Thursday, March 8, 2007

Jing and Tristram Kelly Update: One Mother’s Agonizing Struggle Through the Courts of New York to Reclaim Her Child

Editor’s Note: Once again Attorney Robert F. Wayburn, who has been working on behalf of Jing Kelly and her parents in the struggle to regain custody of her now nearly 7-year-old son, Tristram, shares the latest developments in the New York County Family Court of
Judge Sara P. Schechter, who continues to stubbornly defy the dictates of the Appellate Division, State Supreme Court, which has been demanding for the past 15 months that she immediately bring mother and child together in visitation.

FINALLY, more than fifteen months after the initial appeal ruling dated November 17, 2005, the “expedited” neglect dispositional hearing is ended. Judge Sara P. Schechter of the New York County Family Court reserved decision on what dispositional order will be made in this case. The Court directed the attorneys for the parties to submit written summations by March 21, 2007 and the Court set April 23, 2007 as the control date for issuance of the final decision and then dealing with the custody petition filed by Douglas and Corrine Kelly in later November of 2006 following the reversal (in the second appeal decision) of the December 29, 2005 order granting them intervener status over Jing Kelly’s objection in the new dispositional hearing.

AT THE FIRST COURT APPEARANCE ON DECEMBER 29, 2005, JUDGE SCHECHTER STATED ON THE RECORD THAT UNDER THE APPELLATE RULING OF NOVEMBER 17, 2005, VISITATION MUST BE COMMENCED. The Legal Aid Society
Law Guardian objected, however, and argued that what the appellate ruling mandated was an “immediate” visitation inquiry and that the mental health status of the mother must be obtained. Judge Schechter thereupon delayed ordering visitation and directed that the mother be mentally examined by the court mental health unit. The report of Dr. Vazanna was completed in mid-February, 2006, and submitted to the family court judge on February 27, 2006.

THE FAMILY COURT JUDGE SHOULD HAVE ORDERED COMMENCEMENT OF THERAPY FOR TRISTRAM AT THE FIRST FAMILY COURT APPEARANCE (following the initial appeal decision) ON DECEMBER 29, 2005. Instead, Judge Schechter ordered a forensic evaluation of Tristram by a psychologist in California to be done. That order was issued June 21, 2006, a full seven months after the initial appeal ruling. The evaluation of Tristram by Frederica L. Conrad, Ph.D., in California, was completed in early October 2006-- nearly one full year after the initial appeal ruling.

FINALLY, TODAY, FEBRUARY 28, 2006, JUDGE SCHECHTER ORDERED THAT THERAPY FOR TRISTRAM BE COMMENCED and directed that ACS pay $800 towards the costs and that Jing Kelly, Respondent Mother pay $350 towards the costs. This will pay for 10 sessions by the therapist for Tristram in California. It is expected that a minimum of five sessions will involve Tristram
alone and then Jing Kelly will have sessions with Douglas and Corrine Kelly and then, at some point, hopefully within the next ten weeks, Jing will actually commence visitation with her son.

ACS OBJECTED TO PAYING ANY PORTION OF THE ABOVE THERAPY COSTS FOR TRISTRAM. That is bizarre as it is their unwarranted removal of Tristram from his mother’s care on September 1, 2000 (after Judge Schechter promised Jing Kelly Tristram would be left in her care and Craig Kelly was excluded from the marital home by the granting to her of a Temporary Order of Protection that very day that precipitated the entire tragedy of this family court litigation).

HOPEFULLY, THE LEGAL AID SOCIETY LAW GUARDIAN (after causing therapy to be delayed for their client, Tristram, for nearly fifteen months now) WILL PUSH THIS PROCESS ALONG. As noted by ACS, Tristram is not on remand status and they are not monitoring or supervising his situation in California and are, for the record, objecting to their having to pay for this child’s therapy or provide other services.

THIS IS THE REAL PROBLEM WITH NEW YORK COUNTY FAMILY COURT JUDGES, many of whom refuse to remand children to ACS with privilege of parole to suitable relatives or caretakers (in which scenario the respondent mother or father continues receiving services from ACS and other agencies) but instead prefer to “parole” or “release” the children directly to the relative, without any involvement, monitoring or supervision by ACS. So Tristram sits in limbo in the home of a nonparent paternal relative who took the child into his home without legal authority back in July 2003 and who took it upon himself, without consulting any mental health professional, to conceal from Tristram his true parentage and to allow the child to think he and his wife were the child’s true parents. These are the caretakers who chose this California therapist for Tristram, a choice made on their own and without any input from the child’s real mother, Jing Kelly.

The motion recently made by Jing Kelly to have Tristram remanded to ACS and for supervision and monitoring of the therapy process and of Tristram’s current living situation in California to be done locally by a child protective service in San Anselmo, California, through the Interstate Compact on Placement of Children was denied by Judge Schechter and opposed by the law guardian. Jing Kelly has been without legal counsel in the hearing since December 8, 2006. She intends to request the family court judge to assign a lawyer to her to do the summation and to provide said lawyer with free trial transcripts for this purpose. The judge has directed the summation to address legal issues such as the standing of the maternal grandmother, Ling Mei Xing, to petition for visitation and as to what the proper order of disposition should be. There is no way that Jing Kelly, acting pro se, can adequately address those issues. Hopefully, the family court judge will grant her request for court-appointed counsel to assist in this regard. An 18-B lawyer was appointed to her on the pending adjourned
custody petition but that lawyer was told she could play no role in the ongoing neglect proceeding. This makes no sense whatsoever. This lawyer should be granted time to do a summation in the neglect case as well.

IT HAS BEEN FIFTY MONTHS SINCE JING KELLY HAS SEEN HER SON, TRISTRAM. I do not see any reason there should be ten (10) therapy sessions before she can see her son in a supervised setting. Tristram now knows he has a real mom living in New York City and real grandparents too and he should already be encouraged to write to them and call them and see them. I doubt Douglas and Corrine Kelly are encouraging this in any way. THEY ARE THE ONES WHO NEED THERAPY and maybe the judge here and law guardian and ACS too.

Bob Wayburn

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