Thursday, July 12, 2007

The Court Report
By Richard Blassberg

Jing & Tristram Kelly Update: The Struggle Continues

In response to numerous requests from readers, seeking current information about Jing & Tristram Kelly, The Guardian has once again prevailed upon Attorny Robert Wayburn, who has been working with Jing and her parents for several years in the effort to reunite them with Tristram. At the conclusion of the dispositional hearing, the family court issued an order placing Tristram Kelly in the care of Douglas and Corrine Kelly in California while, at the same time, approving the permanency plan proffered by ACS which establishes the permanency goal as being that of reuniting the child with his birth mother, Jing Kelly. The question remaining then is how this reunification should be accomplished. Unfortunately, there does not seem to be a “services plan” in effect that is geared to returning Tristram to his mother’s care. It appears that this will be a long range process, with periodic visitation between mother and child, on a supervised basis initially and with no contact between mother and child except during the visitation period itself. On the surface, this seems a bit overly cautious and tentative.

But, it is legitimate to have some monitoring and therapeutic assistance in the reintroduction phase. The problem here is the current caretakers of Tristram, his paternal uncle and wife, in California, cannot be expected to encourage Tristram to warm up to the idea of getting to know and love his mother again and wanting to leave his present home to join her in New York City. The child may be fearful of losing the home he has known for the past four years and at this time his birth mother is an unknown entity in his life. Of course, Jing wants to push for this reunification to be done as quickly as possible, but in a manner consistent with Tristram’s needs, while Doug and Cori Kelly,
and the law guardian it seems, wish to delay this as long as possible. In a situation such as this, both parties can be expected to highlight the aspects that favor their respective positions and it is possible the child can get lost in what amounts to a tug of war. To avoid this from happening, clearer direction and greater involvement is needed from the family court. The management of the visitation process should not be delegated solely to the law guardian, as is the case here, with only the law guardian being permitted to speak to the family therapist who will supervise the initial visitation sessions between mother and child.

Douglas and Corrine Kelly filed a custody petition after the second appeal ruling in Jing’s favor ousted them as interveners in her neglect dispositional hearing. They told California case workers that they want to adopt Tristram. Given their position in this matter, a direct placement with them, as ordered by the family court, is inappropriate. Jing had requested that any placement be ordered with ACS as the primary child protective agent and with ACS being responsible to implement its own permanency goal of reuniting Tristram with his birth
mother. ACS could then request assistance of California child protective and child preventive agencies to arrange for therapeutic monitoring of the initial visitation and for follow-up visitation and to assist in explaining to the child that the fact he is going to meet his birth mother and get to know her better does not mean he will be abruptly uprooted from his current setting. If the child has this fear and no one is helping him understand the true situation nor encouraging him to begin a warm and loving relationship with his mother-- the transition here will be all the more difficult.

In fairness both to Jing and Tristram, the custody petition of the paternal uncle in California should be dismissed or held in abeyance until the reunification plan is fully developed and implemented. The paternal uncle should be told that he cannot hang onto this child in a
vain effort to defeat the permanency plan of reunification of Tristram with Jing and he cannot seek custody nor adoption while that goal remains viable. The paternal uncle should be told that he is accountable to ACS and the reciprocating California case workers in helping out
with this reunification process. Right now, Jing Kelly cannot telephone or write or e-mail her son at his current residence. Right now, Douglas and Cori Kelly do not communicate with Jing and do not provide her any information concerning her son. This is, for lack of a better
word, “plain stupid.” Doug Kelly, if he wants to serve as temporary caretaker of Tristram during the period the permanency plan of reunification is developed and implemented-- should be told to communicate with Jing Kelly on a frequent basis and to provide her with relevant information concerning her son and to encourage Tristram to want to be in contact and communication with his birth mother.

By effecting a direct placement of Tristram with Douglas Kelly and denying any role to ACS in the implementation of its own permanency goal, the family court signaled these nonparent relatives that they can continue their past misconduct of doing everything possible to isolate this child from his mother. It appears that the only requirement imposed on them is that they cooperate by transporting Tristram to and from visitation sessions with his mother when these are scheduled to occur in the town of their own residence. It is the birth mother who will have to travel out there, clear across the country, at her own sole expense, to see her son for an hour at a time, once or twice a month. At this rate, it will take twenty years to implement the reunification and Tristram will be an adult before the plan has any chance of fruition.

Obviously, the current state of affairs is unacceptable. It is legitimate to ask questions here, such as, when will Jing be able to telephone and write her son at his current residence in California? When will her son, Tristram, be permitted to travel to New York City to see his mother, and maternal grandparents here? When will unsupervised visitation occur? What is the target date for Tristram to actually resume living with his mother? Unfortunately, there are no answers to these questions at the moment. That fact alone, the absence of a bona fide services and reunification plan in a case such as this, is an indictment of the entire family court system. It is not acceptable to announce reunification as a goal and then make that ruling an empty gesture and sham.

If you were devising a method for implementing that goal, wouldn’t you want the petitioning agency, ACS, to play the primary role and the child’s current caretakers to be accountable and responsible to that agency? Wouldn’t you tell the child’s current caretakers that to remain in their role with the child they must support the permanency plan with their whole heart and do everything possible to assist the child in making this adjustment from their home back into the care of his birth mother? Wouldn’t you require the current caretakers to immediately begin communication with the birth mother and to exchange information about Tristram with her and invite her input and consultation on what is going on in her son’s life. Wouldn’t you require them to encourage Tristram to get to know his mother and to appreciate and return
her love and to be in touch with her and understand her joy. Wouldn’t you require the current caretakers to travel to New York City with Tristram (they could stay inexpensively in the Hiler home in Larchmont) so he could visit his mother and maternal grandparents here and
become familiar with the locale to which he eventually will be returned? Wouldn’t you tell the family therapist in California that she does not have to worry about having divided loyalties or being caught up in a tug of war as this is not a custody situation but instead simply a matter
of implementing the return of a child to his mother, a fait accompli, that is to be done in a way conducive to the child’s emotional health but for sure is to be done.

It is true that many things were done wrong in Tristram’s brief life both by his parents, their relatives, the family court, and the lawyers litigating the various matters. It is true that Tristram was affected by all of this and that his final destination, the resumption of living with his birth mother, should be accomplished in a way that takes into account his emotional health and lessens the burden of transition as much as possible. But this does mean that there should be inordinate delay and posturing for potential custody litigation by the current caretakers. If that is their posture and intention, they are not suitable to care for Tristram in this interim period.

The role played by the law guardian in this case is troubling (as in other cases). Consider, for example, that when Jing Kelly was transported from Vancouver, Canada [where she had been arrested on January 3rd, 2003] to Westchester County for arraignment in Westchester
County Court on March 7, 2003, and was denied bail and, accordingly, incarcerated at the Valhalla jail facility, she was about thirty minutes driving time from the home of Tristram’s paternal aunt, Gail Hiler, in Larchmont. Ms. Hiler had retrieved Tristram from Canadian
police on January 4, 2003 and thereupon subjected the child to a media frenzy as attested to by the numerous press clippings and press releases and TV reports, and by Ms. Hiler’s later testimony that twenty or more people were in the home virtually every day to congratulate
her and celebrate Tris’s return there. Yet, while rejoicing that she had again regained physical custody of Tristram, Ms. Hiler made no effort to bring the child to visit his mother at the accessible jail facility. Tristram had been in his mother’s care for an eighteen month period (June 21, 2001 through January 3, 2003) and the child surely would have benefited from having contact with his mother while adjusting to being in the Hiler home once again. Tristram would have benefited from seeing his mother and speaking to her both in English and Chinese
as was their custom.

Why was it that Tristram did not see his mother again while she was in jail awaiting her criminal trial? Well, the primary blame for this lies with the family court judge who denied visitation to this incarcerated mother citing, of all things, a “security issue.” This denial of visitation
on March 20, 2003 in New York County Family Court was coupled with an order placing Tristram in the legal custody of his paternal aunt, Gail Hiler. I have it on good authority, however, that the jail facility at Valhalla is fairly secure and that many incarcerated persons have visitors there and that there is little danger of their leaving the facility during or after any such visitation period. The security issues were a sham and the denial of visitation was ultimately reversed on appeal but the damage was already done. The custody award was also reversed on appeal but caused even more damage to mother and son due to the actions of Gail Hiler and other paternal relatives, including Douglas Kelly, after that order was entered. But the good question here for the law guardian and ACS petitioning agency is why they did not request visitation for Tristram with his incarcerated mother in March of 2003 at the final dispositional hearing. Another good question is why neither the law guardian nor ACS opposed the unlawful award of custody to Gail Hiler at this time.

Now, nobody says Jing Kelly was right to take her son and travel to China on an unsupervised visitation on June 20, 2001. This was a violation of the temporary parole order then in effect directing that Tristram reside in the Larchmont home of Gail Hiler until the dispositional hearing was completed. But Jing was apprehended with her child in Canada and both she and the child were returned to New York State and the question then became one of correctly applying the laws of our state to their situation. Clearly, visitation was lawful and
proper and should have been ordered for this mother and child. Clearly, no custody award was permissible nor warranted at this stage. This is a unique convergence of events where both the Family Court, the law guardian and petitioning agency got it all wrong. It is hard to imagine such a scenario could unfold in Family Court in this era. It is not sufficient to lay back and say “Well, the Appellate Division reversed all the errant rulings” because of what happened to this child in the interim before the initial appeal ruling was obtained and what has happened
afterwards.

Tristram was not doing well in the Hiler home in Larchmont. This is undisputed and clearly reflected in the testimony of Gail Hiler at the recent Family Court hearing. Ms. Hiler’s solution to this problem was not the obvious one of notifying the Family Court and law guardian and petitioning agency (and birth mother) of the fact that it was not viable for Tristram to remain in her home and in her care-- so that the court could then make proper inquiry as to the child’s best interest (in which inquiry the birth mother could participate). Instead of doing the correct thing here and what is presumably best for the child, Ms. Hiler chose instead to ship Tristram to another paternal relative’s home out of state and she then told no one of this development. It defies belief that Ms. Hiler (a practicing attorney) defends her actions in this regard, and one can only hope that some day she will acknowledge the wrongness of what she did and that she played a huge role in creating the current situation.

Ironically, although Ms. Hiler testified that the reason she shipped Tristram to California in late July of 2003 to reside permanently with her brother, the paternal uncle, Douglas Kelly, was “to avoid media publicity during the upcoming criminal trial of Jing Kelly” -- it was when
that trial commenced in January 2004 that Tristram was brought back into the Hiler home in Larchmont and left there virtually the entire month of January, while the trial was ongoing, Thus, Tristram was here in Westchester County during his mother’s criminal trial. And
in poignant testimony of Douglas Kelly at the recent Family Court hearings he indicated that Tris saw a picture of his mother in the newspaper on a table in the Hiler living room and said “momma, momma” while pointing to this picture. Here it was a whole year later since Tris and Jing were separated and this child knew and recognized his mother.

Don’t you weep for Tristram, here? Does anyone in their right mind think it was appropriate for Jing to be held without bail for thirteen months while awaiting the conclusion of her criminal trial for custodial interference in the first degree (a felony of which she was never
convicted)? Does anyone think it was appropriate that Jing had no visitation nor contact with her son during this entire period? Can you imagine that Gail Hiler and Douglas Kelly would both testify at Jing Kelly’s criminal trial and neither would say Tristram no longer lives with Gail Hiler but was secretly living out of state with Douglas Kelly since July 2003. Would this information have influenced the jury had they known the true situation here? I wonder if the jurors who did their public duty at that trial, quite honorably, would be willing to now come forward and say whether this information would have influenced their verdict against Jing. I wonder if the trial judge would have ruled differently on allowing the jury to consider Jing’s affirmative defenses to the misdemeanor charge, had this information been made known to
the court at the time. It certainly was disturbing that at this criminal trial, Gail Hiler herself admitted that her brother, Craig Kelly, was living full time in her home during the temporary parole period of December 21, 2000 to June 21, 2001 (when Jing left ). This was a clear violation
on her part and Craig’s part of the temporary parole order. Yet, Ms. Hiler was not held accountable in any way.

Douglas Kelly testified at the recent hearings that he “took it upon himself ” to not have any pictures of Craig Kelly or Jing Kelly in his home and to not discourage Tristram from referring to him and his wife as “daddy” and “mommy” and to their two sons as his brothers.
In other words, Douglas Kelly claims he did not deceive Tristram as to his true parentage (i.e., that his real father is deceased and that his mother lives in New York as do his maternal grandparents) because Doug never told Tris, “Yes, I am your birth father and Cori is your
birth mother.” Well, come on here, not telling the child this information is the same as lying to him about it, right. This is a child who recognized his mother’s picture and pointed to it with his little finger, at three years of age, after not seeing his mother a full year. Obviously, there was a strong maternal bond between Jing and Tris and it is Gail Hiler and Douglas Kelly who broke it. They bear a tremendous responsibility here. They also took it upon themselves not to give Tristram the cards and gifts his real mother was sending him, after her release from incarceration, care of Gail Hiler.

Making matters worse, neither Gail Hiler nor Douglas Kelly, notified Jing Kelly nor the family court nor the Appellate Division nor the New York County Supreme Court about Tristram being out of her home and resident permanently in California when Jing was released from incarceration in January 2004 and made numerous court applications for custody and visitation with her son, Tristram. This lack of disclosure of cogent information pertaining to a child concerning which courts are exercising jurisdiction is a “crime” that should not be
condoned anywhere at any time. It is a crime far worse than a mother fleeing with her child under the circumstances in which Jing Kelly fled to China in June 2001. One can only wonder why the paternal relatives in this particular case seem to get away with so much wrongdoing
without being held to account.

Partly, the answer to the above question is the law guardian. While the law guardian did stand tall and urge the reversal of the erroneous family court rulings of March 20, 2003 (denying visitation to this mother and awarding custody to the paternal aunt) and did seek court orders compelling Ms. Hiler to disclose the whereabouts of Tristram (not done until after the initial appeal was decided)-- the law guardian in the subsequent hearing in the family court, on remand from the appellate court, then shifted gears and took the side of the paternal uncle and supported Tristram’s remaining there. First, the law guardian supported the application of Douglas Kelly to intervene in the new dispositional hearing against Jing’s wishes (a clear violation of the governing statute) and this was reversed on appeal (second appeal ruling).

The law guardian also opposed immediate visitation for this mother, claiming the initial appeal ruling required a mental health evaluation of both mother and child before any such visitation could occur. And, while the law guardian urged removal of the family court trial judge (Judge Sarah P. Schechter) from the case during oral argument of the first appeal, their position changed to being one of supporting this judge staying on the case (during oral argument of the second appeal). During oral argument of the second appeal the law guardian appellate counsel declared that the interest and position of the Legal Aid Society of the City of New York, Juvenile Rights Division, was “identical” with the interest and position of the paternal uncle, Douglas Kelly.

Well, this is quite a turn around. It is clear that the law guardian does not support the permanency plan goal adopted by the family court judge and proposed by the petitioning agency, ACS, of reuniting this child with his birth mother. Is the law guardian free to oppose that stated goal? Is the law guardian free to decide to take a position and develop a strategy that favors the child remaining in the home of the paternal uncle when the family court has already ruled the plan is to the contrary? Can the law guardian be trusted to communicate and
coordinate the therapy sessions with the child and birth mother and give fair and impartial direction to the supervising therapist? Won’t the law guardian overplay the child’s fear and reluctance in commencing visitation and joining in the reunification effort if this is in keeping
with their new thinking on the case? What is this law guardian about, anyway?

Lost somewhere in this entire process is the simple concept that the Family Court judges, the petitioning agencies, attorneys and caseworkers, the court-appointed lawyers and law guardians to the parents and children, SHOULD ALL BE WORKING IN A MANNER CONSISTENT WITH APPLICABLE LAW. The law required that Jing and Tristram have visitation back in March 2003 when she was finally transported to Westchester County from Canada.

This was not granted nor did the law guardian request it. The law required that Jing Kelly be present in court for the continuation of her dispositional hearing and she was not produced. The law required that any dispositional order in the neglect case be for a temporary period
only and that the requisite permanency hearing reviews be held thereon-- but this was not done. The law required Gail Hiler to make a showing of “extraordinary circumstances” before she could be granted legal standing to seek an award of permanent custody of Tristram as
against his mother, Jing Kelly, but this was not done. The law required disclosure to the various courts dealing with this matter that Tristram was no longer living in the Hiler household, but this was not done. The law required consent of Jing Kelly to any application for intervention
by family relatives in her neglect dispositional hearing but this consent requirement was ignored and the hearing was inordinately delayed by the paternal uncle putting on his case first. The initial appellate ruling required an “immediate inquiry” as to resumption of visitation
and an “expedited dispositional hearing” but neither was done. Indeed, by mandamus issued by the appellate court in early August 2006, nearly a full year after the initial appellate ruling, the family court judge was “reminded” of that direction, but this was of little avail.

SO WHAT IS THE UPDATE HERE? Quite simply that the reunification is about to begin but is severely handicapped by the absence of a detailed implementation plan, the absence of any monitoring or supervising role by the petitioning agency, ACS, and the adoption by the law
guardian of a litigation posture and strategy supportive of the nonparent paternal uncle’s inchoate claim to a possible custody award and adoption sometime in the future if only the current permanency goal of reuniting this mother with her child can be derailed.

My bottom line: I can’t believe this is how the family court is supposed to work. Something serious and drastic needs to be done to prevent this from happening to this mother and child and to other parents and children. Jing will need help in paying for her visitation expenses to and from California. Anyone wishing to contribute financially should forward the funds directly to her per the address set forth in her web site, JingKelly.com.

My hope is that Jing and Tristram will each have a fair and reasonable chance to reacquaint with each other, and establish the bond that can lead to their eventual reunification. It is sad that their chances for this probably depend on her perfecting yet another appeal and again seeking a new trial judge and, perhaps, a new law guardian, but in any event, application of the law of our state governing family matters. Is the latter too much to ask?

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