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Custodians of Abuse

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Taken aback, the doctor asked Melissa if anyone else ever did such a thing.

Melissa, court records show, replied, "Dad did, I do."

Concerned, the doctor filed a report of suspected child abuse with the state DSS. When the agency receives these reports, known as "51-As," says DSS spokesperson Michael MacCormack, it "screens" them to see if they warrant investigation. In this case, the DSS called the GAL assigned to represent Melissa at the time. But the agency then screened out the doctor’s report according to department regulations — something that happens more often than you might think. In 2001, for example, DSS received 64,304 reports of suspected child abuse and neglect. Of those, it instantly threw out 21,828 because, MacCormack explains, "They did not meet our criteria." Either the child wasn’t in immediate danger, he says, or the alleged abuser wasn’t a primary caretaker. In the courtroom, the agency’s unwillingness to investigate child sexual abuse helped cement the idea that Fink’s allegations were nothing but "distortions" and possible "delusions." A court-ordered evaluation into the claims concluded that, according to documents, "There is no data ... to indicate that [the child] has been sexually abused by anyone." And so, the unsupervised visits were allowed to continue.

More than a year later, Fink voiced concerns about abuse again. This time, in April 2001, Melissa, who was now four years old, returned from a visit with her father appearing upset. When Fink asked what was wrong, her daughter told her that "her bottom hurt." The girl’s genitals, Fink says, looked red and raw. So Fink called the girl’s GAL, who reminded Fink about "problems with past allegations," as stated in court records. Fink did the only thing she could think to do: she brought her daughter to Children’s Hospital. Melissa’s diagnosis of a "perineal rash" does not specify abuse. But while the doctor was examining Melissa, court records (and an audiotape of the examination provided to the Phoenix) reveal she blurted out to her mother: "That’s where Daddy touches me."

Melissa’s comment set off a chain reaction. The hospital performed a rape-kit exam and filed a 51-A report with the DSS. The department, in turn, performed a two-month investigation, interviewing Melissa, her parents, and others. In the end, however, the department did not support a finding of sexual abuse — because, as court documents show, Melissa did not make "specific definitive disclosures" about being abused. It was one of 16,637 cases in 2001 where DSS did not substantiate suspected abuse or neglect. In accordance with agency guidelines, the DSS referred the case to the Middlesex County District Attorney’s Office, which opened a criminal investigation. State prosecutors discovered that Melissa’s rape-kit exam had yielded traces of DNA from "saliva" on swabs taken from the girl’s genital area. The presence of saliva doesn’t prove molestation; indeed, it could have come from Melissa’s own fingers. Court records show that prosecutors convened a November 2001 grand jury and issued a subpoena ordering Meier to provide a DNA sample, which he did in February 2002. But they’ve since told Fink that the DNA from the rape kit turned out to be too small for testing. In other words, it’s still not known whose DNA matches the rape-kit sample. The Middlesex DA, through its spokesperson Seth Horowitz, declined to comment on the specifics of the criminal investigation except to say that the office "had no positive forensic evidence" at this time.

Her daughter’s disclosures prompted Fink to ask Middlesex family court to issue a no-contact order against her ex-husband and to review the visitation set-up. She filed the motion on April 27, 2001. On July 12, 2001, Meier filed a counter-motion seeking full custody of Melissa. Meier did not return a phone call from the Phoenix seeking comment. Through his Newton attorney, Lisa Marino, he declined to comment on the case. Marino offered this statement: "My client understands the importance of abuse allegations and has always taken them seriously. However, in this case, the allegations are not true." In court records, Meier has repeatedly denied that he’s ever harmed his daughter. He has claimed that his ex-wife has made "false allegations" against him and has "physically and emotionally" harmed his daughter by subjecting her to repeated sex-abuse investigations that fail to yield any evidence.

In February 2002, Middlesex Probate and Family Court associate justice Beverly Weinger Boorstein presided over the couple’s second custody trial on the new appeals. During the three-day trial, as many as 14 witnesses were called to testify. Yet according to trial transcripts, the court heard far more testimony about the mother’s mental health and parental fitness than about physical evidence of child sexual abuse. At the end of trial, Fink says, Boorstein requested that she bring her daughter to court so the judge could meet her. When Fink showed up at the courthouse on February 27, 2002, she says, the judge offered her an ultimatum. "She said if I voluntarily gave up my no-contact order, she’d allow me to retain full custody," Fink recalls. "I told her I wouldn’t do that." Fink’s comments are echoed by her partner, Jason Morse, who accompanied Fink into the judge’s chambers that day. (Fink filed a February 28, 2002, complaint about Boorstein with the Commission on Judicial Conduct, whose investigation confirmed the events at the February 27 meeting yet absolved Boorstein of misconduct.) On March 5, 2002, Boorstein awarded joint physical custody to Fink and Meier. But five months later, she reversed her order and stripped Fink of custody. Fink, the judge ruled, could only see her daughter twice a week, under strict supervision. In the August 5, 2002, ruling — an exhaustive, 28-page summary of the case — Boorstein casts Fink, who suffers from post-traumatic-stress disorder, as a delusional woman whose sex-abuse allegations are false beliefs unsupported by the evidence. Boorstein declined to comment on the case for this article. In her ruling, she states that the "mother’s mental state and her resulting actions will destroy [Melissa’s] relationship with her father and continue to have a negative effect on [Melissa’s] emotional and mental development."

Fink, who’s appealing Boorstein’s decision, holds a different view: "I feel like she reversed custody just to punish me" for filing a complaint against her with the Commission on Judicial Conduct. Though Fink acknowledges that the judge’s findings deal a severe blow to her credibility, she attributes the punitive judgment to "an effort to psychologically slam me and debilitate me so that I will shut up." Fink — who attended a battered women’s testimonial at the State House in May 2002, at which dozens of mothers spoke out about problems in Massachusetts family courts — says her experience fits a shockingly similar pattern in custody cases involving child sexual abuse. As she describes it: "It’s [to] pathologize the moms and turn attention away from the kids."

A threat from the judge

PARENTAL-ALIENATION syndrome also popped up in Jean Johnson’s battle with her ex-husband for custody of their daughter. Johnson (who asked that her real name and other names associated with the case not be used for fear of retaliation by the judge who presided over her custody litigation) believes that recognition of the syndrome pervaded her three-year battle in Plymouth Probate and Family Court for custody of her daughter Julia. Unlike Fink, Johnson, a 40-year-old attorney and Plymouth resident, won custody of her child. But her ex-husband, a man who the Massachusetts DSS insists assaulted the couple’s six-year-old daughter, was awarded unsupervised visitation rights. And the March 2002 decision makes it clear that this arrangement will end if Johnson tries "to alienate the child from the Father" again. In other words, as she says, "I could lose my daughter at any time." Throughout these cases, Johnson adds, family-court personnel try to reason "around the abuse and turn it against you."

Johnson filed for divorce in fall of 1999. Within months of the filing, she says, her daughter seemed strange after visits with her father. One time, Julia, who was just three years old, asked her mother if she knew about the "woo-woo game" that she played with her father. When Johnson asked what the game entailed, her daughter explained that "you take off your clothes" and "Daddy sticks them up my bum," according to court records. Another time, Johnson walked into Julia’s bedroom to find the little girl standing before a mirror squeezing her nipples. Julia’s vagina and anus, Johnson noticed, looked swollen. Johnson took her daughter to a doctor, who chalked up the physical symptoms to stress. The doctor nevertheless filed a 51-A report with the state DSS, which didn’t make much of the sex-abuse allegations. After a 10-day investigation, during which Julia didn’t offer any incriminating details, the agency failed to substantiate abuse. Such a conclusion, explains DSS spokesperson Michael MacCormack, "means that we couldn’t find credible evidence to support allegations, such as a disclosure from the child." He then adds, "It may be more difficult than you’d expect to find credible evidence of child sexual abuse."

While the divorce and custody trial proceeded, however, the DSS was again pulled into the case. In April 2000, Julia’s therapist called the department to report that during a therapy session, the little girl had discussed the "woo-woo game" she had played with her father. This time, another 10-day investigation found Julia to be a telling witness. Her descriptions of the "woo-woo game," as well as the "beatle-bug game" and the "pajama game," are documented in court records as played when "taking off your clothes" and then "Daddy sticks them up my bum." As a result, the DSS concluded that Julia’s father was molesting her. Johnson’s ex-husband, a middle-aged scientist, has repeatedly denied the sex-abuse charges in court records.

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