Waters v Blaine
Annotate this CaseDecided on March 29, 2017
Supreme Court, Renssel¦r County
Nicole Waters,[FN1] Plaintiff,
against
David Blaine, Defendant.
V-xxxxx-16
Copps DiPaola, PLLC
(by Lauren L. Hunt, Esq.)
Attorneys for Petitioner
E. Stewart Jones/Hacker Murphy
(by Joyce M. Galante, Esq. and James C. Knox, Esq.)
Attorneys for Respondent
Albert P. Kolakowski, Esq.
Attorney for the Child
Catherine Cholakis, J.
The trial of this bitterly contested custody case consumed twelve (12) days of testimony and an in camera interview of the subject child. Seventeen (17) exhibits were marked for identification on the mother's case; fourteen (14) were admitted into evidence. The father's eight (8) exhibits were all admitted into evidence. Some of these exhibits are voluminous: Petitioner's Exhibit A, for example, is the entire Child Protective Services (CPS) case file, admitted into evidence on petitioner's case. It consists of hundreds of pages of material. Similarly, [*2]Respondent's Exhibit 8 is a copy of a six- (6) hour video recording of the father's supervised visit with the child on September 25, 2016.
The testimony of the mother's ten (10) witnesses and the father's five (5) witnesses gives differing perspectives on " and sometimes different versions of " the facts. The credible components of the evidence adduced at this lengthy trial are recounted in the Findings of Fact. The more glaring discrepancies are analyzed later in the Discussion section of this Decision and Order. Conclusions of Law are then drawn. From these are distilled the final ordered paragraphs.
Findings of Fact:
The mother is thirty-four (34)-year-old Nicole Waters. She was born as a result of the rape of her mother by her mother's step-father. The step-father had begun sexually abusing Nicole's mother when she was ten (10) years old. She became pregnant with Nicole at age seventeen (17). The step-father was arrested, convicted and imprisoned.
Nicole's mother was unable to provide a stable childhood for her daughter. When Nicole was fifteen (15) years old, her mother's husband sexually abused her. This led to Nicole's in-patient psychiatric treatment at Four Winds Hospital. Upon her release, Nicole continued treatment and schooling through the Pathways Program of the Capital District Psychiatric Center in Albany. Nicole's grandmother, Barbara Cooper, a pediatric nurse, took over the role of parent. Nicole's mother wandered about, had at least one other child, was briefly married to a woman, divorced and eventually disappeared from her children's lives. She now lives in Florida and has little or no contact with her family.
Nicole began abusing alcohol and drugs as a teenager. She used marijuana and became addicted to cocaine. She may have also experimented with heroin. Her only employment was work at a Subway sandwich shop.
At the age of twenty-one (21) Nicole was convicted of Driving While Ability Impaired (DWAI). Her cocaine addiction had also gotten out of control. She ultimately sought treatment at St. Peter's Addiction Recovery Center (SPARC). There she met David Blaine.
David, now thirty-two (32), had grown up in a household with an alcoholic father, Michael Blaine. David's mother, Heidi Blaine, may have been abused by her husband. Their marriage ended in divorce. Michael eventually found sobriety through Alcoholics Anonymous (AA) more than twenty (20) years ago. He has maintained that sobriety, has remarried, and now has a cordial and indeed a close relationship with his former wife. He is also a successful businessman.
David began abusing alcohol and drugs in his teen years as well. He drank very heavily, smoked marijuana and used a significant amount of cocaine. When he was convicted of a misdemeanor marijuana sale offense, he was sentenced to three (3) years of probation. He was forced to remain clean and sober during his probationary period, which he successfully completed without violations. This is what brought him to SPARC.
The parents met in 2007 when both were in recovery. They dated for about six (6) months. They separated when Nicole relapsed, but got back together a short time later.
In 2010 Nicole became pregnant. The pregnancy had not been planned. Nicole and David moved into the renovated basement and garage apartment of Barbara Cooper's raised ranch house. Ms. Cooper was permanently disabled at this point, and had been providing a home [*3]for Nicole and her younger half-brother Anthony.
At this time both Nicole's and David's periods of sobriety were sporadic. Though Nicole was pregnant and still working at Subway, she continued to use marijuana. Though David was employed full-time at a home insulation installation company, he was still drinking.
Bella was born in November 2010. Her meconium tested positive for THC, the active ingredient in marijuana. A CPS investigation followed, but was ultimately unfounded.
David was present at the hospital for Bella's birth. Though the child's birth certificate gives her last name as Blaine, no father is listed. David had given Nicole the necessary paperwork for his name to appear, yet Nicole withheld the documents. She later resisted David's attempts to have Bella's birth certificate amended to list him as her father.
During the child's first years, Nicole was a stay-at-home mother. Later, she resumed working at Subway, with her grandmother providing child care. David continued working his full-time job. While Nicole was the child's primary caregiver, and took the child to all of her doctor's appointments, David played an active role as a parent. He frequently prepared breakfast for the child and brushed her teeth. He accompanied Nicole and their daughter to numerous activities and family gatherings.
Eventually, David began to gain some control over his personal demons. By 2013 he resumed attendance at AA meetings and was actively seeking sobriety. When the company he worked for was taken over by some unscrupulous individuals, David spoke with his father. The two agreed to form a company of their own to install home insulation. Michael Blaine put up the seed money in exchange for ninety-five percent (95%) ownership of the business. David agreed to accept responsibility for the day-to-day management of the business as well as to work in the field estimating jobs and pitching in with the manual labor when workers were absent.
Nicole, however, continued to struggle with substance abuse. She was still drinking to the point of intoxication several times each week. Having been prescribed the stimulant Adderall to control the symptoms of Attention Deficit Hyperactivity Disorder, Nicole would take more than the prescribed dose of the drug. She would then suffer violent mood swings when she ran out of Adderall before she could refill the prescription. At one point, she even went to her doctor with a fabricated story of her prescription having disappeared when her car was towed for a flat tire. The doctor refused to write another prescription, but made a record of the incident in her notes.
Meanwhile, David spent most of his waking hours at work. When he was at home, he would spend hours playing the interactive internet video game Ultima Online. David and Nicole quarreled often and loudly. They argued over Nicole's drinking and drug abuse; they argued over David's excessive video gaming.
One night, Nicole got drunk and walked out of the house. David had work the next morning, so he went to bed. Nicole wandered around the neighborhood for a time. She began walking back home and decided to take a short cut through a neighbor's yard. As she tried to climb over a fence, she stumbled and fell, breaking her wrist.
The following day, David drove Nicole to the emergency room. Her wrist was set in a cast and she was given a prescription for Hydrocodone. The wrist fracture did not heal properly. Nicole was told that she would need surgery to correct the condition. As she had no health insurance, (the premium through her employer would have been seventy-five dollars [$75.00] per [*4]month), she never had the operation. As a result, one wrist bone is abnormally short and Nicole experiences chronic pain.
One night in 2014, Michael Blaine's home office was burglarized. Thousands of dollars of cash and valuables had been taken. Upon investigating, the police determined that there had not been a forced entry and that the burglar must have gained access to the premises with a key. Michael then reached out to the people who he knew had keys to the house, including David. David told his father that he had seen Nicole in possession of a gold-plated magnifying glass that had belonged to Michael's mother.
Michael Blaine then sat down with Nicole and asked her about the theft. Nicole broke down and admitted that she had taken David's key and had stolen the property. She said that she needed money for her prescriptions. She promised to pay Michael back over time. She also agreed to go to AA meetings.
Nicole made exactly one payment of one hundred dollars ($100.00) in restitution to Michael Blaine. She attended two or three meetings of the "Out to Lunch Bunch," the AA group suggested to her by Michael. Beyond this, she did nothing to make up for what she had done or to seek help for the condition that had driven her to commit burglary.
Meanwhile, Bella was growing into a curious, bright youngster. She quickly learned to get her own way by throwing temper tantrums and acting out. While her father's approach was to ignore the child's bad behavior, the mother regularly gave in to it. This only served to reinforce Bella's acting out. If Bella did not want to leave a place where she was having fun, she would throw herself onto the floor, pound her fists and scream. This in turn would get Nicole worked up into a frenzy of her own. On one such occasion, David said to Nicole, "Why are you yelling at our daughter?" For this, he was criticized for being a bad parent.
The time came for Bella to begin preschool. This proved a difficult time for Nicole. She was taking, on average, one and one-half Hydrocodone pills per day. She was also taking Adderall. Unable to sleep, she had also begun taking Ambien. Subject to anxiety, she was also on anti-anxiety medications. On top of all this, Nicole was also drinking during the day and becoming intoxicated several times per week.
A classmate of Bella's once put her hand inside Bella's pants. When Nicole learned of this, her heightened sensitivity to issues of sexual abuse and her impaired judgment from the mix of psychoactive chemicals in her system led her to overreact. She went to the preschool and created such a scene that the police had to be called to defuse the situation.
Nicole's life continued to spiral downward. One night, while driving drunk, she crashed her car into a tree. There was no police involvement. The car was towed from the scene and scrapped.
In 2014 Nicole was involved in a fight with a co-worker at the bar of the Villa Valente restaurant in Wynantskill. This led to her being fired from her job at Subway. She was also arrested for Driving While Intoxicated. This resulted in her conviction for this offense in December 2014. She lost her driving privileges as a result. Rather than have an ignition interlock installed on her car, Nicole opted to take the vehicle off the road.
At the time of her DWI arrest, Nicole told the police that she wanted to kill herself. As a precaution, the police brought her to a local hospital. She was interviewed and released. David picked her up and drove her back to their home.
Throughout 2015, Nicole was unable to drive. This left David as the sole provider of Bella's transportation for school and Saturday dance classes. With no form of transportation and no job, Nicole remained unemployed. This only led to further tension between David and Nicole. Their arguments grew more frequent and louder.
One night in October 2015, the couple's arguing was so loud that it woke Bella. She got up and came out of her room to see her father punch her mother in the face. The next day, Bella told a preschool staff member what she had seen. CPS became involved.
Based upon information received from the State Central Register (SCR), CPS started an investigation into allegations of domestic violence in Bella's presence as well as allegations that Nicole was intoxicated when Bella was in her sole care. A CPS case worker tried to make an unannounced home visit to the family's residence, but no one was home.
CPS case worker Sarah Manning asked both Nicole and David to come to her office for an interview. They arrived together and were interviewed together. They both denied any physical altercation. When the case worker said it appeared that Nicole had covered up a black eye with makeup, both parents denied this. The case worker noted her observations in the case file that same day.
CPS continued their investigation in the ensuing months. During this time, Nicole attempted to befriend one of her daughter's teachers, a Ms. Putnam. When Ms. Putnam told Nicole that she preferred for their relationship to remain strictly professional, Nicole threatened suicide in a FaceBook posting. Ms. Putnam promptly alerted the police.
Two officers appeared at Nicole's door just as David was returning home from work. David asked the officers if Nicole was being taken into custody. When they replied that she was not, David told them that she had nothing to say and suggested to Nicole that she go back into the house. With that, the encounter ended.
For a time in late 2015 it seemed to family members and friends that Nicole and David were getting along better than they had in a long while. Ms. Cooper noticed that their arguing had stopped. Others even claim to have witnessed public displays of affection between the couple.
The peaceful period was short lived, however. David had promised to pay Nicole's DWI fines and administrative penalties as a Christmas present to her. On December 27, 2015, he told Nicole that he was reneging on that promise. She was still drinking; she had failed to do the alcohol evaluation that had been mandated by the sentencing Court; and she had done nothing to accept responsibility for her actions and change the situation. The argument grew heated. David said that the best course of action for them was to separate. He suggested that he get his own place to live and that he and Nicole work out a "shared custody" agreement by which they could split their time with Bella "50/50."
Other pressures mounted on Nicole. On Thursday, December 31, 2015, a CPS case worker telephoned Nicole at home. The case worker said she wanted to do a followup home visit. As the case worker reported in her notes, Nicole was upset that she could not simply come to CPS headquarters for a meeting. The call ended with the case worker's telling Nicole that they would speak face-to-face the following week.
On Monday, January 4, 2016, Nicole left David at home with Bella some time around 6:30 pm. Nicole had arranged to work out at the Planet Fitness gym with a friend. David was [*5]sitting at his bedroom desk and playing on his computer. Bella was in the room with her father.
Though it was earlier than Bella's usual bedtime, the child had fallen asleep on the bed. David stepped away from his computer long enough to carry the child into her own room and put her on her own bed. He closed the door, went back into his room and continued playing his video game.
That David was oblivious to his surroundings as he played on his computer is clear, as he did not hear Nicole when she returned home from the gym at around 8:00 that evening. That Bella was not sleeping when her mother came home is also clear, as Nicole found the child awake in her bedroom. Only Bella knows what she was doing between the time her father closed the bedroom door and when her mother opened it later on.
What we do know is that Bella had previously learned to explore her own body. We also know that, prior to that evening, Nicole had become upset when she found Bella in bed rubbing her crotch and moaning. What will never be known is whether Bella engaged in any otherwise harmless self-gratification as she lay alone in her room while her mother was out of the house and her father was absorbed in his video game.
When Nicole came into Bella's room, the child asked her mother to give her a bath. As Nicole usually had difficulty getting her daughter to bathe, this seemed like an odd request. Nicole asked Bella why she wanted a bath. Pointing to her crotch, Bella replied, "It hurts down there."
It would be reasonable to infer that at this point Nicole started to become emotional. It is also reasonable to infer that Bella could readily sense that her mother was becoming emotional. For when Nicole asked Bella to tell her what had happened, Bella's reply was, "Mommy, you'll be mad." Nicole reassured the child, telling her that Mommy wouldn't be mad if Bella told her "who did this to you."
The five (5)-year-old, who feared her mother's temper, was told that her Mommy wouldn't be mad if the child blamed someone else for the current situation. So the child named the only other person in the household and said, "Daddy did it." Nicole then asked the expected followup question, "What did Daddy do?" The child replied with something like, "He touched my hiney," using the word Bella associates with her vaginal area.
If Nicole is taken at her word, she did not ask any further questions of the child. Instead, she telephoned her grandmother upstairs to tell her that Bella just "said some crazy things" and to ask her to talk to Bella herself. Nicole then sent the child upstairs to Ms. Cooper's home.
Ms. Cooper greeted her great-grand-daughter with a few pleasantries. She then asked her what was the matter. Bella repeated what she had told her mother, saying more or less that her father touched her private parts. Ms. Cooper did not inquire further, but diverted the child's attention until Nicole arrived. The two women agreed that Nicole and Bella would spend the night upstairs while they figured out what to do next.
David was apparently oblivious to all this. He finally finished playing his video game and went to bed. As he and Nicole had been sleeping separately for some time, he was unaware that anything was amiss.
The next morning, as David was leaving for work, Bella came running out to him. She wrapped herself around his leg and said, "Daddy, please don't leave." David noted that this was uncharacteristic of his daughter but still suspected nothing. He told the child not to worry and [*6]that he would be home after work.
At some point that day, Nicole placed a call to Bella's pediatrician. It was answered by a service. Later that day, someone from the doctor's office returned the call. Nicole related what had happened the evening before. She was advised to take Bella to the emergency room. She did not. Instead, she and the child remained in Ms. Cooper's home and spent the next night there.
On January 6 Nicole ultimately brought Bella to the emergency room at St. Mary's Hospital. Bella was examine by a Sexual Assault Nurse Examiner (SANE). The child reported that her father rubbed her private parts. The child described the act by placing her two hands side-by-side, palms facing her, and moving her hands in an up-and-down motion.
CPS and the East Greenbush Police Department became involved. Bella was brought to the START Children's Center in Troy for a forensic interview. Though the START Center has an interview room equipped with audio and video recording capability, and though the START Center's own experts admit that recording such an interview would comport with "best practices," the interview was not recorded. No reason for this decision was given.
The interview was, however, viewed on closed circuit television by a CPS case worker and a detective. In the interview it was clear that Bella could not differentiate between the truth and a lie. She did, however, say, "Daddy touched my hiney." The details surrounding the incident, though, differed from those given to the SANE nurse and appeared inconsistent. From this, some of the experts concluded that the child was describing multiple incidents of sexual abuse. Unfortunately, since the interview was not recorded, there is no way to recreate the precise wording of the questions asked, the number of times questions may have been repeated, or the precise wording of the child's responses. Nor was there any record made of the child's demeanor during the interrogation.
Meanwhile, Nicole and Bella spent several nights at a hotel. Nicole did not answer David's multiple telephone calls. She gave evasive answers to his text messages. David spoke with Ms. Cooper and asked her if he should file a missing person report. Ms. Cooper told David that everything was alright and that he should not worry.
On January 8, 2016 Nicole filed emergency custody and family offense petitions. Ex parte testimony was received from Nicole. The Court issued a temporary order of protection in favor of the child and ordered David removed from the residence.
After David's removal, Nicole and Bella returned to their home. East Greenbush Detective Elaine Roberts and a CPS case worker came to the residence so that Roberts could interview the child herself. During the course of the interview, the case worker noted that the child repeatedly looked toward her mother before answering the detective's questions. The case worker drew the inference that the child had been coached by Nicole. The detective, however, noted none of this in her report. Only the case worker's notes reflect this observation.
Later in January 2016 CPS issued an indicated report of inadequate guardianship against David Blaine due to evidence of domestic violence committed in front of the child. Despite the fact that David had been removed from his residence, CPS mailed the notice of their indicated finding to David at his prior address. At the same time, CPS determined that the allegations of inadequate guardianship against Nicole due to alcohol abuse while responsible for the child were unfounded.
In March 2016 the Department of Social Services (DSS) filed a neglect petition against [*7]David based on the allegations of sexual abuse. This was later superseded by an abuse petition. David was also arrested by the East Greenbush Police and charged with felony sexual abuse and endangering the welfare of a child. He was released to probationary supervision at arraignment.
Both parents appeared with counsel in Family Court. Though initially represented by the Conflict Defender, Nicole retained the first in a succession of private attorneys. David is represented by retained counsel for the civil and criminal matters. David filed an answer and cross-petition for custody of Bella. All the civil cases as well as the criminal action were eventually removed to the Integrated Domestic Violence (IDV) Part of Supreme Court, Renssel¦r County.
Prior to the first appearance of the parties before the Court, an attorney for child (AFC) was appointed for Bella. At the initial appearance of all parties on January 13, 2016 David's counsel and the AFC joined in an application for an order directing that the child have access to her father through agency supervised visitation. The Court granted the application and directed that Jewish Family Services (JFS) provide supervised visits.
The JFS intake process was delayed due to a misunderstanding. David was under the mistaken impression that the parents were each to be responsible for their own intake fees. Instead, David was to be responsible for payment of both his and Nicole's intake fees. The problem was ultimately resolved, yet even after David paid the fees, it was not until the filing of a violation petition that Nicole completed the intake process. The first supervised visit was scheduled for February 22, 2016.
Nicole brought Bella to JFS for the fist visit. Staff noted that Nicole was "very emotional prior to the visit, which may have impacted upon the child." They also noted, though, that Nicole did "encourage [the] child to participate in [the] visit." Bella was hesitant, but did agree to a brief visit with her father. David tried to engage his daughter; she was noted to be "quiet, reserved [and] unsure whether she wished to continue the visit." After fifteen (15) minutes, the visit ended.
A second visit was scheduled for February 29, 2016. Ms. Cooper and Bella's uncle Anthony brought her to JFS. The child was visibly upset and refused to visit with her father. She told the visitation supervisor that she was afraid that her father would touch her again. The supervisor explained the situation to David and noted in his report that "[the] father handled [the] situation appropriately."
On March 2, 2016 Nicole called JFS and reported that several members of David's family had been sitting in a car in the JFS parking lot at the time of the February 29 visit. On March 3, 2016 JFS received a telephone call from a police officer who was investigating Nicole's complaint that David's relatives were in the lot. Though nothing illegal had taken place in the lot and despite the absence of any written guideline prohibiting family members from waiting outside, JFS decided to suspend future visits.
At the next Court appearance, supervised visits were ordered to resume. JFS reached out to Nicole on April 28 to schedule future visits. She told them that the previous time slot was no longer open for her. On May 2 Nicole telephoned JFS and said that she could accommodate resumed visits beginning on May 9, 2016.
On May 9 Nicole brought Bella to JFS. In the child's presence, she berated the staff and accused them of "tricking" Bella into visiting with her father and "brainwash[ing her] to think [*8]what he did was ok." Despite this, Bella agreed to visit with her father. The two of them enjoyed a pleasant visit, with David having arranged for an Easter egg hunt and other activities.
On May 13 Nicole telephoned JFS to cancel the visit that was scheduled for May 16. Nicole claimed that she thought the May 9 visit was the only visit that had been ordered. She said she did not know that the visits had been scheduled on a weekly basis.
A pretrial conference attended by all parties and counsel was held on May 19, 2016. At that conference, the AFC telephoned JFS. On consent of all, they arranged for visits to continue on Thursdays from 1:30 to 2:30 pm beginning on May 26.
At the May 19 pretrial conference, facilitated by the Court's law clerk, a number of issues was discussed.[FN2] The law clerk asked the father if he would consent to an examination of his computer, as it was alleged that the father was on his computer when the alleged abuse of Bella took place. As noted by DSS counsel, the father promptly consented. The Assistant District Attorney present at the conference immediately telephoned the East Greenbush Police Department and arranged to have the computer seized. The law clerk suggested that a penile plethysmograph test could be administered to the father to determine if he was sexually aroused by pre-pubescent girls. The father promptly agreed to this as well.
The supervised visit scheduled for May 26 did not take place due to an illness on the part of a JFS staff member. Nicole canceled the visit scheduled for June 2 because Bella had a rash. Nicole also canceled the visit scheduled for June 9 for the same reason, even though records show that Bella's doctor noted no visible rash on June 8. Nicole canceled the visit scheduled for June 16 and told JFS the reason was that David was to have a visit as part of the forensic interview process. Nicole canceled the visit scheduled for June 23. She said that her forensic interview conflicted with the supervised visit, despite the fact that the two events were hours apart. JFS then terminated all future visits due to the string of cancellations.
At a subsequent Court appearance, the question of whether Nicole was actively seeking to alienate Bella from her father was openly discussed. The AFC had been skeptical all along of the allegations of sexual abuse by David. The AFC was aware that Nicole had previously alleged that Bella had been sexually abused at a day care center. The AFC had also been told that Nicole had previously claimed that her half-brother Anthony had sexually abused Bella. The AFC argued that the pretextual cancellation of multiple visits at JFS demonstrated a pattern of conduct intended to prevent the child from having a relationship with her father.
The Court determined that it was in Bella's best interest to have contact with David. As the allegations against him were serious, however, it was appropriate that any such contact be supervised. Since Nicole had thwarted agency supervised visits, the Court ordered that David have weekly visits supervised by Heidi Blaine, Bella's paternal grandmother.
David's first of these supervised visits with Bella seemed to go very well. After the second visit, however, Nicole reported that Bella told her that her father promised he would not touch her "hiney" any more. Both Heidi and David Blaine vehemently denied that any such statement had been made.
David had a supervised visit with Bella on Sunday, September 25, 2016. That night, after [*9]Bella was brought home by Ms. Cooper and her uncle Anthony, Nicole called CPS and claimed that the child told her, "Daddy did it again." Nicole went on to say that Bella said her father "touched [her] hiney" and "Daddy put his fingers inside me." Within a short time, CPS, the East Greenbush Police Department, the District Attorney and the START Center were mobilized to investigate.
The child was subjected to another SANE examination. The child was brought to the START Center for another forensic interview. This time, the interview was conducted by Renee Daniels, the director of the facility. Again, despite best practices dictating that the interview should be recorded, it was not. It was, however, displayed on closed circuit television to a number of witnesses, including Detective Roberts, an ADA and a CPS case worker. Though every one of the professionals involved knew that Bella had an attorney, the AFC was not informed of the interview of his client.
The interrogation of the five-year-old lasted well over an hour. Ms. Daniels led the child through a rambling, self-contradictory story punctuated repeatedly with "I don't know" or "I don't remember" or "I don't want to talk about it." Undeterred by these responses, Ms. Daniels forged ahead. Bella described a single incident that took place first at her house, then at her father's house and finally at her grandmother's house. She said she was taken into a bedroom by her father while her grandmother was watching TV. She said her father removed her pants and panties and put his fingers inside her. She said she screamed out for her grandmother. She said that her father then closed the door. She said when it was over she ran to her own house. Then she said she ran to the bathroom. Then she said she got dressed in the bathroom. Then she said she was driven home.
On Wednesday, September 28, 2016, Nicole and her counsel filed emergency petitions seeking to terminate all access between the child and her father. In these petitions, verified by Nicole and certified by her counsel, Nicole alleged, among other things:
On September 25, 2016, Respondent was exercising supervised parenting time with the child. During this parenting time, which was to be supervised by his mother and/or Jenna Blaine, the child and Respondent took a "nap" in a bedroom that was not the child's. the child reported that the "nap" took place on Respondent's bed with Respondent being in bed with her. After the "nap," and while still alone in this room with the child, Respondent removed the child's underwear and inserted one or more of his fingers into her vaginal area for his own sexual gratification. The child told Respondent to stop. Eventually, the child was able to get out of the room. When the child was returned from the parenting time, the child's grandmother [sic] picked her up at the exchange point. The child was upset upon entering the grandmother's [sic] car. She balled up her fists and was visibly upset. The child continued to be upset throughout the brief car ride. The child returned to her Mother's house and continued to be upset. After the child was upset for some time, the Mother asked her what was wrong. The child stated that "daddy did it again." The child then disclosed that "daddy touched my hiney." The Mother did not question her further but called her grandmother " who is a pediatric nurse " and asked her grandmother to speak with the child. The child went to speak to the grandmother. The Mother contacted the child's therapist using the emergency contact information and the child's primary care physician also using emergency contact information. Both the [*10]therapist and the physician stated that the Mother should take the child for a SANE evaluation. The Mother did so. The evaluator interviewed the child alone during this evaluation. The child reported to the evaluator that her Father had placed a finger or fingers inside her vagina . . . .On the day these petitions were filed, the Court temporarily suspended the JFS supervised visit that had been scheduled for later that day. The Court also directed that all parties and counsel appear the following morning. The matter was calendared for an appearance on September 29, 2016.
At that appearance, counsel for DSS reported that the experts involved in the investigation had found the child credible. The Court gave the father's counsel the opportunity to be heard. Counsel related that her client had feared that an incident like this might occur and, as a precaution, had equipped himself with a high-definition, police-grade body camera. Counsel then produced a thumb drive which, she said, contained the video and audio record of the entire visit of September 25, from start to finish. The Court directed that all counsel were to view the video recording that day in the courthouse. The recording shows definitively that absolutely nothing inappropriate occurred between Bella and her father on the day in question. Instead, the recording memorializes an enjoyable day spent with child, father and grandmother together. Toward the end of the video, the child "high five's" her father and grandmother and can be seen skipping across the parking lot toward Ms. Cooper's car.
At this time, the Article 10 trial was pending. DSS had rested its case. The Court had denied, in a written decision and order, respondent's motion to dismiss. The matter had been adjourned for further testimony. Shortly after the events of the week of September 25, 2016, however, DSS counsel withdrew its petition. The District Attorney had previously reduced the felony charge to a misdemeanor and ultimately moved for withdrawal and dismissal of all charges.
On September 29, 2016 the Court issued an order from the bench directing that temporary custody of the child be awarded to Heidi Blaine, with both parents to have their access supervised by her and, concomitantly, by JFS. Transfer of the child to the paternal grandmother was arranged through the East Greenbush Police Department to occur that evening. The transition occurred without incident.
The trial of the remaining petitions commenced on October 19, 2016. Fifteen (15) witnesses testified: ten (10) for the mother, five (5) for the father. While the above findings are based on the credible portions of the testimony and evidence adduced at the trial, it would be appropriate to provide a brief synopsis and analysis of some of the testimony given, witness-by-witness.
The mother's first witness was her friend Donna Collins. Ms. Collins is married to the former wife of Nicole Waters's mother. Ms. Collins has a twelve (12) year-old son Dominic who often spends time with the subject child of this proceeding.
Ms. Collins testified that she holds a bachelor's degree in psychology and has had specialized training in domestic violence. She worked for Unity House, a local provider of community services, including domestic violence advocacy, from 2001 to 2004. Now disabled by the terminal condition gastroparesis, Ms. Collins has not worked since 2013.
Ms. Collins testified that, over a period spanning about six (6) years, she saw Nicole on [*11]approximately sixty (60) separate occasions. During this time, according to her testimony, she "worked with Nikki on an informal basis." Ms. Collins claimed that on "a third of the time that [she] saw [Nicole]" she had visible bruises on various parts of her body.
Ms. Collins testified to having seen Nicole's legs "covered with bruises." She described the sight as "overwhelming" and "frightening." She described facial discoloration that she said she observed running from Nicole's forehead to her neck. She described bruises "bigger than a grapefruit" that were "dark purplish" in color.
Ms. Collins testified that when she first asked Nicole why she was covered with bruises, Nicole responded that she was "klutzy." Later on, however, Nicole told her that David regularly battered her. Yet at no point over these years of observing this evidence of domestic violence did it occur to Ms. Collins, a trained professional in domestic violence issues, to relay any of her observations to the appropriate authorities. Instead, according to Ms. Collins's own testimony, she asked David to help young Dominic in his football training. While David agreed to accept this responsibility, Ms. Collins testified that David reneged on his commitment and never even attended one of Dominic's practice sessions.
Much of the rest of Ms. Collins's testimony was dedicated to detailing what she perceived as David's lack of parenting skills. One of the arrows in her quiver, for example, was how she found "shocking" (her word) that David only brought two (2) gallons of punch to Bella's fifth birthday party despite the fact that more than forty (40) guests had been invited. Another was her testimony of how David criticized Nicole for having yelled at Bella when the child threw a temper tantrum.
Ms. Collins did testify to what would, under ordinary circumstances, appear to be a positive aspect of the parents' relationship. She told of a gathering at her home on January 3, 2016 at which Nicole, David and Bella were in attendance. Ms. Collins described the two adults as "getting along well." She found this "surprising," particularly when at one point Nicole sat on David's lap. Ms. Collins contrasted the feelings evoked by this scene with the usual sense of "uncomfortability" (again, her word) that the couple's presence together usually engendered.
It is ordinarily to be expected that a witness called to testify for a friend might shade her testimony in a way that would favor the party who called her. Here, though, Ms. Collins's testimony strayed beyond the vague boundaries of what might charitably be called "spin" and has entered into the dark realm of what is currently euphemized as "alternative facts." The substance of Ms. Collins's testimony seemed carefully tailored to bolster the allegations of Nicole's September 28, 2016 petitions. Moreover, this witness's demeanor and tone on the stand had such an edge that the ineluctable conclusion to be drawn was that she would say whatever would cast David in an unfavorable light.
Perhaps the most telling proof of Ms. Collins's lack of credibility comes from the unanswered questions left behind in the wake of her testimony. Why would a trained domestic violence advocate who is also a trusted personal friend choose not to report the neglect of Bella evinced by David's persistent, violent battery of Bella's mother? Why would Dominic's step-parent even consider the possibility of inviting a batterer to be a male role model for her stepson by asking him to help the boy in football?
This Court clearly understands that many otherwise decent people frequently fail to recognize that domestic violence is criminal conduct that has serious and often indelible impact [*12]on children. It is impossible, however, to place Ms. Collins into this category. By her own testimony, she holds a bachelor's degree in psychology. By her own testimony, she has had specialized training in domestic violence. By her own testimony, she worked for years at an agency that provides counseling, representation and support to victims of domestic violence and their families. It is therefore impossible to credit her testimony that for years she witnessed physical evidence of domestic violence on the body of a friend, the daughter of her wife's former spouse, and yet remained silent.
In contrast, the testimony of Barbara Cooper, Bella's maternal great-grandmother, was refreshingly candid and generally credible. In her mid-seventies and in frail health, Ms. Cooper conceded having trouble remembering things. She openly admitted that her doctor had referred her to a neurologist but that she had not followed through with this advice.
Ms. Cooper provided evidence that Bella had told her, on the night of January 4, 2016, that David had "touched her hiney." When asked about the child's affect as she was relating this information to her great-grandmother, Ms. Cooper testified that the child was not crying and that "Bella's very hard to read." Ms. Cooper also testified that, other than Bella's having said that the touching occurred "underneath" the chid's clothing, there were few additional details given of the alleged sexual assault.
Ms. Cooper also recounted having heard frequent loud arguments between Nicole and David. She also testified to having seen bruises on Nicole. She added, though, that it was not until the incident of October 2015 that Nicole ever claimed that David had struck her. In addition, Ms. Cooper did testify to David's interactions with Bella at family gatherings. She gave details, such as describing how David participated in an Easter egg hunt with the child and how he helped her open presents on Christmas morning. These descriptions given by Ms. Cooper, which were obviously favorable to David, are the touchstones by which her testimony can, in the main, be credited as truthful.
Of particular note here is that the mother's counsel did not ask Ms. Cooper a single question relative to the incident alleged to have occurred on September 25, 2016. Ms. Cooper was in the car when Bella was picked up at the end of that visit. Nicole's petition claims that Ms. Cooper witnessed Bella's alleged distress. Nicole's petition also claims that Ms. Cooper spoke to Bella after she allegedly reported the sexual abuse that supposedly occurred earlier that day. Yet none of her direct examination involved any of the events of September 25, 2016. Indeed, when the father's counsel attempted to ask about the events of that day, the mother's attorney forcefully objected. The implications of this are clear: Ms. Cooper was not expected to lie, and whatever Ms. Cooper might have said about the September incident would not have been favorable to Nicole.
The mother also called Jessica Lansky, her licensed mental health counselor to whom Nicole had been referred by St. Peter's Hospital as a "secondary victim" of sexual abuse. Ms. Lansky offered testimony that Nicole was engaged in her treatment and that she readily admitted her past substance abuse history. Ms. Lansky, who testified that she provided therapy without diagnosis, went on to say that Nicole had reported two incidents in which David had physically abused her, one of which led to a black eye. Ms. Lansky also testified that Nicole was afraid of David and was worried for her daughter's safety.
Renssel¦r County DSS case worker Ashley Mook also testified for the mother. Ms. [*13]Mook was assigned to investigate the October 8, 2015 SCR reports regarding both allegations of domestic violence in Bella's presence as well as erratic behavior on Nicole's part. Ms. Mook, with a mere three (3) years of experience and six (6) weeks of training, chose to meet with Nicole and David together at DSS headquarters. This interview might well have been more fruitful had Ms. Mook opted to speak to the parties separately. As it turned out, both parties denied any physical attack on Nicole. When Ms. Mook suggested that it appeared that Nicole was trying to cover a black eye with makeup, both parties denied this as well. Unfortunately, Ms. Mook did not photograph Nicole's face as evidence of domestic violence in the household.
Ms. Mook was the foundation witness through which Nicole's counsel offered the entire CPS case file into evidence. Ms. Mook was questioned about some of the inconsistencies in the way this matter was handled by CPS. For example, the case file is replete with notes suggesting that Nicole was "mentally unstable." Ms. Mook's investigation showed that Nicole, who admitted to the 2015 DWI and to having gone out drinking with friends on October 8, 2015, was using the prescription drugs Adderall, Lortab and Ambien. Yet, more than three (3) months after the investigation was begun, DSS determined that the allegations against Nicole were unfounded while at the same time those brought against David were indicated. Even the timing of these determinations is suspect, as they were made months after the investigation had begun but only days after the allegations of sexual abuse against David were leveled. The obvious suggestion was advanced by David's counsel that DSS may have been looking to shore up its abuse case against David by indicating their report against him while concurrently labeling unfounded the report against Nicole, a critical witness in the case against David.
Margaret Edward also testified for Nicole. Ms. Edward, a mental health counselor with Renssel¦r County Mental Health, has a 1998 MSW and a 2013 LCSW. She was asked by DSS to perform a mental health screening of Nicole. Based exclusively on Nicole's self-reporting, Ms. Edward opined that Nicole was experiencing situational depression and anxiety as a result of the pending Court proceedings.
Ms. Edward's file was admitted into evidence without objection. A review of it discloses that Nicole was less than truthful with Ms. Edward in the evaluation. For example, Nicole stated that her mother was "in and out" of her life and that she had "no contact" with her father. Yet apparently Nicole failed to mention that her biological father was her step-grandfather who had raped her mother.
Similarly, on one diagnostic questionnaire, Nicole answered "No" to the question, "Did a household member go to prison?" On another questionnaire, Nicole answered "Not sure" in response to the statement "I believe that my father loved me when I was little." Based on these and other responses, Ms. Edward opined that Nicole showed evidence of resiliency in the face of life's challenges. As the premises upon which this conclusion is based are suspect, the conclusion itself is subject to criticism as well.
Lauren Jordan, a LMSW and LCSW and now a site supervisor for Renssel¦r County Mental Health, treated Bella upon her referral to RCMH by the START Center. Ms. Jordan' testimony for Nicole was noteworthy more for what Bella did not say to her than for what Bella did say. Ms. Jordan saw Bella for eight (8) sessions. During the first seven (7) of these, Bella mentioned nothing even remotely related to having been sexually abused. Over this period, on more than one occasion, Nicole had to be advised not to speak of the abuse allegations to Ms. [*14]Jordan in Bella's presence. It was not until the last session, which Nicole knew was to be the last session, that Bella blurted out, "Daddy touched my hiney." This statement was not in response to any question posed by Ms. Jordan, nor was it relevant to anything that was happening in the treatment session at the time.
Erika Errata of the START Center also testified for Nicole. Ms. Errata had counseled Bella from April through July 2016. During one " and only one " of those sessions did Bella speak of sexual abuse by David. Yet again, the child uttered the familiar mantra, "Daddy touched my hiney," without any further elaboration. Curiously, when Ms. Errata asked Bella about her father, the child responded, "I don't have a Daddy anymore. My Daddy is in jail."
Ms. Errata also recounted how Bella became tense whenever the therapist brought the conversation around to either of the child's parents. Bella told her counselor, "Mommy yells a lot." Bella also said that she didn't like her father and did not want to visit with him; yet when Ms. Errata asked the child about the specifics of the supervised visits with David, Bella would say that she had fun.
Ms. Errata testified about one rather curious exchange. At a particular counseling session, the therapist handed Bella a "Magic 8-Ball" and told the child she could ask it a question. Bella asked, "Is Daddy not nice?" before turning the device upside-down. This tends to suggest that the child was confused about her feelings toward her father.
There was a brief interlude of comic relief provided, albeit inadvertently, by Nicole's retained expert witness, Dr. Jacqueline Brewer. JFS had initially refused to accept Nicole for supervised visits until they had seen a copy of the forensic report prepared by Dr. O'Hanna, the expert appointed on consent of all parties. When Nicole's counsel refused permission to release the report to JFS, the agency said they would accept a psychological evaluation from a source chosen by Nicole. This was the basis for Dr. Brewer's retention.
Dr. Brewer, a psychologist and certified alcohol and substance abuse counselor with over thirty (30) years' experience, testified to the methodology she adopted in performing her evaluation. She required collateral sources of information, so she spoke with Nicole's grandmother, Barbara Cooper. She also spoke to Ms. Lansky, Nicole's therapist. In order to be "balanced and fair," (Dr. Brewer's choice of phrase, with the word order likely intended to avoid the fate of the defendant in Fox News Network, LLC v Franken [2003 US Dist LEXIS 18693]), the doctor also chose as a collateral source Heidi Blaine, David's mother. When Ms. Blaine told Dr. Brewer that she had no personal knowledge of Nicole's substance abuse, Dr. Brewer inferred from this that Ms. Blaine helped prove that Nicole did not have a substance abuse problem. The logical fallacy here is so blatant as to hardly require explication: the absence of evidence is not the evidence of absence.
In addition to her curious choice of collaterals, Dr. Brewer's testimony raised eyebrows for other reasons. She administered the familiar MMPI II personality test to Nicole, but opted against having the responses evaluated in accordance with the standardized proprietary protocols of the company that developed the test. Instead, Dr. Brewer tabulated the responses herself and provided her own analysis of them. The image brought to mind is that of Edward G. Robinson in Key Largo explaining how votes are counted in his town: "[A]fter the election, we count the votes. And if they don't turn out right, we recount them. And recount them again. Until they do."
Dr. Brewer, convinced that Nicole was "extremely candid and transparent" in her evaluation, opined that she did not have a problem with alcohol abuse. Nicole's first drunk driving incident was too remote in time to be worthy of consideration, and her more recent DWI was merely evidence of a "bad decision," not evidence of an alcohol disorder. Nicole's admitted abuse of cocaine and resulting stint at SPARC showed that Nicole "experimented as a young person but to no significant degree."
Dr. Brewer, when confronted with the fact that Nicole was at the time of trial engaged in substance abuse treatment at Conifer Park, took this in stride. She testified that Nicole lacked a "clinical need for this treatment," but that the female support group was valuable in that it was a social meeting of "like-minded women." In short, Dr. Brewer saw Nicole's participation in group drug treatment as on a par with her having joined a bowling team or perhaps a Mah Jongg league.
On cross-examination, Dr. Brewer was asked whether proof that Nicole's report of the sexual abuse of Bella on September 25, 2016 was a fabrication might sway the doctor's opinion about the state of Nicole's mental health. Unfazed, Dr. Brewer opined that the child could be exhibiting a phenomenon called "blending." The only blending found here, though, is that of pseudoscience with the world's oldest profession.
Yet, just as Pliny the Elder taught that "there is no book so bad that not some good can be gotten from it,"[FN3] there was a stray nugget or two of truth to be found in Dr. Brewer's testimony. She did opine that, due to Nicole's personal history as a victim of sexual abuse, she could be over-protective and over-vigilant. This could lay the foundation for a false allegation of such abuse perpetrated against Bella.
The last witness to testify for Nicole was Sarah Manning, who was a sex abuse investigator for CPS with nearly five (5) years' experience in that role at the time of the January 2016 allegations. This witness testified to receiving recurring training of at least ten (10) hours per year in her specialty. She also stated that she had completed a two-week course in New York City in "best practices" for child sex abuse investigations. Ms. Manning was the person who interrogated Bella at the START Center regarding the allegations of January 4, 2016.
Ms. Manning testified that "best practices" recommend that an investigator review the SANE report prior to interviewing the subject child. Ms. Manning did not do this. Ms. Manning did not offer any reason for having failed to obtain the report prior to the interview. Ms. Manning testified that "best practices" recommend the audio and, where possible, the video recording of the interview. Though the START Center is equipped with an interview room with audio-video recording capability, Ms. Manning opted not to record the interview. Ms. Manning did not offer any reason for this decision, though she did note that in only a "handful" of cases investigated in Renssel¦r County were such interviews not recorded.
Ms. Manning also had the opportunity to speak to both of Bella's parents. While she was aware of Nicole's recent DWI and her use of prescription medications, Ms. Manning had no concerns about Nicole's possibly having a substance abuse problem. Though she had some knowledge of Nicole's prior erratic behavior, Ms. Manning testified to having no concerns with the status of Nicole's mental health. Ms. Manning dismissed David's claim that the sex abuse allegations were fabricated as a way of Nicole's "getting back" at him for an earlier argument. [*15]Ms. Manning, confident that Nicole was a caring and concerned parent who would follow her recommendations and the orders of the Court, indicated the report against David but unfounded that against Nicole.
Of the witnesses to testify for David Blaine, the first was Katrina Caprara. Dr. Caprara holds a PhD. and is a licensed psychologist in New York and Massachusetts. She is currently affiliated with an organization known as New Paradigm, which provides sex offender testing for the New York State Division of Parole, various probation departments, Mental Hygiene Legal Service, and the Office of the Attorney General. Ms. Caprara testified at length regarding the penile plethysmograph test administered to David as well as to other psychometric testing done on him.
The penile plethysmograph is a device whose ability to identify patterns of sexual arousal has been recognized in the scientific community and in the Courts of this State (see e.g. Matter of State v Andrew D, 114 AD3d 1043, 1044 [3d Dept 2014]). The test, which involves (among other things) the placement of an electronic sensor on the shaft of the subject's penis, measures sexual arousal in response to still photographs shown and audio "scenarios" played for the subject. David Blaine exhibited no arousal to pre-pubescent children.
Dr. Caprara testified that only about half of child sex offenders are sexually aroused by children. The remainder are sociopaths. Because of this, additional psychometric testing is employed beyond the plethysmograph to determine whether the subject exhibits signs of sociopathy. Such tests were administered to David Blaine. The results do not suggest that he suffers from any sociopathic personality disorder.
It must be clearly understood that the Court finds the results of the penile plethysmograph test and the related psychometric testing of David Blaine far less important than the fact that he willingly and immediately agreed to submit to such psychologically invasive testing. Petitioner's Exhibit A, offered into evidence by Nicole's counsel, contains the notes of the DSS attorney who participated in the pretrial conference held in May 2016 at which the plethysmograph test was first suggested to David. At that time, he was facing felony criminal charges as well as a Family Court Act Article 10 proceeding in addition to this custody litigation. He was also represented by two highly competent attorneys. His immediate willingness to undergo a test which might be likened to a "colonoscopy of the soul" while subject to civil and criminal prosecution speaks volumes to his actual innocence of the charges levied against him. Indeed, even if this Court were to dismiss the results of the psychometric tests as mere hokum, David Blaine's willingness in and of itself to undergo such testing remains highly probative.
The analysis is similar to that employed when assessing the probative value of evidence of consciousness of guilt. A particularly curious " and analytically similar " situation was reported in the Boston Transcript of February 21, 1894. The landlord of a rooming house discovered that money had been stolen from his apartment. He called his seven tenants together and asked if any of them knew about the theft. Receiving no answer, he asked them one by one to step into a darkened room where, he explained, they would find a live hen tied to the top of a table. He explained that in his native country it had been discovered that a chicken would squawk if touched by a thief. Each of the boarders stepped into the room briefly and then stepped out. At no time did the hen squawk. After the last of the men emerged from the room, the landlord asked them all to hold out their hands. He then explained that he had covered the [*16]hen's feathers in blue ink. Only one of the boarders had no ink on his hands. Clearly, fearing that the hen would squawk, the thief had failed to put his hands on her. By this clever trick the landlord ferreted out the guilty party. In the present case, David Blaine's willingness to submit to the plethysmograph test is no different than the willingness of the innocent boarders to touch the landlord's hen. The relevant evidence is derived, not from the efficacy of the particular test, but from the individual's willing agreement to submit to it.
Dr. Mary O'Hanna was also called to testify for David. She was the psychologist chosen by agreement of all counsel to perform the forensic evaluation of the parties and Bella. Her thirty (30) page report, admitted into evidence as Respondent's Exhibit 3, is particularly valuable not so much for its expert analysis as for its detailed factual specifics regarding the statements and actions of the parties and their child. Dr. O'Hanna's observations, noted in her report and fleshed out in her live testimony, provide a valuable perspective on the three (3) main individuals in this case.
Neither Dr. O'Hanna's report nor her testimony will be rehashed here in its entirety. Particularly salient features, however, will be discussed. Nicole's interview with Dr. O'Hanna is noteworthy for a number of reasons. First, during that interview, Nicole "denied any knowledge of her father." Next, with regard to her own past, Nicole "denied any sexual abuse." Yet we know that Nicole's father was her step-grandfather who had raped Nicole's mother. We also know that Nicole, by her own admission, had been sexually abused by her step-father when she was fifteen (15) years old.
With regard to Nicole's allegations of domestic violence perpetrated against her by David, Dr. O'Hanna noted that Nicole came to the interview with photographs she had taken of cuts and bruises she had allegedly suffered at David's hands some years before. Yet at no time during the interview did Nicole tell Dr. O'Hanna that David had broken her wrist. Nicole did, however, discuss with Dr. O'Hanna her various prescription medications. One of those was Hydrocodone, which we know to have been prescribed for pain resulting from the wrist injury. It is more than curious that Nicole, who came to the interview armed with evidence of domestic violence, would fail to tell Dr. O'Hanna that David had caused this serious physical injury to her.
Another highlight from the forensic interview was Nicole's proffered explanation for her delay in taking Bella to the emergency room for two days after the alleged sexual abuse incident of January 4, 2016. Despite the fact that Nicole had immediately consulted her grandmother, a pediatric nurse, Nicole maintained that the delay was the result of her not knowing what to do. Dr. O'Hanna's assessment of this was, "Either the allegation of sexual abuse was fabricated over the two days she isolated Bella or her judgment to delay needed treatment reflected profound medical neglect and inadequate guardianship."
Dr. O'Hanna's observations of Bella's conduct during the interview are also worth noting. The child appeared to enjoy creating, with her father's help, a drawing of her family. When Dr. O'Hanna suggested that Bella make a copy of the picture to give to her mother, however, the child became extremely agitated and would not calm down until the doctor reassured her that her mother would not see the picture. Even then, Dr. O'Hanna noted that the child took the additional step of hiding the picture under a desk. Bella's intense fear of her mother's anger is a theme that recurs throughout the testimony of several witnesses in addition to Dr. O'Hanna's.
Nicole also balked at completing the Child Sexual Behavior Inventory questionnaire. She [*17]returned it incomplete with this note attached:
Dear Dr. O'Connell [sic],I do not feel comfortable filling this out because I feel that a lot of these apply to things that might have happened between Bella and her father. I filled out to the best of my ability. Its [sic] hard to answer things that happened between them. I don't want to answer no to something that could have happened between them.Thank youNicoleDr. O'Hanna also noted statements and reactions on Nicole's part that mirrored things she had done or said to the JFS visitation supervisors. She asked Dr. O'Hanna if she was being "set up." She grew agitated at the prospect of David interacting with Bella. She told Dr. O'Hanna she did not want her "tricking" or "bribing" the child into seeing her father. She said she did not want Bella to think "what he did to her was OK."
David also called his father, Michael Blaine, to the stand. Michael is a recovering alcoholic who has been sober since March 4, 1992. He is a fervent advocate of AA and is a sponsor there.
Michael testified to Nicole's struggles with alcohol. He recounted how, in 2011, Nicole had lost a job after a relapse. Michael eagerly introduced her to AA, where she briefly joined the "Out to Lunch Bunch." She attended fewer than six (6) meetings, however.
Michael testified to the break-in at his home office on November 30, 2014. He recounted how Nicole curled up nearly into a fetal position and cried when confronted with proof of her guilt. Though she promised to pay restitution and attend AA meetings, her resolve was short-lived.
Michael also testified to the etiology of Nicole's broken wrist. He said Nicole admitted to having gone out for a walk one night while drunk. He said she tried climbing over a fence on her way home and fell, breaking the wrist.
Michael also testified about his professional relationship with David as members of Insultech Energy Solutions LLC. He said the business was formed in 2015 and that David is principally responsible for its day-to-day activities. He also said that he monitors David's "recovery status." It is, of course, reasonable to infer that Michael would not have invested his money and his time in forming a company with David if Michael were not confident that his son could be trusted to maintain sobriety.
David also called as a witness his mother, Heidi Blaine. She testified that she became Bella's primary custodian on September 29, 2016. She said the transition occurred without any trauma. She related how she noted that Bella had an itchy rash at the time of the transition. Heidi took the child to the doctor immediately. Bella was diagnosed as suffering from scabies. A topical ointment was prescribed and the condition cleared up almost immediately.
Heidi has a pending petition for custody of Bella. Heidi testified that she did this solely as way of trying to avoid the possibility of Bella's being placed in foster care. It is not Heidi's intent to remain Bella's permanent parent substitute.
Heidi also has the role of visitation supervisor. She testified to the somewhat uncomfortable visitation sessions between Nicole and Bella, which are held at the East Greenbush Public Library. She detailed some of the friction between herself and Nicole, as well [*18]as between herself and Barbara Cooper, at these visits.
David also called Nancy Osbourne of JFS. Ms. Osbourne was able to testify about the JFS intake process, the various cancellations and suspensions of visits, and their ultimate resumption. Ms. Osbourne also testified to her own observations at a number of the visits. The JFS files on this matter were admitted into evidence as Respondent's Exhibits 5, 6 and 7 on Ms. Osbourne's foundation testimony.
Of course, the parties themselves testified. The bulk of the findings of fact are based on facts either gleaned from their testimony or corroborated by it. Accordingly, there is no need to reiterate it here. However, as this case pivots in large part on credibility assessments, it is necessary to detail specific aspects of the parties' testimony that are relevant to these assessments as part of the overall analysis of the issues in this case.
Discussion:
No analysis of Nicole Waters's credibility can be accomplished without a catalogue of some of her proven prevarications, large and small, told both on and off the witness stand. Some are outright falsehoods; some are deceptions by omission; some are half-truths. All are important to consider as reasons for particular factual findings.
A reasonable place to begin is with Nicole's broken wrist. That her wrist was broken is an established fact. So, too, is that the wrist did not heal properly. What was the subject of considerable controversy at the trial was the question of how it was broken.
In the chronological record of this case, the first mention of the broken wrist occurs during the CPS investigation. Nicole explains that she has a prescription for Hydrocodone for pain resulting from a wrist fracture that healed improperly. She tells no one involved in the CPS investigation that David broke her wrist.
The second time the broken wrist is addressed is during the forensic interview with Dr. O'Hanna. Nicole comes to this interview with photographic proof of domestic violence allegedly perpetrated by David against her. It would be reasonable to infer that Nicole would bring up the subject of the broken wrist when Dr. O'Hanna asks her for specific details of domestic violence. Yet Nicole does not bring up the broken wrist at all during this part of the interview. Rather, when Dr. O'Hanna asks her about any medications she may be taking, Nicole says the same thing she said to CPS: that she was prescribed Hydrocodone for pain caused by a wrist fracture that healed improperly.
The very first time Nicole connects the broken wrist to domestic violence is in the verified petitions filed on September 28, 2016. Those petitions are replete with other falsehoods to be discussed later. The significant fact is the unexplained delay in reporting David Blaine as the cause of the fracture.
Let there be no misunderstanding here: the Court is well aware that victims of domestic violence are all too frequently reluctant to come forward. Social stigma, fear of financial impoverishment, fear of retribution are only a few of the reasons for this widely recognized phenomenon. What makes the present case different is that, by the time Dr. O'Hanna did her forensic interviews, Nicole Waters was not hiding her allegations of domestic violence against David Blaine. As noted above, she went to the initial meeting with Dr. O'Hanna armed with photographs that purport to show her injuries at David's hands. This begs the question, then, why would Nicole have failed to disclose to Dr. O'Hanna that David had committed a felony assault [*19]on her that left her permanently maimed? The only reasonable inference to draw is that the story connecting the broken wrist to domestic violence is a recent fabrication intended to bolster what, by late September 2016, Nicole saw as a case she was losing.
Even Nicole's testimony as to the sequence of events leading up to the broken wrist is inconsistent. First, she is trying to keep David from leaving the house when he is drunk and he slams the door on her wrist. Then, in the next breath, David pushes her with such force that she tumbles over a railing and falls down half a flight of stairs, breaking her wrist. These two inconsistent versions are repeated on cross-examination.
The filing of the September 2016 petitions is a watershed event for other falsehoods, of course. While the most glaring is the allegation of the detailed yet imaginary act of sexual abuse, categorically disproven by the video evidence, there are other more minor lies whose genesis is here. Nicole verifies a petition that claims that the child is visibly agitated from the moment she first approaches Barbara Cooper's car. The videotape belies this, as Bella is last seen literally skipping across the parking lot, having just "high fived" her father and paternal grandmother. Now surely Nicole does not claim to have witnessed this firsthand; we can only draw the reasonable inference that Ms. Cooper was the source of this information. Yet when Ms. Cooper was called to the stand, she is not asked a single question on direct examination about the events of September 25, 2016. When David's counsel attempts to ask about this on cross examination, Nicole's counsel objects that it is beyond the scope of the direct. Surely, if there were a shred of truth to the allegation that the child was upset as she approached the car, we would have heard it from an eyewitness.
The entire detailed description of the sexual abuse episode at Heidi Blaine's home is obviously one big lie. Nicole verified a petition that contains a recitation fabricated out of whole cloth. She described David's taking Bella into a bedroom, removing her clothes and digitally penetrating her. The video recording disproves every word of this. When confronted with reality on the stand, Nicole's first response is that the police and the START Center told her that this is what happened. Her second response is to try to deflect the blame onto her attorney, claiming that her lawyer drafted the petition and she (Nicole) merely signed it.[FN4]
When the full picture is viewed in its totality, a clear image emerges. From the inception of this case, Nicole wanted to separate David from Bella. Whatever her initial motivation might have been, it is clear that her repeated cancellations of JFS visits and her emotional outbursts witnessed in the child's presence were intended to keep David from seeing his daughter. This backfired on Nicole when the cancellation of JFS visits prompted the appointment of Heidi Blaine as visitation supervisor.
Compounding Nicole's disappointment was the District Attorney's decision, announced in the middle of the Article 10 trial, to seek withdrawal of its criminal prosecution of David. Nicole saw the criminal case begin with David's arrest. She saw him charged with felony child sex abuse. Then, as the case began to unfold, she saw the District Attorney reduce the charges to misdemeanors. Now she saw it evaporate completely, the Assistant District Attorney noting for the record the absence of evidence.
Nicole changed her position on JFS within less than a minute of the appointment of the paternal grandmother to supervise visits with David. She made this clear on the record at the time. She followed up by finally cooperating to have the JFS visits reinstated. As soon as this had been accomplished, she requested through counsel that the visits supervised by Heidi be discontinued. On or about September 21, 2016 her attorney was informed that any application for modification of this Court's order would require a noticed motion or order to show cause. The allegations filed following the very next visit can be seen as directly flowing from this sequence of events. It is reasonable to infer that in late September Nicole felt that her only remaining gambit was the "nuclear option" of a carefully crafted fabrication of sexual abuse.
There are certainly additional lies that need to be exposed. One is the lie that Nicole conceded herself in her testimony: she admitted to having lied about having misplaced her Adderall prescription to the CPS case worker. She had told the case worker that she had lost the prescription bottle and feared having thrown it out during an overly zealous bout of housecleaning. On the stand, Nicole admitted that this was a falsehood. Yet instead of correcting the record with the truth, Nicole opts to replace the first lie with another: she claims that the pills were in the bedroom that David had "trashed" and that she was embarrassed for the CPS case worker to see.
Where is the evidence that this new version was also false? There are two facts that prove the falsehood. First, David had told CPS that Nicole had been abusing her Adderall prescription by taking more than the prescribed dose. Second, the CPS file " admitted into evidence as Petitioner's Exhibit A " contains a record from Nicole's physician noting that Nicole had previously attempted to have an Adderall prescription replaced because it had been somehow lost when her car was towed after getting a flat tire.
Yet another falsehood was exposed during the trial. David had testified that Nicole bore scars in a criss-cross pattern on her upper thighs from repeated self-cutting. Now certainly the trial record bears evidence that David Blaine is not a stupid man. He may have made poor choices in life; he may have failed to adequately address some of his own issues; but he was clever enough to protect himself from future false allegations of sex abuse by equipping himself with a body camera. Moreover, he has apparently been able to run his own business for more than two (2) years. No human being of that level of intelligence could be stupid enough to falsely claim that Nicole's thighs were scarred from cutting, because such a falsehood could dramatically have been disproven on the spot in the courtroom. Yet instead of providing the "best evidence" of the absence of scars, Nicole takes the stand as a rebuttal witness and merely testifies that there are no such scars.
This case began in January 2016. The parties and counsel made multiple appearances for the next thirteen (13) months. This Court has seen Nicole Waters through all four (4) seasons of the year. Yet never has she ever appeared wearing any garment that revealed even the slightest part of her legs. And even Dr. O'Hanna noted that Nicole (and Bella) wore matching ankle-length skirts to the forensic interview. The ineluctable conclusion to be drawn from all of this is that David Blaine was being truthful about the scars, while Nicole was not.
It is saddening to note that Bella has learned to lie in order to get what she wants. Nicole testified that the child returned from a visit supervised by Heidi Blaine and announced, "Daddy said he promises not to touch my hiney again." The Court does not, for a moment, believe that [*20]David ever said any such thing; the Court does, however, credit Nicole's testimony that the child made this statement.
That Bella would say this is telling. From the record developed in this case, including the hours-long video of the September 25, 2016 visit supervised by Heidi Blaine, it is reasonable to infer that Bella was greatly enjoying her Sundays with her father and her grandmother. She wanted them to continue. She also knew " because it had been drilled into her by her mother " that Nicole wanted Bella to have nothing to do with her father because he had "touched her hiney." So, with all the cunning of a clever five (5)-year-old, Bella figured out the solution to her problem. All she needed to do was to tell Mommy that Daddy promised not to do it again, and she could go on enjoying herself with her father and her grandmother.
By this point in the analysis it should be clear that the Court concludes, based on more than ample evidence, that David Blaine did not sexually abuse Bella Blaine at any time. That said, the question that cries out for answer is whether the January 4, 2016 allegations were deliberate fabrications by Nicole. This is a question that cannot be answered on the evidence developed on this record. There seem, however, to be only three (3) possibilities: first, that five (5)-year-old Bella made the whole thing up on her own; second, that Nicole consciously concocted the story and spoon-fed it to her daughter; and third, that Nicole, hypervigilant due to her own previous experiences and her own family history, misinterpreted what she had heard from Bella and then, unaware of how readily a child's mind can concoct answers to leading questions, inadvertently planted the story in her daughter's head.
The truth probably lies somewhere at the point of convergence of these three possibilities. Nicole's judgment was impaired from mixing alcohol with prescription opioids and stimulants. Her own personal experiences as a victim of sexual abuse made her overly suspicious. When you walk around with a hammer all day, sooner or later everything starts to look like a nail. So when Bella said she wanted a bath and then told her mother that "it hurt down there," Nicole was more than ready to infer the worst.
In addition, this story was eminently convenient. Of the many different adjectives that might be used to describe Nicole's relationship with David, "happy" is not one of them. Perhaps on a certain level Nicole was almost eager to embrace the notion that David had sexually abused her daughter. This would provide not only a means of escape from a relationship that had long since soured, it would also provide her with self-affirmation as Bella's savior. Moreover, the breakup of the family would not have been Nicole's fault. So, while Nicole may not have consciously plotted the fabrication of the January 2016 sexual abuse allegations, she willingly allowed herself to be drawn into the story, inadvertently aided by Bella's fear of her mother's anger and the child's concomitant desire to please her Mommy.
No such fine subtleties are to be found in the September allegations. These were completely fictitious, and proven so. Yet the record does not disclose how much was the product of Nicole's fecund imagination and how much was manufactured, albeit inadvertently, by the experts at the START Center.
The September 2016 interrogation of Bella at the START Center is shocking to the conscience for a number of reasons. Had Bella been a criminal defendant and not a five (5)-year-old, she would have been accorded far more protections than she was given here. First, Bella had an attorney. The START Center knew she had an attorney, because START Center staff had [*21]testified at the Article 10 trial. Detective Roberts, who was present for the interview, also knew that Bella had an attorney because Detective Roberts had also been a witness at that trial. The District Attorney's Office knew Bella had an attorney, since they had participated at the pretrial conferences where Bella's counsel was present. Yet none of these individuals apparently ever considered contacting Bella's counsel. Instead, they interrogated Bella, a represented party, about material facts related to the matter on which she had representation, in the absence of her counsel.
Furthermore, had Bella been a criminal suspect, her interrogators would have been legally bound to cease their interrogation upon her invocation of her right to silence. Yet, when Bella repeatedly said, "I don't want to talk about it," she was pressed for additional information. On occasion, Bella would respond with, "I don't remember." Here, she was challenged with, "Are you saying you don't remember when you really don't want to talk about it?"
It also must not be forgotten that this five (5)-year-old was questioned for an hour and ten (10) minutes. During this time, it appears the child was offered neither food nor water and was allowed a single "potty break" only when she virtually begged for one. Again, had Bella been a criminal suspect, her statements would have been subject to suppression as the product of an overborne will.
Perhaps the most unfortunate fact related to both of Bella's interrogations is that neither of them was recorded. Recording was conceded to be "best practices." Nonetheless, no record was made beyond the notes of the CPS case worker. Think of what has been forever lost here: had Bella's second interview been memorialized on videotape, it would have made an invaluable training tool for future students and child sex abuse investigators. Classrooms full of grad students and rookie cops could have watched the interview for themselves and made their own assessment of the credibility of the story that unfolded. Then, after being told that the alleged perpetrator's body camera disproved every word of the tale, the audience might have experienced a humbling epiphany and a valuable lesson for the future.
One shudders to think what might have happened had David Blaine not recorded the September 25 visit. It would not be outside the realm of possibility that he would be headed to a long stretch in State Prison, to be followed by lifetime branding as a child sex offender. Fortunately, David will be spared this fate.
No fair analysis of the facts, however, can omit detailed discussion of the evidence of domestic violence perpetrated against Nicole by David. It should be clear by this point that virtually none of Nicole's testimony on any substantive point can be accepted without scrutiny. Indeed, David's counsel urges the Court to invoke the "falsus in uno, falsus in omnibus" doctrine and reject it completely. Yet even if this were to be done, nagging facts still remain.
In October 2015, the SCR received a report that Bella had told a day care provider that she had seen her father punch her mother. More than one witness described how Bella made a fist, swung it through the air, and indicated that "Daddy" did this to "Mommy." As part of the CPS investigation, the parties were interviewed. Nicole was seen to have a black eye that had been poorly disguised with makeup. Both parties denied the existence of the black eye.
The Court is fully aware that credible testimony has been received that Nicole has engaged in self-destructive acts beginning in her teen years. Yet the hearsay statement of Bella, corroborated by the observations of the black eye and by David's false denial that there was a [*22]black eye lead to the inescapable conclusion that David did indeed punch Nicole and that he did so in front of their daughter. This is a fact that cannot be avoided.
David Blaine candidly admitted to multiple lapses in his sobriety during the course of his relationship with Nicole. The evidence suggests that Nicole herself has, up to the present day, not fully dealt with her own problems with alcohol and substance abuse. No expert testimony is needed to prove that alcohol and drug abuse causes impaired judgment and erratic behavior. Barbara Cooper testified credibly to multiple occasions on which she could hear David and Nicole screaming, cursing and berating each other. Ms. Cooper testified to hearing noises suggestive of physical altercations. She also testified to frequently seeing bruises on Nicole.
The Court is well aware that Nicole has physically harmed herself. But it takes two to make an argument. David certainly verbally abused Nicole in Bella's presence on numerous occasions. It is also reasonable to infer, on the face of the credible evidence adduced at the trial, that David's physical abuse of Nicole was not limited to a single punch. There is insufficient evidence from which a catalogue of punches, kicks or shoves could be compiled. No such catalogue is necessary. What is established is verbal and physical domestic violence perpetrated against Nicole by David. This must be addressed, as a matter of law, in the Court's ultimate conclusions.
Conclusions of Law:
This Court's fundamental concern is, as it must be, Bella's best interests (see e.g., Friederwitzer v. Friederwitzer, 55 NY2d 89 [1982]; Matter of Brian JJ v Heather KK, 61 AD3d 1285, 1287 [3d Dept 2009]). The determination of where those best interests lie is painfully difficult on some levels and more straightforward on others. That both parents love their daughter deeply has been evident throughout the many twists and turns in this case. Bella's maternal great-grandmother and her paternal grandparents also love this child beyond measure. This reality makes the ultimate determinations in this case so hard to reach.
The light of many previous custody determinations rendered by the Courts of this State helps to illuminate the path ahead. Kilmartin v. Kilmartin, (44 AD3d 1099 [3d Dep't 2007]), for example, provides meaningful guidance by listing numerous factors to be considered when deciding a contested custody case. While Kilmartin was decided a decade ago, it is still often cited due to the clarity of its reasoning (see e.g. Matter of Hrostowski v Micha, 132 AD3d 1103 [3d Dept 2015]; Matter of Hayward v Thurmond, 85 AD3d 1260 [3d Dept 2011]). Its relevant factors will be analyzed seriatim.
One of the first considerations is which parent is likely to be able to maintain stability for Bella (see Knox v Romano, 137 AD3d 1530, 1531 [3d Dept 2016]). Her father has been gainfully employed in his own business for two (2) years, and was employed in the same field, home insulation installation, for years before that. He has also maintained sobriety on a consistent basis for a considerable time, and has the support of AA to help him to remain sober. Though he admitted candidly to having smoked marijuana immediately after he was ejected from his home and served with the papers that initiated this proceeding, the record supports the conclusion that he has been otherwise drug-free for years.
David is also fortunate to have the strong support of his own father. Michael Blaine occupies a uniquely valuable position in David's life as a business partner, a devoted grandfather to Bella, and a fellow traveler on the path of recovery. Michael Blaine thus is a source of [*23]stability for his son and, by extension, for Bella.
The contributions of Heidi Blaine to Bella's stability cannot be overstated. Though she works full-time and lives on her own, Heidi did not hesitate to step forward and undertake the heavy responsibilities of a parent-substitute as well as a visitation supervisor for Bella. The highest praise for the results of Heidi's contributions came at the trial through the testimony of Nancy Osbourne of JFS. Ms. Osbourne noted how much happier and self-confident Bella has grown in the period following the award of temporary custody to Heidi.
The Court also had the opportunity of viewing hours of interaction among Bella, David and Heidi Blaine on the video recording of the visit of September 25, 2016. From the evidence of her immaculate home, her placid demeanor and her warm interactions with her granddaughter, one can readily infer the stability available to this child. So, due in large part to what his parents have to offer, David is likely to be able to maintain stability in Bella's life.
Nicole, on the other hand, is presently not able to provide a similar kind of stability for Bella. She clearly loves her daughter very much. Yet, at present, Nicole cannot provide the kind of stability that this child needs.
Nicole is once again unemployed. Her previous work history has been sporadic and, though she has potential for doing better, she has worked exclusively at relatively menial jobs. She relies almost exclusively on her disabled grandmother's generosity for the basic necessities of life.
While Barbara Cooper is a devoted great-grandmother to Bella, she is a woman of advanced years and failing health. Nicole has no other immediate or extended family who are in a position to provide a safety net for Bella in the event of an emergency. Accordingly, this Kilmartin factor weighs heavily in the father's favor.
A significant additional factor for the Court to consider is the wishes of the subject child. While this factor can never be determinative, (Ebert v Ebert, 38 NY2d 700, 702 [1976]; see also Sheridan v Sheridan, 129 AD3d 1567 [4th Dept 2015]), it is nonetheless important. For Bella, this is difficult to discern. She certainly loves her mother and enjoys spending time with her. Her relationship with her father, though, has also been proven strong once the child was taken out of the immediate environment of her mother.
Bella is certainly not of an age where her own wishes are worthy of great weight. That said, it seems that this child can be happy with either of her parents and wants to spend time with both of them. So it can be said that this particular factor does not favor either father or mother.
Bella's AFC has certainly weighed in with his opinion, both during the course of the litigation and in his well-reasoned closing remarks. From the inception of this case, he has been of the opinion that the allegations of sexual abuse were groundless. While the AFC can substitute judgment for a child of Bella's age, however, this cannot be given the same weight as though it were an expression of his client's subjective wishes. Accordingly, though the AFC has argued consistently and zealously in the father's favor, this by itself does not tip the scales either way.
Another factor to consider is the home environment with each parent. Here, the playing field is hardly level, as David Blaine's contact with Bella has been limited to a supervised environment for more than a year. Nonetheless, the Court should give some attention to this factor.
The record strongly suggests that Bella's home environment with Nicole was less than ideal. Numerous witnesses testified that the child is terrified of her mother's anger. It is also reasonable to infer that Nicole regularly filled the child's head with negative ideas about her father. Even beyond the apparent programming of the child to spout details of non-existent sexual abuse, there are additional indicia of a less-than-ideal home environment. On one occasion, for example, Bella told one of her counselors that she didn't have a Daddy any more, and that her Daddy was in jail. It was suggested by one witness that these statements were the product of the child's own "connecting the dots." Yet, in light of the other notions that filled the child's head, it is far more likely that her mother was the source of these particular ideas.
On the other hand, we know little of the father's home environment outside that created by the paternal grandmother. David did testify that he would seek his mother's assistance in raising Bella. It is also likely that Heidi would remain a strong, regular and positive influence in the child's life.
Militating against this, however, is David's established pattern of escaping into video games to shut out unpleasant aspects of reality. No single parent can afford this sort of luxury. A six (6)-year-old needs and deserves a parent who is actually, not merely physically, present in the home. David has testified to this realization. He has also engaged in counseling to increase his insight. Yet, due to his having been restricted to supervised visitation, the Court has no concrete evidence of the home environment he can provide for his daughter.
The next factor is the past performance of each parent. This is perhaps the most difficult of the factors to evaluate. No objective analysis of the record developed over the dozen days of testimony in this case could lead to any conclusion besides the obvious one: that both parents were woefully inadequate. It would be pointless to attempt to judge the parents based upon the relative number or nature of the substances they abused during Bella's infancy. David can certainly point to Nicole's abuse of alcohol, marijuana and prescription medications; Nicole can point to David's abuse of alcohol and marijuana. Certainly, David has done more to achieve sobriety in the immediate past than Nicole has, yet their past performance as parents has been abysmal.
Beyond substance abuse, both parents berated each other loudly and angrily in their daughter's presence. David physically attacked Nicole in front of Bella. Nicole twice subjected Bella to SANE examinations and forensic interrogations at the START Center on baseless allegations of sexual abuse.
Even beyond these blatant failings, the parents' day-to-day performance fell below what would be expected of a responsible parent. Nicole failed to follow through with the Court-ordered alcohol evaluation following her DWI conviction. David buried himself in his work and his video gaming instead of facing the reality that his daughter was growing up in an atmosphere of sheer chaos. Neither parent scores any points here.
The next factor is each parent's relative fitness. While past performance is backward-looking, this factor is more a snapshot of present reality. Both parents, it seems, are in a somewhat better place individually than they were before; yet it is clear that one is relatively more fit than the other.
Nicole has made strides during the course of the last year to address her substance abuse issues. This is due in no small measure to the assistance her current counsel has provided to her. [*24]But this is still a work very much in progress. During the course of this litigation Nicole has tested positive for opiates. There was much discussion on the record about this particular fact. Nicole was said to have gotten a non-opioid pain medication to replace the Hydrocodone she had been taking for her wrist pain. Yet even after this, she tested positive for opioids. Her explanation was that she was allowed by her doctor to use the remaining Hydrocodone pills when needed. In an attempt to confirm that Nicole was not abusing prescription medication, she was ordered to undergo a "levels" test. She presented the Court instead with a report that did not show the level of the opiate in her urine drug screen. She ascribed this to a failing on the part of the lab. Yet despite her assurances that she would follow up with the appropriate testing, this never took place. Accordingly, there is still some lingering doubt as to whether Nicole is fully on the road to recovery.
There was also significant debate during the course of the trial regarding the state of Nicole's mental health. The record here is anything but clear, as Nicole has presented evidence of at least three different explanations for her original hospitalization at the age of 15. Her grandmother testified that she had attempted suicide by swallowing an overdose of aspirins. Nicole told various people that she had a breakdown because she was being bullied at school. Yet a third explanation was offered, that she was treated for the trauma resulting from her having been sexually abused by her stepfather.
Complicating matters is the fact that her current mental health counseling is based on a false premise. She is being treated as a "secondary victim" of the sexual abuse of her daughter. Her daughter was not sexually abused. Nicole may have mistakenly inferred on January 4, 2016 that Bella had been sexually abused or Nicole may have fabricated the entire incident. Nicole did fabricate the September 25, 2016 allegations. Since Bella was not sexually abused, Nicole is not a "secondary victim" of that abuse.
It is outside the scope of the Court's responsibilities in this case to make a diagnosis of Nicole Waters. Various experts have come up with various opinions. The opinions vary from Dr. Brewer's pollyannaish determination that Nicole is as right as rain to Dr. O'Hanna's potential diagnosis of borderline personality disorder. Without offering a diagnosis, however, the Court may still determine that Nicole is in need of significant professional help. No fit parent concocts sexual abuse allegations against the other parent. No fit parent tells her daughter that she doesn't have a Daddy any more because her Daddy is in jail. No fit parent coaches a child to lie about detailed, hideous and fictitious acts.
No honest analysis can omit a similarly exacting scrutiny of David Blaine's parental fitness. At present, David is clean and sober. Yet even during the period encompassed by the trial of this case, he was inconsistent in the number of AA meetings he attended each week. There can be no mistake here: David has a problem with alcohol. He can control it, but it will require dedication and effort for the rest of his life. For the moment, it appears that he is on the right path. He cannot afford to be complacent about it.
No analysis of David's parental fitness would be complete without a frank discussion of domestic violence (see Matter of John V v Sarah W, 143 AD3d 1069, 1070 [3d Dept 2016]; Cf. DRL § 240 [1] [a]). He punched Bella's mother as Bella watched. He verbally abused Bella's mother within the child's earshot. There may have been additional acts of physical violence, but none can be definitively proven due to Nicole's lack of credibility and her own pattern of self-[*25]destructive conduct.
A fit parent does not abuse the other parent verbally or physically. A fit parent does not engage in verbal and physical abuse in a child's presence. The question here, though, is one of relative fitness. The most difficult issue in this case can therefore be distilled down to one question: which parent is less fit, the parent who verbally and physically abuses the other in front of a child or the parent who brainwashes a child into believing that her father sexually abused her? This question is impossible to answer in the abstract. But cases are concrete. The facts of this case allow the question to be answered, as difficult and perilous as the analysis may be.
David Blaine's abusive conduct can reasonably be connected with the impaired judgment that goes along with alcohol and drug abuse. Indeed, none of the psychometric testing done by either Dr. Caprara or Dr. O'Hanna suggests that David's behavior is the result of an underlying psychological condition or a controlling or manipulative personality. Quite to the contrary, there is significant evidence in the record of David's passivity as well as his tendency to retreat from painful experiences into his artificial world of video games. So it would be reasonable to infer that, as long as David remains clean and sober and continues receiving what assistance he needs from AA and counseling, the impetus toward violence will not be present and Bella will therefore not be at risk.
On the other hand, Nicole's destructive conduct toward Bella is likely to continue. Nothing suggests that Nicole has come to grips with the reality that her daughter was not sexually abused. The greatest concession she could offer at trial is that she does not know what to believe at this point. Nicole is no less likely to continue with her tendency to see imaginary pedophiles lurking in the shadows. Her psychological counseling is based on the false premise that she is a secondary victim of child sex abuse when in fact she has programmed her daughter to believe an imaginary narrative. All this supports the conclusion that David is the more fit and Nicole the less fit parent.
Another factor for consideration is each parent's ability to guide the child and to provide for her overall well-being. Related to relative parental fitness, the analysis here involves a comparison of the likely direction Bella's upbringing would take under either parent's sway. This factor tends to tilt in David's favor.
At this moment in time, Nicole is unemployed and not seeking employment. Her physical existence is entirely dependent on the largesse of Barbara Cooper. Nicole is only recently engaged in meaningful substance abuse treatment and had not even taken the necessary steps to have her driving privileges restored after her DWI conviction until this case was pending and she had retained her fourth attorney. The course of Nicole's mental health counseling, as noted above, is based on erroneous premises. Nicole's extended family and support system is limited. At present, then, her ability to guide Bella is significantly compromised.
David, on the other hand, is clean and sober. He has been running a business for two (2) years. With some hiccups, his mental health counseling continues, as does his participation in AA. He is backed up by the invaluable contributions of his parents, particularly his mother.
This by no means should be read as a conclusion that David is where he should be in order to guide his daughter. He needs to address his reluctance to face reality, his passivity and his propensity to aggression in stressful circumstances. Yet, on the whole, with the support of his parents, David can guide Bella to grow into a well-adjusted adult.
The final Kilmartin factor is each parent's willingness to foster a positive relationship between the child and the other parent. Here the scales tip definitively in David's favor. It would be hard to imagine anything more likely to destroy a relationship between a father and his daughter than to concoct allegations of sexual abuse against him (see generally Chase v Chase, 34 AD3d 1077 [3d Dept 2006]). Had David not recorded the September 25 incident, there is a distinct possibility that he would be facing a felony prosecution with the potential of decades of incarceration upon conviction. Even if he were not prosecuted criminally, the Article 10 abuse trial that was pending against him at the time would surely have continued and may have resulted in an adverse finding. The cessation of all access " at least temporarily " would have been all but certain, and unsupervised access would have been unthinkable.
While the impact of Nicole's conduct on David has been enormous, its impact on Bella is virtually unfathomable. At this point in time, it is impossible to anticipate how the events of the past 15 months will ultimately affect this child, now only six (6) years old. That this entire imbroglio of criminal, child protective and custody proceedings was designed to permanently alienate Bella from her father is clear.
David, in his testimony, all but turned the other cheek. If he is to be taken at his word, despite all that has happened, he wants Bella to have a meaningful relationship with her mother. So this last factor lists heavily in his direction.
Overall, then, the weight of the analysis of the Kilmartin factors favors David as primary custodian of Bella. The questions then decant to whether legal custody should be sole or joint, and what sort of access should be accorded to Nicole to further Bella's best interests. The polarization created in the wake of the events beginning in January 2016 suggests that the parties are not able to work together to make major decisions on the child's behalf; the events of late September 2016 demonstrate that unsupervised access to Bella by Nicole would not be in her best interest.
As a matter of law, when the record of a trial shows the parties' inability to communicate effectively, an award of joint custody is inappropriate (see e.g. Braiman v Braiman, 44 NY2d 584 [1978]; Matter of Rikard v Matson, 80 AD3d 968, 970 [3d Dept 2011]). It is clear that this is a case where an award of sole custody to the father is the only rational option available. That said, Nicole should enjoy the right of access to all of Bella's health care and school records, as well as to any documents related to major decisions involving the child's medical care, education and religious training. Additionally, as Bella deserves the participation of two parents in her upbringing, Nicole should enjoy the right of prior input on major decisions involving non-emergency health care, education and religion.
Bella needs access to her mother. At present, however, that access needs to be supervised. Unless and until Nicole gains clear insight into what prompted her to make such damaging decisions for her daughter, unsupervised access would only be an invitation to further problems. David and his daughter cannot have a normal relationship if their every encounter needs to be recorded; yet unsupervised access to Bella by Nicole would mean that David would be in constant jeopardy of another fabricated allegation.
The next question is who should supervise. As Nicole herself testified that the visits between her and Bella at JFS were going well, they should continue. As Nicole and Bella would both benefit from therapeutic, not merely supervised visits, the JFS access should be upgraded to [*26]therapeutic supervised visitation.
At present, Nicole also has access supervised by Heidi Blaine. These visits have been marked by tension and stress. Bella deserves better. Moreover, it would be inappropriate for this Court to order the paternal grandmother to continue as a visitation supervisor after this litigation has ended. Heidi Blaine was gracious and generous in agreeing to accept the responsibilities attendant on being temporary custodian of her granddaughter under the emergent situation that arose in late September 2016, but she has not "signed on" to a permanent conscription.
Nicole and Bella should have the opportunity to see each other at least twice per week. It is the Court's understanding that JFS cannot offer visits more than once per week. If necessary, Nicole may enlist an additional agency to supervise this secondary access. The agency must, however, offer eyes-on professional supervision as well as the ability to provide written reports to the Court when directed.
At present, Bella is benefitting from the consistency not only of her day-to-day life with her grandmother but of her school routine. This Decision and Order is being issued at a point when more than two (2) months remain in the regular school year. David must take whatever steps are necessary to ensure that Bella will not need to be transferred from her present school for the balance of this school year. He would be wise to try to arrange for a gradual transition of physical custody from his mother, even if that means his temporarily residing in her home. Out of respect for Heidi Blaine and out of deference to the limitations of the Court's jurisdiction, this will not be ordered; it is, however, offered as a suggestion.
Bella's AFC has served his client zealously throughout the litigation. This is one of those very rare cases where the entry of the final order should not signal the end of the attorney-client relationship between the child and her lawyer. Accordingly, the appointment of the AFC shall continue. This will allow the AFC to monitor the parties' compliance with the provisions of this Decision and Order and will allow the AFC continued access to relevant records.
Bella is to remain in counseling for as long as such counseling is needed. The AFC shall consult with Bella's counselor as soon as is practicable. He shall offer a copy of this Decision and Order to Bella's counselor should the counselor feel that it might assist in clarifying any issues that have arisen or that may reasonably be expected to arise in the course of the child's therapy.
David Blaine is to remain clean and sober. He is not to consume alcohol or ingest any illegal substance or abuse any prescription medication. He is strongly urged to continue with his individual counseling and to participate regularly in AA or any other organization geared toward helping its members on the path to recovery from alcohol or drug addiction. This counseling and treatment are not being ordered: the impetus ought not to be fear of contempt, it should be the desire to be the best possible parent.
David Blaine shall promptly enroll in a batterers intervention program. Proof of that enrollment should be provided to Nicole's counsel and to the AFC. Upon completion, written proof should be submitted to the Court and all counsel.
Nicole Waters is to remain clean and sober. She is not to consume alcohol or ingest any illegal substance or abuse any prescription medication. She, too, is urged to continue with individual counseling and substance abuse treatment. Again, this is not being ordered because it should be the course of action taken by a responsible parent.
Finally, some mention should be made of the Court's belief that agency supervised visitation ought not to be a permanent outcome for any parent or child. The Court cannot, of course, predict the outcome of litigation that has not yet come before it. That said, it would seem that for Nicole to achieve a modification of the requirement of therapeutic agency supervision would require at a minimum a showing of attainment of insight into the factors that led to the unfortunate results witnessed in the course of this case. Additionally, some proof that these factors are being affirmatively addressed would seem appropriate.
In addition to the three custody petitions, additional petitions were part of the trial of this matter. The father had filed a violation petition under Docket Number V-00030-16/16B in which he alleged that the mother had been speaking to the child about adult or Court-related issues in contravention of the existing temporary custody order prohibiting such conduct. The record supports the determination that the mother did violate this order as specifically alleged in the petition, in that she discussed matters involving the present litigation in the child's presence with Lauren Jordan. While the Court holds that the violation petition has been proven by clear and convincing evidence, no specific penalty other than the finding of the violation will be imposed (Cf. Matter of Guild v Clifford, 109 AD3d 1053 [3d Dept 2013]).
The mother filed a family offense petition under Docket Number O-00029-16 in which she recited the allegations of sexual abuse from January 4, 2016 as its basis. Those allegations were disproven with specificity. Therefore, this petition will be dismissed.
The mother filed a custody modification petition on September 28, 2016. This was based, inter alia, on the allegations of sexual abuse arising out of the supervised visit of September 25, 2016. This petition will also be dismissed.
The mother filed another family offense petition on September 28, 2016. While the bulk of the allegations in that petition were disproven at trial, two specific allegations were substantiated. The mother did prove that the father punched her in the face in Bella's presence in October 2015. She also proved that the father verbally berated her in the child's presence. As she has made out the elements of the family offense of harassment in the second degree as defined in Penal Law § 240.26 (1), an order of protection will be granted in favor of the mother and the child. Specifically, the order will be a "full stay-away" order as to the mother and a "no illegal contact" order as to the mother and the child. In addition, communication between the father and the mother will be limited to written communication, including email and text messaging, restricted to issues directly involving the child. The duration of the order will be one year.
The AFC had filed a petition under Docket Number V-02337-16 in July 2016 seeking, inter alia, the appointment of Heidi Blaine as visitation supervisor after JFS suspended supervised visitation due to Nicole's repeated cancellations. That petition was, in fact, granted on August 5, 2016. It shows as still pending in the Universal Case Management System. This will be corrected nunc pro tunc to August 5, 2016.
The Court has searched the statewide registry of orders of protection, the sex offender registry and the Family Court warrant and child protective records, and notifies the attorneys for the parties and for the child that the results of these searches discloses no information beyond that discussed in this Decision and Order.
For the reasons stated above, it is
ORDERED that the petition of Nicole Waters under Docket Number V-00030-16 seeking legal and physical custody of the subject child Bella Blaine is denied; and it is further
ORDERED that the cross-petition of David Blaine under Docket Number V-01168-16 seeking legal and physical custody of the subject child Bella Blaine is granted; and it is further
ORDERED that David Blaine shall have sole legal and physical custody of the subject child Bella Blaine; and it is further
ORDERED that Nicole Waters shall have the right of access to records pertaining to the subject child's health care, education and religious upbringing and the right of input on major decisions regarding the subject child's non-emergency health care, education and religious upbringing; and it is further
ORDERED that Nicole Waters shall have therapeutic, supervised visitation with the subject child with Jewish Family Services for at least one (1) hour per week; and it is further
ORDERED that Nicole Waters shall have up to one (1) additional hour of agency supervised visitation per week, either with Jewish Family Services or another professional supervision agency within a reasonable distance of the subject child's residence; and it is further
ORDERED that David Blaine shall execute all documents necessary to effectuate the agency supervised visitation of Nicole Waters and shall be responsible for arranging the transportation of the subject child to and from such visits; and it is further
ORDERED that David Blaine and Nicole Waters shall not consume alcohol or any illegal drug, nor shall they abuse prescription medications; and it is further
ORDERED that David Blaine and Nicole Waters shall avoid discussing adult or court-related matters with the subject child or with third parties in the presence of the subject child; and it is further
ORDERED that the family offense petition filed by Nicole Waters under Docket Number O-00029-16 is dismissed; and it is further
ORDERED that the family offense petition filed by Nicole Waters under Docket Number O-03034-16 is granted to the extent previously delineated in this Decision and Order; and it is further
ORDERED that David Blaine shall observe the conditions of the Order of Protection to issue under Docket Number O-03034-16; and it is further
ORDERED that David Blaine shall enroll in a batterers intervention program within thirty (30) days of the date of entry of this Decision and Order and shall provide proof of such enrollment as well as proof of completion of such program to counsel for Nicole Waters and the AFC; and it is further
ORDERED that David Blaine shall ensure that the subject child Bella Blaine remains enrolled in therapy until such time as such therapy is no longer clinically necessary; and it is further
ORDERED that the AFC, Albert P. Kolakowski, Esq., shall remain as attorney to the subject child until further Order of the Court; and it is further
ORDERED that, upon request of the AFC, David Blaine and Nicole Waters shall execute such documents as are necessary to allow the AFC to monitor compliance of all parties with this Decision and Order; and it is further
ORDERED that the petition of Heidi Blaine filed under Docket Number V-00222-17 is [*27]dismissed; and it is further
ORDERED that the petition of Albert P. Kolakowski, Esq. filed in July 2016 under Docket Number V-02337-16 seeking appointment of Heidi Blaine as temporary visitation supervisor is granted nunc pro tunc to August 5, 2016; and it is further
ORDERED that the petition of Nicole Waters filed under Docket Number V-00030-16/16C seeking modification of the temporary order is dismissed; and it is further
ORDERED that the petition of David Blaine filed under Docket Number V-00030-16/16B seeking a finding that Nicole Waters violated the Order of this Court is granted, with no penalty imposed for such violation; and it is further
ORDERED that David Blaine shall not remove the subject child from enrollment in her current school prior to the end of the 2016-2017 school year.
Dated: March 29, 2017
Catherine Cholakis, AJSC Footnotes
Footnote 1:The surnames of all parties, witnesses, and other individuals (except, of course, for the trial Judge and counsel of record) have been changed in order to maintain confidentiality.
Footnote 2:Petitioner's Exhibit A in evidence contains a detailed description of this off-the-record conference and is the source of this information.
Footnote 3:"Nullum esse librum tam malum, ut non in aliqua parte prodesset" (Pliny, Epistle 3, 5-10).
Footnote 4:The Court is not suggesting in any way that the mother's counsel had in fact done anything improper here: it is merely recounting the mother's testimony.
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