THINGS DONE WRONG
- What GAL Terry Chucas (Guardian Ad Litem) Did Wrong
- What Detective Brady Did Wrong
- What Evaluator Dr. Murphy Did Wrong
- What Therapist Dr. Gang Did Wrong
- What Judge Smyth Did Wrong
What the GAL (Guardian Ad Litem) did to cause Damon to not be protected:
The children's GAL (Attorney Terry Chucas) violated the law and professional and ethical codes, as well as many of the ABA Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases.
The two state laws he violated were Family Code 3118 which requires that a sexual abuse evaluation be done and FC 3027.5 which states that custody cannot be taken away from a parent for reporting making credible allegations of abuse.
He did not build basic trust with the children, ignored their preferences and their distress at the court's decisions, and did far less than the minimum required by the Standards. Most importantly, he did not get their voices heard in the court with regards to all of the disclosures of abuse and the witnessing of it.
He did not express to the court what the children's wishes were in regards to custody/visitation arrangements until the very end, when they told him they wanted supervised visits with their father because of the abuse. Instead he recommended full legal and physical custody go to the father and their mother get supervised visits. He actively obstructed the truth from getting to the court in many instances, but especially when he prohibited Damon from continuing with Dr. Williams at the Chadwick Center (a well-respected child trauma center) after he disclosed inappropriate touching to her and also when he continuously refused to order a sexual abuse evaluation over a period of 15 months.
He consistently showed bias against the mother and appeared to be representing the father's best interest rather than the children's. He said he would take action against Eric if Damon told him Eric was sleeping with his arms around him. Damon did say that, but he didn't take any action. He threatened Cindy that if she continued to try and protect Damon, he would recommend custody be switched to Eric, which he eventually did.
These are some of the Standards by section that he violated:
1. Standards B-2(1)
- He recommended to the court the exact opposite of what the children wanted, even after
admitting it would be traumatizing to his clients to be taken away from their mother, who
had always been their primary caretaker and whom they were most bonded with. There
was no justification for this decision other than that it was his opinion the mother was
ruining the relationship with their father, a determination he was not qualified to make
and had no evidence for. He did not discuss this decision (or any other) with the children
before presenting it to the court, even though the children at the time were 12, 10 and 8.
- When the GAL's position is different than the children's, it is supposed to be because the
child's preference would be injurious to the child, not merely "contrary to the lawyer's
opinion of what would be in the child's interests." Also, if the children's wishes are not
represented by the GAL, the children are supposed to have an attorney who will represent
their wishes, with the GAL representing what he thinks is in their best interest.
- The GAL did not "counsel the child[renl concerning the subject matter of the litigation,
the children's rights, the court system, the proceedings, the lawyer's role, and what to
expect in the legal process."
- He did not "develop a theory and strategy of the case to implement at bearings, including
factual and legal issues."
- He did not "identify appropriate family and professional resources for the child."
- He did not act as a fact-finder in regards to the sexual abuse allegations and did not
zealously represent the children.
- He did not establish and maintain a trusting relationship with the children.
- He did not conduct thorough, continuing, and independent investigations and discovery.
- He did not "file petitions, motions, responses or objections as necessary to represent the
- He did not "seek appropriate services to access entitlements, to protect the children's
interests and to implement a service plan."
- He did not "participate in settlement negotiations to seek expeditious resolution of the
case, keeping in mind the effect of continuances and delays on the children."
- He did not "explain to the client, in a developmentally appropriate manner, what is
expected to happen before, during and after each hearing."
- He did not "make appropriate motions.. .to advance the child's position at trial or during
other hearings." He did not "file briefs in support of evidentiary issues...or preserve
legal issues for appeal?"
- He did not "present and cross-examine witnesses, offer exhibits, and provide independent
evidence as necessary." He was not "prepared to participate fully in every hearing and
"merely deferred to the other parties."
- He did not allow the children to be present at the hearing.
- He made no attempt to determine whether it would be beneficial for the children to
- He did not "discuss the order[s} and its consequences with the child[ren]." "The child is entitled to understand what the court has done and what that means to the child, at least with respect to those portions of the order that directly affect the child..."
- He did not "consider and discuss with the child, as developmentally appropriate, the
possibility of an appeal."
- He was not independent of the court or the father. "The concept of independence
includes being free from prejudice and other limitations to uncompromised
representation." He engaged in ex-parte conversations with the father's attorney,
evaluator, and psychologist and continued to favor the father's position and disregard the
health and welfare of his clients.
What Detective Brady did to cause Damon to not he protected:
Despite Damon saying the incident in his top bunk with his father had gotten him wet, she did not get a search warrant for the bedding before talking to father.
Despite Cindy reporting that she had caught Eric with child pornography, Brady did not get a search warrant for his computer before talking to father.
She called Eric ahead of time and told him on the phone what Damon had told her and CPS and made an appointment for Eric to come in the next day to discuss it. By that time Eric had made up the story that he had taken Damon to the bathroom 3 or 4 times (later Damon said Eric had done it to him more than once that night and most nights), and it was the bedrall that Damon was describing that had hurt him. (Judge Smyth found that was impossible since Damon had counted to seven seconds.)
Eric failed the polygraph and Brady still refused to get search warrants.
When she questioned Damon again, he told her that his father had never taken him to the bathroom that night, so she said that Eric was lying.
Despite all this, she still would not get search warrants or do any other investigation.
She told Cindy that incest cases weren't a priority and that she had a bus driver case that she needed to spend time on. Cindy tried to get her to take it seriously, but she just got angry and hung up on her (a few times).
She said she could not give it to the D.A. because there was no physical evidence. When Cindy pointed out that the reason there wasn't any was because she hadn't gotten any, she yelled and hung up on her. She behaved in a very unprofessional manner.
She closed the case as unsubstantiated and put Eric on the Child Abuse Central Index.
Cindy eventually called her superiors to complain. They did nothing. Brady got angry with Cindy for calling her superiors and yelled at her for having the nerve to do that.
When Damon disclosed to his teachers almost two years later (just before they left),
Detective Brady again told Cindy that she was too busy with more important cases, like
one that involved sodomy. Cindy said that Damon's case might be a sodomy case, but
nobody knew because no sexual abuse evaluation had ever been done. She still said there
were more important cases than Damon's (i.e. not incest) and that she wouldn't be able to do anything about this anyway.
What the Evaluator Dr. Murphy did wrong:
Took the case despite the fact that he works with Eric's attorney-óa clear conflict of interest.
Did not do a sexual abuse evaluation, This violated FC 3118, which as a practicing forensic psychologist, he must know about. Not to mention it is common sense.
Did not ever speak with Damon or his brothers about the abuse.
Did not address any of Damon's disclosures or attempt to explain what Damon was saying to the social workers about the "hard thing" hurting him or any other details given by him.
Did tests which are not valid for either custody, child abuse or to detect who is a child molester, including one that was used to give Damon back to Eric unsupervised before the hearing.
Did not do tests which are valid and accepted by the courts, like the MMPI.
Did not administer a personality test although Cindy reported serious problems with Eric that could be related to the abuse, like sex! addiction, viewing of child porn, homosexual incident, anger, chronic anxiety, low self-esteem, etc. He did not include these in his report either.
Assigned his friend, Jacqueline Gang, PhD, to be Damon's therapist, another possible conflict of interest.
Did not make any collateral contacts with detective, CPS workers, social workers, teachers or others who Damon had disclosed abuse to or who may have knowledge about it, although he is required to do that by law.
Did not make collateral contacts suggested by mother. Only contacted and reported what his friend Dr. Jacqueline Gang said, which was that she did not think the abuse happened. This was despite the fact that she had not assessed Damon for abuse or trauma.
What Dr. Gang, the therapist, did to cause Damon to not be protected:
Did not assess Damon for abuse or trauma, despite his many disclosures to other professionals and his mother. She never spoke with him about the abuse.
Did not report that Evan told her he had witnessed some of the abuse.
Brought Eric into the room with the children often whenever they started talking about problems with him.
Told Damon that he could not leave the room unless be agreed to say the "hard thing" he said hurt him was the bedrail. Eric was in the room with them that session.
Did not report to the court that it was distressing to Damon that Eric was sleeping with him, although she did say Eric was sleeping with Damon (at 8 years old) to meet his own emotional needs.
Did not make any collateral contacts which may have been helpful to understand Damon's situation better.
Did not report to the court that Evan told her he witnessed some of the abuse (could that be obstruction of justice?).
What Judge Smyth did to cause Damon to not be protected:
- The judge gave the children back to Eric unsupervised against the strong
recommendations to the contrary by CPS, before any evaluation had been done and many
months before the hearing.
- He did not order an evaluation according to law to be done at any time during the almost two years of continual disclosures by Damon. He did not do any fact finding with regards to the abuse and did not order any to be done. He did not ask to speak with the children or have them heard directly in any way.
- At the hearing the judge ignored all of Damon's disclosures except the first one (in the top bunk) which he attributed to Damon's imagination. This was in direct contradiction to his finding that what Eric said about the "hard thing" being the bedrail (while being pulled over it to go to the bathroom) was impossible since Damon said he counted and it lasted for seven seconds. The judge believed Damon's account of the hard thing lasting for seven seconds, while at the same time maintaining that he was just imagining the whole thing. He also disregarded the fact that (brother) Ryan had witnessed his father climbing up into the top bunk with Damon and was the one who first reported it, which was confirmed by CPS. That would also have precluded the possibility of Damon having imagined it. He also did not account for the heavy breathing, the fact that the incident had gotten Damon wet, how much it hurt or any other details Damon supplied which would have made it less likely that he had imagined it, especially since they are all consistent with sexual abuse. He was not qualified to make a determination that a child is imagining sexual abuse; by law it must come from a psychologist who meets certain qualifications after a sexual abuse evaluation meeting the minimum requirements by law (FC3 118) is completed.
- He disregarded the fact that Even and Ryan had said they witnessed some of the abuse during the daytime.
- After the hearing, when Damon kept complaining that his father was still making him sleep with him and that it distressed him a lot, the judge ruled that Eric had a right to continue to, in effect, force Damon to sleep with him (which be did). This was despite the fact that Damon was almost 8 years old at the time and the therapist had warned that Eric was using Damon to meet his emotional needs. The judge disregarded the
therapist's warning and Damon's distress.
- After Damon again disclosed the abuse to his teacher and principal just before they left, the judge once again ignored the disclosure and did not order a sexual abuse evaluation.