Opinion
Nos. V–00723–13/15C V–00723–13/15D V–00723–13/15E V–00723–13/15F V–00723–13/15G.
06-30-2016
In the Matter of a Proceeding for Custody/Visitation under Article Six of the Family Court Act, CARL C., Petitioner, v. ELISHA W., Respondent. In the Matter of a Proceeding under Article Eight of the Family Court Act, Elisha W., Petitioner, v. Carl C., Respondent.
Lou Anne Rucynski Coleman, Esq., for Carl C. Mary A. Felasco, Esq., for Elisha W. Pamela A. Munson, Esq., for the Child.
Lou Anne Rucynski Coleman, Esq., for Carl C.
Mary A. Felasco, Esq., for Elisha W.
Pamela A. Munson, Esq., for the Child.
KIMBERLY M. SEAGER, J.
PROCEDURAL HISTORY
There are currently five petitions regarding the violation of and/or modification of an order of custody/visitation pending before the Court. Each of these petitions were filed by Carl C. (here "Carl C.") against Elisha W. (here "Elisha W.") on April 3, 2015, May 12, 2015 , June 11, 2015 and August 13, 2015. Each of these petitions pertain to the subject child, K.C., (born xx/xx/2010 (here "K.C."). All petitions are in regard to a previous Order issued by the Honorable Donald E. Todd, on October 29, 2014 and duly entered on January 22, 2015 (here "the Order").
Two petitions were filed that day.
On May 12, 2015, Elisha W. filed a Family Offense Petition on behalf of K.C., against Carl C., alleging that Carl C. and several of Carl C.'s family members had sexually abused K.C.
On March 4, 2016, the Oswego County Department of Social Services filed a neglect petition against Elisha W. alleging that by October 23, 2015, five-year-old, K.C., had been subjected to a minimum of fourteen sexual abuse physical exams at the insistence of Elisha W. and that K.C. has suffered mental, emotional, and physical harm because of these unnecessary exams. That matter is pending under docket number NN–00607–16.
A trial of the matters consisted of several days and spanned over several months. Specifically, trial was held on December 7, 2015, January 28, 2016, February 1, 2016, February 2, 2016, February 22, 2016, March 4, 2016, April 19, 2016, and June 2, 2016. A Lincoln Hearing was held with K.C. on June 10, 2016. At trial, Carl C. was represented by his attorney, Lou Anne Rucynski Coleman, Esq., Elisha W. was represented by her attorney, Mary A. Felasco, Esq., and K.C.'s interests were represented by Attorney for the Child, Pamela A. Munson, Esq. At the Lincoln Hearing, K.C. was present with her attorney.
At trial, Carl C. testified on his own behalf, called nine additional witnesses, called one rebuttal witness, and testified on rebuttal on his own behalf. Carl C. called Shawn Finkle, an investigator with the New York State Police (here "NYSP"), Karrie Damm, the executive director of the Child Advocacy Center in Oswego County, Sara Buske, an Oswego County Department of Social Services (here "OCDSS") caseworker, Majken Mashaw, a child protective caseworker with the OCDSS, Timothy Phillips, an investigator with the NYSP, Britney Noyes, a child protective caseworker with the OCDSS, Charlotte Yerdon, an investigator with the NYSP, Roy Olin, Carl C.'s step-father, Cheryl Olin, Carl C.'s mother, and Alissa C., Carl C.'s wife, to testify. He called Sheri Hansen, K.C.'s kindergarten teacher, to testify on rebuttal. Elisha W. testified on her own behalf, called eight additional witnesses to testify, and called one rebuttal witness. Elisha W. called, Dr. Norman Lesswing, a psychologist, Stephanie Grover, a therapist, Kathryn Harter, Elisha W.'s great aunt, Jahleh Mohammadi, Elisha W.'s therapist, Amanda Woods, Elisha W.'s friend, Brianna Revette, one of K.C.'s child care teachers, Adam Hopkinson, Elisha W.'s boyfriend, and Lauryn Wakeman, Elisha W.'s sister. She called, Anita Bhole, a pediatric gastroenterologist, to testify on rebuttal. K.C.'s attorney called three witnesses, Dr. Samuel Rubenzahl, a psychologist, Dr. Alicia Pekarsky, a medical doctor and Dr. Ann Botash, a medical doctor. Eleven exhibits were entered into evidence; three by Carl C., seven by Elisha W. and one by the Attorney for the Child.
LEGAL STANDARD
Modification of Custody:
With regard to the modification of custody, "[i]t is well established that alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances which reflects a real need for change to ensure the best interest[s] of the child" ( McClinton v. Kirkman, 132 AD3d 1245, 1245 [4th Dept 2015] [citations omitted]; see also Higgins v. Higgins, 128 AD3d 1396 [4th Dept 2015] ; Gross v. Gross, 119 AD3d 1453 [4th Dept 2014] ; Gugino v. Tsvasman, 118 AD3d 1341, 1342 [4th Dept 2014] ; Chaney v. Chaney, 118 AD3d 1358, 1359 [4th Dept 2014] ; Isler v. Johnson, 118 AD3d 1504, 1505 [4th Dept 2014] ; Nelson v. Morales, 104 AD3d 1299, 1300 [4th Dept 2013] ; Tarrant v. Ostrowski, 96 AD3d 1580, 1581 [4th Dept 2012] ). Once a change in circumstances has been established, it then warrants an inquiry into " ‘whether the best interests of the child would be served by modifying the existing custody arrangement’ " ( Voorhees v. Talerico, 128 AD3d 1466, 1466 [4th Dept 2015] [quoting Mercado v.. Frye, 104 AD3d 1340, 1341 [4th Dept 2013]lv. denied 21 NY3d 859 [2013] ; citing York v. Zullich, 89 AD3d 1447, 1448 [4th Dept 2011] ).
A sufficient change in circumstances has been found to warrant an inquiry into the best interests of the child[ren] when:
there was "continued deterioration of the parties' relationship" (Ladd v. Krupp, 136 AD3d 1391, 1392 [4th Dept 2016] ); the parent's relationship had become so acrimonious that communication between them was impossible (see Murphy v. Wells, 103 AD3d 1092, 1093 [4th Dept 2013] ); and a custodial parent refused the noncustodial parent visitation (see Gelling v. McNabb, 126 AD3d 1487 [4th Dept 2015] ).
Additionally, a prior order of custody and visitation that is based upon stipulation of the parties is entitled to less weight than an order of custody and visitation that is based upon a plenary trial (see DeJesus at 1358; Yelton at 1679).
While a child's preference regarding which parent he or she would like to live with is not dispositive, it is a factor which may be considered when determining whether there has been a change in circumstances (see Cole at 1511). A Court may also take judicial notice of its own proceedings and use information from prior hearings when determining whether there has been a change in circumstances (see Gugino at 1342). A Court may also hear and consider evidence that took place prior to the previous order, as the Court is entitled to background information to set a baseline in order to determine whether there has been a change in circumstances since that previous order (see Nelson at 1300; Tarrant v. Ostrowski, 96 AD3d 1580, 1581 [4th Dept 2012] ).
Best Interest:
Once it is established that there has been a change in circumstances, the Court must then decide what is in the best interest of the child. In determining what is in the best interest of the child, the Court must consider several factors, including:
"the quality of the home environment and the parental guidance the custodial parent provides for the child ..., the ability of each parent to provide for the child's emotional and intellectual development ..., the financial status and ability of each parent to provide for the child ..., the relative fitness of the respective parents, and the length of time the present custody arrangement has been in effect"
(Matter of O'Connell v. O'Connell, 105 AD3d 1367, 1368 [4th Dept 2013], quoting Matter of Maher v. Maher, 1 AD3d 987 [4th Dept 2003] ).
It is also important for the Court to assess " ‘the willingness of each parent to foster a relationship with the other parent’ " (Matter of Chilbert v. Soler, 77 AD3d 1405 [4th Dept 2010], citing Kaczor v. Kaczor, 12 AD3d 956, 958 [3d Dept 2004] ). The Court must weigh these factors, together with the express wishes of the child, and the "stability and companionship" of residing with siblings in determining what is in the best interest of the child ( Eschbach v. Eschbach, 56 N.Y.2d 167, 173 [1982] ; see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 [1982] ). The weight the Court gives each of these factors depends on the testimony presented, and the "character and sincerity" of the parties (Eschbach at 172–173; see Matter of Pieri v. Rider, 195 A.D.2d 1013 [4th Dept 1993] ). It should be noted that while the express wishes of a child are not controlling, they are entitled to a significant amount of weight, particularly if the age and maturity of the child makes his/her input meaningful (see Stevenson v. Stevenson, 70 AD3d 1515 [4th Dept 2010] ).
With regard to supervised visitation, "[t]he decision to order supervised visitation is left to Family Court's sound discretion and will only be disturbed [ ... ] when it lacks a sound and substantial basis in the record" ( Raychelle J. v. Kendell K., 121 AD3d 1206, 1207 [4th Dept 2014] ) and "supervised visitation may be warranted if unsupervised time with the children could be detrimental to the child[ren]'s safety because the parent is either unable or unwilling to discharge his or her parental responsibility properly" ( id., at 1207–08 [citations omitted] ).
Violation:
With regard to the violation petition, Family Court Act § 156 states the following:
"The provisions of the judiciary law relating to civil and criminal contempt shall apply to the family court in any proceeding in which it has jurisdiction under this act or any other law, and a violation of an order of the family court in any such proceeding which directs a party [ ... ] to do an act or refrain from doing an act shall be punishable under such provisions of the judiciary law, unless a specific punishment or other remedy for such violation is provided in this act or any other law."
The line between civil contempt and criminal contempt may be difficult to draw (compare Judiciary Law, § 753(A)(3) [civil contempt], with Judiciary Law § 750(A)(3) [criminal contempt] ) but the factor that elevates civil contempt to criminal contempt is the level of willfulness with which the conduct has occurred (see McCormick v. Axelrod, 59 N.Y.2d 574, 583 [1983] [citations omitted] ). The petitioner bears the burden of establishing that the respondent willfully violated the order by clear and convincing evidence (see Matter of Seacord v. Seacord, 81 AD3d 1101 [3rd Dept 2011] ).
In order for contempt to be found, there must have been an order of the Court which clearly expressed an "unequivocal mandate" (McCormick at 583). It must then be determined that the party being held in contempt had knowledge of the order and, finally, that the order had been disobeyed (id. ) (see also Matter of Petkovsek v. Snyder, [appeal No.2], 251 A.D.2d 1085 [4th Dept 1998] [concerning civil contempt] and James W.D. v. Sandra C., 44 AD3d 423 [1st Dept 2007], Matter of Glenn v. Glenn, 262 A.D.2d 885 [3d Dept 1999] and Matter of Keator v. Keator, 211 A.D.2d 987 [3d Dept 1995] [regarding civil and criminal contempt] ). "In addition, it must be established that the offending conduct ‘defeated, impaired, impeded, or prejudiced’ a right or remedy of the complaining party" (Matter of Petkovsek at 1085 [citations omitted] ).
Family Offense:
Family Court Act § 812 states the following:
The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree [ ... ], stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault in the third degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in the third degree or coercion in the second degree [ ... ] between spouses or former spouses, or between parent and child or between members of the same family or household except if the respondent would not be criminally responsible by reason of age [ ... ]."
Throughout the testimony, various witnesses offered out of court statements of K.C. and others. Some hearsay statements were objected to, others were not. The Court is considering these statements only as proof that they were said, not that the statements were true.
There were a large number of witnesses who testified. Given that, the Court believes it necessary to summarize and set forth the testimony that it found both relevant to these matters, as well as credible. In the event that the Court found a particular witness or testimony incredible, it indicates why it finds the witness and/or the testimony incredible.
PETITIONER'S WITNESSES:
Shawn M. Finkle ("Finkle"):
Finkle is an investigator with the NYSP. Finkle became involved with this family in October, 2012 when a report of sexual abuse was reported to the New York State Office of Children and Family Services Statewide Central Register of Child Abuse and Maltreatment's, toll free number (here "the hotline"). The allegation was that K.C. was being sexually abused by Carl C.'s younger sister, Abigail, who was approximately twelve-years-old at the time. An investigation was done with no disclosures being made and no evidence of sexual abuse being found from the medical exam of K.C. Finkle was involved in another investigation in March, 2013. The allegations at that time were that Carl C.'s father, Roy, was sexually abusing K.C. and recording the abuse. A thorough investigation was done. No recording devices were found in the home, no disclosures were made and the medical exam of K.C. did not reveal any evidence of sexual abuse. Finkle again became involved in an investigation in July, 2013 when allegations of sexual abuse of K.C., by Carl C., were reported. Elisha W. indicated that she had a video of K.C. disclosing that Carl C. sexually abused her. Finkle viewed the video. K.C. disclosed on the video that Carl C. "touched her pee pee". Finkle made clear that the disclosure was not spontaneous, but was coerced; Elisha W. asked leading questions and interviewed K.C. in an improper way. K.C. did not disclose to Finkle. Carl C. submitted to a polygraph test and passed the polygraph test.
Karrie Damm ("Damm"):
Damm is the executive director of the Child Advocacy Center in Oswego County ("the CAC"). Damm also has her own mental health practice which focuses on marriage and family therapy. At trial, Damm was qualified as an expert in marriage and family therapy counseling, child advocacy and child abuse.
Damm counseled Carl C. and Elisha W. in couples' therapy when they were still living together. Melanie Proper was counseling K.C. at the CAC at the same time. The two would speak in an attempt to coordinate services.
K.C. was successfully discharged from counseling at the CAC and it was determined that K.C. was not suffering from any trauma at that time.
It is Damm's opinion that K.C. is being used as a weapon in the parents' relationship. Damm became the coordinator of the multi-disciplinary team that worked on the investigations regarding sexual abuse of K.C. During that time, Damm received telephone calls from other therapists indicating that Elisha W. was calling around attempting to get various therapists for K.C. Damm's opinion is that if Elisha W. did not get the response that she was looking for from one therapist, she would look for another and another until she was provided with the answers she was looking for.
Damm indicated that children who are of K.C.'s age when the investigations began, very often explore and discover their bodies—all parts. Damm believes this is what happened with K.C. But, when private parts become the center of attention, focusing on private parts can become an attention seeking kind of behavior. The recommendation of Damm and all others involved at the CAC was that the family minimize the amount of attention private parts get so that they can focus on achieving other important developmental milestones. Elisha W. did not follow that advise.
Elisha W. had a significant number of video recording; six compact discs worth. Damm viewed them with a case worker from the OCDSS at the NYSP barracks in Pulaski. In one of the videos, there was a disclosure of sexual abuse by K.C. In the video, Elisha W. and K.C. were lying in bed together. Elisha W. stated to K.C. "you know that you can tell Mommy anything, you can tell me if something bad is happening." K.C. giggled. Elisha W. turned away from K.C. keeping her back toward K.C. Moments later, K.C. became agitated and then she said "Daddy touched me". Then, Elisha W. turned over and gave K.C. a significant amount of praise for that.
Damm's was very concerned over the specific amount of attention given to the disclosure. Specifically, the withholding of affection when a disclosure wasn't given by Elisha W. turning her back on K.C., and then the absolute giving of affection when K.C. did give a disclosure. Damm's concern is whether K.C. has information because something occurred, or whether K.C. has been given so much attention to these disclosures that she now has false memories. False memories can't prove anything and K.C. won't be believed in the future should something really happen. From each of the many reports and exams that have been made and conducted in this case, Damm made clear that there is nothing that provides any evidence that K.C. has been sexually abused by anyone. As the coordinator of the multi-disciplinary team that worked on the investigations regarding sexual abuse of K.C., Damm made clear that all investigators and caseworkers involved in the many investigations did not believe that K.C. had been abused, nor did any of the physical exams result with findings other than being inconclusive. Additionally, the various caseworkers assigned to these investigations had significant concerns that the allegations themselves, which resulted in extensive interviews and medical exams of K.C., were causing K.C. harm.
Damm made clear that children of this age will normally play things out; they use dolls, they use puppets, they use pictures. None of that is present in this case.
Meaning that there was no evidence that K.C. was abused and there was no evidence that K.C. was not abused.
Finally, and most telling, Damm made clear that a review of the entire history of this family was done. The allegations regarding sexual abuse of K.C. corresponded in time to when there were significant life events for Carl C.; when he entered a new relationship, when he got married and when he had a new baby.
Sara Buske ("Buske"):
While Buske is currently employed by the New York State Office of Children and Family Services, she was employed for over four years with the OCDSS as a caseworker when she became involved with these matters. She was involved in various investigations from July, 2013 through December, 2014. During that time, several reports of sexual abuse of K.C. were reported and several medical examinations were performed on K.C. None of the examinations or investigations yielded any results to indicate that K.C. had been sexually abused. However, during that time, there were two child protective reports that were indicated against Elisha W. for inadequate guardianship based upon the fact that Elisha W. continued to take K.C. for these multiple forensic interviews and multiple invasive medical exams when it had been made clear to Elisha W. that the interviews and the exams themselves were harming K.C.
Majken Mashaw ("Mashaw"):
Mashaw is a child protective caseworker with the OCDSS. Mashaw became involved with these matters in March of 2013. Mashaw's testimony supported that of Finkle, Damm and Buske in that Mashaw expressed significant concern over the multiple forensic investigations and medical exams that K.C. was subjected to without any finding of neglect and the concern that K.C. was harmed because of them. However, Mashaw added two additional facts that are of significant importance.
The first is that in March of 2013, Elisha W. filed for an Order of Protection against Carl C.'s father, Roy Olin, alleging that Roy Olin had come to the house that she was at on March 15, 2013, at approximately 11:00 a.m., and had harassed her. A Temporary Order of Protection was issued to Elisha W. against Mr. Olin. Mashaw was part of the child protective investigation ongoing at that time, regarding the allegations that Carl C.'s sister, Abigail, had sexually abused K.C. During the course of her investigation, Mashew learned that Roy Olin had been in Pennsylvania on the day that Elisha W. alleged that he harassed her. Mashaw confirmed that Roy Olin left to go to Pennsylvania at approximately 4:00 a.m. and was there the majority of the day by speaking with the person who went with Mr. Olin, and to the person that Mr. Olin went to see in Pennsylvania. When Mashaw shared that information with Elisha W., Elisha W.'s response was "well, I thought it was Roy".
The second additional fact is that, during the course of the investigation, Elisha W. reported to Mashaw that there were two daycare teachers who reported to Elisha W. that K.C. was acting out in a sexual way. Mashaw interviewed both daycare teachers and both confirmed that that conversation never happened. One daycare teacher reported that the only information she had regarding that issue was what Elisha W. told her, and that was that K.C. had been sexually abused.
Timothy Phillips ("Phillips"):
Phillips is an investigator with the New York State Police (" "NYSP"), trained in the area of child sexual abuse. Phillips was involved in two investigations regarding alleged sexual abuse of K.C. The first investigation began on May 12, 2015 and the second began on May 22, 2015.
In the first investigation, Elisha W. took K.C. to Upstate Medical Center for an examination because of redness to K.C.'s vagina. A rape kit was conducted on K.C. During this investigation Phillips interviewed Carl C., Carl C.'s wife and K.C. Phillips attempted to interview Elisha W. but she referred Phillips to her attorney and Elisha W.'s attorney denied Phillips an interview with Elisha W. Phillips reported that Carl C. appeared credible, there were no disclosures by K.C. or anyone else, and the rape kit came back negative for male DNA or antigens. No arrests were made and the investigation was closed.
In the second investigation, Elisha W. reported that K.C. disclosed to her that "daddy put his penis in her vagina." An examination and interview were conducted at the McMahon/Ryan Child Advocacy Center in Syracuse. Once again, there were no disclosures, the rape kit was negative for male DNA or antigens and no arrests were made and the investigation was closed.
By the time Phillips closed the second investigation, there had been between twelve and fourteen investigations done by the NYSP regarding alleged sexual abuse of K.C. Throughout each, there was no credible evidence of sexual abuse.
Britney Noyes ("Noyes"):
Noyes is a child protective investigator with the OCDSS. She worked on three investigations regarding this family beginning in July, 2014 through mid–2015. By the time Noyes was done working on the third investigation in mid–2015, K.C., who was then five-years-old, had endured roughly thirteen medical examinations for sexual abuse and had been through many more forensic interviews.
Noyes was added to the first investigation right at the tail end of it in July 2014 as the lead caseworker was out on medical leave. The results of this investigation was that Elisha W. was indicated for inadequate guardianship.
Noyes was involved for the entirety of the second and third investigations she was assigned to. The first, in December of 2014, regarded an allegation that Roy Olin, Carl C.'s stepfather, had inserted a hammer and a screwdriver into K.C.'s buttocks. During this investigation Noyes interviewed several people; Elisha W. would not consent to be interviewed. Noyes worked with investigator Charlotte Yerdon, of the NYSP, who had been involved in several of the investigations, and with whom K.C. was extremely familiar. Noyes was present when Investigator Yerdon interviewed K.C. Investigator Yerdon showed K.C. pictures of several tools, including a hammer and a screwdriver. K.C. was unable to identify a hammer and a screwdriver, and K.C. did not indicate that she had been hurt by anything in the pictures. Investigator Yerdon also showed K.C. pictures of several animals and K.C. could identify all of the animals in the pictures.
Three of the many people that Noyes interviewed were the coordinator of K.C.'s preschool program and two of the teachers at K .C.'s preschool program. All reported that there were no concerns regarding K.C. during the time period in question; K.C. did not appear to be in any type of discomfort, there were no additional bathroom breaks, and K.C. always looked forward to the days that Carl C. was picking her up from preschool.
This investigation concluding in March of 2015, and it, too, resulted in an indicated report against Elisha W. for inadequate guardianship based upon the number of medical exams and forensic interviews that K.C. had been put through.
The third investigation that Noyes was a part of was one that began in May of 2015. Investigator Yerdon was not available and Investigator Philips, whose testimony is set forth above, was the investigator assigned to this case. Elisha W. had brought K.C. to Upstate Medical Center at 1:00 a.m. to be examined because K.C.'s vagina was red and sore.
During this investigation, Noyes interviewed K.C. K.C. made a disclosure that Carl C. does not touch her vagina but that he only wipes her butt and it does not hurt. K.C. disclosed that Elisha W. touches her vagina and that it hurts sometimes. K.C. disclosed that Elisha W. will lock all the doors when [Elisha W.'s boyfriend] leaves and touch K.C.'s vagina in her bedroom. Noyes went over what "outside, inside, on top and underneath" means with K.C. and K.C. understood. K.C. disclosed that Elisha W. touches her inside her vagina and that it hurts sometimes.
During this investigation another report came in and Noyes interviewed K.C. at school. The teacher disclosed to Noyes that Elisha W. had asked her to ask K.C. if her father hurt her. The teacher, who had only been teaching K.C. for one month, did ask K.C. if her father ever hurt her, and K.C. said "yes". Thus, the report was made. When Noyes interviewed K.C. at school regarding that report, K.C. did not make a disclosure regarding Carl C., but stated again that Elisha W. does touch her vagina sometimes and that it hurts.
Charlotte Yerdon ("Yerdon"):
Yerdon is an investigator with the NYSP. She was involved with several investigations regarding the alleged sexual abuse of K.C. beginning in July of 2013.
Yerdon became involved in the investigation in July 2013 because Elisha W. believed that K.C. would make a disclosure if she were interviewed by a female. Yerdon interviewed K.C. and K.C. did not make any disclosures and no arrests were made.
Yerdon believes this investigation regarded allegations against Roy Olin and against Carl C.'s sister, Abigail.
The next investigation Yerdon became involved with resulted from allegations that Carl C. had sexually abused both K.C. and Carl C.'s step-daughter, Giuliana. Many interviews were conducted by Yerdon and there were no confessions, K.C. did not make a disclosure and Giuliana did not make a disclosure. In fact, Giuliana appeared very happy throughout the interview and showed no distress regarding Carl C. In addition, Giuliana's biological father and her paternal grandmother were interviewed as they had spent time with Giuliana on the weekend the alleged abuse happened. Both Giuliana's father and her grandmother indicated that Giuliana did not show any discomfort and she did not appear distressed in any way. They also did not express any concerns regarding Carl C. K.C. did disclose, again, that her mommy hurt her.
A further investigation Yerdon became involved in resulted from allegations made in December of 2014 that Roy Olin was abusing K.C. Again, several interviews were conducted and the investigation was closed in January of 2015.
Further investigations involved allegations that balls had been shoved up K.C.'s anus that jingled and that a screwdriver had been stuck up her " "poopy hole". Several interviews were conducted of K.C. In one interview, K.C. said that she did not want to go back to Carl C.'s home but she did not say why. She also disclosed that Elisha W. hurt her. K.C. later said that she did not say that and that everything was a lie.
Yerdon interviewed K.C. at K.C.'s school regarding the allegation of abuse with the screwdriver. Noyes was present for the interview and a teacher was present. K.C. wanted the teacher there so Yerdon allowed the teacher to stay. Yerdon showed K.C. pictures of tools. K.C. could not identify a screwdriver or a hammer but she could identify a saw. She was also able to identify the zoo animals that Yerdon showed her pictures of.
Elisha W.'s boyfriend, Adam Hopkinson, informed Yerdon that he had an audio recording on his cell phone in which K.C. disclosed abuse. Yerdon listened to the recording. Elisha W. was asking K.C. about her weekend at Carl C.'s home. K.C. did not make any disclosures. Elisha W. kept questioning K.C. and K.C. stated that Poppa was bad because he had two of K.C.'s cousins' pants down and their mother walked in and told them to stop. Yerdon investigated this disclosure. The mother of the cousins stated that at no time did she walk in to find her children's pants down or Roy Olin's pants down. Additionally, she indicated that the boys said this never happened and that she did not believe that Roy Olin would do anything to hurt her children. Yerdon made clear that she could not substantiate the disclosure and that there was nothing said on the recording about objects being shoved up her butt or her private parts being touched or about anyone hurting her in any way. Yerdon's opinion was that, during the conversation, K.C. kept attempting to end the conversation by distracting it; saying things like "mommy, my tummy hurts", but that Elisha W. continued down the path until a disclosure was made.
During the several investigations Yerdon was a part of, she stated that three rape kits had been performed on K.C. None of the rape kits indicated sperm. In one of the rape kit there was a hair but it did not have a root so it could not be determined who the hair belonged to, including whether it was K.C.'s.
Roy Olin ("Olin"):
Olin is Carl C.'s stepfather and Olin's daughter is Abigail. Both Olin and Abigail have been accused more than once of sexually abusing K.C. Olin has cooperated with all investigations and there have never been any findings to support the allegations. Olin made clear he would never hurt K.C. in any way and K.C. is not left alone with Olin or anyone else so there is never an opportunity for anyone to hurt K.C.
Olin verified that he was not in the state on the date and time that Elisha W. alleged he harassed her and filed for an Order of Protection. He verified that Elisha W. claimed that they had a verbal argument when, in fact, he was never there. He was in Pennsylvania at the time.
Olin made clear that the allegations have changed the family dynamics. Abigail was significantly hurt by the allegations as she was approximately twelve-years-old when the first allegation was made against her.
Cheryl Olin ("Cheryl"):
Cheryl in Carl C.'s mother, Olin's wife, Abigail's mother and K.C .'s grandmother. Cheryl is a registered nurse who works on a dialysis unit. K.C. is Cheryl's first grandchild and Abigail is now fifteen-years-old.
When the first allegation was made by Elisha W. against Abigail, Abigail was only twelve. The abuse was alleged to have occurred on a Sunday when they were having a family dinner, prior to Carl C. and Elisha W. breaking up, but Elisha W. was not at the dinner. Twelve to fifteen people were present in their home that Sunday.
Cheryl indicated that Abigail has been greatly impacted by the allegations. When the first allegation was made, law enforcement came to their home and read Abigail her rights. They had to take her to the police station. Abigail lost friends because of the allegations. Elisha W.'s mother called Abigail's school and informed the school nurse that Abigail was a pedophile. Children at school talked about it because Elisha W.'s boyfriend, Adam, has a niece who was Abigail's best friend. The niece stopped being friends with Abigail because of the allegations.
K.C. is very different, too, since all of the allegations, examinations and interviews. She is now timid, shy and, sometimes angry. She can be withdrawn. K.C. used to be more engaging with other children and pitch in. Now she is more standoffish before she does things.
Cheryl moved their Sunday dinners to an earlier time so that when K.C. is with Carl C. every other weekend, K.C. can participate in family dinners. There are a total of eight grandchildren and they all get together for Sunday dinners. Carl C. then leaves their home and takes K.C. directly back to Elisha W.'s. When it is time to leave, K.C. cries, runs away and sometimes hits Carl C. She wants to know why she cannot stay there and indicates that she does not want to go.
In their home, Cheryl and her family stay away from the subject of the allegations. Cheryl does not want K.C. to have to think about those things and wants K.C. to be at peace when she is at Cheryl's home. Cheryl does not want K.C. being asked questions or being told that she can talk or that she can't talk. She wants K.C. to feel at home in her home.
Carl Carl C.:
Carl C. lives in Parish with his wife, Alyssa, Alyssa's daughter, Giuliana, who is six-years-old, K.C., who is with them during Carl C .'s parenting time, who is also six-years-old, and Carl C. and Alyssa's daughter, Ava, who was six-months-old when Carl C. first testified on February 1, 2016.
Carl C. has been employed as an aircraft mechanic for ten years with the New York Air National Guard's 174th Attack Wing located at Hancock Field in Syracuse. Carl C. works four, ten hour days. His wife is a stay-at-home mother. Carl C. has scheduled parenting time with K.C.
Four of the five petitions filed by Carl C. against Elisha W. are for violations of the Order in that on a significant number of occasions, Elisha W. unilaterally withheld K.C. from Carl C. during his scheduled parenting time. In addition, Elisha W. moved with K.C. and refused to give Carl C. her address which was required in the Order. Carl C. filed the petition for modification because of the numerous medical exams Elisha W. was requiring K.C. to endure and the number of sexual abuse interviews that K.C. was subjected to regarding numerous alleged perpetrators and, oftentimes, numerous victims. Carl C. made clear that those exams and interviews had a significant effect on K.C. in that her demeanor changed because of them. With each exam and interview, K.C. became more and more emotionally detached; the exams and interviews themselves appeared to take an emotional toll on K.C. The allegations and interviews caused substantial stress for Carl C. and his family, in fact, they forced him to put surveillance cameras in his own home. Carl C. and his family try not to talk about the examinations or interviews with K.C. or around K.C. as it is clear it causes her stress and anxiety.
The most current cause of concern regarding K.C. is that, since December of 2015, when Carl C. gets K.C. for his parenting time, there is a significant amount of medications with K.C. There appears to be a new prescription almost every week. Elisha W. has been taking K.C. to the doctors for gastrointestinal problems and K.C. has been put through tests, based upon the reported symptoms to the physicians by Elisha W., including an endoscopy and a colonoscopy. Elisha W. has not informed Carl C. of any of these appointments or tests in advance, regardless of the joint-legal custody arrangement, and Elisha W. has placed K.C. on a special diet. Elisha W. made Carl C. sign a form that she had at the last exchange of K.C., which Elisha W. was taping, stating that he would keep K.C. on this special diet when K.C. was with him. Carl C. made clear that none of the gastrointestinal symptoms that Elisha W. was indicating that K.C. had were symptoms that he or any of his family ever saw in K.C. when she was with them each week. In addition, when Elisha W. sends the prescriptions with K.C. for Carl C.'s parenting time, the prescription drugs are in a baggie, they are not in the prescription container received from the pharmacy. In addition, K.C. recently had teeth pulled without Carl C. being informed. Elisha W. did not inform Carl C. either before or after K.C. had them pulled. Carl C. was only made aware of the procedure when he received the bill from the dentist.
There was only one instance of K.C. exhibiting any behavior of a sexual nature in front of Carl C. In March of 2013, when they were at Carl C.'s home, K.C. came to him as he was sitting on the couch and attempted to put her mouth on the genital area of his pants and said something about kissing her "pee pee". Carl C. was concerned about this behavior, reported it to the investigator who was investigating an allegation at that time, and made clear that K.C. has not exhibited that type of behavior other than that one time.
Carl C. made clear that K.C. is shy like him, that it takes a while to open up to people. He indicated that when she does warm up, she is a very happy-go-lucky, little girl. When K.C. is at his home, she gets along wonderfully with everyone and is very close with Giuliana; they get along like two sister. K.C. also gets along very nicely with her baby sister.
Carl C. is concerned that there is emotional and, perhaps, permanent damage to K.C. due to all of the medical examinations and investigations.
Alissa Carl C. ("Alissa"):
When Alissa testified on February 22, 2016, she and Carl C. had been married approximately a year and a half and had been together for approximately three years.
Her relationship with Elisha W. was initially a good one until Elisha W. got Alissa's daughter, Giuliana, involved in the sexual abuse allegations in April of 2014. In addition, the sheer number of allegations made regarding sexual abuse of K.C., the number of examinations and interviews of K.C., and the impact of all of these on both K.C. and the entire family has damaged Alissa's relationship with Elisha W. beyond repair. Elisha W. has gotten Giuliana involved in investigations on more than one occasion. At one point, there were allegations that Carl C. sexually abused both K.C. and Giuliana on a particular weekend that Carl C. had parenting time with K.C. What Elisha W. did not know, is that Alissa and Giuliana's father had swapped weekends and Giuliana was not even present during K.C.'s weekend visit.
Alissa made clear that the interviews have changed Giuliana. Giuliana now asks a lot of questions about body parts. Giuliana plays "CPS" by getting a clipboard and her note pad out and asking everyone personal questions.
Alissa has, indeed, sent Elisha W. text messages that were unkind. Alissa did not hesitate to be honest about that and why she sent them. So, too, is the case with text messages to Elisha W.'s boyfriend, Adam, and posts that Alissa posted on her own Facebook page. Once again, Alissa, was both honest regarding the texts and posts, and in explaining the frustration behind them.
Alissa is aware that Elisha W. has taken K.C. to various doctors regarding gastrointestinal issues. Alissa made clear that K.C. never speaks about not feeling well when she is with them and that she never appears sick. Elisha W. sends prescriptions for K.C. with K.C. for Carl C.'s parenting time but she does not send them in the prescription bottles. She sends them in sandwich baggies with her own instructions written on an index card. As Alissa and Carl C. have no way to confirm what the medication is or when it is to be taken, they do not give K.C. the medication. On the rare occasion when medication has been sent in a prescription bottle clearly indicating that it is for K.C., and what the dosing regime is, they give K.C. the medication.
Alissa is a stay-at-home mother of Giuliana and Ava. Alissa fully supports Carl C. in his efforts to be awarded custody of K.C. If Carl C. is awarded custody, Alissa will be home to care for K.C. Currently, when K.C. is with them for Carl C.'s parenting time, Elisha W. does not call K.C. and K.C. does not ask to call Elisha W.. Alissa indicated that she believed that K.C. should still spend time with Elisha W., even though Alissa believes Elisha W. is not a good person, because Elisha W. is K.C.'s mother and Alissa appears to understand how important that bond is. Alissa would like to see Elisha W. get healthy and understand what a healthy, mother-daughter relationship is.
Finally, while Carl C. was granted two, one-week periods of parenting time in the Order as "make-up" time for parenting time that Elisha W. had unilaterally withheld from Carl C., Elisha W. has never allowed those one-week parenting times to happen either.
ATTORNEY FOR THE CHILD WITNESSES:
Dr. Samuel A. Rubenzahl:
Dr. Rubenzahl is a psychologist who works with children and families. He has his Bachelor's Degree in psychology from Hamilton College, his Master's Degree and PhD in clinical child psychology from Southern Illinois University at Carbondale and has been practicing since 1997. He has conducted 65 to 70 specific forensic sexual abuse evaluations on children and hundreds of generic ones. The court qualified Dr. Rubenzahl as an expert without objection.
Dr. Rubenzahl conducted a sexual abuse evaluation with K.C. and wrote a report regarding his findings. Dr. Rubenzahl met with K.C. four times and met with each parent individually. Dr. Rubenzahl followed the protocols in the area of child sexual abuse and administered psychological testing appropriate for K.C.'s age. He also spoke with several individuals involved with K.C. and the family, such as K.C.'s first therapist, and the therapist treating K .C. at the time of the evaluation. He also spoke with the therapist who had worked with the parents, OCDSS caseworkers and a teacher at K.C.'s child-care center and her kindergarten teacher. Dr. Rubenzahl reviewed record that were provided by OCDSS as well as other legal and medical records. He watched hours of video provided by Elisha W., allegedly showing disclosures. He also conducted clinical interviews with K.C. at each of the four appointments. He prepared his evaluation from these meetings with K.C., from the interviews of others, and from his review of the records and videos.
The written records Dr. Rubenzahl reviewed, showed concerns about sexual abuse at the hands of her father, her grandfather and a teenage aunt. The concerns documented in the records did not match with what he was seeing with K.C.'s functioning in his office. He did not see the indicators that one normally would see with a child who's experienced those types of abusive traumatic experiences. If a child had experienced the level of trauma that had been reported in the various reports, one would expect to see some "freeze, fight or flight" type behaviors. What he saw was a happy, pretty relaxed child, who spoke positively and didn't have the body tension or distress in her facial expressions or in her voice that you would expect to see, even when talking about the people who allegedly had done bad things to her.
It should be noted that, the only time that Dr. Rubenzahl did see distress in K.C. was when she told Dr. Rubenzahl of a time that a cousin threw sand in her eyes and then she got put in time out. K .C. was clearly able to express distress, but did not express distress when speaking of the adults who were allegedly doing very bad things to her.
Dr. Rubenzahl watched several videos from a home surveillance system at Elisha W.'s home where K.C. allegedly made disclosures. He saw a pattern in these videos. Elisha W. would be doing typical family things like putting away clothes in K.C.'s room. Then K.C. would begin to look at her genital area or talk about things related to that and Elisha W. would stop what she was doing, set it aside and give K.C. her undivided attention. Dr. Rubenzahl saw this pattern many times throughout the videos. There was one video, in particular, when K.C. was supposed to take a nap, but clearly did not want to. He believed that she was perpetuating a conversation about touching in order to talk about it with her mother instead of taking a nap. K.C.'s demeanor was not distressed in that video but Elisha W.'s was very distressed.
In addition, in many of the videos, the questioning by Elisha W. was very suggestive. The same question was asked repeatedly. Dr. Rubenzahl testified that research shows that kids will change their answers, and answer in the way they think the adult wants to hear when asked the same question repeatedly. There was certainly repeated questioning and repeated discussion of sexual abuse and touching that Dr. Rubenzahl observed, even just in the video clips that he watched. The questions were suggestive in that they presupposed that something happened. Instead of asking if anything happened, Elisha W. would ask what happened, whether K.C.'s father was there, did K.C.'s father watch when it happened, etc., which for a child that young, Dr. Rubenzahl felt were shaping her answers, rather than leading to an accurate response.
Dr. Rubenzahl made clear that when there has been too much discussion about the past, then the memory becomes based upon the discussion, as opposed to what has truly happened. Kids in this situation truly grow to believe it as if it were an experience, even though it did not actually occur.
Dr. Rubenzahl is very concerned about where this is headed for K.C. His opinion is that if this does not change, K.C.'s ability to report accurately is contaminated. He didn't see clear evidence of contaminated memories yet, but if these discussions, investigations and examinations continue, that very well may happen. His opinion is that K.C. is not looking to create drama, but to get more attention. She's also looking to get a reaction or to continue a conversation to avoid another task, such as taking a nap.
Dr. Rubenzahl made clear that young kids can be sexually explorative of their own bodies. They will sometimes touch themselves because it feels pleasurable or sometimes, if they are distressed, they will self-sooth. He believes that this may be how it all started. When a parent thinks their child is sexually abused, they are understandably upset. But, Elisha W.'s reactions were much more extreme that what is typically seen. It is a concern for Dr. Rubenzahl because he believes that K.C.'s healing requires a parent who can contain their own emotions. If Elisha W. is not able to do that, then it becomes a concern for K.C.'s future functioning as well.
The types of disclosures that were in the reports provided to him were inconsistent with his findings. Dr. Rubenzahl recommends that Elisha W. get individual therapy to work through her own issues. His hope is that the therapist working with her can create effective change so that the dynamics in the household would improve within a period of six to eight months. He would not expect the work to be completed in six to eight months, but would hope to see measurable improvement.
Dr. Alicia Pekarsky:
Dr. Pekarsky works at Golisano Children's Hospital and the McMahon–Ryan Child Advocacy Center in Syracuse. She is an assistant professor of pediatrics and she conducts child abuse evaluations, as well as general pediatric visits for children. Dr. Pekarsky did her residency training in pediatrics at St. Christopher's Hospital for Children in 2002, and a three-year fellowship in child abuse and neglect that finished in 2009. She is a medical doctor, so has experience and sees several hundreds of consultations each year. She reviews manuscripts, publishes and presents at national meetings as well as being part of several national organizations. Dr. Pekarsky was qualified as an expert without objection.
Dr. Pekarsky conducted four exams on K.C. herself through the McMahon–Ryan Child Advocacy Center. She obtained medical history and the history of concern from Elisha W. The first exam had a finding in the genital area of a whitish color spot at the entrance to the vagina. Dr. Pekarsky was a bit concerned at first. However, in the follow up exam, that white spot was unchanged which was also the case in the following two exams. In addition, her notes indicated that an exam had been done a year earlier at McMahon–Ryan by a colleague, and the whitish spot was present. The spot could be something K.C. was born with.
Dr. Pekarsky learned that, in addition to the four exams she did, and the one prior by her colleague, there had been three prior sexual abuse exams done on K.C. at Upstate Golisano Children's Hospital. Dr. Pekarsky became concerned because of the number of exams K.C. had for sexual abuse. Dr. Pekarsky subsequently found out that there was also an exam done at the CAC in Oswego, as well as several done at K.C.'s pediatrician's office. Dr. Pekarsky became worried about the utility of those exams.
Dr. Pekarsky spoke to Elisha W. about limiting the medical exams and just funneling them though her at the McMahon–Ryan CAC or through K.C.'s own primary care physician.
Dr. Pekarsky met with all the professionals involved because she was concerned about the number of K.C.'s exams and wanted to limit them. No exam ever produced medical evidence to confirm or deny sexual abuse of K.C.
Dr. Pekarsky made clear that the findings of the last three exams that she performed on K.C. were "consistent with the history of sex abuse". She explained that the majority of children who are abused actually have normal exams, so the findings of normal exams are listed as consistent with a history of sex abuse. A child who has not been sexually abuse would also have a normal exam.
Dr. Ann S. Botash:
Dr. Botash is employed at SUNY Upstate Medical University as a faculty member and also works at Golisano Children's Hospital in Syracuse. Dr. Botash is a professor of pediatrics and vice-chair for education at SUNY Upstate and is the medical co-director of the CARE Program (Child Abuse Referral and Evaluation). Dr. Botash has over 50 publications and has been qualified as an expert hundreds of times. The Court qualified Dr. Botash as an expert without objection.
Dr. Botash performed a sexual abuse exam on K.C. in July of 2013. She was asked to review K.C.'s records last year and she put together a letter to Child Protective Services in October of 2015. The letter is a summary of the medical visits from multiple different medical records of K.C. that were provided by Child Protective Services and reviewed by Dr. Botash.
Dr. Botash performed the exam that found the non-specific whitened area. She had concerns initially, but it continued to be there over many exams with no change so she is no longer concerned.
Dr. Botash's main concern was the sheer number of examinations, the physical examinations, of K.C. Dr. Botash made clear that just being brought in for medical exams of the genitalia could have an emotional effect on the child. She and Dr. Pekarsky, and the nurse practitioner who works with them were concerned that they had seen K .C. several times. She then found out that K.C. had been seen by many other providers as well and decided to have a meeting to discuss this issue. The meeting was about being careful of repeat examinations. Dr. Botash wanted K.C. seen at the CARE clinic if necessary, so that all other potential sites would be minimized.
Dr. Botash reviewed all the records and all the photographs that they had from their examinations. There were seven photographs and DVD's and all showed normal exams. Dr. Botash's conclusion was that K.C., with these multiple examinations, was potentially having unneeded and unnecessary examination.
Dr. Botash then reviewed all the medical records and investigation reports regarding K.C. It is her impression that the changes in K.C.'s behavior establishes that K.C. is showing signs of emotional disturbance from these repeated interviews and examinations.
Dr. Botash also does an excellent job during her testimony explaining why an examination that states it "was consistent with a finding of sexual abuse" does not necessarily mean a child has been sexually abuse. She states that "[a] normal exam, most kids—like in our clinic, about 80 to 85 percent of kids that have been sexually abused have a normal exam. So it—most kids have a normal exam. So a normal exam doesn't mean anything. It doesn't rule it out, it doesn't rule it in. So that's generally our blanket statement. Physical exam is—normal physical exam is consistent with sexual abuse, because typically that's what we see."
She further explains that at one point, based upon a consensus from the New York State group she was involved with, they decided to say the above instead of saying that the exam neither confirms nor denies sexual abuse. The two statements mean the same thing and "it actually does mean nothing [.]" Dr. Botash agrees that the statement can be very confusing to a layperson.
RESPONDENT'S WITNESSES:
Dr. Norman J. Lesswing:
Dr. Lesswing is a licensed psychologist who practices as a clinical and forensic psychologist. His Bachelor's Degree is from Allegheny College and his Master's Degree and PhD in psychology are from Pennsylvania State University. He has been a licensed psychologist since 1979 and has been doing forensic evaluations since 1981. Dr. Lesswing was contacted by Elisha W. to do an evaluation of her. The evaluation was not intended as a full custodial type evaluation but an evaluation of her psychological adjustment/functioning relevant to concerns about the many reports she had made about K.C.'s sexual abuse.
Dr. Lesswing administered several psychological tests to Elisha W .; tests that are appropriate and relevant to assess Elisha W.'s psychological status. In addition to the tests, he met and spoke with Elisha W. at length and also reviewed reports from Elisha W.'s therapist and had a telephone conversation with her therapist.
Dr. Lesswing was looking for the presence or the absence of clinical problems or mental health disorders that may have been associated with the making of false accusations. There had been concerns about Munchausen's By Proxy and/or a disorder called Factitious Disorder Imposed Upon Another. Dr. Lesswing made clear that his evaluation concluded that Elisha W. did not have either of the two, above-mentioned disorders nor was she psychotic, schizophrenic, or delusional.
Which Dr. Lesswing made clear is not a diagnosis recognized in the Diagnostic Statistical Manual V, which is the text book for mental health professionals, with all diagnoses and criteria for all recognized mental disorders.
A new category in the DSM–V.
Dr. Lesswing concluded that while there was an absence of the major psychopathology, Elisha W. did show to be a perfectionist; a kind of rigid, inflexible type of person wishing to hold herself to virtuous standards and to be seen as virtuous by other people. He made clear that Elisha W. wants to do the right thing in a compulsive fashion and expects a lot of herself, wanting to be very responsible and seen in that light. Dr. Lesswing attributes some of Elisha W.'s traits as being associated with her upbringing. Elisha W. came from an alcoholic, domestically violent background and was the oldest among four. Her father left the family and she was in the position of being a surrogate mother to her younger siblings. Elisha W. wanted to maintain a relationship with her alcoholic and violent father and wanted to rescue him, fix him and/or change him. Elisha W. thought that if she was just perfect enough, tried hard enough, she could do just that.
Stephanie Grover ("Grover"):
Grover is a therapist employed by Vera House but her office is located at the McMahon–Ryan Child Advocacy Center in Syracuse. She has a Bachelor's Degree in psychology from Keuka College and a Master's Degree in mental health counseling from SUNY Oswego and is a licensed mental health counselor. Grover has been a licensed counselor for four years. She has worked for Vera House for those four years and was K.C.'s individual therapist from May of 2015 and, at the time of her testimony on February 1, 2016, she was still K.C.'s therapist. She saw K.C. weekly for approximately 50 minutes. She also had K.C. in a group therapy program for a short period of time.
It should be made clear that several of the other professionals involved in these matters, including Dr. Rubenzahl, did not believe that any type of group therapy for K.C. was appropriate.
K.C. was five-years-old at the time of Grover's testimony. The type of therapy that Grover did with K.C. was play therapy. At the initial appointment, Grover asked K.C. if she knew why she was coming to see Grover and K.C. indicated that she did, that she was there because sometimes her daddy touches her private parts. After that statement, K.C. did not say anything more regarding abuse of any kind.
Throughout Grover's time working with K.C., K.C. has never made any other disclosure or stated anything else regarding any type of abuse, not through play and not through drawings. Grover was concerned that when she would try to get K.C. to talk about issues, K.C. would act out and destroy her office by throwing things around.
Grover made clear that she was aware that the medical providers were concerned that K.C. was being brought in for too many medical exams. Grover was also aware that K.C. had never made a disclosure regarding sexual abuse to any of the investigators who had been involved in the numerous investigations, nor to any teachers. Grover was also aware that K.C. disclosed that Elisha W. is the one who hurt her. Grover does not ask K.C. direct questions so Grover has never asked K.C. questions about abuse of any kind.
Kathryn Harter ("Harter"):
Harter is Elisha W.'s great-aunt who lives in Lovelock, Nevada. Harter first met K.C. in November of 2012 when K.C. was two-years-old.
It must be made clear at this juncture that the Court does not find Harter a credible witness and the Court finds Harter's testimony incredible for several reasons.
Harter testified that, having never met K.C. before, in November of 2012, at their very first meeting, two-year-old K.C. made disclosures regarding sexual abuse to Harter. Harter then testified that, within minutes of their second meeting, in August of 2013, three-year-old K.C. made disclosures to her in vivid detail. Harter also testified that K.C. made further disclosures to her when she spent time with K.C. in 2015 and those disclosures were also in vivid detail.
Both Harter and her testimony are incredible. K.C. has been interviewed by a substantial number of people during her mere six years. Many of the people interviewing K.C. have built a relationship with her; they are people who K.C. is familiar with and several are people who K.C. trusts. K.C. has never made vivid, non-leading disclosures to any of them, including her mother who has questioned her endlessly. The Court cannot find it credible that K.C. disclosed, in vivid detail, sexual abuse to someone who she did not know at the tender age of two. In addition, the kind of detail and disclosure that Harter testified to, was beyond the capacity of what a two- or three-year-old child could have the vocabulary to explain. The Court carefully assessed Harter and her testimony while she gave it. The Court does not find any of Harter's testimony credible.
The Court notes that there was no testimony that indicated that K.C. had a vocabulary beyond her years or was intelligent beyond her years.
Additionally, this Court carefully questioned K.C. about her relationships and activities with various family members. Based upon K.C.'s answers, this Court cannot find that K.C. had any special relationship with Harter.
Jahleh Mohammadi ("Mohammadi"):
Mohammadi is a licensed mental health counselor with a Master's Degree in mental health counseling and is also a certified play therapist. Mohammadi is nationally certified and has been employed by Integrative Counseling for six years. Mohammadi is Elisha W.'s counselor and sees her once per week for 50 minutes to help Elisha W. with stress management.
Amanda Woods ("Woods"):
Woods is a friend of Elisha W.. Woods testimony made clear that K .C. has made statements to her that Poppa Roy is bad and that Daddy is bad. Wood also testified that K.C. masturbated in front of her and that she told K.C. to go into a private room to do that.
Brianna Revette ("Revette"):
Revette is one of K.C.'s child care teachers at Brewerton Community Child Care. Revette asked K.C. very pointed, leading, suggestive questions and Revette claimed that K.C.'s answers were a disclosure. Revette was present when K.C. was questioned during a child protective investigation and no disclosure was made at that time.
Adam Hopkinson ("Hopkinson"):
Hopkinson is Elisha W.'s boyfriend. He lives with Elisha W. and K.C. in West Monroe. They have lived together since the summer of 2015.
It must be made clear at this point that the court does not find Hopkinson credible and finds his testimony incredible. Upon repeated questioning, Hopkinson testified that he does not provide child-care or baby-sit K.C. It was clear that the questions were attempting to determine if Hopkinson ever cares for K.C. alone, when Elisha W. is not present. Hopkinson dodged the question and skirted around it and answered differently several times. Reluctantly, Hopkinson eventually made clear that there are times that he cares for K.C. while he is alone without Elisha W.
Hopkinson testified about disclosures made by K.C. The testimony made clear that the discussions regarding sexual abuse, and questions regarding what occurs at Carl C.'s home when K.C. goes there for Carl C.'s parenting time, is a primary topic in Hopkinson's home. Furthermore, Hopkinson, who has no children of his own, testified to several things that he believes are "uncommon" for a child K.C.'s age. K.C. has had double-digit interviews and examinations regarding extremely private parts of her body and yet Hopkinson's testimony was that he does not believe that K.C., at her age, should have the knowledge regarding body parts that she does. Hopkinson has witnessed several "disclosures" made by K.C. to Elisha W., yet those disclosures are the very ones that were made after leading, suggestive and repeated questioning of K.C. by Elisha W. Finally, Hopkinson allows K.C. to call him "dad". He believes that should be six-year-old K.C.'s decision.
Lauryn Wakeman ("Wakeman"):
Wakeman is Elisha W.'s younger sister. Wakeman has a six year old daughter named Madylynn, who is the same age as K.C. Wakeman indicated that from 2012 until 2014, she observed K.C. exhibiting odd behavior. The behavior included K.C. asking Wakeman to tickle her "pee pee" when Wakeman was tickling K.C. before bedtime, K.C. lifting her dress and asking an uncle if he wanted to see her underwear, K.C. sticking her hands down Madylynn's pants during a hug, and K.C. asking Madylynn to take off her clothes and spread her legs on more than one occasion when Madylynn and K.C. were playing. More recently, K.C. told Wakeman that K.C. had to go to the hospital because her daddy hurt her and touched her privates. Wakeman did report these things and Wakeman has spoken to both Investigators Finkle and Yerdon.
Elisha Elisha W.:
Elisha W. was not a credible witness. All of the testimony given by Elisha W. regarding the facts that are relevant to a decision in these matters was incredible. For example, in spite of having heard both K.C.'s many treating physicians, as well as experts who have carefully reviewed each and every medical record, testify that there were no findings of any injury to K.C., Elisha W. continued to testify to such things as abrasions and tears on K.C.'s rectum needing to heal and white substances being left in her vagina.
Elisha W. testified to many disclosures made to her by K.C. regarding sexual abuse. Elisha W. testified that several of these disclosures by K.C. were on video. Yet, none of those videos were offered into evidence. Additionally, Elisha W. testified to K.C. stating things that would have been well-beyond what a two- or three-year-old child would have been able to say.
When Elisha W. testified regarding the child protective case workers and the investigators who worked the many investigations that were conducted, she made clear that the majority of them were rude and nasty to her, did not do the job that they were assigned to do, and that they were all wrong and she right.
All of Elisha W.'s testimony on direct examination appeared very prepared and scripted and on cross-examination, by both the Attorney for the Child and by Carl C.'s attorney, Elisha W. skirted answering questions that she knew would be harmful to her case and simply would not provide a direct answer unless thoroughly cornered. Once a direct answer was given, it was clear that Elisha W. knew that what she had done was wrong and simply did not want to take ownership of it. An example is when questioned about keeping K.C. out of school on the Fridays that Carl C. was scheduled to pick up K .C. from school. When cornered, Elisha W. had to admit the she knew that Carl C. was entitled to pick up K.C. from school on those Fridays and that she intentionally kept K.C. from going to school on those days so that he would not be able to. Elisha W.'s testimony was similar when questioned about the period of time when she unilaterally decided that Carl C.'s parenting time with K.C. needed to be supervised and she the supervisor.
Finally, when discussing the possibility of K.C. having stomach ailments and needing a special diet, Elisha W.'s testimony was extreme, stating that not only did Carl C. not follow the special diet prescribed by the physician, but also that he gave K.C. three packs of ho-ho's for lunch. Such testimony is beyond the realm of belief based upon the Court's observations of all the parties.
Also of importance is the observations the Court made of Elisha W. throughout the trial that must be made clear on the record. Each day Elisha W. appeared for trial with a banker's box and a large bag full of documents and other items, including disks of some sort. During the majority of testimony, Elisha W. would rummage through the boxes, look at documents, and show her attorney documents. Yet, none of the volumes of documents contained in the box or bag were offered into evidence. In addition, through all the testimony by several witnesses regarding the damaging impact the numerous sexual abuse exams and investigations have had on K.C. and may continue to have on K.C., Elisha W. showed no emotion. However, when Elisha W.'s evaluator, Dr. Lesswing, testified to Elisha W.'s past history, her family history, Elisha W. sobbed uncontrollably. Finally, when Elisha W. testified both on direct and cross examination regarding K .C.'s pain, the few tears she shed were very different from the ones she shed for herself, and appeared to be staged. Finally, it should be noted that throughout her entire testimony, Elisha W. referred to K.C. as "my child" or "my daughter" with an emphasis on "my". Finally, and without knowing the significance, the Court observed that at the beginning of trial, Elisha W. appeared with her attorney only. As trial went on and it became clear that there was a significant amount of testimony that did not shed a good light on Elisha W., she began to bring more people to Court until, on the last day of trial, Elisha W. brought eight people with her.
Carl C.'s Rebuttal Witness, Sheri Hansen ("Hansen"):
Hansen is K.C.'s kindergarten teacher at the Central Square School District. During the course of the academic year, K.C. has only been to the nurse's office three times for stomach issues. The first time was in March of 2016 when Elisha W. was present and suggested K.C. go to the nurse. The next time was in April when K.C. went to the nurse two times in one day for stomach issues. There were no other incidents of stomach issues while K.C. was in Hansen's class during the school year.
Elisha W.'s Rebuttal Witness, Anita Dilip Bhole, M.D. ("Bhole"):
Bhole is a pediatric gastroenterologist who examined K.C. and ordered medical tests for K.C. Bhole confirmed that K.C. underwent the procedures known as an endoscopy and a colonoscopy. Bhole confirmed that the tests were ordered based upon the pediatrician's notes and the pediatrician's notes were based upon what Elisha W. reported to the pediatrician. Practitioners and specialists proceed based upon what the custodial person reports is happening with the child. Elisha W. was reporting bouts of diarrhea and vomiting in K.C. What Bhole found upon examination of K.C. was that she was actually constipated and had some stomach pain.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Modification of Custody:
The Order is one having been stipulated to and, as such, is entitled to less weight than one issued after a plenary trial.
The Order also makes clear that a finding of a change in circumstances is not necessary, as it was ordered that a modification could be on a de novo basis. Nonetheless, the Court examined the evidence before it to determine whether there has been a change in circumstances.
The evidence makes clear that, since the Order, Elisha W. has been indicated in a significant number of child protective investigation reports. It is also clear that Elisha W., unilaterally, decided when to withhold parenting time from Carl C. and did, in fact, withhold parenting time from Carl C. There can also be no question that, since the Order, Elisha W. and Carl C.'s relationship has continued to deteriorate and that their relationship has become so acrimonious that communication between them has become almost impossible
The Court finds that Carl C. has established a change in circumstances which reflects a real need for change to ensure the best interests of K.C.
The Court notes that allegations of sexual abuse of K.C. made by Elisha W. had been a part of the circumstances during the pendency of the case before Court Attorney Referee, Morin.
Best Interest of K.C.:
Before assessing what the Court considers the "typical factors" that must be considered when assessing the best interest of a child as set forth above, it must make clear that there are additional factors to consider in the instant case. The facts in this case, which certainly go to best interest, are strikingly similar to the facts in the following cases, all which required a modification of custody.
In Matter of Beyer v. Tranelli–Ashe, 195 A.D.2d 972 (4th Dept 1993), custody of the child was changed from the mother to the father as, after a trial, the Court determined that it was in the best interest of the child to make that change (see id. ). The mother repeatedly filed numerous reports against the father alleging both physical and sexual abuse of the child, all of which were investigated and unfounded (see id. ). Finally, the mother "repeatedly, intentionally and unjustifiably" denied and interfered with the father's visitation rights on several occasions (id. ). So, too, was the case in Matter of Guidice v. Burruano, 255 A.D.2d 911 (4th Dept 1998), where custody of the child was changed from the mother to the father based upon proof that the mother made numerous false sexual abuse allegations against the father, repeatedly violated the visitation order, and attempted to diminish the relationship between the father and the child. In Matter of Amanda B. v. Anthony B., 13 AD3d 1126 (4th Dept 2004), the mother filed seven reports of suspected sexual abuse of the child by the father. All reports were investigated, medical examinations of the child were done, and all reports were unfounded (see id. ). The impact of all of those investigations and examinations were found to have a negative impact on the young child and it was concluded that the mother's actions were detrimental to the child and the child's relationship with the father and the mother was found to be unfit to act as the custodial parent (see id. ). Finally, in Matter of Charles M.O. v. Heather S.O., 52 AD3d 1279, 1279 (4th Dept 2008), it was in the child's best interest to modify custody and give the father sole legal and sole physical custody of the child based upon the mother having "made several false allegations that the father had sexually abused the child and had coached and coerced the child into supporting those false allegations."
There can be no doubt that the facts in the instant case are parallel to those of the above. The Court finds that Elisha W. has made numerous allegations of sexual abuse against Carl C. and Carl C .'s family members, regardless of whether she was the one to actually make the telephone call to the hotline. The Court finds that Elisha W. continued making these allegations even after she was advised by a significant number of professionals not to do so. Elisha W. was informed that the extreme number of sexual abuse physical examinations that K.C. was being subjected to, in and of themselves, could be detrimental to K.C. as was also the case with the numerous interviews. Yet, Elisha W. continued to subject K.C. to those examinations and those interviews. There is no doubt that all of the examinations and interviews have had a negative impact on K.C. The "normal" for K.C. is to ask her playmates to pull down their pants and spread their legs because that is what she has known in her brief, six years.
The Court also finds that, once it became clear that those continued allegations and examinations could result in Elisha W. losing custody of K.C., Elisha W. began down another harmful road with K.C. Elisha W. began taking K.C. to the doctors, self-reporting all sorts of symptoms that K.C. was allegedly experiencing, and getting K.C. a significant amount of medical care, including K.C. having to endure both an endoscopy and a colonoscopy, all based upon self-reporting to the physicians from Elisha W. of alleged symptoms. Those alleged symptoms were symptoms that Carl C., Carl C.'s wife, Carl C.'s family and K.C.'s teachers were not seeing. The Court finds it very possible that K.C. had those invasive tests without truly needing them. The Court finds, based upon the foregoing, that Elisha W. is unfit to act as the custodial parent (see Matter of Amanda B. ). However, the Court is not finding Elisha W. unfit to a point which would require Elisha W. to exercise her parenting time under supervision, although her behavior has come dangerously close. Should Elisha W. continue with her current behavior, supervised parenting time may become necessary in the future to protect K.C.'s emotional and mental well-being.
The quality of a parent's relationship with her child is, in this Court's opinion, so restricted whenever a third-party adult is required to be present at all times, as to be not in the child's best interest.
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Finally, Elisha W.'s allowing K.C. to call her boyfriend "dad", withholding Carl C.'s parenting time, not informing Carl C. of her new address when she moved, and not informing Carl C. of K.C.'s medical appointments either before or after them leads the Court to find that Elisha W. attempted to diminish the relationship between Carl C. and K.C.
When assessing these facts against the case law set forth above, the Court clearly finds that it is in K.C.'s best interest for Carl C. to have sole legal custody and sole physical custody of K.C. While the Court finds that Elisha W. is currently the primary care provider of K.C., and that K.C.'s primary attachment at this time is to Elisha W., all of the above makes clear that, in spite of that attachment, it is in K.C.'s best interest for Carl C. to have both sole legal custody of K.C. and sole physical custody of K.C.
When assessing the factors that we typically assess when deciding best interest of a child, it is clear that the quality of Carl C.'s home environment and the ability for Carl C. to provide for K.C.'s emotional development is superior to that of Elisha W.'s. Carl C., his wife and his mother all indicated that they simply redirect K.C. when her behaviors or discussions move towards those of a sexual nature. They all made clear that they just want young K.C. to be just that, a happy little girl who can find peace in her home. The Court finds that Elisha W. gave K.C. a tremendous amount of attention when K.C. acted sexual or discussed things of a sexual nature. The Court also finds that Elisha W. withheld attention from K.C. when K.C. did not provide the type of details Elisha W. was looking for. The expert testimony made clear that K.C. has now learned this as attention-seeking behavior and it appears as though there will be significant work to be done to undo that. Carl C. in clearly in the better position to undo that conditioning of K.C. There can also be no doubt that Carl C. is more likely to promote a relationship between K.C. and Elisha W. than Elisha W. was in promoting a relationship between K.C. and Carl C. The Court also finds that the character and sincerity of Carl C. is almost unquestionable, both in his testimony and in observations of him throughout the many days of trial. Finally, the relative fitness of Carl C. is superior to that of Elisha W. and it is the Court's finding that Elisha W. has work to do on her mental and emotional fitness, in keeping with the recommendations of the professionals, Dr. Lesswing and Dr. Rubenzahl.
The Court finds that there is a sound and substantial basis on the record at this time to consider supervised parenting time. However, as stated previously, the Court understands how difficult it is to foster a relationship between parent and child when parenting time must be supervised. While it is possible that unsupervised parenting time with Elisha W. could be detrimental to K .C.'s safety and/or emotional and mental health, the Court believes that it has crafted an Order that provides for safeguards in this regard. Therefore, the Court will not find that supervised parenting time for Elisha W. is required at this point in time.
Violation:
The Court finds that Elisha W. willfully violated the Order by clear and convincing evidence by withholding Carl C.'s parenting time with K.C. While reluctant, Elisha W. admitted that she did not send K.C. to school on several Fridays when Carl C. was to pick her up from school for his parenting time. She also admitted that she did not allow Carl C. to exercise his weeklong parenting time that he had been granted in the Order. While Elisha W. attempted to make excuses for those violations, none of the facts set forth in the excuses were facts set forth in the Order. The Order was clear, Elisha W. knew of the Order, Elisha W. disobeyed the Order, and Carl C.'s rights were prejudiced, impeded and impaired. While a possible sanction the Court may impose for the willful violation of an order is a period of confinement, the Court will not impose that sanction at this time. However, the Court will admonish Elisha W. at this time for her willful violation and warn that, should there be violations in the future, one of the sanctions that will be considered is confinement.
Family Offense:
The Court finds that Elisha W. did not meet her burden of establishing the facts necessary for a finding that Carl C. committed an act that could be considered a Family Offense thus requiring an Order of Protection. Based upon that finding, Elisha W .'s Family Offense petition will be dismissed with prejudice.
Before the Court may issue any orders of custody and visitation, it must conduct searches of the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records. The Court conducted these searches and has notified the parties, the attorneys for the parties and the attorney for the child of the results of these searches, and the Court relied on the results in issuing this Decision.
Given the findings of fact and conclusions of law set forth above, the Court orders the following:
That Carl C., the Father, shall have sole legal custody and sole physical custody of K.C., born February 15, 2010, effective immediately;
That Elisha W., the Mother, shall have parenting time with K.C. during the school year, every other weekend, from after school on Friday until Sunday at 4:30 p.m., and each and every Wednesday from after school until 6:30 p.m. The Mother's first weekend shall be Friday, July 8th through Sunday, July 10th;
That when school is not in session, the Mother shall have parenting time with K.C., every other weekend, from 3:30 p.m. on Friday until Sunday at 4:30 p.m., and each and every Wednesday from 3:30 p.m. until 6:30 p.m.;
That with the exception of 2016, each parent shall be entitled to two, non-consecutive, uninterrupted, one-week periods of parenting time during the summer. Each parents' week shall begin on the Friday that their regularly scheduled parenting time would begin (at 3:30 p.m.), and will end on the following Friday at the regularly scheduled parenting time for the other parent (at 3:30 p.m.). During the Father's weeks, the Mother shall not have her Wednesday evening parenting time;
That in 2016, the Mother shall not be entitled to her two weeks during the summer. The Father shall be entitled to his two weeks during the summer and shall notify the Mother of those weeks as soon as practicable;
That the Father shall have his selection of summer weeks in all even years and the Mother shall have her selection of summer weeks in all odd years. Each parent is to notify the other parent, in writing, of the two weeks they have selected by April 15th of each year and the parent receiving notice shall respond that they have received the notice within 24 hours of receiving it;
That the holiday schedule shall be as follows and shall supersede the regular parenting time schedule:
THANKSGIVING: the Father shall have parenting time each year from Wednesday at 6:30 p.m. to Thursday at 3:30 p.m. and the Mother from Thursday at 3:30 p.m. to Friday at 10:30 a.m. unless it is the Mother's regularly scheduled parenting weekend in which case she shall keep K.C. until Sunday at 4:30 p.m.;
CHRISTMAS: the Mother shall have K.C. from December 24th at 4:00 p.m. to December 25th at 11:00 a.m. in all odd years, and the Father shall have K.C. from December 24th at 4:00 p.m. to December 25th at 11:00 a.m. in all even years. The Father shall have K.C. from December 25th at 11:00 a.m. to December 26th at 11:00 a.m. in all odd years, and the Mother shall have K.C. from December 25th at 11:00 a.m. to December 26th at 11:00 a.m. in all even years and then the regularly scheduled parenting time shall resume;
EASTER: the Father shall have K.C. from Saturday at 6:00 p.m. to Sunday at 11:00 a.m. in odd years, and the Mother shall have K.C. from Saturday at 6:00 p.m. to Sunday at 11:00 a.m. in even years. The Mother shall have K.C. from Sunday at 11:00 a.m. to 6:00 p.m. in odd years, and the Father shall have K.C. from 11:00 a.m. to 6:00 p.m. in even years, and then the regularly scheduled parenting time shall resume;
MOTHER'S DAY: the Mother shall always have K.C. on Mother's Day from 9:00 a.m. to 6:00 p.m.;
FATHER'S DAY: The Father shall always have K.C. of Father's Day from 9:00 a.m. on;
That the Mother shall be responsible to plan for the transportation of K.C. at the beginning of her parenting time and the Father shall be responsible to plan for the transportation of K.C. at the end of the Mother's parenting time. The Mother or her designee may pick K.C. up from school on Wednesdays and on her alternate Fridays;
That no persons other than the Father and the Mother shall be referred to as Father, Mother, Daddy, Mommy, or any other similar name by K.C., and each parent has the obligation to correct K.C. should she do so;
That the Mother shall have access to K.C.'s medical and educational records but the Mother shall not have the ability to communicate with K.C.'s medical providers or K.C.'s educators unless the Father is present or the Father has given permission specific to each requested contact;
That the Mother is prohibited from scheduling any medical care for K.C. except in the event of a life-threatening emergency. In the event of a life-threatening emergency the Mother is to attempt to contact the Father en route to the hospital and shall continue to attempt to contact the Father until she has reached him;
That the Mother shall not question K.C. regarding her time in the Father's care nor shall the Mother discuss anything of a sexual nature with K.C., and the Mother shall have an affirmative obligation to prevent third parties from doing so;
That in the event K.C. initiates a conversation or exhibits behavior of a sexual nature, the Mother shall redirect the conversation and/or behavior to a healthier topic and/or activity and the Mother shall have an affirmative obligation to ensure that third parties do as well;
That each parent shall inform the other of any changes in address or telephone number within 48 hours of said change;
That the Mother shall engage in individual counseling in keeping with the recommendations of Drs. Lesswing and Rubenzahl;
That there shall be such other and further parenting time as the parties may mutually agree and arrange; and
That the Mother's Family Offense Petition is dismissed with prejudice.