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
Wednesday, April 20, 2011
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.
Friday, April 1, 2011
Judging the Judges: Donna Fields
It has been a difficult task to pick and choose what to use in this post, because there is so much regarding Judge Donna Fields. Below are three separate matters regarding Fields, the first discussing the fact that Judge Donna Fields has received one or more “private reprimands” from the Tennessee Court of the Judiciary. Given the nature of the reprimand(s), and her pattern of behavior that led to the complaints against her (one of which was mine), one wonders how a private slap on the wrist equates to justice.
The three items below are:
The first is a comment to a The Commercial Appeal article regarding a judge and the Tennessee Court of the Judiciary. The comment contains a link to the General Assembly with a video from hearings conducted by the Children and Family Affairs Committee regarding local judges and guardians ad litem. Judge Fields is mentioned several times by several women from Shelby County, which included a local attorney.
The second is a portion of a transcript of telephone conversations between attorney Gail Mathes and a woman regarding Judge Fields. Mathes states, among other things, that “But I -- I -- I totally think what she's doing is so evil and so wrong to people who are in front of her that I -- you know, I am -- I am appalled. She -- listen, in one of my other cases where domestic violence is involved she -- she almost found me in contempt because I was so confrontational. She's determined not to let women in those cases be acknowledged. She -- she has a sick, sick block there and -- and she should not be allowed to sit on the Bench with that kind of impediment.”
The third is a Motion for Recusal that was filed after Judge Fields learned about the proceedings before the General Assembly and then had an assistant obtain tapes of the hearing during which two litigants with active cases in her courtroom testified. Judge Fields refused to transfer the cases to another judge.
FIRST
From: http://www.commercialappeal.com/news/2009/apr/17/judiciary-panel-reprimands-shelby-county-judge-bla/
April 21, 2009
3:29 p.m.
Linda_Wagner writes:
There are very serious problems with the TCOJ. For one, the investigators there have been COVERING UP for CORRUPT "judges" for decades. Don Ash has been with the TCOJ as far back as 1999. Why did it take to long for this judge to be reported and disciplined? The sad thing about this judge and the judges Ash has recently reprimanded in Nashville (Channel 5, Don Williams has written the articles) is the fact that these judges have done little compared to the actually CORRUPT judges in this deadly state and I can only speak for civil court. Both the TCOJ and TBPR need to be investigated and Tennessee lawmakers can't claim ignorance when it comes to corrupt Tennessee "judges".
Just click on the links below and you will be able to watch the testimonials of victims from Middle and West Tennessee (the 2/20/08 testimonies begin at about 35:00 into the meeting, the CEO of the Big Brothers Big Sisters is first and is very good). There should have been victims from East Tennessee as well but unfortunately the East Tennessee lawmakers are CORRUPT as well. Victims in East Tennessee have been filing highly merited complaints against the very CORRUPT mockery of a "judge", bill swann, since at least 1993. He is on his fourth or fifth marriage (give or take a marriage) and was found in CONTEMPT OF COURT for failing to pay his own COURT ORDERED CHILD SUPPORT yet he is a "family law judge" presiding over custody and support cases. All of his personal court files are SEALED and it is rumored to protect HIM. This is the link to a press release on him:
http://terryfrank.net/wp-content/uplo...
As for the Memphis area, "judge" donna fields is one of the judges the victims gave testimony on. Four of the victims file formal complaints and all four actually had to re-file a second complaint because "TCOJ cover up champion/investigator", joe riley, "lost" the first formal complaints;all FOUR of them. Each victim received their letters from don ash in which fields was allegedly privately reprimanded. So while the great lawmakers of the deadly state of Tennessee continue to file their worthless bills, innocent children and parents will needlessly continue to suffer. I'm convinced the lawmakers won't take any action against the judicial corruption because it would implicate too many judges and some of them are within the Tennessee Supreme Court. This would rightfully rank Tennessee number one in the nation as far as political corruption goes. The people need to remember this come next election. Enough is enough.
http://www.ipetitions.com/petition/ju...
http://moe.legislature.state.tn.us/Ho...
http://moe.legislature.state.tn.us/Ho...
http://michaelfirestone.org/pdf/bw_20...
http://moe.legislature.state.tn.us/Ho...
SECOND
IN THE CIRCUIT COURT OF TENNESSEE
FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS
______________________________________________
KURT ARTHUR MUELLER,
Plaintiff,
VS. No. CT-006651-03
Div. VII
MELANIE CAROL (CROSBY) MUELLER,
Defendants.
______________________________________________
TAPE TRANSCRIPTION
OF
GAIL MATHES and CAROL CROSBY
January 24, 2007
...
MS MATHES: … But, you know, what I'm going to say to
18 you is: If -- if -- if I were unique in the
19 circumstances of this Judge [JUDGE DONNA FIELDS] I would agree with
20 this evaluation, but I'm not. Her treatment of
21 women who are victims of domestic violence is
22 consistent. It is consistently in denial that
23 the women are the victim. And all I'm going to
24 say is something happened in her life where she
1 can't admit it. I think her patterns are very
2 clear. I mean, I know of four cases where she
3 has ignored the domestic violence and claimed it
4 didn't occur.
…
MS. MATHES: … Well, I think she [JUDGE DONNA FIELDS] has
8 some personal incidents that have occurred in her
9 life that she's either in denial about or
10 whatever. I truly do, Carol. I think she -- I
11 don't know what's happened to her. See, I told
12 you she waited for years to marry and didn't have
13 children. And, I don't know, maybe she couldn't
14 have, but I don't know what her story is. But
15 I'm telling you that she is treating other women
16 the same way she has treated Melanie.
…
5 MS. MATHES: And she did. And I'm
6 telling you she [JUDGE DONNA FIELDS] is -- there is something really
7 wrong with her, and it's very disturbing the
8 power she has and what she's doing to women and
9 children.
…
MS. MATHES: We had a Judge who wouldn't listen and she
14 focused on the same kind of bogus stuff that the
15 Judge did in the He case [JUDGE ROBERT CHILDERS]. And, you know, when
16 you've got a Judge who does that, who is
17 determined to create a result that is
18 inconsistent with the proof, there's nothing you
19 can do. I mean, it wouldn't have mattered what I
20 had proven, in my opinion. It would have come
21 out the same way. But we proved the real guts of
22 the case and the Judge [JUDGE DONNA FIELDS] totally ignored it.
…
MS. MATHES: What I'm trying to say
14 to you is that you can't -- I mean, it's like in
15 the He case, if you focus on the things that the
16 stupid Judge [JUDGE ROBERT CHILDERS] focused on, then the Hes would lose.
17 I mean, the fact is that the Judge [JUDGE DONNA FIELDS] paid no
18 attention to the proof in this case. She wanted
19 the result that came about.
…
MS MATHES: … But I -- I -- I totally think
10 what she's doing [JUDGE DONNA FIELDS] is so evil and so wrong to
11 people who are in front of her that I -- you
12 know, I am -- I am appalled.
13 She -- listen, in one of my other
14 cases where domestic violence is involved she --
15 she almost found me in contempt because I was so
16 confrontational. She's determined not to let
17 women in those cases be acknowledged. She -- she
18 has a sick, sick block there and -- and she
19 should not be allowed to sit on the Bench with
20 that kind of impediment.
THIRD
(My scanner is not working properly. As soon as I have the problem resolved, I will post the actual motions).
After Judge Fields learned of the testimony of several women at the General Assembly (mentioned in the first section, above), she had an assistant contact the General Assembly and ordered tapes of the testimony. Two of the women had active cases in her courtroom. Judge Fields made flippant comments from the bench in open court regarding the two women's appearance at the General Assembly. At this point, Judge Fields should have had the two cases transferred to another judge because of the appearance of bias. Judge Fields REFUSED to transfer the cases.
The three items below are:
The first is a comment to a The Commercial Appeal article regarding a judge and the Tennessee Court of the Judiciary. The comment contains a link to the General Assembly with a video from hearings conducted by the Children and Family Affairs Committee regarding local judges and guardians ad litem. Judge Fields is mentioned several times by several women from Shelby County, which included a local attorney.
The second is a portion of a transcript of telephone conversations between attorney Gail Mathes and a woman regarding Judge Fields. Mathes states, among other things, that “But I -- I -- I totally think what she's doing is so evil and so wrong to people who are in front of her that I -- you know, I am -- I am appalled. She -- listen, in one of my other cases where domestic violence is involved she -- she almost found me in contempt because I was so confrontational. She's determined not to let women in those cases be acknowledged. She -- she has a sick, sick block there and -- and she should not be allowed to sit on the Bench with that kind of impediment.”
The third is a Motion for Recusal that was filed after Judge Fields learned about the proceedings before the General Assembly and then had an assistant obtain tapes of the hearing during which two litigants with active cases in her courtroom testified. Judge Fields refused to transfer the cases to another judge.
FIRST
From: http://www.commercialappeal.com/news/2009/apr/17/judiciary-panel-reprimands-shelby-county-judge-bla/
April 21, 2009
3:29 p.m.
Linda_Wagner writes:
There are very serious problems with the TCOJ. For one, the investigators there have been COVERING UP for CORRUPT "judges" for decades. Don Ash has been with the TCOJ as far back as 1999. Why did it take to long for this judge to be reported and disciplined? The sad thing about this judge and the judges Ash has recently reprimanded in Nashville (Channel 5, Don Williams has written the articles) is the fact that these judges have done little compared to the actually CORRUPT judges in this deadly state and I can only speak for civil court. Both the TCOJ and TBPR need to be investigated and Tennessee lawmakers can't claim ignorance when it comes to corrupt Tennessee "judges".
Just click on the links below and you will be able to watch the testimonials of victims from Middle and West Tennessee (the 2/20/08 testimonies begin at about 35:00 into the meeting, the CEO of the Big Brothers Big Sisters is first and is very good). There should have been victims from East Tennessee as well but unfortunately the East Tennessee lawmakers are CORRUPT as well. Victims in East Tennessee have been filing highly merited complaints against the very CORRUPT mockery of a "judge", bill swann, since at least 1993. He is on his fourth or fifth marriage (give or take a marriage) and was found in CONTEMPT OF COURT for failing to pay his own COURT ORDERED CHILD SUPPORT yet he is a "family law judge" presiding over custody and support cases. All of his personal court files are SEALED and it is rumored to protect HIM. This is the link to a press release on him:
http://terryfrank.net/wp-content/uplo...
As for the Memphis area, "judge" donna fields is one of the judges the victims gave testimony on. Four of the victims file formal complaints and all four actually had to re-file a second complaint because "TCOJ cover up champion/investigator", joe riley, "lost" the first formal complaints;all FOUR of them. Each victim received their letters from don ash in which fields was allegedly privately reprimanded. So while the great lawmakers of the deadly state of Tennessee continue to file their worthless bills, innocent children and parents will needlessly continue to suffer. I'm convinced the lawmakers won't take any action against the judicial corruption because it would implicate too many judges and some of them are within the Tennessee Supreme Court. This would rightfully rank Tennessee number one in the nation as far as political corruption goes. The people need to remember this come next election. Enough is enough.
http://www.ipetitions.com/petition/ju...
http://moe.legislature.state.tn.us/Ho...
http://moe.legislature.state.tn.us/Ho...
http://michaelfirestone.org/pdf/bw_20...
http://moe.legislature.state.tn.us/Ho...
SECOND
IN THE CIRCUIT COURT OF TENNESSEE
FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS
______________________________________________
KURT ARTHUR MUELLER,
Plaintiff,
VS. No. CT-006651-03
Div. VII
MELANIE CAROL (CROSBY) MUELLER,
Defendants.
______________________________________________
TAPE TRANSCRIPTION
OF
GAIL MATHES and CAROL CROSBY
January 24, 2007
...
MS MATHES: … But, you know, what I'm going to say to
18 you is: If -- if -- if I were unique in the
19 circumstances of this Judge [JUDGE DONNA FIELDS] I would agree with
20 this evaluation, but I'm not. Her treatment of
21 women who are victims of domestic violence is
22 consistent. It is consistently in denial that
23 the women are the victim. And all I'm going to
24 say is something happened in her life where she
1 can't admit it. I think her patterns are very
2 clear. I mean, I know of four cases where she
3 has ignored the domestic violence and claimed it
4 didn't occur.
…
MS. MATHES: … Well, I think she [JUDGE DONNA FIELDS] has
8 some personal incidents that have occurred in her
9 life that she's either in denial about or
10 whatever. I truly do, Carol. I think she -- I
11 don't know what's happened to her. See, I told
12 you she waited for years to marry and didn't have
13 children. And, I don't know, maybe she couldn't
14 have, but I don't know what her story is. But
15 I'm telling you that she is treating other women
16 the same way she has treated Melanie.
…
5 MS. MATHES: And she did. And I'm
6 telling you she [JUDGE DONNA FIELDS] is -- there is something really
7 wrong with her, and it's very disturbing the
8 power she has and what she's doing to women and
9 children.
…
MS. MATHES: We had a Judge who wouldn't listen and she
14 focused on the same kind of bogus stuff that the
15 Judge did in the He case [JUDGE ROBERT CHILDERS]. And, you know, when
16 you've got a Judge who does that, who is
17 determined to create a result that is
18 inconsistent with the proof, there's nothing you
19 can do. I mean, it wouldn't have mattered what I
20 had proven, in my opinion. It would have come
21 out the same way. But we proved the real guts of
22 the case and the Judge [JUDGE DONNA FIELDS] totally ignored it.
…
MS. MATHES: What I'm trying to say
14 to you is that you can't -- I mean, it's like in
15 the He case, if you focus on the things that the
16 stupid Judge [JUDGE ROBERT CHILDERS] focused on, then the Hes would lose.
17 I mean, the fact is that the Judge [JUDGE DONNA FIELDS] paid no
18 attention to the proof in this case. She wanted
19 the result that came about.
…
MS MATHES: … But I -- I -- I totally think
10 what she's doing [JUDGE DONNA FIELDS] is so evil and so wrong to
11 people who are in front of her that I -- you
12 know, I am -- I am appalled.
13 She -- listen, in one of my other
14 cases where domestic violence is involved she --
15 she almost found me in contempt because I was so
16 confrontational. She's determined not to let
17 women in those cases be acknowledged. She -- she
18 has a sick, sick block there and -- and she
19 should not be allowed to sit on the Bench with
20 that kind of impediment.
THIRD
(My scanner is not working properly. As soon as I have the problem resolved, I will post the actual motions).
After Judge Fields learned of the testimony of several women at the General Assembly (mentioned in the first section, above), she had an assistant contact the General Assembly and ordered tapes of the testimony. Two of the women had active cases in her courtroom. Judge Fields made flippant comments from the bench in open court regarding the two women's appearance at the General Assembly. At this point, Judge Fields should have had the two cases transferred to another judge because of the appearance of bias. Judge Fields REFUSED to transfer the cases.
Subscribe to:
Posts (Atom)