Karen B. v. Clyde M.
KAREN B. v. CLYDE M., 151 Misc.2d 794 (1991)
574 N.Y.S.2d 267
In the Matter of KAREN B., Petitioner, v. CLYDE M., Respondent
Family Court, Fulton County
July 18, 1991
Robert Subik for petitioner.
Ellen Ross for respondent.
Karen Gazda, Law Guardian, for Mandi M.
DAVID F. JUNG, J.
The petitioner/mother seeks sole custody of the parties' only
child to herself; that an order of protection issue in favor of
petitioner against respondent; and that respondent be punished
for violating the temporary order of protection issued by the
court. The respondent/father petitions for sole custody; an order
of protection and that the petitioner be punished for violating
this court's prior custody order. All six petitions were
consolidated for trial.
FINDINGS OF FACT
The subject child, Mandi M., was born September 7, 1986.
Mandi's parents, the petitioner and respondent herein, were never
married, but an order of filiation was made by this court and
paternity has never been an issue. The parties lived together in
the home of respondent for one year before Mandi was born and
continued together until August 15, 1990 when they separated.
By consent, the parties entered into a joint and split
custodial arrangement on July 23, 1990. The parties had worked
out a comprehensive arrangement whereby, and as part thereof, the
father would have the child from Sunday at 1:00 P.M. until
Wednesday at 7:00 P.M. The mother would then have the child from
Wednesday at 7:00 P.M. until the following Sunday at 1:00 P.M.
The agreement resulted in an order of this court dated July 23,
1990 and entered September 5, 1990. The parties abided by the
terms of the agreement and order until September 1990 when the
mother filed her petition to modify requesting that she "retain
all custody and visitation to be supervised, if at all". The
mother alleged a change of circumstances in that: "Mandi had
disclosed sexual advances and behavior problems because of
concerns. Also it is not good for her physical, emotional and
social well being to go back and forth between parents. Social
Services is currently investigating." As a result of her
allegations and upon the recommendation of the Law Guardian, the
court entered a temporary order requiring the father's
visitations with Mandi to be supervised.
According to the mother, in September 1990 Mandi disclosed to
her certain sexual abuse perpetrated on Mandi by her father. He
allegedly put his finger in her "peer". When she said that it
hurt, he told her that he could do what he wanted. She also
claimed that her Daddy's "dinkie" got bigger and "stuff came
out". The mother reported this to Jan Carter, a friend of hers,
employed by Community Maternity Services, and on September 9,
1990 Jan Carter went to the home of Mandi and spoke to her. Jan
Carter testified that Mandi told her that Daddy put his "peer" on
her "peer". She also told Ms. Carter that Daddy put his finger in
her "peer" and that she told him to stop and it hurt and she
cried. Ms. Carter placed a call to the New York State Central
Register for Child Abuse and Maltreatment also known as "Hotline"
and reported the incident.
Sally Conkling, a caseworker with the Fulton County Department
of Social Services, conducted the investigation. She testified
that the child told her that the respondent had put his finger in
her vagina. Through a contractual arrangement between the
Department of Social Services and the Family Counseling Center,
Mandi was interviewed by Bette Malachowski to determine whether
the allegation of sexual abuse could be validated. Ms.
Malachowski saw Mandi on September 10, 13 and 14, 1990. The
witness identified herself as a child sexual abuse therapist
specializing in 2 1/2-to-18-year-old victims. She has a Master's
degree in psychology and a Bachelor's degree in sociology, and in
addition thereto has completed 150 hours of postgraduate work in
her field. She testified that she has interviewed approximately
200 children concerning allegations of sexual abuse and has
validated 75% of them and found the remainder to be fabricated.
The mother repeated all of the allegations to Ms. Malachowski
and additionally stated that on September 9 Mandi had told her
that the respondent has put his "peer" on her "peer" and that he
had put his hand under the covers of the bed and touched her buns
stating, "You know, like you take your temperature."
The expert observed no outward signs of emotion when the mother
spoke to her and also found that the mother seemed to be
repeating the story by rote. When asked what the witness meant by
the expression "rote", she stated that the petitioner had to
start from the beginning and repeat the whole story. She couldn't
respond to questions without starting from the beginning and
completing the entire story.
At the first interview with the expert, Mandi could not
identify the genital parts of the male and female nor could she
distinguish between "secret touch" and "bad touch". She said that
her stepbrother, Matt, had hit her, but she had no episodes of
other touching problems. At the second interview, Mandi could
name the breasts as "boobies", the vagina as a "peer" and the
buttocks as "butt". She stated to the expert that she had no
touching troubles with her boobies, peer or butt. The witness
observed no sexual play with the anatomically correct doll nor
did Mandi ever use the word "dink" when describing the male
penis. At the last interview the child again stated that she had
no touching troubles and responded as follows to questions by the
therapist:
"Therapist: Q. Mandi, did any kind of touching troubles happen
with your pepe, boobies or your butt? Or, are you making believe?
"Mandi: A. Making believe. He didn't do it.
"Therapist: Q. He didn't do it?
"Mandi: A. No.
"Therapist: Q. Who didn't do it?
"Mandi: A. My father; I was just joking about it.
"Therapist: Q. You were just joking about it. So Daddy really
didn't do anything. You were only making believe about it?
"Mandi: A. Yes.
"Therapist: Q. How come you were only making believe about it?
"Mandi: A. I was joking.
"Therapist: Q. How come you were just joking about it?
"Mandi: A. I don't know.
"Therapist: Q. Did anybody tell you to make a joke about it?
"Mandi: A. Yes.
"Therapist: Q. Who told you to make a joke about it?
"Mandi: A. I don't know.
"Therapist: Q. You don't know. Alright, I think then we are
done talking, okay? Is there anything else you want to talk
about?
"Mandi: A. No."
In her report of September 18, 1990 received in evidence, Ms.
Malachowski stated, "Petitioner, as the complainant in this case,
has a vested interest in the outcome of the case. She would like
to have full, instead of joint, custody of Mandi as well as no
visitation rights to respondent, Mandi's father. She has
indicated that she wants this man out of her life. This is taken
into serious consideration by this therapist." The expert
concluded that there was no information which would indicate that
Mandi had been sexually abused by her father.
Lawrence Horowitz, D.O., the child's pediatrician, testified
that the mother brought Mandi to him for an examination on
September 13, 1990. The doctor's physical examination of the
child revealed nothing and the child denied to him that anything
had happened.
The Department of Social Services concluded that the
allegations of sexual abuse were unfounded and so notified the
parties.
In February 1991, the mother once again contacted the
Department of Social Services claiming that Mandi revealed
to her additional sexual abuse that had occurred at the father's
home during visitation. When interviewed by Loren Dybas, a D.F.S.
caseworker, on February 4, 1991 the child claimed that "secret
touch made her uncomfortable"; that Mandi placed her hand on her
Dad's "dinkie" and she touched Dad's "electric dinkie" to her
Dad's "dinkie". She claimed that her underpants were on and her
Dad's clothes were off. During the same 45-minute interview, she
stated that her panties were off when her Dad touched her with
the "electric dinkie". She told the interviewer that she didn't
want to see her Dad again. Ms. Dybas reported this interview
through the "Hotline" on February 7, 1991.
M. Frank Sack, Ph.D. also appeared as an expert witness. Dr.
Sack received his Master's degree in psychology and his doctorate
in behavioral science. He is a master expert polygraphist and
admitted that he had never attempted a validation process with a
young child although he had conducted thousands of interviews
with and without a polygraph device to demonstrate veracity, and
of those approximately 1,000 had to do with sexual abuse.
Additionally, he had interviewed 12-15 children under the age of
12 years.
Dr. Sacks interviewed Mandi once on April 25, 1991. The expert
testified that Mandi told him that she played "secret touch" with
the respondent; that while playing, the respondent, her father,
put her on a bed with her clothes off and touched her "peer" with
his hands. She stated that Daddy told her not to tell anybody
what had happened. The interviewer additionally stated that when
Mandi told him to stop touching her, her father said, "I'll do
what I want". Dr. Sack concluded that Mandi was sexually abused
by her father. On cross-examination, Dr. Sack stated that he was
familiar with the S.A.I.D.[fn*] Syndrome symptomized by a recent
separation or divorce, hostility between the separating parents,
and disclosure by the child of sex abuse to one parent. The
expert was aware that many false allegations have been made and
they are most common when the above factors are present.
Nori Shannon, the preschool teacher of Mandi, testified that
Mandi was happy in her father's company and that she observed no
fear between the child and the father during her observations of
them from July through October 1990.
Neither the probation officer nor the certified social worker
in the mental health clinic observed any fear of the father by
the child.
DECISION AND ORDER
In applying the law to the facts of the case before it, the
court has considered all of testimony and exhibits adduced at the
hearing together with a lengthy Law Guardian's report which
recommends that full custody of Mandi be placed with her father
and that the mother have liberal visitation privileges.
The court is faced with a dilemma that often confronts a jury
or Judge, i.e., experts have rendered diametrically opposed
opinions. The consequences of this court's decision to Mandi are
potentially enormous. If she is placed with her mother, and the
father limited or excluded from having contact with her, when in
fact he has done her no harm, then a tremendous injustice
results. If custody is placed with the father, and he has
sexually abused her, an equal injustice with a potential for
future harm ensues.
In coming to its conclusion, the court found the following
factors to be significant:
Shortly after the alleged abuse was disclosed to the mother,
Bette Malachowski, a trained therapist familiar with the
validation technique, conducted three separate interviews with
the child and concluded that no abuse had taken place. She
furthermore was suspicious of the mother's motivation and stated
that in her report. When Ms. Malachowski testified many months
later, she reiterated those concerns, and after having read Dr.
Sack's report while on the witness stand, recalled that the
mother had made an almost exact verbatim statement to her that
was attributed to the child in Dr. Sack's report. While Dr. Sack
impressed the court with his knowledge of verification techniques
and syndromes extant when sex abuse is alleged, less weight was
given to his report and testimony since he only had one interview
with the child which occurred many months after the alleged
incident or incidents.
"Children who have experienced bona fide sexual abuse generally
have a fairly clear visual image of the experience and recall it
fairly clearly when asked to do so. The lack of such an internal
visual-mental image clearly differentiates the fabricator from
the child who has been genuinely abused. And this difference
results in the fabricator's difficulty in providing specific details of the event(s) when asked to do so * * * When
asked to provide details, the youngster is either unable to do so
or creates a scenario for the purposes of the interview. However,
in subsequent interviews a different scenario may be presented.
It is common knowledge that no one's memory is good enough to be
a good liar and children even less so. In contrast, the child who
has suffered bona fide sexual abuse will usually provide specific
details, and they will be consistently the same on subsequent
interviews." (Gardner, The Parental Alienation Syndrome and the
Differentiation Between Fabricated and Genuine Child Sex Abuse,
at 110 [1987].)
Mandi's descriptions of sexual activity between herself and her
father vary considerably depending upon whether she was talking
to social services caseworkers and Jan Carter, all of whom were
perceived to be friends and former working associates of her
mother, and professionals such as Bette Malachowski, Dr. Larry
Horowitz and Dr. Sack. The closest thing to consistency was the
child's statement to Dr. Sack which was almost a verbatim
recitation of what the mother had told Bette Malachowski seven
months earlier. It was Dr. Sack, on cross-examination, who stated
that the child may identify with and parrot the parent she is
most bonded to.
"The child who is fabricating sexual abuse generally does not
describe fear of the perpetrator and is usually free from tension
in the perpetrator's presence." (Gardner, op. cit., at 115.)
There was no credible testimony to suggest that the child was
afraid of her father and in fact the testimony suggested a
relaxed and warm relationship.
"Sexually abused children may talk frequently about sex, to the
point of obsession. They may be preoccupied with the desire to
play sexual games with other children (especially exhibitionistic
and voyeuristic) and/or may become compulsive masturbators
(privately and publicly). They may become preoccupied with doll
play in which sexual encounters (especially their own) are
portrayed. In contrast, children who are fabricating sex abuse
generally exhibit no such preoccupation with sex — other than at
those times when they are asked to describe the scenarios related
to the sexual encounters with the alleged perpetrator." (Gardner,
op. cit., at 116.) There was no testimony to suggest that Mandi
had any awareness of her sexuality nor had become involved in any
sexual activity.
Dr. Gardner also suggests that children who have been
genuinely sexually abused are often depressed, withdrawn,
compliant, are regressive and may suffer from psychosomatic
disorders together with other factors that he considers important
in differentiating the fabricator from the bona fide victim.
(Gardner, op. cit., at 118-124.) Of significance in this case
is the element of chronicity. Dr. Gardner states "By the time
bona fide sex abuse comes to the attention of others, it may have
been going on for a long period. Fabricating abusers more often
describe only one or two experiences, which is deemed to be
enough for the purposes of the litigation." (Gardner, op. cit.,
at 122.) None of the adults to whom Mandi made disclosures could
conclude with any certainty that Mandi was describing one or more
than one experience.
In addition to the above factors, the court had the unique
opportunity of observing the demeanor of all witnesses who
appeared before it and concludes that the testimony of the father
is more credible than that of the mother. The mother remained
stoic through six days of trial including the time that she was
on the witness stand.
The court also concludes as did Bette Malachowski and the Law
Guardian that it is likely that the mother programmed her
daughter to accuse the father of sexually abusing the child so
that she could obtain sole custody and control or even preclude
any contact that the father might have with his daughter.
In the opinion of this court, any parent that would denigrate
the other by casting the false aspersion of child sex abuse and
involving the child as an instrument to achieve his or her
selfish purpose is not fit to continue in the role of a parent.
In the case before the court, Karen B. has sought to destroy
the reputation of her former friend and lover by accusing him of
one of the most heinous crimes known to man. The aura of the
allegation, irrespective of its falsehood, may stand over him and
affect him for the rest of his life. Likewise, by involving her
own daughter in her nefarious scheme, she may have inflicted
irreparable psychological damage on her. Like Medea, she is ready
to sacrifice her child to accomplish her selfish goal.
Considering the totality of circumstances surrounding these
parties and their daughter, the court finds that it is in the
best interests of Mandi that her custody be placed with her
father.
As the court has no assurance that the mother will not continue
to "brainwash" or "program" Mandi, petitioner shall have no
visitation nor contact with her daughter. That prohibition is to
continue until the court is satisfied that the parties comprehend
the magnitude of what has happened and that no further danger is
presented to the child. To that end and with the hope that a more
normal relationship will develop between the parties and the
child and with each other, the Probation Department of Fulton
County is directed to formulate a program including, if
necessary, psychological or psychiatric consultation and
treatment for all members of the family. The Probation Department
shall advise the court in writing within 30 days from the date of
this order of the program and shall thereafter inform the court
in writing every month for a term of six months as to whether or
not the parties are complying with its directives. If the
Probation Department determines that visitation between the child
and mother should commence, it shall so notify the court with its
proposal.
All petitions alleging family offenses or violations of
temporary orders of protection are dismissed for failure of
proof.
[Portions of opinion omitted for purposes of publication.]
[fn*] Sex Abuse In Divorce.
MATTER OF KAREN v. CLYDE, 197 A.D.2d 753 [3d Dept 1993]
602 N.Y.S.2d 709
In the Matter of KAREN PP., Appellant, v. CLYDE QQ., Respondent.
Appellate Division of the Supreme Court of New York, Third Department.
October 21, 1993
Appeal from the Family Court of Fulton County (Jung, J.).
Cardona, J.
The parties, who were never married, resided together for about
a year when Mandi was born on September 7, 1986. Due to their
pending separation, the parties agreed to a joint custodial order
on July 23, 1990. On September 14, 1990 petitioner commenced this
proceeding requesting sole custody and supervised, if any,
visitation for respondent, alleging sexual abuse of the child by
respondent. After a lengthy fact-finding hearing with various
expert testimony, Family Court found that it appeared that the
allegations of sexual abuse were fabricated. The court ordered
that respondent have sole custody of Mandi with no visitation to petitioner until the
Probation Department set up counseling for Mandi and the parents
and made a recommendation to the court.
Respondent argues that this appeal is moot due to a subsequent
custody proceeding initiated by petitioner. We disagree. There is
nothing before this Court which indicates that a final
determination has been made in that proceeding which would render
this appeal on the issue of custody meaningless (cf., Matter of
Baraby v. Baraby, 186 A.D.2d 890, 890-891).
Petitioner's contention that she was not provided adequate
assistance of counsel is not supported in the record. Her counsel
exhibited "`reasonable competence'" and the trial was not a
"`mockery of justice'" (Matter of De Vivo v. Burrell, 101 A.D.2d 607,
608). Because meaningful representation was provided,
petitioner was not deprived of her constitutional right to
effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137).
Petitioner further contends that the award of sole custody to
respondent and denial of visitation to her is not in the best
interest of the child. It appears from this record that
subsequent to the order denying visitation, Family Court modified
that order to afford petitioner visitation so determination of
that issue on this appeal will not be considered. The granting of
sole custody to respondent is supported by a sound and
substantial basis in the record and is in Mandi's best interest
(see, Matter of Daniel R. v. Noel R., 195 A.D.2d 704, 706; Matter
of Cochran v. Cochran, 177 A.D.2d 818, 819). Family Court found the
record essentially devoid of credible evidence that the child had
been abused by respondent. Family Court properly exercised its
discretion in weighing the conflicting testimony. The court found
that, to the detriment of Mandi, petitioner had programmed the
child to make the sexual abuse allegations in order to obtain
sole custody and deny access to respondent. Because Family Court
had the advantage of viewing the witnesses and hearing their
testimony firsthand, its determination is entitled to great
deference (see, Matter of Williams v. Williams, 188 A.D.2d 906,
907; Matter of Katherine D. v. Christine D., 187 A.D.2d 587, 588,
lv denied 81 N.Y.2d 709). The fact that Family Court made
reference to a book regarding parental alienation syndrome that
was neither entered into evidence nor referred to by any witness
is not a ground for reversal, especially in light of all the
testimony elicited at the hearing.
Weiss, P.J., Mercure, Mahoney and Casey, JJ., concur. Ordered
that the order is affirmed, without costs.