Subject: Extraordinary Case - Child Sexual Abuse Allegations

From: [email-masked] (aaron.l.hoffmeyer)
Date: Sat, 20 Mar 1993 03:41:29 GMT

>From:         Bob Hirschfeld <[email-masked]>

The following is a Minute Entry Decision in an extraordinary Tucson, AZ
Custody Modification case involving chronic false allegations of sexual
molestation.  The father was represented by Robert Hirschfeld of
Phoenix; the mother by Southern Arizona Legal Aid.

Jane B. left her husband, Michael F. (who continues to be a domicile of
New Mexico, although now a temporary resident of Tucson, AZ), nearly
six years ago, while pregnant with their son, Jesse F. (Although names
of Doctors, Expert Witnesses and other details are intact, the last
names of the parties and child have been omitted.  The entire public
proceedings including the full minute entry are in the Public Record in
Pima County, AZ, Superior Court).

Jane B. began her incessant campaign of false accusations of sexual
molestation almost immediately; continuing through the present, they
include approximately sixteen reports to Child Protective Services and
other authorities, each of which except the last having been determined
to be unfounded.

Jane B. secured a Tucson Court order requiring 100 percent supervision
of Michael F's visitation whenever he visited Jesse.  She picked the
child up from the fully supervised visitation of October 6, 1991 and
took Jesse to a hospital emergency room, once again alleging rectal
penetration.  Although there was no physical evidence of penetration,
the Tucson Police Crime lab did find human semen on the swab taken from
Jesse's rectum.

Since there was no way the semen could have come from the father
because of the supervision, the litigative theory in trying to take
custody away from Jane B. was that she had herself inserted a quantity
of semen of unknown source, contained in what she told the child was
"ointment", probably on the way to the emergency room.

DNA testing of the anal swab failed to produce any results, because the
swab had been improperly preserved in the Crime Lab's freezer.

Throughout the protracted subsequent litigation, the child while
continuing to live with the mother continued to come up with fresh,
physically impossible claims of sexual molestation, even though the
father's visitation continued to be 100 percent supervised.  On the
advice of the court appointed psychologist, Dr. McReynolds, Judge
Velasco ordered the child taken from Jane B. and placed in foster care,
where, without the mother's unsupervised influence, the child's false
allegation statements stopped.  The trial was held in 8 days, spread
over three weeks, when the child had been in foster care about five
months.

The "rest of the story" is best told by Judge Velasco's minute entry:

PIMA COUNTY SUPERIOR COURT, TUCSON ARIZONA; HON. BERNARDO VELASCO

                       M I N U T E   E N T R Y

UNDER ADVISEMENT RULING AFTER 8 DAYS OF TRIAL: FINDINGS OF FACT

    1.  The parties were divorced in New Mexico on June 23, 1988.

    2.  Petitioner, Jane G.B. aka F., is the natural mother, and
	Respondent, Michael F., is the natural father of Jesse F. aka
	B., dob 7/2/86.

    3.  On October 17, 1991, Respondent filed a Motion to Modify the
	current custodial arrangements to grant him sole custody with
	supervised rights of visitation for Petitioner.

    4.  From the date of dissolution until August 22, 1992, Jesse F.
	resided with Petitioner (Jane B.) and his half-sister, Oriana
	B., in Tucson, Arizona.  Respondent (Michael F.) continued to
	reside in New Mexico exercising his rights of visitation.

    5.  On August 22, 1992, Petitioner, pursuant to the recommendation
	of this Court, voluntarily placed Jesse in foster care through
	the Department of Economic Security/Child Protective Services.
	Jesse has remained in foster care until February 20, 1993.

    6.  From the date of dissolution until the summer of 1990 there was
	no evidence of denial or interference by Petitioner with
	Respondent's rights to visitation.

    7.  In July, 1990, Petitioner (through counsel), filed a Motion to
	Modify the New Mexico Divorce Decree in an attempt to require
	supervised visitation.

    8.  Subsequent to the court hearing in New Mexico on Petitioner's
	Motion for Modification, Respondent again began regularly
	exercising his rights to visitation until Petitioner obtained
	an order from the Pima County Superior Court requiring
	supervised visitation in September, 1991.

    9.  There is evidence that on occasion Petitioner interfered with
	Respondent's telephonic visitation rights by making derogatory
	statements to Respondent in the presence of the minor child.
	These statements were improper and had an adverse impact on the
	child's relationship with his father.

   10.  In July, 1989 Jesse F. allegedly told Petitioner that his
	Respondent "poked him."  Jesse repeated this statement to his
	pediatrician, Dr. Tamsen Bassford.  Subsequently, Petitioner
	reported the statements to the Child Protective Services and
	took the child to counseling at the Southern Arizona Mental
	Health Center.

   11.  Periodically, throughout the next two years, Jesse continued
	to make ambiguous statements concerning possible sexual abuse
	by Respondent to Petitioner who continued to make reports to
	Child Protective Services.  Jesse also continued to make such
	ambiguous statements to independent professionals, who pursuant
	to statutory requirements, reported the "statements" to
	Child Protective Services.

   12.  Petitioner, Jane G. B. aka F., has repeatedly accused
	Respondent, Michael F., of sexually molesting Jesse F. aka
	B.  Those accusations are unsupported by any physical
	evidence.

   13.  As a result of one of Respondent's allegations of sexual
	molestation, the Hon. Laurel B. Sammons on October 4, 1991,
	ordered that Michael F.'s visitation with Jesse F. aka B. be
	supervised.

   14.  Respondent, Michael F., exercised supervised visitation on
	October 4th, 5th and 6th, 1991.  Respondent was never alone
	with Jesse F. during said visitation.

   15.  Following pickup of the child by Jane G.B. at St. Joseph's
	Hospital on October 6, 1991, Ms. B. transported Jesse to
	University Medical Center in Tucson, and requested that he be
	examined for alleged sexual penetration by his father.  Ms. B.
	has under oath on various occasions given at least three
	different, conflicting versions of the transport of Jesse and
	her claims that Jesse "requested to be taken to the hospital."

   16.  The examination of Jesse at University Medical Center on
	October 6, 1991, produced no evidence of physical penetration
	of the child's rectum.  However, a "rape kit" consisting of
	swabs from the child's ears, nose, mouth and rectum was
	collected and transmitted to the Tucson Police Crime Laboratory
	for Analysis.

   17.  The expert evaluator from the Tucson Police Crime Laboratory
	testified that he was certain that he had identified human
	semen on the swab from the interior of the child's rectum.
	Said testimony has never been controverted, and the Court finds
	by a preponderance of the evidence that semen was found on
	October 6, 1991 in Jesse's rectum.

   18.  Records of the Tucson Police Department transmitted to Dr.
	Rebecca McReynolds indicate that Jesse told a police
	interviewer contemporaneously with the Hospital evaluation,
	that his mother, Jane G. B., had "put ointment in his butt."
	Jesse later recanted that statement.

   19.  Further, that Jane B. is likely, if she were to retain custody
	or have unsupervised visitation, to persist in taking Jesse to
	various medical or mental health professionals in pursuit of
	her persistent, unfounded claims of molestation.  Such further
	acts would seriously endanger the child's emotional or mental
	health.

   20.  The child, Jesse F., has a history of making unprovable
	accusations against his father, Michael F.  It is extremely
	detrimental emotionally to have a child believing that he has
	to take sides to the point where he would relate to authorities
	a sexual abuse charge which is subsequently recanted.  The
	Court has not determined the extent, to which the Mother may
	have actively caused Jesse F. to make up the stories.  It is
	possible that Jane G.B. indirectly caused the allegations
	through her attitude and the pressure she placed upon Jesse.
	It is clear, however, that the child was subjected, in his
	Mother's custody, to an emotionally unhealthy situation which,
	if custody were unaltered, would persist.

   31.  The evidence suggests that Jesse F. loves both of his parents
	and wishes to maintain a continuing relationship with both.

   32.  Since July, 1988, Respondent has acted on his hostility toward
	Petitioner by tape recording virtually every encounter and
	phone conversation with her in an effort to discredit her and
	gain evidence to modify the New Mexico Decree.

   33.  Respondent has improperly interrogated Jesse about his mother
	and his sister and tape recorded conversations with Jesse
	despite the child's protestations.

   34.  Despite concerns expressed by the experts in this case
	Respondent has continued to tape record phone call
	conversations with Jesse and others as late as February, 1993.

   35.  Since Jesse's placement in foster care, Petitioner and
	Respondent have undergone individual counseling to deal with
	the emotional trauma of separation from Jesse and the
	underlying reasons for that separation and to more fully
	understand each parent's role and responsibilities in
	providing for Jesse's needs.  Respondent has made the most
	progress towards resolving his personal issues, their effect
	upon Jesse, and has demonstrated an ability to cooperate with
	mental health care professionals for the sake of Jesse F.

   36.  Jane G. B. has denied visitation to the Father, Michael F.
	knowingly, intentionally and purposefully.  An important factor
	in determining custody under ARS 25-332(A)(6) is "Which parent
	is more likely to allow the child frequent and meaningful
	contact with the non-custodial parent."  The Court finds that
	Jane G.B. has been intent on denying Michael F. visitation,
	and is likely to again violate or circumvent Court Orders, if
	permitted to retain custody, in furtherance of her apparent
	intent that the Father's visitation not occur.  Respondent,
	Michael F., as sole custodian, is more likely to allow the
	Mother visitation and significant contact than was allowed by
	the Mother in the past, or would be by her in the future.
	Further, Respondent/Father is more likely than Petitioner to
	permit Jesse to have ongoing relationships with his extended
	family, including the Paternal Grandmother, Mrs. F.

   37.  The Court finds the analysis and recommendations by Dr. Rebecca
	McReynolds and Dr. Michael German to be persuasive and
	credible.

   38.  For the reasons stated above, the Court finds that Jane B. is
	not a fit and proper person to have custody of Jesse F., and
	further, that unsupervised access between Jane B. and Jesse F.
	would seriously endanger the child's mental and emotional
	health.

   39.  Both parties have been diagnosed as having mental health
	problems.  Although these problems impair their parenting
	abilities, they do not preclude them from exercising adequate
	parenting skills.

   40.  Each of Jesse's parents desires sole custody.

   41.  Jesse F. has been in counseling with Dr. Michael German.  Jesse
	has established a good relationship with Dr. German and is
	comfortable in talking to him.

   42.  The existence of Jesse's relationship with Dr. German should
	make it possible for Jesse to discuss with him any abuse or
	manipulation by either parent.

   43.  The best interests of the child, Jesse F., are served by his
	continued presence in the State of Arizona where he has access
	to Dr. Michael German.

   IT IS THEREFORE THE ORDER OF THE COURT AS FOLLOWS:

   1.  Michael F. is awarded custody of Jesse F. subject to the
       following conditions:

	a)  Jesse F. remain in the State of Arizona for a period of not
	    less than one year from February 19, 1993.

        b)  Michael F. continue in personal counseling.

	c)  Jesse F. remain in counseling with Dr. Michael German and
	    these sessions shall occur on a once a week basis and after
	    an overnight visitation with his mother.

   2.  The mother, Jane B., is awarded visitation pursuant to the Pima
       County Guidelines as it has been currently exercised through the
       voluntary placement of Jesse in the foster home.  The mother's
       visitation shall be supervised until June 1, 1993; thereafter,
       it will be unsupervised and subject to Jesse F. seeing Dr.
       Michael German after overnight weekend visitations with his
       mother.

	a)  The mother's supervised visitation may be conducted by
	    third parties approved of by Dr. German.

	b)  No supervision of telephone calls is ordered; nor is
	    Respondent to monitor those calls.

   3.  Jesse F. remain in Hudlow Elementary School until completion of
       this school year.

   4.  Michael F., as the custodial parent, place Jesse in voluntary
       supervision of Child Protective Services to insure the payment
       of Dr. Michael German, and any other financial arrangements
       previously provided by Child Protective Services, and to insure
       that the custodial parent, Michael F., receive parental aid
       services through Child Protective Services.

   5.  Jane B. remain in personal counseling but that it be directed
       towards herself rather than dealing with "the problem child."

   6.  Michael F. may assume custody of Jesse F. on Saturday, February
       20, 1993.

   7.  In the event that Michael F. seeks to reside somewhere other
       than Tucson, Arizona, custody shall transfer to Jane B.  In
       order for Michael F. to remove the child from Tucson, Arizona,
       he must have prior approval of the Court.

   8.  Petitioner shall pay Respondent, as and for child support, the
       sum of $50.00 per month.

                                            HON. BERNARDO P. VELASCO
                                            PIMA COUNTY SUPERIOR COURT
Aaron L. Hoffmeyer
[email-masked]