a mandatory appeal.
Having exercised our discretion and accepted this appeal, we hold that the question concerning the constitutionality of Rule 3 as applied to this case is moot. Any consideration regarding amending Rule 3 should be accomplished in accordance with the rule-making procedures set forth in Supreme Court Rule 51, thereby providing the public, the bench and the bar an opportunity to offer comments and suggestions.
Vacated and remanded.
Dalianis, C.J., and Duggan and Conboy, JJ., concurred.
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