Tessa invited her friend from Missouri, the same friend who she admitted in front of my mom in February 2006 was the friend who caused our problems to start when we lived in MO while I was in the Air Force. Her friend came with her small son and a man we had not met before. He had drugs with him and I told him not to bring that in the appartment around my daughter. I was always having to clean the appartment, wash dishes, wash clothes, cook, take care of the kids.

 

On May 4, 2007, I was taking care of my daughter and my wife's friend's son while they went out for the night. I fed them, bathed them, put on their pjs, read them a story and put them to bed. When my wife came home very intoxicated without the car and dropped off by a cop, I also noticed she had no underware on. I asked her about it and as she has done in the past started throwing punches at me and kicking and biting. I restrained her from hitting me as much as I could. She grabbed a knife and I ran out the door and held the storm door shut. Looking through the door I saw that Payton had woke up and standing there watching and crying. Before I knew it Tessa had busted through the screen and started swiping the knife about my face, nearly cutting me in the face a couple of times. finally she managed to cut my arm and I let go of the door and ran. She threw the knife at me almost hitting me with it. I called 911 and when the police arrived I gave them the knife. they also took the towel that a neighbor gave me for my bleeding arm. They arrested Tessa for asault 2nd and endangering the child. I was taken to the hospital and got 7 stitches in my arm.

 

Then I was taken to the police station where they had my daughter waiting for me to take her home. Then they found that I was going against an Order of Protection that my wife had taken out on me the year before in another county. That was from another disagreement where she ran to the cops and lied that I hit her. On her lieing statement she also tried to get me for imprisonment and child endangerment. I just plead guilty to harrasment so that I could just get away from her and get away from New York and go home to West Virginia where my OWN family and friends were.

 

So I went to jail and that's when CPS wheels started turning and they decided to say I was guilty of neglect.

 

THE FIRST COURT HEARING..........October 1, 2007

Before the court hearing my attorney talked to Tessa's attorney and then said Tessa would plead guilty to neglect if I do the same. I refused and said I want a trial and don't believe I am guilty of neglect because I was the one taking care of my daughter AND another child that night.

 

Tessa got on the stand and told a bunch of lies. She said I choked her till she passed out and she don't remember anything else. When she woke up she looked outside and saw me running around with a knife. She pled guilty to neglect and Judge Green read a long list of things and after each paragraph Tessa agreed to it after the judge asked if she understood. Then Tessa and her attorney left the court room.

 

One of the cops who came that night got on the stand and brought a bag with the knife and bloody towel. He reported my injuries but said Tessa had no injuries. He said I was the victim. He said Tessa did not say she was choked, I did not say I choked her, He said in my statement that night Tessa was coming at me and I was trying to hold her back and choked AT her to defend myself. He said Tessa would not make a statement and said she wanted an attorney present but never said anything about being choked. He said I did not appear to be intoxicated but Tessa was VERY intoxicated with a high count.

 

Another cop got on the stand and had drugs that were found on the counter. He said the drugs were about 8 feet away from the children's bedroom. He said he could always tell if someone was under the influence or not. He said the house was a mess with beer bottles everywhere. (The drugs were first found hidden under the bed in the kid's bedroom) Someone, I'm guessing CPS put the drugs out on the kitchen counter and so when pictures were taken, that's where the were. He said he could tell that Tessa was very intoxicated but could not tell if I was or not. He said I was very nervous and shaken.

 

Then Joe De Vil CPS worker got on the stand and had the pictures of the messy appartment with beer bottles everywhere and old food laying around and clothes all over the place.

 

~At my defence....I had the place cleaned two days before that. The friends that Tessa invited there came in and dumped all their junk everywhere and it all became too overwhelming for me to clean it all. Partying all the time and never throwing away their trash. The kid's bedroom was right beside the kitchen and it would make a lot of noise to clank bottles around tring to clean it. So I just left it a mess, hoping we could all pitch in the next day and clean it all up.

 

Joe DeVil  said that Tessa told him on two different ocations that I had choked her. He said in my statement I said I choked her. He said I told him I choked her the day that me, my mom, and my grandfather met with him..May 15, 2007

 

~At my defence.... As far as Tessa telling Mr DeVil twice that I choked her, I have copies of CPS investigations and other documents involving Joe DeVil that does not state she told them that I choked her.(because she didn't tell them that until much later and because I DID NOT choke her) I choked AT her in self-defence and that is how I put it to him in the interviews.

 

THE SECOND COURT HEARING...........October 3, 2007

 

The first on the stand was the neighbor that I went to that night and asked to use the phone. She said I asked if I could stay there but because she didn't know me well and had a small child said "no". She said I was really shook up and nervous and called 911 but then hung up and then called again because I decided I really need an ambulance. She said I told her the reason for the fight was because Tessa said she had gone out with a big black guy. She said before I came to her door she was awakened by screaming and comotion downstairs.

 

Joe DeVil got back on the stand and twisted my mom and grandfather's words saying that they would not speak of the past four years of my marriage to Tessa. He said that I said I would be going back to WV to live with my mother. He said he got several calls from my mom and some letters. My attorney would not let them bring the letters into evidence. He said I never called him to check on my daughter.

 

At my defence....On May 15, when I was released from jail, my mom and grandfather asked for a meeting with everyone and met with Joe De Vil and Poor McNutt and told how I had called them in April 2007 and wanted them to help me get a bus ticket to bring Payton to WV for a visit after getting Tessa to agree to it. They told them how I was the one always being beat up on by Tessa and then she would run to the cops. My grandfather said he had never seen such deception coming from a woman as bad as what he had seen from Tessa since I had married her. Also My grandfather and Mom told them that I would be living with my grandfather.

 

I got on the stand and was told to tell the whole story again. DSS attorney, Sharon Mudd, badgered me about the whole thing. I had said the word "belligerent" to describe my wife that night and Mrs. Mudd asked me if I knew the definition of that word and I said I'm not sure. and she kept on and on about "belligerent" (For the record means "Hostile and inclined to be agressive") So what was the point??? She asked me why didn't I just get my daughter out of bed and get her away from the "belligerent" woman??? Then she said I was neglectful because after being cut with a knife, I did not get my daughter out of bed and call a friend and go to a friends? (I had no friends there, no car, and I was bleeding to death) She said I was neglectful because I did not clean up the mess and because I did not see the drugs on the counter. (the drugs were not on the counter they was hidden in the child's bedroom and were put on the counter AFTER the altercation so they could take pictures. That was NOT MY HOME I had been there visiting for only 2 months)

She said I shold have seen the drugs. Anyone could see that on the counter unless they was blind. I said the drugs was not on the counter is why I didn't see it. She said I should not have provoked Tessa when she came home wearing no underware and drunk. She asked me why I didn't just go on to bed and discuss it in the morning? I asked Mrs. Mudd "what would you do if your husband came home wearing no pants?" Everyone objected and I guess that statement was thrown out but Mrs. Mudd said she is the one asking the questions. She asked me why did I just hold the door shut? Why didn't I run away? I said I was afraid she would stab me in the back. Then she started up about my daughter's shots. Why didn't I get my daughter's shots up to date? I said I did not think it was my responsibility because she had primary custody. She asked me why did I tell everyone I choked Tessa? I said I did not.I told her I held her hand to her chest, not her throat to restrain her from swinging at me. She asked about the visitors. I said they had moved out for a while and I had the whole appartment cleaned and then two days later they moved back in and trashed it again. I said I was always the one cleaning and taking care of my daughter while Tess went out drinking all the time.

 

At my Defence....Tessa could not produce the shot records to give to the foster care worker Joe McNutt...He asked me if I would sign a release to the doctors in Missouri for the shot records to be sent to him. I did what they wanted and tried to help them get those shot records. I assumed that Tessa having primary custody and taking care of my daughter would have got her shots up to date. I was only visiting and was only there for two months, had no car, did not know who Payton's doctor was or where, did not have the shot records and without that could not have gotten her shots anyway. Her last shots where while I was still with Tessa in Missouri. I had my daughter's shots up to date until Tessa took over complete care of her and I only had visitations. Also, during the two months I was there I did ask Tessa about the shots and she refused to do anything about it.

Mrs. Mudd asked me about the incident in Scotia causing me to have the OP against me. I explained it all and then she pulled out Tessa's lies on the statement she wrote at that time. It said that I hit her and I told the courts that I did not hit her then either. I said I have never hit her at ANY time.

Slob Belly asked me if I had any to drink the night of May 4, 2007 and I said "NO". they asked me who was Tessa with that night and I said her friend who was staying there but she did not come home with her friend, OR the car and did not take a taxi. A policeman must have brought her home from the bar.

 

 

Before the hearing I talked to Slob about how to get my big screen TV that I was awarded in the divorce and how to get Tessa to pay her half of the bills. He said he would talk to Mr. Slyree, Tessa's attorney and have him ask where it is. (This is the last we ever heard about the TV. Slob would say that Mr. Slyree never got back with him on it)

Slob went into a room with CPS people and came out saying my mom can take Payton to West Virginia but there is a problem, they don't have the hard copy of the Interstate compact approval. My mom told them they could get it faxed to them but they said they had to have the mailed copy of it. My mom argued with them for an hour.

 

IN COURT

DSS attorney Sharon Mudd said a relative has been approved but they have not received the interstate compact yet. The next thing they did was to set another date for the hearing. December 12, 2007

 

My mom went home and located the Interstate Compact papers. They were lost in the Albany office. The woman there tried to help us by faxing and overnighting the papers to the local Warren County office and then wished my mom a Merry Christmas with my Granddaughter!!

 

My mom had several phone conversations with Poor McNutt foster care worker. He asked her a lot of questions. He asked her if she would consider adoption if it came down to that and my Mom said yes. He asked her if she understood that both myself and the child's mother would have supervised visits and that my mom would be in charge of the supervised visits. My mom told him that she understands that and that I know I would have supervised visits and scheduled times. He told my mom that I would probably have to take Payton halfway to meet with the mother for her visitations. He asked my mom if she thought the CPS and Judge was wrong in saying that I was in neglect. My mom said "Yes it was wrong"  He argued with my mom about it all and said that I was neglectful because of the beer bottles, the old food, the mess, and the shots. My mom told him that saying I'm in neglect because of not getting her shots those two and a half months is them just being technical and just TRYING to find a reason. He told my mom that it was up to him to take Payton away from Tessa and her friends but he did not do that. My mom told him how I was trying to make those arrangements to get Tessa to agree for him to take Payton to WV to visit so that she could not lie and say he kidnapped her.

 

THE FORTH COURT HEARING.....DECEMBER 12, 2007

 

The hearing was suppose to take place but for some reason when we got in there they said we needed another trial and set it for the next day as if there wasn't enough time to do it then.

 

THE FIFTH COURT HEARING.....DECEMBER 13, 2007

 

The trial went on and on with rehashing of things already talked about mainly about me and Tessa.

 

Poor McNutt got on the stand and said that my mom said shots are a technicallity. He said that Payton seems to have a close bond with the mother and he is seeing the closeness between the father and the child starting to get more distant. In the beginning Payton would cry after her daddy and now he has observed during the visits that she is not crying after him.

 

Tessa got on the stand and said she has become really good friends with Teresa, the foster mother. She said she would have to move to West Virginia if Payton ended up going there with my mom. She was asked why she quit the substance abuse program. she answered by saying she was going to take it later after her insurance from her work starts so it will pay for it.

 

Teresa the foster mother got on the stand and said that Tessa told her my mom smokes. She said Payton has asthma and allergies and some other medical problems. She said Payton is always excited to see her mother and is so excited that once she fell down the steps to run to her.

 

I got on the stand and they asked me about my parenting class I took. Mrs. Mudd with a smirky attitude acted like I was stupid because my parenting class only lasted 2 hours. My attorney showed them the divorce support group I attended with "anger management" as one of the sessions I took. They all acted like that was stupid and threw it out. They asked me where I am living and I told them at my girlfriend's house. They asked her name and I told them. They asked me if I knew anything about this girl? Her background, history. I said no she is a nice person though. She asked me if the girlfriend has children? I said "yes". She asked if the girlfriend knows about me being a child abuser and on the New York State registry. I said "NO".  

 

My mom got on the stand and promted by my attorney when to say her plan for my daughter if she could take her home today. She said Tessa could call two times a week in a 15 min time span and she can come to West virginia to visit. When Mrs. Mudd said that was not right, my mom said that as far as father's rights, constitutional rights, equal rights, and the child's rights.....that is as fair as it is for us to come all the way from West virginia to New York to visit. My mom said that for the past 9 months, the mother has visited the child once a week, so now the shoe should be on the other foot and I should be able to visit every week and the mother can call on the phone and come to WV to visit when she can scrape up the money like WE have had to do for all these court hearings.

The trial ended with the CPS attorney getting ready to ask her questions.

The Judge said it's too late and we need to set another date. He said he could not make a decision because the hearing is unfinished.  No one could have the rest of the hearing the next day , or even the next month....They set the next hearing for Feb. 13, 2008. I and the family in West Virginia had planned on having my daughter for Christmas and everyone was very disappointed.

 

THE SIXTH COURT HEARING......FEBRUARY 13, 2008

 

The hearing started with my mom on the stand and CPS attorney sharon Mudd asking questions. My mother had worked out a halfway plan to visit with the mother and sent it noterized to the appropriate people.

 

                               CUSTODY PLAN FOR PAYTON...2-5-08

 

Tessa Hall Jarr
Anthony Hall
VS
Payton Hall
Cheryl Hall

 

THE MOTHER'S SUPERVISED VISIT PLAN

 

These are my suggested halfway points for the supervised visitations between my granddaughter and her mother and other relatives.

Based on my own opinion of the best interest of the child, I would suggest a 1 hour visit at the Chuck E Cheese in Johnstown PA.....412.62 miles or Hagerstown MD....383.33 miles (Tessa's choice) every other month on the 18th of the month and meeting at 1:00PM.

 

That would mean Payton would have an approxomatly 11 1/2 hour day. 10 hours on the road, 1 hour visit, and about 1/2 an hour for quick stops (gas and misc). Keep in mind that the custody and visitation schedule (entered in the last court hearing) does not include a 1 hour stop. That was only an exchange of the child and both parties heading their own seperate ways. This supervised visitation plan should be done in a way that is easiest for Payton and not just at the convenience of the mother who pled guilty to neglect.

 

Even though Tessa's distance is a little further, I would think that she would want what's in the best interest of Payton and be agreeable about the extra driving time for herself so that Payton's day out is not so long.

I recommend every other month because that is the frequency of the visits in the Custody and Visitation plan (entered in the last court hearing)

 

Enclosed are the maps to the Chuck E Cheese in Johnstown PA and Hagerstown MD. I will provide Mr. Slyree with Tessa's copies of the way back home as well to give her so that she doesn't get lost. I will provide Mrs. Dollys copies of Payton's directions to both places since she is the child's attorney, and would be giving advice on Payton's behalf.

 

I would like to request that if Tessa cannot make it to a set visitation due to bad weather or sickness that she give me a call 24 to 48 hours before the planned visit and I will do the same. I will be scheduling my work around these visitation days and would ask that if calls are made to change the plans, that specific visit time would be forfeited and the next scheduled visit day would be in place of it. I would suggest that Tessa only bring herself and Payton's family members to these visitations.

  

I would also like to suggest that Tessa and family call Payton two times a week within a 30 minute time span at her choice of "set" days and times. I would be willing to arrange my schedule around the "set" days and times she wants. I would like for these days and times to be decided in the next court hearing (Feb. 13, 2008)

 

After Tessa chooses which town to meet at for each visit and the days and times to call Payton, I would request that it be put on paper and signed by the judge before I leave with the child.

 

THE FATHER'S SUPERVISED VISIT PLAN

All supervised visits with the father, Anthony, will be discussed with my case worker in West Virginia when I am assigned one. I will be assigned a case worker only after the court order to take my granddaughter has been signed by the judge.

 

TELEPHONE CONVERSATION PLAN  

I would like to suggest that Tessa and family call Payton two times a week within a 15 minute time span at her choice of "set" days and times. I would be willing to arrange my schedule around the "set" days and times she wants. I would like for these days and times to be decided in the next court hearing (Feb. 13, 2008)

 

DAY CARE/PRE-SCHOOL PLAN

I plan to enroll Payton into the The Kids At Heart Day Care and Preschool a couple of weeks after taking her home. I plan to take her to the Day Care on Tuesdays, Wednesdays, and Thursdays from around 9:00am to around 4:00pm. I will provide Tessa with the password to the online monitor so that she can see Paige in the Day Care.

 

MEDICAL AND DENTAL PLAN

Payton's pediatrician will be Doctor Inas Al-Attar MD......Certified Diplomate American Board of Pediatrics and American Board of Pediatric Infectious Diseases Pediatrics and Child Development.

 

Payton's dentist will be Doctor D Thomas St Clair DDS JD a Pediatric Specialist

 

Payton's asthma and allergies specialist will be discussed and referred by the pediatrician if needed.

 

Payton's Mental Health specialist will be discussed and referred by the pediatrician if needed.

 

Payton's Optician will be discussed and referred by the pediatrician if needed.

 

Payton's family doctor will be Doctor Marshall Long C DO

 

The hospital/emergency room will be Princeton Community Hospital and is 30 minutes from home. 

 

CONCLUSION

All plans are negotiable at the hearing Feb. 13, 2008 and final after the hearing Feb. 13, 2008 as long as orders are pending. All plans should be agreed based on the best interest of the child only.

After Tessa chooses which town to meet at for each visit and the days and times to call Payton, I would request that it be put on paper and signed by the judge before I leave with the child.

 

Please consider my offer on this and detail every step of what is agreed upon in the next court hearing (Feb. 13, 2008) in a document, signed by the judge, so there will not be any conflict from Tessa like there has been in the past. (example of past conflict available)

 

I am proposing these offers and suggestions based on the documents I received on May 8, 2007 pursuant to Family Court Act 1055 and the Social Services Law. Also based on my petition for Modification of an Order of Custody and request my proposal to be the caretaker of my granddaughter Payton during the pendency of any orders would be accepted in conformance with the law and the above offers and suggestions be accepted as deemed by the court.

 

CC:
Hon P. Green
Warren County Dept of Social Services
Mrs. Dollys, PLLC
Mr. Slyree
Slob Belly 

 

Thank You,
Cheryl Hall

 

________________________    ______________
Signature                         Date

This statement was affirmed before me on the____day of_____________2____.

__________________________
Notary Public

 My commission expires:______________________

 

%%%%%%%%%% 

 

The CPS attorney, Sharon Mudd, asked my mom questions about her Custody plan while she shook her head in disgust as if the plan was not appropriate and said that the mother has been visiting her daughter once a week and said... why do you think she should only have every other month for only 1 hour? My mom said it is negotible but why should a neglectful mother be given such acceptions?

 

Mrs. Mudd asked my mom about the incident that happened in Scotia 2006. She asked if she came to New York to help with that. My mom said yes she came to go with me to the court hearing for that and then advised me to leave NY so that Tessa will quit begging me back and getting me put in jail because of her lies. Mrs. Mudd asked what were the charges, My mom said "Harassment...they had to drop the other two charges against him because there was no proof because none of it happened, it was all fabricated by Tessa just like she had done over and over in Missouri which finally caused Anthony to get kicked out of the Air Force."

Mrs. Mudd asked why didn't my mom just let me take care of it all by myself? My mom said, "Because he is my son and that's what mothers do" Mrs. Mudd's reaction...."Well, he's a MAN isn't he?"

 

She asked mom if I still live with my girlfriend. Mom said "no" and Mrs. Mudd asked why ...My mom said she doesn't know, she asked why she don't know ...My mom said she don't keep up with what I am doing and I live two cities away. She asked my mom if she ever met the girl...Mom said "yes"...Did you like her?...."yes"... and kept on asking mom what happened in the relationship, my mom said "I guess the girl just wasn't his type after all"...Mrs. Mudd demanded that my Mom say more as to what happened and then asked her "Why don't you know more about your son?"...My mom said "Because He's a MAN" 

Mrs. Mudd asked my mom if I had beat up on the girlfriend? My mom said "NO"

She asked If I had ever beat up on a woman?....Mom said"NO"....She asked more about the Protection Order and said then why did he get this OP against him? Then she showed a statement that Tessa wrote for that OP..........My mom said: "Tessa lied as usual"

She asked my mom if she thought Anthony had ever beat up on Tessa?....Mom said: "NO"....Mrs. Mudd said so you don't think he is a WOMAN BEATER?....Mom said "NO, it was the other way around. I have lived through the four years of their marriage getting calls from him telling me what has been going on"

Mrs. Mudd asked if Tessa has been the primary caregiver of Payton?...Mom said: "Not always..........WAS INTERUPTED BY MRS. MUDD TO ANSWER YES OR NO.........Mom: "In Missouri while Tessa stayed out all night and sometimes not coming home at all...............INTERUPTED BY MRS. MUDD TO ANSWER YES OR NO...........MOM: "Here in New York YES"

Mrs. Mudd said didn't she say that Tessa is a no-good mother to Payton? MOM: "I don't recall ever saying that" MUDD pulled out a letter that my mom sent to CPS when everything first happened:

 

                         LETTER TO CPS... 6-1-07

 

My name is Cheryl Hall and I am sending this letter in regards to my grandaughter Payton Hall, who was recently placed in the Warren County Child Protection Services because the mother, Tessa Hall, was charged with assault and child endangerment. My son, Anthony Hall, was charged with going against a no-contact order.

 

My son was trying to to make his marriage work out once again, after many attempts. He was always the one who took care of Payton's needs, feeding her, bathing her, putting her clothes on in the mornings, playing with her, reading her stories, putting her to bed. Tessa would stay out all night with her friends and sleep all day. Sometimes she didn't come home at all.

When Anthony would go to work, Tessa had to take care of Payton and he would come home for lunch and find her laying on the couch with Payton running around still in PJs and dirty diaper. He got reprimanded several times because he wouldn't go back to work after seeing that Tessa was too hung-over to take care of Payton. They had many marrital fights that ended up in her getting violent, hitting, slapping throwing things, jerking his large chain off his neck and hitting him with it, then running to the police and taking out charges against HIM, when HE was the one with the bruises. He got a general discharge from the military because of too many of these marrital fights. After being discharged, Tessa, once again, claimed she would change and he STILL believed her again and moved with her to New York. She once again picked a fight with him there (June 2006) and called the cops. That's when the protection order took place against Anthony.

Myself and his whole family here in West Virginia wanted him to get away from her after that. We were afraid that he would end up back with her, back in jail, or killed. So he moved back to his home town in West Virginia.

His in-laws, Ike and Josaphine Jarr, guilted him every time he talked to them....how he left his daughter, how he should have never left NY, how they thought of him more highly than their own daughter, Tessa, how he could have stayed with them(as if the no-contact order didn't matter)Acting as if his leaving NY has never been done before, he was the first to do such a terrible thing. Like leaving the state and having long-distance visitation has never been done before.

 

He was doing fine here in West Virginia, getting back on his feet, getting his child support garnasheed, taking care of some bills, getting a visitation schedule and meeting in PA for exchanges...... but he would have to talk to Tessa on the phone when he wanted to talk to his daughter, giving Tessa every chance to manipulate him with her crying and lieing that she has changed. Then one day she told Anthony that she had changed her ways and wanted them to get back together. Once again, he wanted so bad for his marriage to work for the baby's sake. He was so worried that his daughter was not being taken care of properly by his wife who had a history of drug abuse and violence, that he left his home state of West Virginia (Feb. 14, 2007) to go back to New York to try and work things out. He quit his job and left on the snowiest day of the year, got his car stuck in the snow halfway there, left his car and hitch-hiked the rest of the way. As if he was spell-bound or something. I have always heard that when you are in love you will do strange things, like walk out in front of a bus. I think in this case, it was the love for his daughter that over-whelmed his mind. He had tried to get custody in the family courts in Schenectady, but instead, she got primary custody. They didn't believe him when he tried to tell them that she is on drugs and running with the bad crowd. He felt he had no choice but to go and put up with Tessa while helping Payton put up with it too.

 

Myself and the rest of his family are wanting to keep Tessa away from him. We would like to keep him from having any kind of phone contact with her. When it is settled where Payton is going to be, I would like to suggest which-ever parent or grandparent has custody, call the other parent for phone conversations THROUGH THE GRANDPARENTS. Everything, even visits, exchanges of child for visits, could be done through the grandparents without the parents even talking or coming along. Since there is a no-contact order against both of them, we will call the police if they even talk to each other on the phone. We don't want Anthony to go around her anymore at all because next time it might be a gun.

 

On May 4, 2007 Anthony was bleeding to death because Tessa came after him and stabbed him with a knife. All he had to do is NOT go to the hospital and then Payton would have still been in the middle of Tessa's escapades with drugs, bad friends, and violence. I know you CPS people have all the formalities and proceedures that you have to go through but Anthony was the victim of Tessa's violence that night. He did not tell Payton to wake up and look at mommy. If Anthony had not been there that night and all the other nights that Tessa and her friend Tessa Mayes went out to get drugs and drink.....WHO would have taken care of those two children? Dean Mayes? Wasn't he convicted of murder? Tessa lied and said the protection order had been dropped, so Anthony called 911 to report Tessa and to go to the hospital. After released from the hospital, he was going to pack up Payton's things and get her away from Tessa once and for all. Instead, Child Protection Services changed the emergency placement to a temporary placement and instead, he is having to prove himself to you that he is not the abusive, neglectful parent that you are still accusing him of being.

 

Just try to think of the best interest of the child and how she could have been with her daddy all this time instead of waiting for all your paper work and red tape to keep going trough. Your accusations are "Unfounded" and we will get our own attorney if my grandaughter is not pulled out of this unfair system really soon. She has family here in West Virginia who are willing to take care of her until everything has been completed. See to it that the Interstate Compact Administration has our names.

 

Thank You,

Cheryl Hall

 

MUDD asked my mom if she wrote this and pointed out the statements of how she felt about Tessa. My mom agreed that she wrote it and everything in it is how she feels.

 

Tess's attorney Mr. Slyree asked my mom questions.........Slyree asked my mom if she knew what the outcome of the criminal charges against Tessa? MOM said: "No matter if she did get arrested that night for assault in the 2nd degree and ended up with harassment 2nd degree does not take away the fact that my granddaughter saw what happened. It is in her little mind what happened. She saw her mommy going after her daddy with a knife and hurt him."

Slyree asked if my mom can't get along with the mother how does she think the visits would go with so much anger? MOM "The same way I have put up with her in the past...I TOLERATE her. She has been the one coming after my son and beating up on him and pushing ME around and getting up in my face and I have to TOLERATE her for the sake of my granddaughter." (My mom told me after the hearing that Tessa's sister was in the back shaking her head in agreement while she was saying that part about TOLERATE...Tessa's sister came with her to the court hearing and sat in the back directly behind Tessa and her attorney)

 

Law guardian for the child, Mrs. Dollys asked my mom questions.....How is your health? MOM: "fine" What do you talk about when you call to talk to Payton? MOM: "Oh, we talk about her color books and crayons and what she likes to eat and we sing on the phone...blablabla" DOLLYS: Have you ever told Payton that you are going to bring her to live with you? MOM: "NO"

 

The foster mother, Teresa got on the stand and was prompted by the guardian for the child, Mrs. Dollys, to say that about the end of January after Payton talked to my mom, GRAN (Gran is what Payton calls my mom) She started having night-mares. Then she wouldn't talk to Gran or Anthony when they called. When she talked to Payton about it, (Teresa paused and got a tissue to cry in)...................
she said she is afraid someone will take her away from her.

My attorney asked her if she had been seeing a child theripist? She said "Yes" He asked when she supervises the visits with the mother, is she close to them at all times? She said: "yes and my home is small and if I even go to another room I can hear everything going on in the next room"

 

JUDGE'S DECISION:

Reunification with the parents and the child stays in foster care. Parents will be given a list of programs to complete and it is very important that they complete this and there will be a decision July 28, 2008 on which parent should have custody. 

 

THE NEXT HEARING IS JULY 28, 2008

Now this hearing is for a "review" instead of a final decision.

  

 

 

 

 As the
Circuit Court observed, "it could be argued that the exigencies of the moment
that threaten the welfare of a child justify removal. On the other hand, a
blanket presumption in favor of removal may not fairly capture the nuances of
each family situation"
The plain language of the section and the legislative history supporting it
establish that a blanket presumption favoring removal was never intended. The
court must do more than identify the existence of a risk of serious harm.
Rather, a court must weigh, in the factual setting before it, whether the
imminent risk to the child can be mitigated by reasonable efforts to avoid
removal. It must balance that risk against the harm removal might bring, and it
must determine factually which course is in the child's best interests.
Additionally, the court must specifically consider whether imminent risk to the
child might be eliminated by other means, such as issuing a temporary order of
protection or providing services to the victim (Family Ct Act § 1027[b] [iv] ).
The Committee Bill Memorandum supporting this legislation explains the intent to
address the situation "[w]here one parent is abusive but the child may safely
reside at home with the other parent, the abuser should be removed. This will
spare children the trauma of removal and placement in foster care" (Mem of
Children and Families Standing Comm, Bill Jacket, L 1989, ch 727, at 7).

(Family Ct Act § 1012[h] ). Under New York law, "such impairment must be clearly
attributable to the unwillingness or inability of the respondent to exercise a
minimum degree of care toward the child" (id.). Here, the Legislature recognized
that the source of emotional or mental impairment-- unlike physical injury--may
be murky, and that it is unjust to fault a parent too readily. The Legislature
therefore specified that such impairment be "clearly attributable" to the
parent's failure to exercise the requisite degree of care.
Assuming that actual or imminent danger to the child has been shown, "neglect"
also requires proof of the parent's failure to exercise a minimum degree of
care. As the Second Circuit observed, "a fundamental interpretive question is
what conduct satisfies the broad, tort-like phrase, 'a minimum degree of care.'
The Court of Appeals has not yet addressed that question, which would be
critical to defining appropriate parental behavior" (344 F3d at 169).
"Minimum degree of care" is a "baseline of proper care for children that all
parents, regardless of lifestyle or social or economic position, must meet"
(Besharov, at 326). Notably, the statutory test is "minimum degree of care"--
not maximum, not best, not ideal-and the failure must be actual, not threatened
(see e.g. Matter of Hofbauer, 47 N.Y.2d 648, 656 [1979] [recognizing, in the
context of medical neglect, the court's role is not as surrogate parent and the
inquiry is not posed in absolute terms of whether the parent has made the
"right" or "wrong" decision] ).

Courts must evaluate parental behavior objectively: would a reasonable and
prudent parent have so acted, or failed to act, under the circumstances then and
there existing (see Matter of Jessica YY., 258 A.D.2d 743, 744 [3d Dept 1999] ).
The standard takes into account the special vulnerabilities of the child, even
where general physical health is not implicated (see Matter of Sayeh R., 91
N.Y.2d 306, 315, 317 [1997] [mother's decision to demand immediate return of her
traumatized children without regard to their need for counseling and related
services "could well be found to represent precisely the kind of failure 'to
exercise a minimum degree of care' that our neglect statute contemplates"] ).

Thus, when the inquiry is whether a father--and domestic violence victim--failed
to exercise a minimum degree of care, the focus must be on whether he has met
the standard of the reasonable and prudent person in similar circumstances.
As the Subclass A members point out, for a battered father--and ultimately for a
court--what course of action constitutes a parent's exercise of a "minimum
degree of care" may include such considerations as: risks attendant to leaving,
if the batterer has threatened to kill him if he does; risks attendant to
staying and suffering continued abuse; risks attendant to seeking assistance
through government channels, potentially increasing the danger to himself and
his children; risks attendant to criminal prosecution against the abuser; and
risks attendant to relocation. [FN6] Whether a particular father in these
circumstances has actually failed to exercise a minimum degree of care is
necessarily dependent on facts such as the severity and frequency of the
violence, and the resources and options available to him (see Matter of Melissa
U., 148 A.D.2d 862 [3d Dept 1989]; Matter of James MM. v. June OO., 294 A.D.2d
630 [3d Dept 2002] ).

FN6. The Legislature has recognized this "quandary" that a victim of domestic
violence encounters (Senate Mem In Supp, 2002 McKinney's Session Laws of NY, at
1821). To avoid punitive responses from child protective services agencies, the
Legislature attempted to increase awareness of child protective agencies of the
dynamics of domestic violence and its impact on child protection by amending the
Social Services Law to mandate comprehensive domestic violence training for
child protective services workers. (id.).

Only when a petitioner demonstrates, by a preponderance of evidence, that both
elements of section 1012(f) are satisfied may a child be deemed neglected under
the statute. When "the sole allegation" is that the father has been abused and
the child has witnessed the abuse, such a showing has not been made. This does
not mean, however, that a child can never be "neglected" when living in a
household plagued by domestic violence. Conceivably, neglect might be found
where a record establishes that, for example, the father acknowledged that the
children knew of repeated domestic violence by his paramour and had reason to be
afraid of her, yet nonetheless allowed himself several times to return to her home,
and lacked awareness of any impact of the violence on the children, as in Matter
of James MM., 294 A.D.2d at 632; or where the children were exposed to regular
and continuous extremely violent conduct between their parents, several times
requiring official intervention, and where caseworkers testified to the fear and
distress the children were experiencing as a result of their long exposure to
the violence (Matter of Theresa CC., 178 A.D.2d 687 [3d Dept 1991] ).
In such circumstances, the battered father is charged with neglect not because
he is a victim of domestic violence or because his children witnessed the
abuse, but rather because a preponderance of the evidence establishes that the
children were actually or imminently harmed by reason of his failure to exercise
even minimal care in providing them with proper oversight.

Certified Question No. 2: Removals
Next, we are called upon to focus on removals by ACS, in answering the question:
"Can the injury or possible injury, if any, that results to a child who has
witnessed domestic abuse against a parent or other caretaker constitute 'danger'
or 'risk' to the child's 'life or health,' as those terms are defined in the
N.Y. Family Ct. Act §§ 1022, 1024, 1026-1028?"
The cited Family Court Act sections relate to the removal of a child from home.
Thus, in essence, we are asked to decide whether emotional injury from
witnessing domestic violence can rise to a level that establishes an "imminent
danger" or "risk" to a child's life or health, so that removal is appropriate
either in an emergency or by court order.
While we do not reach the constitutional questions, it is helpful in framing the
statutory issues to note the Second Circuit's outline of the federal
constitutional questions relating to removals. Their questions emerge in large
measure from the District Court's findings of an "agency-wide practice of
removing children from their father without evidence of a father's neglect and
without seeking prior judicial approval" (203 F Supp 2d at 215), and Family
Court review of removals that "often fails to provide fathers and children with
an effective avenue for timely relief from ACS mistakes" (id. at 221).

The Court also questioned whether "in the context of the seizure of a child by a
state protective agency the Fourth Amendment might impose any additional
restrictions above and beyond those that apply to ordinary arrests" (id. at 173).
As to court-ordered removals, the Second Circuit recognized challenges based on
substantive due process, procedural due process--the antecedent of Certified
Question No. 3--and the Fourth Amendment. The substantive due process question
concerned whether the City had offered a reasonable justification for the
removals. The Second Circuit observed that "there is a substantial Fourth
Amendment question presented if New York law does not authorize removals in the
circumstances alleged" (id. at 176).
Finally, in certifying the questions to us, the Court explained that:
"[t]here is ... some ambiguity in the statutory language authorizing removals
pending a final determination of status. Following an emergency removal, whether
ex parte or by court order, the Family Court must return a removed child to the
parent's custody absent 'an imminent risk' or 'imminent danger' to 'the child's
life or health.' At the same time, the Family Court must consider the 'best
interests of the child' in assessing whether continuing removal is necessary to
prevent threats to the child's life or health. Additionally, in order to support
removal, the Family Court must 'find[ ] that removal is necessary to avoid
imminent risk. How these provisions should be harmonized seems to us to be the
province of the Court of Appeals' " (344 F3d at 169 [internal citations omitted] ).
The Circuit Court summarized the policy challenged by plaintiffs and found by
the District Court as "the alleged practice of removals based on a theory that
allowing one's child to witness ongoing domestic violence is a form of neglect,
either simply because such conduct is presumptively neglectful or because in
individual circumstances it is shown to threaten the child's physical or
emotional health" (id. at 166 n 5).

It is this policy, viewed in light of the District Court's factual findings,
that informs our analysis of Certified Question No. 2. In so doing, we
acknowledge the Legislature's expressed goal of "placing increased emphasis on
preventive services designed to maintain family relationships rather than
responding to children and families in trouble only by removing the child from
the family" (see Mark G. v. Sabol, 93 N.Y.2d 710, 719 [1999]

While we do not reach the constitutional questions, it is helpful in framing the
statutory issues to note the Second Circuit's outline of the federal
constitutional questions relating to removals. Their questions emerge in large
measure from the District Court's findings of an "agency-wide practice of
removing children from their father without evidence of a father's neglect and
without seeking prior judicial approval" (203 F Supp 2d at 215), and Family
Court review of removals that "often fails to provide fathers and children with
an effective avenue for timely relief from ACS mistakes"

 

 exposing a child to
domestic violence is not presumptively neglectful. Not every child exposed to
domestic violence is at risk of impairment. A fortiori, exposure of a child to
violence is not presumptively ground for removal, and in many instances removal
may do more harm to the child than good.

Importantly, in 1988, the Legislature added the "best interests" requirement to
the statute, as well as the requirement that reasonable efforts be made "to
prevent or eliminate the need for removal of the child from the home" (L 1988,
ch 478, § 5).

The measures "ensure[d] that
children involved in the early stages of child protective proceedings and their
families receive appropriate services to prevent the children's removal from
their homes whenever possible" (Mem from Cesar A. Perales to Evan A. Davis,
Counsel to the Governor, July 27, 1988, Bill Jacket, L 1988, ch 478, at 14).

Whether analyzing a removal application under section 1027 or 1022, or an
application for a child's return under section 1028, a court must engage in a
balancing test of the imminent risk with the best interests of the child and,
where appropriate, the reasonable efforts made to avoid removal or continuing
removal. The term "safer course" (see e.g. Matter of Kimberly H., 242 A.D.2d 35
[1st Dept 1998]; Matter of Tantalyn TT., 115 A.D.2d 799 [3d Dept 1985] ) should
not be used to mask a dearth of evidence or as a watered-down, impermissible
presumption.

Section 1024 concerns, moreover, only the very grave circumstance of danger to
life or health. While we cannot say, for all future time, that the possibility
can never exist, in the case of emotional injury--or, even more remotely, the
risk of emotional injury--caused by witnessing domestic violence, it must be a
rare circumstance in which the time would be so fleeting and the danger so great
that emergency removal would be warranted. [FN13]
FN13. Section 1026 permits the return of a child home, without court order, in a
case involving neglect, when an agency determines in its discretion that there
is no imminent risk to the child's health in so doing (Family Ct Act § 1026[a],
[b] ). If the agency does not return the child for any reason, the agency must
file a petition forthwith, or within three days if good cause is shown (Family
Ct Act § 1026[c] ).

The Circuit Court has before it the procedural due process question whether, if
New York law permits a presumption that removal is appropriate based on the
witnessing of domestic violence, that presumption would comport with Stanley v.
Illinois (405 U.S. 645 [1972] [recognizing a father's procedural due process
interest in an individualized determination of fitness] ). All parties maintain,
however, and we concur, that under the Family Court Act, there can be no
"blanket presumption" favoring removal when a child witnesses domestic violence,
and that each case is fact-specific. As demonstrated in our discussion of
Certified Question No. 2, when a court orders removal, particularized evidence
must exist to justify that determination, including, where appropriate, evidence
of efforts made to prevent or eliminate the need for removal and the impact of
removal on the child.