Saturday, March 25, 2017

Arbitrator From A Rabbinical Panel Was Convicted of A Crime, But Prior Decisions Stand

Arbitration Award Stands Even Though One Of The Arbitrators Was Later Convicted Of Crime
Arbitration awards are, by design, difficult to vacate. But what happens when one of the arbitrators who entered the award is later convicted of a crime related, at least to some extent, to an issue in the arbitration. In Litton v. Litton, the Appellate Division addressed this interesting but (hopefully) uncommon occurrence.
In Litton, plaintiff and defendant were married in 1982 and had one child. In 2008, the Family Part entered a judgment of divorce and ordered them to share joint custody of their son. They were also directed to proceed to arbitration before a rabbinical panel, or Beth Din, which they did. The panel, which was comprised of three rabbis, entered an award requiring the husband to pay the wife $5,000 per month until he gave her a Get. (As the Appellate Division explained, a Get is a "written document a husband must obtain and deliver to his wife when entering into a divorce. Without a Get, a wife cannot remarry under Jewish law.") Once the wife received the Get, the husband's monthly support obligation would be reduced to $3,500. The husband was also ordered to pay $20,0250 in arrears, $100,000 in the wife's legal fees, and a fine of $250,000 for "his refusal to disclose information about the couple's joint funds."
Several months later, the wife moved to enforce the award and, apparently, have the husband jailed for not complying with it. The Family Part denied the request and found that the husband was not capable of complying with the support order.
Four years later, the Family Part reduced the husband's support obligation from $5,000 per month to $23 per week. Around the same time, in a "wholly unrelated matter," one of the arbitrators on the panel was charged with, and apparently later convicted of, "criminal conspiracy to threaten and coerce Jewish husbands to give Gets to their wives." The husband moved to vacate the arbitration award, arguing that, in light of these charges against one of the rabbis on the panel, "the award was the product of corruption." The trial court denied the motion, holding that there was no causal connection between the arbitration in 2008 and the charges against the rabbi five years later, and that there were two other rabbis on the panel who were not charged as part of the conspiracy. The husband appealed.
The Appellate Division affirmed the trial court's decision. It observed that New Jersey favors arbitration and therefore a court will only vacate an arbitration award if (1) it is "procured by corruption, fraud, or other undue means," or (2) the court finds partiality, corruption, or misconduct by the arbitrator that prejudices a party's rights. The husband argued that, based on the Family Part's decision that he could not afford to pay $5,000 per month, its subsequent reduction of the support obligation to $23 per week, and the rabbi's conviction, the court could "'connect the dots' and infer the arbitration award in the parties' case was fraudulently procured or corrupt." The Appellate Division disagreed, citing favorably the trial court's conclusion that "the dots [were] too far away and unrelated." Accordingly, the Appellate Division affirmed the trial court's decision that the husband could not satisfy his burden of showing that the arbitration award was the product of fraud or corruption.
The Appellate Division also rejected the husband's argument that the rabbi had a duty to disclose "the lengths he would go to to 'assure wayward husbands granted GETS to their wives.'" The court noted that an arbitrator is required to "disclose to all parties any financial or personal interest, and any existing or past relationship with any of the parties." If the arbitrator fails to do so, then a court may vacate a subsequent award. But, in Litton, the Appellate Division held that the husband could not establish that the rabbi had any personal or financial interest in the award or that he was even "unlawfully coercing husbands to give their wives Gets at the time plaintiff and defendant engaged the rabbinical panel." Accordingly, the arbitrator did not breach any disclosure obligation and the arbitration award could stand.
Betsy Combier

Thursday, March 16, 2017

Lancman v. De Blasio: NYC Mayor Violated City Charter and Administrative Law

This is an interesting case where Bill de Blasio's administration tried to side-step administrative law and the funding structure in the NYC Charter §109 for land use deals involving Flushing Meadows-Corona Park. He succeeded, because his Attorney said he could.
NYC Mayor Bill de Blasio

Mayor Broke Law But Can't Be Charged Because His Lawyer OK'd It, DA Says
Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Lancman v. De Blasio

  • Supreme Court, New York County, Part 32
  • 155577/2016
  • Justice Arlene Bluth
Cite as: Lancman v. De Blasio, 155577/2016, NYLJ 1202781108093, at *1 (Sup., NY, Decided February 16, 2017)


Rory Lancman, Monica Corbett, Plaintiffs v. Bill De Blasio, City of New York, Alliance for Flushing Meadows-Corona Park Corporation Defendants
Justice Arlene Bluth

Defendants moved to dismiss plaintiffs' complaint arguing the claims were barred by the statute of limitations in this suit arising from the creation of the Alliance for Flushing Meadows-Corona Park—an entity overseeing land use deals entered into by N.Y.C. related to the park. Plaintiffs argued the Alliance's license with the city's Parks and Recreation Department, its by-laws violated Administrative Code §18-137(b), and funding structure violated City Charter §109. Defendants alleged a four month statute of limitations applied, arguing the substance of the action was an Article 78 proceeding, despite relief being sought was declaratory. Plaintiffs alleged the catch-all six year limitations period applied as they could not have brought this suit as an Article 78, noting the statute of limitations renewed each day as defendants continuously violated the law. The court ruled facts of the suit did not support defendants' conclusion the suit could have been brought as an Article 78 as it challenged a governmental body's action or determination, noting there was no determination made by the Alliance as plaintiffs sought a declaration the current by-laws and funding scheme violated the law. Thus, the six year limitations period applied, plaintiffs' claims were timely, and dismissal was denied.Read Summary of Decision
Decided: February 16, 2017



Defendants' motion to dismiss plaintiffs' complaint on the ground that plaintiffs' claims are barred by the statute of limitations is denied.


This action arises out of the creation of the Alliance for Flushing Meadows-Corona Park (the "Alliance"). This entity oversees certain land use deals entered into by the City of New York related to Flushing Meadows-Corona Park, the largest park in Queens County, New York. Plaintiffs maintain that the Alliance's license agreement with the City's Parks and Recreation Department and its by-laws violate NYC Administrative Code §18-137(b), which requires that there be at least one voting board member from each overlapping City Council district and one representative for every two abutting districts. Plaintiffs assert that the park overlaps four City Council districts, including the district represented by plaintiff Lancman (the 24th District), but his district has no representation.
Plaintiffs also insist that the Alliance's funding structure violates New York City Charter


§109 because the payments received from the United States Tennis Association (the "USTA")1 do not go to the City's general fund as required by this charter section. Plaintiffs claim that they first learned of the these issues when plaintiff Lancman received a copy of the Alliance's by-laws on January 6, 2016 and that the instant complaint was filed on July 26, 2016 seeking declaratory and injunctive relief.
Defendants claim that a four-month statute of limitations apply and that this period began on December 15, 2015 at a publicly-noticed Board meeting where the Alliance's by-laws were discussed and the license agreement was approved. Defendants argue, in the alternative, that the statute of limitations began to run on January 6, 2016, when plaintiff Lancman received a copy of the by-laws.
Defendants insist that a four-month statute of limitations applies because the substance of this action is an Article 78 proceeding even though the relief sought is declaratory. Defendants further argue that plaintiffs' claim regarding improper funding is time-barred because plaintiffs should have known about the funding arrangement as early as November 2013, when the Alliance was incorporated.
In opposition, plaintiffs insist that the catch-all six-year statute of limitations under CPLR 213(1) applies because they could not have brought this action as an Article 78. Plaintiffs also insist that the statute of limitations renew each day because the defendants are continuously violating the law. Plaintiffs further assert that the Alliance is a private, non-profit entity and not a body or officer pursuant to Article 78 and, therefore, the four-month limitations period is inapplicable.



"On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Nonnon v. City of New York, 9 NY3d 825, 827, 842 NYS2d 756 [2007] [internal quotations and citation omitted]).
"[W]hen the proceeding has been commenced in the form of a declaratory judgment action, for which no specific Statute of Limitations is prescribed, 'it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought' in order to resolve which Statute of Limitations is applicable" (New York City Health & Hospitals Corp. v. McBarnette, 84 NY2d 194, 200-01, 616 NYS2d 1 [1994] quoting Solnick v. Whalen, 49 NY2d 224, 229 425 NYS2d 68 [1980]). "Only if there is no other form of proceeding for which a specific limitation period is statutorily provided may the six-year catch all limitations period provided in CPLR 213(1) be invoked" (id. [internal quotations and citation omitted]).
Defendants insist that this action could have been brought as an Article 78 proceeding because it challenges a governmental body's action or determination. However, the facts of the instant lawsuit do not support that conclusion. Defendants are unable to identify a specific determination made by the Alliance that could be raised in an Article 78 proceeding.
Merriam-Webster defines determination as "the resolving of a question by argument or reasoning" (Merriam-Webster Online Dictionary, determination [https://www.merriamwebster. com/dictionary/determination]). Defendants' suggested characterization of a determination — adoption of the by-laws of the Alliance — would stretch this definition beyond all reasonable interpretation. Adopting by-laws does not resolve a question by argument or


reasoning. Adopting by-laws is not a determination. Besides, the plaintiffs are challenging the inherent structure and funding scheme of the Alliance rather than a distinct, discrete finding made by the Alliance.
Defendants' reliance on cases such as Solnick is similarly unavailing. In Solnick, petitioner sought review of "a determination adjusting Medicaid reimbursement rates" (Solnick, 49 NY2d at 226 [emphasis added]). Here, there was no determination made by the Alliance. Instead, plaintiffs seek a declaration that the current by-laws and funding scheme of the Alliance violate the law. That is not in the nature of an Article 78 proceeding and therefore, a six-year statute of limitations applies (see Lacks v. City of New York, 201 AD2d 309, 311 607 NYS2d 32 [1st Dept 1994]).
Plaintiffs further assert that the Alliance maintains its structure and funding scheme that purportedly violates the law. This constitutes a continuing violation for purposes of the statute of limitations. In any event, plaintiffs' claims are timely.2
Accordingly, it is hereby
ORDERED that defendants' motion to dismiss plaintiffs' complaint is denied; and it is further
ORDERED that defendants are directed to file an answer pursuant to the CPLR. The parties are directed to appear for a preliminary conference on April 4, 2017 at 2:30 p.m.
This is the Decision and Order of the Court.
Dated: February 16, 2017
New York, New York
1. Located within the park is the United States Tennis Association's Billie Jean National Tennis Center, the site of the U.S. Open.
2. Because the Court has determined that plaintiffs' claims are timely, it does not reach the question of whether the Alliance constitutes a governmental body or officer for purposes of an Article 78 proceeding.

NYC Mayor Bill de Blasio Will Not Be Prosecuted For Campaign Fraud, Says Interim Acting U.S. Attorney Joon Kim

The timing of the firing of Preet Bharara in President Trump's home turf, New York City, and the announcement that NYC Mayor Bill de Blasio will not be prosecuted for campaign fraud, smells of something like a deal Trump made with someone being invessstigated by Preet. Doesn't it?

Many people believe that Mayor Bill is guilty of what he was accused of. We still have our vote, so let's make sure that he does not get a second term.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

No Charges for De Blasio in Fundraising Probe, Prosecutors Say

Mayor Bill de Blasio

NEW YORK CITY — The federal and local prosecutors will not bring criminal charges against Mayor Bill de Blasio or his team in connection to a campaign probe, the acting U.S. Attorney and Manhattan District Attorney announced Thursday.
"After careful deliberation, given the totality of the circumstances here and absent additional evidence, we do not intend to bring federal criminal charges against the Mayor or those acting on his behalf relating to the fundraising efforts in question," Acting U.S. Attorney Joon Kim, the former deputy for Preet Bharara who took over the top seat after Bharara was fired by President Donald Trump on Saturday, said in a statement.
"Although it is rare that we issue a public statement about the status of an investigation, we believe it appropriate in this case at this time, in order not to unduly influence the upcoming campaign and Mayoral election.”
The Manhattan District Attorney Cyrus Vance released a letter to the New York State Board of Elections that explained that the mayor's conduct appears to have violated "the intent and spirit of the laws" the would not be seeking criminal charges because was following his lawyer's advice.
"After extensive investigation, not withstanding the [Board of Election's] view that the conduct here may have violated the Election Law, this office has determined that the parties involved cannot be appropriately prosecuted, given their reliance on the advice of counsel."
The U.S. Attorney's office, in conjunction with the FBI, had been investigating the mayor's fundraising for his 2013 election campaign, an effort to get democrats elected to seats upstate during the 2014 State Senate race, as well as his Campaign for One New York — the mayor's nonprofit that came under fire for steering money from donors into pet projects such as his Universal Pre-K initiative and others.
During the course of the investigation, investigators "conducted a thorough investigation into several circumstances in which Mayor de Blasio and others acting on his behalf solicited donations from individuals who sought official favors from the City, after which the Mayor made or directed inquiries to relevant City agencies on behalf of those donors," Kim said.
"In considering whether to charge individuals with serious public corruption crimes, we take into account, among other things, the high burden of proof, the clarity of existing law, any recent changes in the law, and the particular difficulty in proving criminal intent in corruption schemes where there is no evidence of personal profit," Kim added.
The Campaign for One New York also steered money toward state senate races in an attempt to win a Democratic majority, according to Vance's letter to the BOE.
On WNYC's Brian Lehrer show, the mayor defended his conduct.
"I've said consistently that we acted appropriately. We acted lawfully," he said. "We held ourselves to a very high standard and we will continue to."
He denied the Manhattan District Attorney's assertion that his fundraising violated state fundraising statutes.
"The law was quite clear and we have respected that law throughout," de Blasio said.
Check back for updates.

Preet Bharara

You’re fired!Why did Donald Trump sack Preet Bharara after saying he could keep his job?

The US attorney hints that the president may have dismissed him to obstruct an investigation
The Economist;Democracy in America
IN HIS fourteen seasons on “The Apprentice”, a television show testing contestants’ business acumen and mettle, Donald Trump developed a signature line for dismissing hapless aspirants. Every time he let somebody go with his trademark "you're fired!", Mr Trump offered at least a few words of critique. “I just don’t want somebody running one of my companies that’s going to be beaten up so badly”, he told one contestant. “You’ve been lazy”, he barked at another, “you’ve been nothing but trouble”.
But on March 11th, when Mr Trump requested resignation letters from 46 US attorneys, he offered no explanation for dumping Preet Bharara, a seven-year veteran of the southern district of New York. It is hardly unusual for presidents to replace US attorneys, lawyers tasked with ensuring “that the laws be faithfully executed” in the 94 federal districts they oversee. A change of party in the White House typically inspires federal prosecutors to issue letters of resignation. In 1993, Bill Clinton fired them all in one day.
But Mr Bharara was a unique case: the Indian-born prosecutor known for his toughness and for remaining untethered to politics or party had been assured by the president-elect that he could keep his job. After a meeting in Trump Tower in late November, Mr Bharara said Mr Trump had asked him “whether or not I’d be prepared to stay on as the United States attorney to do the work as we have done it, independently, without fear or favour for the last seven years”. Mr Bharara’s answer was yes: “I said I would absolutely consider staying on. I agreed to stay on.” The president-elect’s request was echoed, he said, by the man who would soon be his new boss: Jeff Sessions, the incoming attorney-general and head of the Justice department.

When Mr Trump demanded Mr Bharara’s resignation three months later, without indicating why he had undergone a change of heart, the jilted prosecutor did not go quietly. Mr Bharara refused the order to tender his resignation, and a few hours later Mr Trump stepped back into his familiar role as firer-in-chief. “I did not resign”, Mr Bharara wrote on Twitter. “Moments ago I was fired.” Serving as US attorney in New York, he said, “will forever be the greatest honour of my professional life”. Why did Mr Trump renege on his promise to Mr Bharara? There seem to be three possibilities, none of them offering encouraging signs about the Trump administration.

One reason for the abrupt about-face may have been Mr Trump’s favourite source of political edification: Fox News. On March 9th, Fox’s Sean Hannity said holdover lawyers from the Obama era may be “saboteurs” who are leaking damaging information about the administration. He encouraged Mr Trump to clear US attorneys’ offices of Obama appointees who had not already offered their resignations. Two days later, Mr Trump did just that. Spokespersons for the administration insist the plea from Mr Hannity—whose network happened to be under investigation by Mr Bharara for sexual harassment allegations—played no role in inspiring the president’s act; one source told Politico’s Josh Dawsey that the purge had been in the works “for a while”.

Whether or not Mr Hannity’s appeal caught Mr Trump’s eye, Mr Bharara’s reputation as an equal-opportunity prosecutor—sniffing out corruption and pursuing it no matter where it may be or who might be engaging in it—may have begun to worry the new president. Just days after beginning his position in 2009, Mr Bharara did not flinch when presented with evidence that a donor to Senator Chuck Schumer—his former boss and recommender—may have been engaged in bank fraud. The 41-year-old attorney went forward with the investigation. Mr Bharara’s office later successfully prosecuted cases involving Wall Street, organised crime, civil rights and terrorism—as well as high-profile corruption cases against Republican and Democratic politicians. Mr Trump may have reconsidered leaving such a dogged US attorney in place who pays no homage to party. In the event of potential legal trouble, he may have judged it wise to have a friendly, loyal appointee in place.
Or Mr Trump’s concern may have been a good deal more specific and immediate. In a cryptic statement seemingly crafted to provoke speculation and raise questions about the man who fired him, Mr Bharara tweeted this on March 12: “By the way, now I know what the Moreland Commission must have felt like.” The reference was lost on no one who has watched New York state politics over the past several years. In 2014, New York’s Democratic governor, Andrew Cuomo, disbanded the Moreland Commission, the very ethics watchdog he had set up nine months earlier and which had begun investigating Democratic Party fundraising lapses. Mr Cuomo’s move provoked wide consternation and an investigation from Mr Bharara’s office, though no charges were filed.

For Mr Bharara to analogise his own firing to the dismantling of the Moreland Commission is to hint that he may have begun an investigation into activity of interest to the president—perhaps even of something the president himself may have done. A congressman from Michigan, John Conyers, said Mr Bharara’s tweet could be a sign he had been looking into “a range of potential improper activity emanating from Trump Tower and the Trump campaign, as well as entities with financial ties to the president or the Trump organisation”. The puzzling firing, in other words, may have been designed to cut an inquiry by Mr Bharara off at the pass. 

Sunday, March 12, 2017

In Custody Battles, the Work of Mental Health Experts is Not Reviewed, Leaving Children At Risk

For New York families in custody fights, a “black hole” of oversight

Critics say a state office’s professed inability to review the work of mental health experts leave children at risk

When Anna Frank lost custody of her 9-year-old son, she blamed her husband and the judge who decided the case in his favor.
She also faulted Barbara Burkhard, a psychologist appointed to evaluate the family and advise the court on the matter. According to Frank, Burkhard concluded — after meeting Frank once and without interviewing her son — that their claims of abuse were invented and that Frank had poisoned her child against his father.
Frank ultimately regained custody of her son, based partly on testimony from other psychologists who disputed Burkhard’s contentions. But before she did, she sought sanctions against Burkhard from the agency that oversees licensed psychologists in New York.
Frank’s densely detailed, 12-page complaint to the Office of Professional Discipline was never investigated, let alone acted upon.
“Due to our inability to access records or discuss the services rendered with this psychologist, we are unable to investigate this matter or to initiate disciplinary action based upon your complaint,” a letter from the office, from the spring of 2012, explained. “I am sorry we cannot be of more assistance to you.”
The office’s response was typical, a ProPublica examination shows.
Though psychologists who appear in New York’s Family and Matrimonial Courts help shape decisions of grave consequence — from custody to child protection to juvenile delinquency — their work is subject to little or no professional oversight, purportedly because the confidentiality of such proceedings makes them hard to penetrate even for regulators.
Several lawyers who have represented parents in such court cases say they and their clients have received similar responses when they’ve tried to pursue complaints against court-appointed psychologists with OPD.
“They rely upon a bureaucratic Catch-22 to avoid having to take a hard look at misconduct and take their responsibility of oversight seriously,” said Timothy Tippins, who wrote a 2016 article for the New York Law Journal on inadequate oversight of such evaluators. “You can’t make this bureaucratic bullshit up.”
Pace University law professor Merril Sobie, a former chair of the New York State Bar Association’s Committee on Children and the Law, has pressed OPD on what recourse exists for families who challenge the competence or objectivity of the psychologists in their cases. The agency has provided few answers.
“It’s a black hole,” Sobie said.
When ProPublica asked OPD several months ago to explain why it did not investigate complaints against psychologists working in family and matrimonial courts, officials responded with little more than a description of the office’s mandate and staffing. They declined requests for interviews.
This month, when we pressed again, the office — an arm of the New York Department of Education — issued a short statement indicating it was seeking more authority to gather information in such investigations:
The State Education Department investigates every complaint that alleges conduct constituting professional misconduct through its Office of Professional Discipline,” the statement said. “The Department’s ability to investigate court-appointed psychologists can be hampered because the records necessary to pursue such an investigation are, by law, private and open to inspection only upon permission of the Family Court. To help eliminate this potential obstacle to a thorough investigation, the Department is discussing with the New York State Legislature amendments to the law that would give our professional conduct officers greater access to court records. We will continue to pursue such an amendment this legislative session.
Without intervention by OPD, there’s virtually no place to take complaints against court evaluators.
Since 2008, New York City’s Appellate Court has had a committee that certifies the just over 200 psychologists and psychiatrists who get court appointments and can adjudicate complaints against them. Through June 2015, it had received 10 complaints and issued two admonitions.
But while the committee can bar problem practitioners from testifying in court, it has no authority over psychologists’ licenses. Moreover, court systems elsewhere in the state haven’t set up such committees, partly out of fear that certification requirements might dissuade qualified professionals from taking appointments in regions where practitioners are difficult to find.
“They didn’t want to put things in the way of getting people to do this work,” said Jacqueline Silbermann, a former top New York Matrimonial Court judge who was involved in setting up the city’s certification committee and pushed courts outside the city to do the same. “The bottom line is they didn’t.”
That leaves OPD, whose investigators are tasked with responding to complaints not only about the state’s nearly 14,000 licensed psychologists, but nearly 50 other kinds of professionals, from dentists to massage therapists.
The agency, also known as the Office of the Professions, has come under fire before for its weak enforcement. A 2016 ProPublica investigation found it had not implemented criminal background checks for nurses that are routine in other states and often took years to administer discipline. Critics say it is also impeded by its unusual structure. As part of the Department of Education, OPD comes under the state’s Board of Regents, whose primary responsibility is to oversee the state’s vast public education system, and needs board approval to impose its stiffest sanctions.
But in the case of Family and Matrimonial Court psychologists, OPD’s oversight is not so much flawed as it is absent entirely.
Since 1994, according to a review by ProPublica, only one evaluator who is today approved for court work in New York City has been disciplined by the state, and it is unclear whether that action had anything to do with work he may have done for the courts. Since Family and Matrimonial Court evaluators elsewhere in the state aren’t certified, it’s impossible to know if any have been disciplined.
At a 2012 public hearing, Nancy Erickson, one of the attorneys who represented Frank, called OPD’s approach to overseeing psychologists one of the court system’s most troubling aspects.
“This refusal of OPD means that psychologists who are incompetent or even corrupt can continue to make money by doing custody evaluations that could end up misleading the courts and harming children and their families,” she said.

The tumultuous saga of the Frank family provides as good a window as any into court evaluators’ pivotal role in custody cases.
Anna Frank had filed for divorce in 2007 in Suffolk County Supreme Court, which handles matrimonial matters. She says her husband of 16 years, Michael Frank, was prone to screaming fits and physical aggression. Police records show she called local officers to complain of physical abuse several times as the marriage unraveled. Each parent had had the other arrested over domestic disputes. Their young son allegedly bore witness to their violent fights and later said he, too, suffered abuse at the hands of his father.
Michael Frank denies ever abusing either his wife or son, and insists the police reports were based on false allegations.
Anna Frank, though, did get a one-year order of protection against her husband and sought to dissolve the marriage. The Franks then came before Suffolk County Supreme Court Judge Andrew Crecca, with Anna seeking custody of her son, child support, and what she deemed her share of the family’s finances and Michael, the primary breadwinner, seeking to protect his assets and gain full custody of his son himself.
To sort through the competing accusations, the judge appointed Barbara Burkhard. Burkhard’s company, Child and Family Psychological Services, P.C., had provided therapeutic services to children since 1999 under a contract with Suffolk County’s Department of Social Services. (Burkhard did not respond to repeated emails and phone messages regarding this story.)
In the Frank case, Burkhard started out in 2008 functioning as what’s known as the Franks’ “parenting coordinator,” where she would oversee transfers of the child by his warring parents.
Then Judge Crecca took the somewhat unusual step of appointing Burkhard to complete a forensic psychological evaluation of the family. Normally these roles are kept separate in order to avoid preconceived notions on the part of the evaluator.
In January 2009, Burkhard was part of a chaotic dispute involving the Franks. Anna was supposed to drop her son off at Burkhard’s office so he could be picked up by Michael. But he refused to get out of her car. Burkhard tried to speak with the boy in the car. He was crying, yelling, telling her he did not want to go. He said his father had abused him, sexually and physically. When the boy’s father arrived, he, too, tried to talk to him in the car. In a terror, the boy got out of the car and darted across a busy street. With some coaxing from Burkhard’s staff, the boy came back and embraced his mother, insisting he go home with her. The police arrived and questioned everyone at the scene and the boy went home with his mother.
Based on what she saw, Burkhard recommended in a “preliminary report” that the boy be removed from his mother’s care immediately. She determined that what the boy needed most was more time with his father, outside of his mother’s sphere of influence. She recommended that Michael Frank receive temporary, sole custody while the divorce proceedings progressed. The judge followed her recommendation.
Anna Frank felt the actions were unfounded and unfair and that the court had essentially awarded sole custody to her husband based on a single episode. Burkhard never interviewed her, or her son, and now, in Anna Frank’s view, the psychologist was putting him in harm’s way.
And according to court records, the boy did suffer. His behavior and state of mind deteriorated after that. Usually a strong student, his grades began to decline. Rather than completing assignments, he’d scrawl all over them that he wanted to see his mother. He complained to teachers and social workers that his father had beaten him with a belt and locked him in a basement. His behavior grew increasingly erratic. He tried to run away. He broke windows. He urinated and defecated around the house. Social workers with Child Protective Services became a regular presence at the boy’s home, but their reports echoed Burkhard’s belief that Anna Frank was encouraging the boy to make false allegations of abuse.
Burkhard, in report after report, told the court the boy had become “enmeshed” with his mother, potentially succumbing to something akin to what’s known as “Parental Alienation Syndrome.” Burkhard’s reports suggested his mother may have convinced him to make up abuse allegations, in order to heighten her chances of winning custody.
Burkhard had the boy evaluated by more mental health professionals, and Judge Crecca decided the boy should be removed from both parents and live at a residential treatment center called Little Flower, in Wading River, about 30 minutes from where the Franks lived. He first came to the home in December 2009.
Over the next few years, Frank said she spent every penny she had battling her husband in court to get her son back. She lost her job as a school psychologist after Child Protective Services filed a neglect charge against her — deeming her responsible for her boy’s fear of his father. The school, she said, decided she couldn’t work with children with such a charge pending against her.
“They tried to strip me of everything I cared about,” Frank said, in a recent interview. “It was devastating.”
She said she supported herself by taking jobs in retail, making a meager $10 an hour after growing accustomed to an $80,000 annual salary.
She said Little Flower came to believe her son was telling the truth about his father all along and helped her regain custody.
In January 2010, Little Flower delivered a report to the court stating that the boy’s relationship with his father remained deeply strained and that his psychiatrist was concerned about the boy’s tales of abuse.