Written by Robert F. Wayburn, Esq. on February 7th, 2007
To properly understand the injustice and tragedy of this case, one has to become aware of the protracted litigation history and the milestones where improper famly court rulings took effect.
The first major improper family court ruling occurred on September 6, 2000, when Tristram W Kelly (Tris Kelly), born only a few months earlier on May 29, 2000, was continued on remand in foster care by the family court judge. The child had been unlawfully and improperly removed from Jing's care by the local child protective services agency, Administration For Children's Services of the City of New York, known informerly as ACS.
The second improper family court ruling was on January 23, 2001, when the family court judge adjudicated Jing Kelly as being neglectful of her son, Tristram, due to her participation, in minor degree, in domestic violence occurring in the household. A similar finding of neglect was made against Tristram's father, Craig Kelly, but this finding was warranted by the evidence in the record. The child Tristram, then an infant, was not harmed in any way by either parent (and indeed was sleeping in another room when the major quarreling incidents occurred) and this finding would not be permissible under current legal definition of neglect in New York State. See, Nicholson v. Scoppetta, 3 N.Y.2d 357 (2005).
The third improper order was the continuing refusal of the family court judge to vacate the temporary parole of Tristram to his paternal aunt, Gail Hiler, despite this application being made repeatedly by the petitioning child protective agency, Administrative For Children's Services (ACS) and the Law Guardian and by the mother, Jing Kelly, herself.
Although Jing Kelly initially consented to this temporary parole in late December of 2000 (to get her son out of foster care where he had been the past three months), the paternal aunt, Gail Hiler, was refusing to cooperate with ACS in maintaining supervision of her home. Jing Kelly suspected that this lack of cooperation was due to the fact that Gail Hiler was allowing her brother, Craig Kelly, to live full time in her Larchmont home in Westchester County. This would be a clear violation of the terms of the temporary parole order and would place Tristram at substantial risk. Rather than deal appropriately with the problem, the family court judge displayed extreme bias in favor of the paternal aunt, declaring her to be "a godsend."
Gail Hiler admitted in later testimony that her brother Craig Kelly, now deceased, had been living full time in her home all the while (thus confirming Jing's suspicions which the family court judge refused to redress)and thus establishing that both Gail Hiler and her brother, Craig Kelly, father of Tristram, had lied under oath in their prior family court testimony as to where he was then living. Astonishingly, both Gail and Craig were admitted to the practice of law in New York State at the time they gave their false testimony in this regard.
Left on her own, without services by the New York City child protective agency or the Westchester County child protective agency, this mother was unable to arrange visitation on proper terms, was unable to prove her suspsicion (as later confirmed) that her husband was living full time in his sister's home and caring for the baby there himself, which was in violation of the family court parole order (and placed the child in severe risk), and was unable to obtain redress her concerns that Tristram seemed constantly ill, cold, feverish, with a constant running nose, and scratches and was not properly dressed for the temperature-- on many of the visits the mother was able to arrange.
The fourth major error was the refusal of the family court judge to order forensic examination of the parents and of all nonparent relatives seeking custody of the subject child and the family court judge's insistence that the nonparent custody petitions must be heard jointly with the neglect dispostional hearing as to the two parents. Because of this misguided concept (the two proceedings are indeed separate in nature and purpose), the family court judge refused to abide a ruling of the higher court hearing the divorce matter (New York County Supreme Court) that ordered forensics and directed that custody proceedings in family court be stayed but the neglect dispositional hearing can continue.
Instead of completing the neglect dispositional hearing in a timely manner, the family court judge adjourned it sine die (without date) until the custody litigation in the Supreme Court dealing with the divorce matter could be concluded. Thus, Jing Kelly, was deprived of her constitutional and statutory right to a prompt dispositional hearing and to prompt permanency planning assessments and to provision of services for family reunification.
The fifth major error was the refusal of the family court judge to give consideration to the fact that Jing Kelly was a victim of unabated domestic violence. Jing Kelly, had been assaulted by her husband in their marital home on the upper west side of New York City on June 10, 2000, which led to them both being arrested and their twelve day old son, Tristram, being placed in involuntary foster care. A neglect petition was filed in New York County Family Court. The case was eventually was eventually adjourned in contemplation of dismissal (ACD'd) on August 9, 2000 with Tristram being returned to the parent's home. A bit later, the criminal charges were dismissed as to each parent.
On August 30, 2000, however, Jing's husband again assaulted her in the marital home, this time with a gun, and involving sexual abuse. On September 1, 2000, Jing Kelly brought the gun to family court and was issued a temporary order of protection excluding Craig Kelly from the marital home (while promising the mother, Jing Kelly, that her baby would not again be removed from her care as she did nothing wrong and indeed was right to come to family court for help) but the child protective agency, ACS, then went out to Jing's home and removed Tristram nonetheless.
This unlawful removal of Tristram from his mother's care, on the very day she obtained a temporary order of protection excluding her assaultive husband from the marital home, was completely unwarranted and fits the pattern and policy of ACS then in effect that was later declared to be unconsitutional and was enjoined by the federal courts. See Nicholson v. Willams, 203 F.Supp.2d 153 [E.D.N.Y. 2002] and Nicholson v. Scoppetta, 344 F.Supp.2d 2003].
The sixth major error was that the family court punished Jing Kelly and proceeded against Jing Kelly (who filed the family offense petition against her husband and not the other way around) as though she were the respondent on the very petitions she filed. Jing Kelly came to family court on September 1, 2000 and filed a family offense petition against her then husband, Craig Kelly, alleging he sexually assautled her on August 30, 2000 in their home, at one point holding a gun to her head and asking "Jing do you want to die?"
In addition, Jing Kelly filed a Violation of Prior Order of Protection petition, also under article 8 of the Family Court Act and under the family offense docket number. The family court judge, however, sua sponte changed this filing, without notice to Jing Kelly, so as to be a Violation of ACD Order Petition under the neglect docket. The family court judge then instructed the local child protective service (ACS) to fully investigate this matter, under the transformed petition, and proceeded to hold hearings against Jing Kelly even though it was not based on the petition she filed and even though she was the one who came to court to file petitions requesting relief for herself only and no one else, neither the local child protective service, nor the law guardian to the child, nor her husband, Craig Kelly, had filed any new petitions against her.
When Jing Kelly left family court on Friday afternoon, September 1, 2000, she had an order of protection in her hand and went straght to the police to have it served and enforced (as she was instructed). She also had been promised by the family court judge that her baby would be left in her care. The return date for the family offense petition she filed was September 6, 2000. That would be the day for her husband to appear in person and either consent to the granting of a final order of protection or request a hearing on the petition Jing had filed against him.
On the return date of the family offense petition Jing Kelly had filed against her husband, he did not appear in court and no hearing was held as to him. Instead, the family court held an unauthorized and improper hearing against Jing Kelly (against whom no petition had been filed) and ruled that her infant son should be kept in foster care.
The family court judge overlooked the fact that as to Jing the prior neglect case had been ACD'd and that the ACD period ran for a period of one year and that there was no subject matter jurisdiction to proceed against Jing Kelly under the neglect docket in the absence of the filing of a new neglect petition or the filing of a Violation of ACD Order Petition against her. Thus, the family court was without subject matter jurisdiction to hold any such hearing as against Jing Kelly on September 6, 2000 and its characterization of the hearing as an FCA Section 1028 hearing (which hearings are held only after a petition is filed) was erroneous and unavailing. ACS did not file an amended neglect petition until twenty days later and even in this petition the local child protective agency did not allege that Jing Kelly had violated the terms of the prior ACD order of August 9, 2000.
The seventh major error was that the family court, in fact, never held any hearing whatsoever on the family offense petition that Jing Kelly had filed against her then husband, Craig Kelly, on September 1, 2000. Instead of trying the case for which Jing came to court and as to the petitions she actually filed, the family court judge tried Jing Kelly on the misguided amended neglect petition later filed by ACS and alleging she had a mental illness due to the fact that she was in therapy.
Only after completion of the fact-finding hearing (trial) on the Violation of ACD Order Petition against Craig Kelly (which the court itself had filed by transforming one of the actual petitions filed by Jing Kelly) did the family court judge announce that the amended neglect petition previously filed by ACS would now be deemed amended so as to contain (after the trial is over) an allegation that Jing Kelly had also violated the prior ACD order under the neglect docket and not just her husband.
Based on the petition the court itself transformed without notice to Jing Kelly and based upon the amendment thereto made at the end of the hearing by the court itself, Ms. Kelly, along with her husband, Craig Kelly, was adjudicated as having violated the prior ACD of August 9, 2000, and to, accordingly, be guilty of neglect by virtue of the June 10, 2000 arrest incident, initially bringing them to the attention of the court, and the domestic violence in the home in the last week of August 2000.
Proof that Jing Kelly violated the August 9, 2000 ACD by engaging in violence in the marital home along with her husband in the last week of August 2000 was and is lacking in the trial record. It was Jing Kelly who came to court on September 1, 2000 and alleged that her husband had sexually assaulted in the marital home on August 30, 2000 and, at one point, had held a gun to her head and asked her if she wanted to die. It was Jing Kelly who brought the gun to family court. It was Jing Kelly who had bruises on her hands and arms and torse and that were observed by the two ACS caseworkers who unlawfully removed her child from her care that same day that Jing Kelly had obtained her temporary order of protection (September 1, 2000) despite the family court judge promising Jing this would not be done. When the two ACS caseworkers saw Jing that very evening, they also saw Craig Kelly being escorted away by the police. They observed no marks nor bruises on him and he did not tell the police nor the ACS caseworkers that he had been assaulted in any way by the police.
Photographs were taken of Jing Kelly's bruises by the district attorney on September 6, 2000 and again on September 11, 2000 and these photographs were introduced in evidence at the trial. No photographs were admitted as to any markings or bruises allegedly received by Craig Kelly on August 30, 2000. He was a prosecutor with twelve years experience. Surely, if he had injuries, he would have sought medical treatment to document their existence and he would have had photographs taken.
The only evidence offered in support of Craig Kelly's fabricated defense that it was his wife who assaulted him in the marital home on August 30, 2000 and not he who assualted her-- was the testimony of Gail Hiler who admittedly lied to the family court in her sworn testimony about where her brother, Craig Kelly, was then living, and who lied again by saying she saw marks on Craig's back on the night of September 1, 2000 and that she went with him to go to the doctor but no doctor's office was open that night and so they never went at all the next day or the day after that or the day after than. Ms. Hiler also is a lawyer and would have taken photographs of the marks she supposedly saw had they truly existed.
It is astonishing that the family court judge entered a fact-finding of neglect against Jing Kelly based upon the above untruthful testimony of Craig Kelly and Gail Hiler, who were lying also about where Craig was living at the time. The judge has been requested to vacate the fact-finding of neglect against this mother now that Gail Hiler has admitted to lying under oath about where her brother, Craig, was living in December 2000 thorugh June 2001 during the temproary parole of Tristram to her home. But the judge steadfastly refuses to correct this injustice despite the fact that no harm nor injury ever occurred to Tristram and the finding is not warranted under the Court of Appeals ruling in Nicholson v. Scoppetta, 3 N.Y.3d 357 (2005) and despite the fact that Craig Kelly died of stomach cancer on October 24, 2002 and there can be no further domestic violence between the two parents of Tristram.
The family court judge's steadfast refusal to correct the past injustice of a wrongful finding of neglect against this mother is error number seven. I have already noted that the family court judge erroneously refused to conclude the dispositional hearing based on this finding and theregy defied the order of the higher court handling the divorce.
The only thing the family court got right in the initial stage of the litigation was its dismissal of the allegation by ACS that this mother, Jing Kelly, suffers from mental illness. Despite the dismissal of that charge, however, this is what the paternal relatives who have wrongly kept Tristram isolated and secreted from his birth mother these past four years seem to talk about. They incessantly attempt to justify their misguided actions by claiming this mother has been found to be mentally unift and that they were appointed Tristram's lawful legal guardians. Truth appears to be a stranger to Gail Hiler and to her surviving siblings.
THIS IS WHERE THINGS STOOD ON JUNE 2O, 2001 WHEN JING KELLY DID NOT RETURN TRISTRAM AFTER HER VISITATION PERIOD BUT INSTEAD CAUGHT A FLIGHT TO CHINA AND LIVED THERE WITH HER SON THE NEXT EIGHTEEN MONTHS. She was in despiar of ever getting justice at the hands of this rogue family court judge whose improper unlawful procedures and rulings were continuous throught the entire case and her then husband, Craig Kelly, had recently threatened her that she would die if she were ever to win custody in the divorce action.
* * * * * * * * * * * * * * *
WAS IT WRONG FOR JING KELLY TO VIOLATE THE TEMPORARY PAROLE ORDER OF THE NEW YORK COUNTY FAMILY COURT ON JUNE 20, 2001 BY FLEEING THE JURISDICTION WITH HER CHILD-- YES-- BUT THERE WERE MITIGATING CIRCUMSTANCES. CONSIDER, FOR EXAMPLE, THE COGENT TESTIMONY OF DAWN HUGHES, PH.D., AT THE SUBSEQUENT CRIMINAL TRIAL THAT JING KELLY WAS VULNERABLE DURING HER MARRIAGE DUE TO HER PREGNANCY AND THE INITIAL ASSAULT OCCURRING AGAINST HER ON JUNE 10, 2000, JUST TWELVE DAYS AFTER DELIVERY, AND THAT CRAIG KELLY DOMINATED HER THROUGH REPEATED SEXUAL AND PHYSICAL AGGRESSION, WITH A VIEW TO COERCING HER TO SURRENDERING CUSTODY OF HER CHILD TO HIM, AND THAT SHE SUFFERED STRESS AND CONFUSION, AND EXHIBITED SYMPTOMS OF THE BATTERED SPOUSE SYNDROME AND HER STATE OF MIND THAT SHE NEEDED TO FLEE FOR THE SAFETY OF HERSELF AND HER SON WAS GENUINE. That testimony was premised upon a fourteen hour examination of Jing Kelly by Dr. Hughes, a prominent forensic psychologist, and administering five psychological tests. DR. HUGHES FOUND THAT JING DOES NOT SUFFER FROM MENTAL ILLNESS AND IS CAPABLE OF CARING FOR HER SON, TRISTRAM.
_________________________________________
Jing Kelly stayed in China for eighteen months. Her son Tristram thrived in her care. She obtained medidal treatment for him promptly upon her arrival and he was diagnosed with possible rickets due to his poor nutrition during his time in the Hiler household and based on his large head and "chicken breast". Jing Kelly gave her son the daily vitamins and supplements he required. She was happy as she was with her son and they bonded closely. After a year of interference by a misguided family court judge-- mother and child were together at last and doing well. What a different story it would be if Jing Kelly did not attempt to return home to New York with her son Tristram upon learning that his father, Craig Kelly, had died in late October 2002. Mother and child would presumably still be doing well together and both would have been nourished and nurtured by the love and support that only being a family can bring.
___________________________________________
After Jing left for China with her son Tristram, the police broke into her parent's downtown residence and ransacked the place in their search for evidence and clues as to where she might be. Jing's father was arrested and carted in handcuffs to the family court as a purported material witness to the disappearance of his daughter and grandson. His home was locked after the police search and he had no where to sleep. His wife, who had been away in China from May 24, 2000 on to get help for her cholesteral and heart problem, had to rush home on an expensive airline ticket and gain reentry to their home. Jing Kelly has testified on numerous occasions that her parents had nothing to do with her decision to flee to China with her son. They were not told of her intent to do this before it occurred nor were they contacted nor requested to provide assistance after she left. Notwithstanding this fact, the family court judge erroneously excludes the maternal granparents as a family resource to Tristram.
Upon her return to the United States, Jing's mother was interviewed by several police at the airport. She told them she knew nothing about her daughter's whereabouts and had not seen her nor spoken with her. Later, in January 2002, Jing's mother, met with Lieutenant McCarthy of the own of Mamaraneck Police Department in my law office, with a Mandarin translator, and agreed to help their efforts to reach out to Jing through relatives and friends and classmates, to get word to her that the police were saying she would not be arrested if she returned voluntarily with her son but would instead be brought directly to family court and if criminally prosecuted would be out on bail pending any trial. Again, in a second meeting held at my office in December 2002, these same promises were repeated and it was confirmed that Craig Kelly had died and that Jing Kelly was safe from further attack by him. Thus, the maternal grandmother assisted in the efforts to obtain the return of her daughter and grandson to this country. She is not at fault her and should not be excluded as a family resource.
Jing Kelly got word of her husband's death and of the promises made by the police should she return voluntarily with her son. She did not, however, contact her lawyers in advance so that they could make proper arrangements for her return and surrender and transport with her son to family court. She was apprehended in Vancouver Airport, British Columbia, Canada on January 3, 2003. Sad to say, that is the last day she has seen her son.
______________________________
On January 3, 2003, Gail Hiler was notified that Jing would be arrested in Canada. She dropped what she was doing and scooted to New York County Family Court. She learned, however, that Judge Schechter was on vacation until the following Monday and no other judge wanted to hear any applications on the case. Knowing that Jing would be appearing before a judge in Canada that Monday and that Judge Schechter would learn of the situation that Monday-- Gail Hiler wanted to secure Tristram into her care before either the family court in New York City or the Canadian court could act.
Astonishingly the office of the Westchester County District Attorney and the Town of Mamareneck Police colluded to assist Gail Hiler in her efforts to thwart normal judicial process in determining the best interests of a child. The assistant district attorney handling the case in Westchester discussed the matter by telphone and by fax with Canadian police and arranged that Gail Hielr would fly to Canada but not pass through customs there and Tristram would be handed over to her not by any court or social service but by police stationed at the airport. The town of Mamaroneck police gave Gail Hiler a packet of papers to bring to Canada and rehearsed her procedure upon arrival reminding her not to enter the airport or proceed through customs. Gail Hiler arrived and although a social objected that her legal papers were not originals and had no seal and there was no court order in New York or Canada directing Tristram to be released to her-- the police said they were turning over the child to Gail Hiler and that the social services people should not interfere as it was their decision on a police matter.
So Tristram was flown home by Gail Hiler arriving in New York early in the morning of Sunday, January 4, 2003, and without Jing Kelly, his mother, knowing this was being done and without any court application being made for this to happen, and despite the fact that both the New York County Family Court and the Canadian Court were scheduled to deal with the matter that coming Monday. Gail Hiler testified that Tristram was drowsy and tired and slept in the airport for hours as the flight was delayed. But what did she do upon arriving back in New York-- Gail Hiler held parties in her home, with TV reporters, newspaper reporters, district attorney staff, police staff, neighbors, gathering there over the next several days, never less than twenty at any time, and Tristram was quiet and subdued, hiding under a table, clutching the coat he wore when last with his mother-- but the party went on. Then District Attorney, Jeanine Pirro, held a press conference to celebrate the start of the New Year in this wonderful fashion, wrongly claiming that Gail Hiler was Tristram's legal guardian and that Jing Kelly's maternal rights had been terminated due to her mental illness.
One can only wonder at the misinformation released by the Town of Mamaroneck Police and the Westchester County District Attorney. Jing Kelly did not suffer from any mental illness and her parental rights were never terminated and Gail Hiler was not Tristram's legal guardian. Perhaps it was this misinformation that led them to interfere with normal court process and routine by enlisting police in Canada to unlawfully turn over custody of Tristram to his paternal aunt, Gail Hiler, on January 4, 2003, in a cloak and dagger operation, bypassing custodms, and thwarting judicial review and input from the child's law guardian and the local child protective agency (all of which presumably would have been obtained the next business day).
Perhaps the Westchester police and Jeanine Pirro were incensed that Jing's parents had exercised their rights by bringing a law suit against them in federal court over the alleged unlawful break-in and search of their apartment and the alleged unlawful arrest and harsh treatment of jing's father when he was dragged over to family court in handcuffs and inquired of on the record as a possible material witness to the crime committed by his daughter of fleeing to her native land with her child and thereby violating a court order.
Perhaps it was that Jing was Chinese and an immigrant and Gail Hiler was Caucasian, a white middle class lawyer residing in a nice suburban town (Larchmont) and that her husband was an attorney also, working in Manhattan, and both her parents had been lawyers too, and Craig Kelly had grown up in Larchmont and had friends there, and had applied previously to work at the Office of the Westchester County Distirct Attorney and, perhaps other reasons and influences came to bear as well-- BUT IT IS INTERESTING THAT JEANINE PIRRO CHARGED JING KELLY WITH A FELONY COUNT OF CUSTODIAL INTERFERENCE IN THE FIRST DEGREE WITH POSSIBLE FOUR YEARS MAXIMUM IMPRISONMENT AND REQUIRING PROOF OF HER HAVING AN INTENT TO PERMANENTLY RESIDE OUTSIDE THE JURISDICTION-- AND THEN OPPOSED THIS MOTHER BEING RELEASED ON BAIL-- a far harsher treatment than had been promised were she to voluntarily return to New York with her child.
IT IS ALSO INTERESTING THAT THE ORDER ALLEGEDLY VIOLATED AND FOR WHICH JING KELLY WAS BEING PROSECUTED WAS ISSUED NOT IN WESTCHESTER COUNTY BUT IN NEW YORK COUNTY WHERE BOTH OF TRISTRAM'S PARENTS RESIDED. THE NEW YORK COUNTY DISTICT ATTORNEY SAW NO REASON TO PROSECUTE JING AND INDEED THE NEW YORK COUNTY FAMILY COURT ITSELF HAD AUTHORITY TO IMPRSION JING KELLY FOR A PERIOD OF UP TO SIX MONTHS IF IT DETERMINED HER FLEEING THE JURISDICTION WITH HER CHILD IN VIOLATION OF ITS ORDER CONSTITUTED CRIMINAL CONTEMPT.
Maybe the fact that Craig Kelly died without ever seeing his son again (while Jing and Tristram were in China) was also a factor in this zealous prosecution by the Westchester County District Attorney.
Anyway, Jing Kelly was kept in Canada until March 7, 2003 even though she voluntarily waived extradition. Upon her transportation to Westchester County she was arraigned and held without bail and incarcerated pending trial at the local jail in Valhalla, New York.
In the meanwhile, Gail Hiler initially refused attempts by Westchester Department of Social Services to see the child and have him medically examined. Ms. Hiler even called the police to demand they throw Westchester DSS caseworkers out of her home. Tristram was eventually medically examined and found to be in good health.
Ms. Hiler filed a new custody petition in Westchester County Family Court in mid-January 2003. Ah, perhaps this is the reason she and the Westchester DA and the Town of Mamaraneck Police resorted to unorthodox channels and procedures in scurrying the child from Canada back to Larchmont before any court review could be head in Canada or Manhattan-- so that Ms. Hiler could engage in a bit of forum shopping pure and simple. This certainly was not a proper law enforcement role.
Gail Hiler also filed a family offense petition against Jing Kelly even though she had not seen her since June 20, 2001 at the last visitation period and the day Jing fled with Tristram to China and even though Jing Kelly had never been violent or threatening to her and had never committed any offense within the ambit of FCA Section 812.
This forum shopping ploy of Gail Hiler was defeated however when Judge Schechter on January 31, 2003, in New York County Family Court, again took control of the case and transferred the Westchester matters to her court. Oh yes, the tallying of further errors on the part of this judge, interrupted by the hiatus of this mother being with her son in China, now begins anew.
__________________________________________
On the very next court date, March 20, 2003, Jing Kelly was not produced by Westchester County Department of Corrections to New York County Family Court. [Interestingly, Jeanine Pirro could spend thousands upon thousands of dollars prosecuting this mother for violating an adjacent county family court order, and keeping her in jail the whole time her criminal trial was pending-- but could not ensure that this mother was transported to the very court whose order she was being held accountable for having violated (and the transportation expense was probably less than $100).] Rather than grant an adjournment so the mother could be properly transported and produced and be present and participate in the court hearing-- Judge Schechter concluded the aborted dispositional hearing in Jing Kelly's absence.
Even though Gail Hiler did not testify and no evidence was taken concerning Tristram, Judge Schechter summarily awarded permanent custody of Tristram W Kelly to his paternal aunt and awarded Ms. Hiler a final order of protection (also without hearing or testimony). Judge Schecther then discharged the neglect dispositional hearing to this purported custody award and denied the application of Jing Kelly's attorney for visitation between mother and son at the local jail (just a few minutes drive from the Larchmont home of Gail Hiler) and denied the custody and visitation applciation of Ling Mei Xing, maternal grandmother, as well.
So there it was, with one swift stroke of the judicial pen, Jing Kelly was isolated and cut off from her son. One can only imagine how she felt when learning the news of all this in her jail cell.
It is astonishing that any experienced family court jurist could enter such a plethora of improper and unlawful rulings. Perhaps Judge Schechter was being petty and vindictive and was retaliating viciously on account of her prior temporary parole order being violated and the prior history of an ACD order also allegedly having been violated. A good many of the judges sitting in Manhattan Family Court are notorious for becoming mean and nasty when their court orders have been violated. It is a sad commentary on their judicial temperament.
By this time, I have lost count of the myriad errors in the case by the Hon. Sara P. Schechter, JFC, so without further counting we will simply move ahead with the story.
Jing Kelly's criminal trial was concluded on January 27, 2004. She was convicted of custodial interference in the second degree and not of the felony count under the Indictment. In essence, she was overcharged by the prosecutor and that overcharging and opposition to her bail was motivated, perhaps, by their desire to enhance the prospects of their local resident, Gail Hiler, to retain custody of Tristram, a child not her own. At the end of the verdict, at least eight of the twelve jurors came over to Jing and her trial lawyer and said they would have acquitted her had the court allowed her affirmative defenses to be considered on the lesser count. Her appeal of this conviction was perfected and oral argument is awaited in the next month. Hopefully, it will be reversed.
Jing Kelly was immediately released from incarceration as she had already been imprisoned over thirteen months and the maximum sentence on a misdemeanor conviction in New York State is twelve months and with one-third off for good behavior it is actually eight months. Thus, Jing Kelly was kept in jail five months longer over the maximum she could possibly have been required to serve even were she sentenced to the hilt after conviction.
It is highly unlikely Jing Kelly would have been senteneced to lenghthy jail time had she been out on bail pending her trial and convicted only of the miseemeanor (her first offense). Thus, the Westchester District Attorney did improperly use overcharging and denail of bail to impose a greater punishment on this mother than she deserved. I know of no other case where a mother who fled the jurisdiciton with her child in such a borderline neglect scenario has served substantial jail time of this magnitude. If Jing Kelly were not Chinese and were the Kelly's and Hiler's not Caucasian and middle class residents of a nice surburban locale== this injustice would not have transpired.
The only nexus between Jing Kelly and Westchester County was that the visits occurred there due to the refusal of Gail Hiler to do what all foster care parents are routinely required to do.. transport their ward into the locale in which the parents reside or the agency office location for visitation. Jing did not violate the parole order in Westchester County anyway. She violated in Queens County when she boarded a jet for travel abroad with her son.
The idiocy of this excessive criminal prosecution was continued as a result of the Westchester District Attorney requesting a sentencing report and probation term and Gail Hiler standing up in court as an alleged victim of the crime and demanding restitution for her expenses in traveling to Canada on January 4, 2003 to unlawfully take physical custody of Tristram there without benefit of any prior judicial review. At Jing's sentencing in May 2004, the presiding criminal court judge granted her an unconditional discharge and noted "she has suffered enough" and wished her good luck in gaining the return of her child.
Jing Kelly was fortunate to have the pro bono sevrices of a prominent New York City lawyer, Michael Dowd, Esq., during her criminal trial She is thankful to Mike Shaw, Esq., and Rocco D'Agostino, Esq., for their assistance to Mr. Dowd.
__________________________________
Upon being released from incarceration, Jing Kelly made immediate application to the appellate court for interim relief from the erroneous March 20, 2003 orders of Judge Schechter. Incredibly, that application was denied and this meant Jing must await the outcome of the full appeal. In the meanwhile, Jing Kelly brought on a custody application in New York County Supreme Court but that application was held in abeyance pending the outcome of the appeal of the erroneous family court orders. Interestingly, although unknown to Jing at the time (February - March 2004) when the custody application was made to Supreme Court and the interim relief application was made to the appellate court-- TRISTRAM WAS NO LONGER LIVING IN GAIL HILER'S HOME AND NEITHER GAIL HILER NOR HER HUSBAND WHO WAS REPRESENTING HER DISCLOSED THIS COGENT FACT.
Had it then been made known that Gail Hiler had shipped Tristram out of her home to reside full time in California with another paternal relative, to wit, her brother, Douglas Kelly, who had never been awarded custody by any court-- the above judicial appliations of Jing Kelly would surely have received a different outcome. Jing Kelly has brought a civil law suit against Gail Hiler and her husband, James F. X, Hiler, and against Douglas Kelly for their nondisclosure of the fact that Tristram was no longer in the Hiler household and for their failure to inform her and for their failure to seek court approval. This action is pending in New York County Supreme Court.
Next, Jing Kelly applied in New York County Family Court before Judge Schechter for vacatur of the prior orders of that court as issued on March 20, 2003 at a time Jing was not herself present. Incredibly, Judge Schechter denied this application even though it was joined in and supported by the law guardian.
____________________________________
The decision on the first appeal was issued by the Appellate Division First Department of the Supreme Court of the State of New York on November 17, 2005 and is cited as Matter of Tristram K., 804 A.D.3d 804 (1st Dept. 2005). The appellate court unanimously reversed the entirety of the erroneous orders of the family court trial judge (except as to the denial of custody to the maternal grandmother as she resided in senior citizen housning) and vacated all those orders and remanded the case back to New York County Family Court for the holding of an "immediate visitation inquiry" and an "expedited new dispositional hearing."
The above decision received widespread media coverage and renewed Jing Kelly's hope that justice would finally be restored. Of note is that the appellate lawyer who took over the task of writing the main brief (and engendered his own publicity thereon) overlooked making arguments directed to the unfounded underlying fact-finding of neglect and the initial wrongful removal of Tristram from his mother's care and addressed only the errors as to the March 20, 2003 final orders. To remedy this deficiency, I drafted an Amicus Brief, which was sponsored and submitted by New York City Councilman John C. Liu, but ultimately, the appellate court deemed the arguments to have been waived due to their not eing raised in the main brief on the appeal. This was disappointing as there was strong likelihood of reversal of the fact-finding under the Nicholson case doctrine (since Tristram was not impaired in any way by the quarreling between his parents in June through August of 2003 when he was an infant) and had the neglect fact-finding been set aside, there would be no basis for the dispositional hearing and the child would be returned to his mother outright.
After this appeal decision was handed down, the family court trial judge was not diminished in her capacity to issue erroneous orders. The first thing Judge Schechter did was deny visitation between mother and child and delay everything (not expedite) pending the determination of the entire proceedings (still ongoing to this very day) and, inexplicably, grant permission to the paternal uncle, Douglas Kelly, with whom Tristram has resided (unlawfully) since July 28, 3003, to intervene in the neglect dispositional hearing as a party thereto, over Jing Kelly's objection, and to call witness and introduce evidence in his own behalf. Thus, the current hearing was unnecessarily protracted and delayed and this ruling allowing intervention by the paternal uncle from San Anselmo, California, was ultimately reversed on the second appeal.
The second appeal ruling is cited as Matter of Tristram K. 2006 NY Slip Op 07995 (1st Dept. 2006) and clarifies that paternal relatives cannot intervene in child protective proceedings against the wishes of the respondent parents.
In the renewed dispositional hearing, the pateral uncle has testified that Tristram has been doing quite well and he sees no evidence of emotional disturbance or disfunction. Interestingly, Douglas kelly decided not to tell Tristram that he was not his father and that his two sons were not his brothers (but were cousins) and that his wife Corrine Kelly was not his birth mother. This information supposedly was imparted to Tristram only recently as a result of the above appeals.
Tristram was examined by a psychologist in California who opined that he is a bit quiet but has been in and out of several households and his emotional stability might be tested were he to abruptly change his lviing situation. Dr. Conrad then went on to say as far as Tristram is concerned, he considers his current caretakers to be his parents and has no knowledge of his true birth parents and hence no strong desire to be in contact with them.
For the above reason, Jing Kelly has agreed that Tristram should be in therapy to help with his resumption of contact with her and the maternal grandparents and his eventual reunion to her care. However, the family court still has not ordered this to proceed and it is now fifteen months after the initial appeal decision was rendered. TO THIS VERY POINT IN TIME THE FAMILY COURT JUDGE HAS FORBIDDEN ALL CONTACT BETWEEN THS MOTHER AND CHILD.. NO PHONE CALLS, NO E-MAILS, NO LETTERS BACK AND FORTH, NO IN PERSON CONTACT AND VISTIS, AND THIS GOES FOR THE MATERNAL GRANDPARENTS TOO.
As a result of this constant delay, I brought on a motion to the appellate court and a MANDAMUS was issued against Judge Schechter on August 3, 2006 "directing the family court's attention to the visitation ruling in the prior appeal ruling of November 17, 2005." Even so, the dispostional hearing is not concluded and visitation and contact is denied. Moreover, the therapist for the child has been chosen by the paternal relative in San Anselmo, California, and the mother and maternal grandparents, whom I represent, are precluded from contacting that person or agency or providing information. This is absurd.
__________________________________
After losing the appeal on the order granting him intervener party status in the ongoing neglect dispositional hearing, the nonparent paternal uncle, Douglas Kelly, has brought on a custody petition (filed in late November of 2006) in New York County Family Corut concerning Tristram. Douglas Kelly then brought on a motion to consolidate his new custody petition with the nearly completed neglect dispositonal hearing. That motion was properly denied and the custody matter is in abeyance until the conclusion of the neglect dispostional hearing [but all pending matters are again on the calendar at the end of this month]
Jing Kelly brought on a motion to recuse Judge Schecther from hearing and determining the custody petition (as this judge previously erroneously declared that the iffy neglect finding constituted "extraordinary circumstances" such as would confer standing to nonparents to sue for custody of Tristram) and has been issuing biased and erroneous rulings continuously over the past four years and has misconstrued both the law and the facts to the detriment of both this mother and child.
Jing Kelly also moved to dismiss the new custody petition on the basis of estoppel in that Douglas Kelly took Tristram into his home in July 2003 and took no action over the next several years to obtain proper lawful custody and instead concealed his whereabouts from his birth mother and from the very courts in which she herself was making myriad applications for custody and visitation.
Jing also argued in her motion that the custody matter must be dismissed on its face if the goal for the child is reunion with his parent, which is the permanency recommendation filed by ACS, and I cited recent case law to that effect on her behalf.
ALL OF THE ABOVE APPLICATIONS WERE RECENTLY DENIED BY JUDGE SCHECHTER AND BOTH JING KELLY AND THE MATERNAL GRANDPARENTS (WHOM I REPRESENT) HAVE FILED THE REQUISITE NOTICE OF APPEAL. ANOTHER APPLICATION FOR INTERIM APPELLATE RELIEF WILL LIKELY BE MADE AND A FULL APPEAL OF THE ENTIRE MATTER WILL BE NECESSARY WHEN THE FINAL ORDER OF DISPOSITION IS RENDERED.
IN THE MEANWHILE TIME PASSES, THIS MOTHER STILL HAS NO CONTACT WITH HER SON.
But equally important, I am a solo family law practitioner. I am pro bono to Jing's parents, the maternal grandparents, and my resources are limited. BOTH JING AND HER PARENTS, WHO ARE TRISTRAM'S SOLE SURVIVING GRANDPARENTS, DESERVE THE FULL SUPPORT OF THE ASIAN AMERICAN COMMUNITY IN COMBATTING THIS RAMPANT INJUSTICE DONE TO HER AND HER CHILD. This matter is worse than the Tennessee A.M.H. case because Jing never gave up her child voluntarily to anyone and was brutally attacked by her then husband, Craig Kelly, on several occasions for refusing to allow him to take Tristram away from her, and Jing is a United States Citizen and does not intend to resume living in China and this is a case about a Chinese mother and Chinese-Caucasian child and the Caucasian nonparental relatives have been shown way too much pariality not only in family court but by law enforcement.
JING IS IN DIRE NEED OF HELP FOR PERFECTING THE UPCOMING APPEALS. THE TASK IS DAUNTING AND STAGGERING FOR ANY ONE LAWYER TO UNDERTAKE WITHOUT PAY AND WITHOUT LEGAL SUPPORT AND ABILITY TO GET TRANSCRIPTS AND ASSEMBLE, PHOTOCOPY RECORD AND PRODUCED RECORD AND BRIEFS ON APPEAL.
Help can be provided directly or through support efforts such as finding lawyers and engendering support and public appeals for more help.
