In the Matter of James J. Miller And Janet S. Todd.

• Decision Date: 31 March 2011
• Docket Number: No. 2009–806.,2009–806.
• Citation: 20 A.3d 854,161 N.H. 630
• Parties: In the Matter of James J. MILLER and Janet S. Todd.
• Court: New Hampshire Supreme Court

161 N.H. 630

20 A.3d 854

In the Matter of James J. MILLER and Janet S. Todd.

No. 2009–806.

Supreme Court of New Hampshire.

Argued: Nov. 17, 2010.Opinion Issued: March 31, 2011.

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the petitioner.John P. Carr, of Hingham, Massachusetts, and Elizabeth B. Olcott, of Concord, on the brief, and Mr. Carr orally, for the respondent.HICKS, J.

The petitioner, James J. Miller, currently a resident of New York, appeals an order of the Portsmouth Family Division ( DeVries, J.), recommended by the Master ( Cross, M.), requiring the parties' two minor daughters to continue to live primarily with the respondent, Janet S. Todd, in New Hampshire. We vacate and remand.

We have reviewed the extensive record in this case and set forth the facts most relevant to the issues on appeal. Miller and Todd met in 1999 over the internet and established a relationship. At that time, Miller lived in Michigan and Todd lived in New Hampshire. Although they never married, their relationship produced two daughters, Laurel born in 2002 and Lindsay born in 2003. During 2002 and 2003, the parties spent some time living together in Michigan, Todd and the children spent some time alone in New Hampshire living with Todd's parents, and the parties all spent some time together at Todd's parents' house in New Hampshire.

Toward the end of 2003, the parties' relationship broke down. On December 23, 2003, Miller obtained an ex parte order in the circuit court in Michigan granting him sole temporary legal and physical custody of his daughters. That same day, Todd took the children to her parents' home in Hampton, New Hampshire. On January 6, 2004, Todd was served with the Michigan custody order. On January 15, the Rockingham County Superior Court, in response to Miller's petition for enforcement of the Michigan custody decree, ordered Todd to appear at a hearing and on January 26, the trial court ordered Todd to bring the children to Miller within twenty-four hours for the purpose of transferring custody to him.

Sometime in January, Todd's mother told her that, four months earlier, she saw Miller molest Laurel by inserting his forefinger into her. On January 27, on the advice of her attorney, Todd took the children to the emergency department at Exeter Hospital and requested a “well baby check.” The physician's report states: “[P]atient here for well child check-up; told by Lawyer to have evaluated for custody issue.” There is no evidence in the record that Todd notified the hospital staff of any concerns regarding sexual abuse. The physical exam indicated the children's condition was good. Todd then transferred the children to Miller's custody.

On February 5, 2004, a report was filed with the Family Independence Agency of Michigan, Child Protective Services, alleging that

maternal grandparents recalled an incident that occurred in New Hampshire between 10/03/03 and 10/05/03 when father was rubbing diaper cream on Laurel because she had a diaper rash. Maternal grandmother states she did not have [a] diaper rash. Maternal grandmother stated father inserted his fore- finger inside of Laurel. This was never reported to anyone.

The agency investigated the report, including having pelvic examinations of both children administered. No indications of sexual abuse of either child were found and the investigation was closed.

In November 2004, the Rockingham County Superior Court issued a temporary decree awarding the parties joint legal custody of the children. In that order, the trial court questioned the credibility of both parties. Regarding Todd, the court found “most troubling” the allegations of sexual abuse raised by her. As the court stated, “It is simply far too convenient to believe the testimony put forth by [Todd]: that her mother [chose] not to reveal the allegations of [Miller's] alleged sexual assault until custody of the minor children was awarded to [Miller].” The court noted that neither party “appears to care to whom they lie so long as they achieve favorable results.”

In June 2005, Todd's father reported to the Hampton police that while he was lying in bed with Lindsay and Laurel watching a movie, Laurel tried to “straddle” him on his chest and stated, “I'm f–––––– you.” When the grandfather asked Laurel where she heard that she said nothing. When the grandfather then asked, “from your father,” Laurel said “yes.” The police noted the report as a “possible disclosure” of sexual abuse, but took no action.

In September 2005, a friend of Todd's made a statement to the police that Laurel had reported that Miller had spanked her in the groin area. Todd filed an ex parte petition for temporary stay of visitation between Miller and the children alleging that the children reported being spanked by Miller and a third party in the groin area and that Laurel had displayed “other alarming behavior of a sexual nature,” referring to the grandfather's report to the police in June. As a result of these allegations, the court issued an order prohibiting Miller from having any contact with the children “until this matter is duly investigated and any and all allegations of abuse are deemed unfounded.” After an investigation that included a second pelvic examination of Laurel, the New Hampshire Division for Children, Youth, and Families (DCYF) closed the matter as unfounded. Details of the alleged abuse were sent to the Manchester Police Department which, after investigation, also concluded that the charges were unfounded. A copy of the report was sent to the Hillsborough County Attorney.

In November 2005, Todd and the children's therapist reported to DCYF that Laurel had stated that Miller took “pictures of her with her clothes off,” made her “eat his pee pee” and “panks her in the front.” On January 30, 2006, DCYF sent a letter to Miller stating that it had determined that he was “the individual responsible for the abuse” and that his name would be entered “on its central registry of founded child abuse and neglect reports.” Miller appealed the finding and, on February 24, 2006, DCYF rescinded its initial determination. In a letter to Todd, DCYF informed her that new evidence had come to its attention and that “the assessment regarding your children has been closed unfounded.” DCYF stated that “[t]here has been a concern that Laurel has been coached with the information that she has been disclosing. Please understand that this ... type of coaching, if proven, is equally as abusive to a child as if the abuse had actually occurred.” The matter was also referred to the Manchester Police Department, which investigated but did not pursue charges.

In July 2006, the parties agreed to be evaluated by psychologist Peggie Ward “to investigate and make recommendations ... on the issues of a parenting/custody assess[ment], abuse allegations by both parties, parental alienation issues, scripting issue[s] and any and all other issues ... which she deems relevant.” On December 18, 2007, Dr. Ward issued an eighty-eight page report in which she considered several hypotheses. First, Dr. Ward posed the hypothesis that “Laurel was not sexually abused by her father or anyone else.” Dr. Ward noted that both children were subjected to multiple examinations and questioning and that Laurel's statements to the Child Advocacy Center “do not appear to be consistent with her initial statement nor do they have a good deal of context.” Dr. Ward opined that “this hypothesis may be supported by the data” in that “Laurel's presentation is less consistent with a child who has been repeatedly sexually abused.”

Second, Dr. Ward posed the hypothesis that “Laurel was sexually abused or inappropriately touched by Mr. Miller.” Dr. Ward noted that “Laurel's statements and behaviors are less consistent with child sexual abuse than they are of premature focus on the genital area followed by a good deal of anxiety and distress about sexual abuse from both Janet Todd as well as [Todd's mother].” Due to the “lack of context and the lack of memory regarding abusive behavior, combined with multiple physical exams and multiple interviews,” it was “impossible to determine whether Laurel was sexually abused by her father.” Dr. Ward's opinion was that “Laurel's presentation is less consistent with a child sexually abused by her father and more consistent with other hypotheses.”

Third, Dr. Ward posed the hypothesis that Todd “has deliberately coached the children in what to say and scripted their responses.” It was Dr. Ward's opinion that “this hypothesis is not the hypothesis best supported by the data.”

Fourth, Dr. Ward posed the hypothesis that “Todd came to believe that Laurel, not Lindsay, was sexually abused by Mr. Miller.” It was Dr. Ward's opinion that this hypothesis “is the most likely hypothesis supported by the data. That is, that Ms. Todd, after experiencing her parent's concerns about Mr. Miller and after having experienced her own negative interactions with Mr. Miller, became increasingly convinced that Mr. Miller was harming Laurel.” Referring to a psychological report on Todd that was prepared in August 2007 by Dr. David Medoff, Dr. Ward noted that

[p]sychological testing shows that Ms. Todd has a “serious impairment in her ability to accurately process the information she takes in from her surroundings and the degree of misperception she demonstrates has major implications for her adaptive functioning. Ms. Todd's level of distortion is substantial and predisposes her to misunderstanding and misconstruing intentions, motivations and actions of other people. This places her at great risk for faulty judgment, for errors in decision-making, and for behaving in ways that are based on inaccurate information. These data indicate that Ms. Todd will not only fail to recognize or foresee the consequences of her actions at times, but that she will also become confused at times in separating...