Thursday, November 9, 2006

The Court Report
By Richard Blassberg

Attorney Updates and Appeals on Behalf of Jing and Tristram Kelly

Editors Note: The following correspondence from attorney Robert F. Wayburn, who has been involved in the Jing and Tristram Kelly matter for some four years now, is self-explanatory and is printed in its entirety for the benefit of our readers. With no end in sight to the horrific injustice that continues to keep a loving mother and her young son apart, Mr. Wayburn appeals for assistance on Jing Kelly’s behalf.

November 1, 2006

As reported after our October 16, 2006 court appearance, Jing’s case is not scheduled to be continued in New York County Family Court until November 27, 2006, and again on November 29, 2006 and December 1,
2006 and December 6, 2006 and all day on Friday, December 8 commencing at 11 AM.

Dr. Dawn Hughes is still being cross-examined and Judge Schechter appears to have delayed ruling on our application that MHS and Dr. Conrad be provided with Dr. Hughes’ reports and testimony both in Criminal Court and Family Court until such time as Dr. Hughes’ testimony is totally completed. The logic of waiting
escapes me.

Discussion was had as to obtaining a therapist for Tristram. Tomorrow I will be forwarding a suggestion in this regard to all counsel in the case. I believe that Mr. Perrella will also be forwarding a suggestion in this regard.

Clearly, it is time to move forward on the visitation front and engaging a family therapist for Tristram is the first step. It is astonishing that this was not the first thing resolved and ordered by the Family Court at the first court appearance back on December 29, 2005 after the November 17, 2005 Appellate Division ruling directed an immediate visitation inquiry. The early August 2006 mandamus, also issued by the Appellate Division, does not seem to have sparked a sense of urgency in this regard. Many observers find this baffling.

Thanksgiving and Christmas are fast approaching. Summer has already passed us by. Still no contact between Tristram and his mother. None, whatsoever. The Family Court judge, Sara P. Schechter, has precluded Jing Kelly from phoning her son in California, from writing him, from sending him gifts, from sending him current photographs of herself or her home. Apparently, Tristram’s caretakers, Douglas and Corrine Kelly, see no need, on their part, to encourage Tristram to write or call or contact his birth mother.

Dr. Conrad observes that such contact could be confusing to the child. Well, hello. Tristram has a mother living
here in New York City and maternal grandparents too. They have been wrongfully isolated from his life and being. Any confusion at the onset of reestablishing contact and communication, on Tristram’s part, can be readily managed IF ONLY THE PROCESS WOULD BE FINALLY STARTED!!!

Jing Kelly is a loving and caring mother who wants what is best for her son. She is not blind to the concerns as to how the process should be managed and that Tristram should be reintroduced to her in a manner that is comfortable to him.

So what are we talking about here - a continued custody fight where the prior custodian, unlawfully established, has withdrawn, and her designee caretaker living some three thousand miles away, has apparently never sought custody in his own right - and so the matter lingers here in New York County Family Court - without a rather simple and straight forward visitation inquiry yet being determined and with a neglect dispositional hearing needlessly complicated and protracted by the family court judge allowing intervention of the California relatives [over the objection of this mother and which intervention ruling though appealed and fully argued in May of this year is yet to be decided by the Appellate Division] and, in the meanwhile, not one word being passed between mother and son. With the holiday season fast approaching - can there be some measure of hope that real progress will begin to be made here. Will this family court judge expedite the process NOW or continue to delay determinations and let the matter unfold again in the Appellate Court’s lap. For example, Judge Schechter stated at the last court appearance that any visitation for the maternal grandparents must await the determination of Jing Kelly’s dispositional hearing despite the fact that they both intervened in that proceeding as well as filed a visitation petition in their own regard. Why must this wait?

The longer visitation and contact and communication is delayed, the harder it is on Tristram to get going on this process. He surely should have contact and communication with his maternal lineage even if there is no visitation
yet. The total cutoff of contact and communication is unlawful and inhumane. I guess there will have to be yet another appellate motion in the next few days to again attempt to get some form of affirmative relief and remedy
at that level.

The litigation burden placed on this mother and her son are tremendous. She was denied poor person relief on the prior appeal and was required to print briefs and record even though the statute dispenses with this requirement in family court appeals (see FCA Section 1116) and, inexplicably, the same trial judge who made all the erroneous and tragic prior rulings was continued in presiding over the remanded case and only recently “redirected” to attend to the visitation provisions of the November 17, 2005 appeal ruling. This mother cannot pay for trial transcripts, she cannot pay for therapy and forensic costs. It is a burden on her pro bono lawyers to work year after year after year on this endless merry-go-round... but Jing cannot give up, nor can we, nor can you.

Please help if you can this upcoming holiday season. Please pay for a transcript (I can give a listing of the dates and cost) so the newer appeals can be perfected. Please pay for photcopying, for therapists reports and sessions for both Jing and Tristram.

If any donation is sent to my office in this regard, I will photocopy the check and not only deposit it in an attorney
escrow account but scan and e-mail the check, the deposit slip, and the litigation expenses paid, on a weekly basis to your newspaper and any other newspapers interested in receiving the information. Jing needs help.

Tristram needs help. We are not asking for payment of legal fees, just litigation costs and expenses and therapy
costs and expenses for mother and child.

Please help if you can. Mail the donation (by check) to:

Robert F. Wayburn, Esq., 60 East 42nd Street, Suite 1414, New York, New York 10165 made payable to Jing Kelly Litigation Expenses Account c/o R.F. Wayburn, Esq. Although I presently represent Jing’s own mother, Ling Mei Xing, in the ongoing Family Court litigation, there is no conflict as every expense paid will be reviewed and approved, in advance, by Jing’s own lawyer, Nicholas Perrella.

I have never asked for donations in a litigated matter in my thirty-three years of legal practice. Whatever monies, if any, come in to my office in response to this appeal, will be detailed to Jing’s tax account for proper handling.

I am simply acting as an agent in collecting and disbursing the funds for her litigation costs (not lawyer fees). I am willing to do this only because her situation is so protracted and shows no sign of ending soon.

Jing and Tristram truly need your help in meeting these litigation costs and so do Tristram’s grandparents. Please do not call me. If you wish to donate, simply send a check, along with a note to Jing if you like.

In closing, since this is the month of Thanksgiving, now upon us, I want to thank all the many people who have helped Jing and her parents in the past, especially, Michael Dowd, Esq., Robert Shaw, Esq., and Rocco D’Agostino, Esq., all of whom worked many hours representing Jing pro bono at her criminal trial in
County Court of Westchester County, and Dr. Dawn Hughes who evaluated Jing and testi-fied in the criminal trial on her behalf at very reduced fees and who now re-evaluated Jing and has testified at two separate family court appearances, and will be at a third appearance at the end of this month in such regard, totally pro bono this time around, and Dawn Hazelhurst, Esq., Professor Shen, Mary Rothwell Davis, Esq., and Sanctuary For Families, all of whom at various points of time worked on family court litigation and appellate matters for Jing and her current family court lawyer, as well, Mr. Perrella.

I also want to especially thank City Councilman John C. Liu and his past assistant, Ellen Young, now running for elective office in her own right, for their constant support in this matter.

Regards,

Bob Wayburn

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