The Court Report
By Richard Blassberg

The Injustice Continues

Robert F. Wayburn, being an attorney duly admitted to the practice of law, affirms the following under penalty of perjury:

I am the attorney of record for Ling Mei Xing, maternal grandmother and intervener in the neglect dispositional hearing of Jing Kelly, Respondent Mother.

I submit this affirmation in support of the accompanying Notice of Motion jointly filed by Ling Mei Xing and by Jing Kelly.

I am familiar with the facts and circumstances of the case, including the record of the prior appeal and the ruling on the prior appeal, dated November 17, 2005. I have read both the briefs and attended oral argument in mid-May of this year of the second appeal which is still undecided but will determine whether the ruling by Your Honor allowing the paternal uncle, Douglas Kelly, to intervene in the respondent mother’s neglect dispositional hearing was proper.

By orders issued on June 21, 2006, Your Honor denied the motion by Respondent mother, Jing Kelly, to have Tristram evaluated by the Family Court Mental Health Services (MHS) unit which had previously evaluated her and, accordingly, was fully familiar with the case. The report of Dr. Vazzana was completed and submitted on February 27, 2006. An appeal was taken from those orders and a stay application made to the Appellate Court pending this appeal.

A stay application was made to the Appellate Division on June 28, 2006 but was denied by Associate Justice Angela M. Mazzarelli. This ruling was premised on representations made by the ACS trial lawyer and the Legal Aid Society trial lawyer (law guardian) who appeared in the Appellate Division that date – that the evaluation
of Tristram by Dr. Conrad had already been commenced and that it was limited solely to visitation in its scope and that it would be completed within a few weeks.

Obviously, misrepresentations were made to Associate Justice Mazzarelli in the above regard. The completion of a report by Dr. Conrad on her evaluation of Tristram seems a long way off and it is now early September of 2006 – and more than two full months have elapsed since the above misrepresentations were made to the Appellate Court.

Associate Justice Mazzarelli voiced extreme concern over the fact that Tristram had been sent out of state by Gail Hiler (without prior notification to the Family Court and to the law guardian) and asked for an explanation and accounting of why this was done. Justice Mazzarelli voiced concern that visitation was not yet commenced for this mother and child despite the passage of so much time since the November 17, 2005 Appellate ruling. But Her Honor felt that by staying the evaluation of Tristram by Dr. Conrad might serve only to further delay the
commencement of visitation.

Clearly, Associate Justice Mazzarelli, in denying the stay application in late June of this year, relied upon the misrepresentations made to her that day, June 28, 2006, by both the ACS trial attorney and the law guardian trial attorney – that the evaluation of Tristram was already in progress and would soon be submitted to the Family
Court judge.

Had Associate Justice Mazzarelli known in late June that two full months would pass by without the evaluation being completed and without Tristram and his mother having contact during the summer months before school resumed – the stay application most probably would have been granted and MHS would have seen Tristram in the interim.

The full panel, when determining the above Appellate motion did not revisit the above interim ruling of Associate Justice Mazzarelli but did issue a mandamus against the Family Court, directing “the attention of the Family Court to the decision and order of this Court [Appellatet Division – First Department] entered on November 17, 2005 (Appeal Nos. 6962/6962A/6962B/6962C/6962D) with respect to the issue of visitation.” [See Exhibit “C”.]

I could not myself contact Dr. Conrad in this regard nor provide her with a copy of the above order and urge her to submit an immediate report concerning Tristram – because Your Honor has precluded all contact between all attorneys for the respective parties and Dr. Conrad except, apparently, for Mr. Schiff, the attorney for the out of state interveners. In point of fact, Mr. Schiff brought on an Order to Show Cause to hold Jing Kelly’s attorney, Nicholas R. Perrella, Esq., in contempt of court for his having inquired of Dr. Conrad in late June of 2006 as to
the status of her evaluation.

That contempt motion has been tabled for the moment but remains outstanding. It should have been summarily dismissed and it is respondent’s attorney, Mr. Perrella, who should be delegated to coordinate all matters with Dr. Conrad and not Mr. Schiff.

On the same day that the Appellate mandamus order was issued, that is, August 3, 2006, materials retrieved from a box held in Your Honor’s custody and purportedly containing the entirety of materials reviewed by Dr. Vazzana in preparing her February 27, 2006 MHS report (as to the respondent), were apparently forwarded
to Dr. Conrad in California by Mr. Schiff. His letter in this regard is contained in Exhibit “A” herein. [It is not certain that August 3, 2006 is the actual date the materials were forwarded, however, as there is no affirmation in this regard.]

When I went to Mr. Schiff ’s office to view those materials on Wednesday evening of August 2, 2006, he informed me that his client had told him that Tristram would be brought to see Dr. Conrad, for the first time, sometime that very week.

That means that Dr. Conrad could readily have submitted a preliminary visitation report, based on her first session with Tristram, early this past month. This would have been consistent with the Appellate Mandamus of August 3, 2006. But instead of directing prompt action in this regard, Your Honor issued a letter, dated August 7, 2006 [included in Exhibit “A”] stating, in essence, that nothing will be done in response to the Mandamus.

Your Honor seems to be far more concerned with whatever is being said to the Appellate Court as being the cause of the inordinate delay in getting the visitation inquiry completed than in simply accomplishing this task here and now.

Your Honor expressed this concern to Jing Kelly’s new attorney, Mr. Perrella, in this regard at his first court appearance on her behalf on May 31, 2006: THE COURT: Okay, I have not delayed this. We had an extensive discussion from the get-go about the timing of this. It was the Law Guardian’s position that we absolutely had to have this evaluation and I agreed with the Law Guardian that we needed an evaluation. Time was lost in the process of selecting an evaluator. I’m not going to lose any more time in rescheduling that. I’m going to go ahead with the evaluator that we already have and I will want that to be done very, very quickly. Mr. Schiff, will you make sure your clients get this scheduled very quickly, because being that they’re there, they will be in a better position to make those arrangements. Id., May 31, 2006 Transcript at page 25, lines 21-25 and page 26, lines 1-12.

[Copies of the above mentioned transcript pages are attached as Exhibit “F”]. Obviously, Mr. Schiff was in no hurry to make the arrangements. Indeed, he blamed Jing Kelly’s outgoing lawyers at Sanctuary For Families for not completing a draft order for the appointment of Dr. Conrad and Your Honor then requested the Law Guardian to get it drafted. The order appointing Dr. Conrad to evaluate Tristram was finally issued by Your Honor on June 21, 2006.

Mr. Perrella, incoming counsel to Jing Kelly, did request an adjournment of the continuation of the dispositional hearing on May 31, 2006 – but this request did not cause the prior delays in getting a visitation evaluation done for Tristram.

Indeed, it was only upon learning that Dr. Conrad had not yet commenced any work on the evaluation of Tristram, as of late June 2006, that Mr. Perrella brought on an application to have Tristram to instead be seen at the same Family Court mental health clinic (MHS) that had previously evaluated Jing Kelly.

Interestingly, Your Honor admonished Mr. Perrella, when granting his request for an adjournment, by stating “THE COURT: …I have no problem granting you an adjournment, Counselor, but I do have a problem with you standing at the Appellate Division and saying I am biased and am deliberately delaying this”

[May 31, 2006 Transcript at page 30, lines 1-6 included in Exhibit “F”].

Analysis:

The foregoing Affirmation In Support of Motion filed by Robert Wayburn, attorney for Jing Kelly and Ling Mei Xing, her mother, is presented in its entirety in order that readers may understand the lengths to which Gail Hiler, an attorney, her brother, Douglas Kelly, an attorney, and Mr. Schiff, the attorney representing them, aided and abetted by Family Court Judge Sara P. Schechter, together with attorneys for New York City ACS, are willing to go in order to keep this loving mother and child separated for as long as possible. Readers should keep in mind that the Appellate Division of State Supreme Court, First Department, on Nov. 17th of last year, ordered
Judge Schechter, “in the best interests of the child”, to “immediately commence visitation” between Jing and her now 6-year-old son Tristram. And again, more than a month ago, that same Appellate Court, now commanded Judge Schechter, in the form of a rare Mandamus, to do as they had previously instructed her to do, because they learned that she had stubbornly disobeyed their order.

At no time, either in the original criminal proceedings, in which Jing Kelly was overcharged with Felony Custodial Interference, and found guilty, at trial, merely of a misdemeanor, or in all of the Family Court proceedings prior to, or following, that trial, has any evidence been proffered or established that would indicate that Tristram Kelly,
barely two years old when kidnapped from Jing, was ever abused or neglected, by her.

What we are now witnessing are the extreme lengths to which the family of Jing’s deceased former husband, Craig Kelly, are willing to go, including perjury, having previously kidnapped Tristram only to reject, and shuttle him to North Carolina, and then to California, merely to keep him separated from his natural Chinese-American mother.

The Appellate Court, fully aware of all of the circumstances, having rendered a decision nearly a year ago, intended to re-unite this mother and child, appears impotent to enforce its edict. It is, therefore, obvious that Chief Judge Judith Kaye must immediately intervene, and both, remove and sanction Judge Sara P. Schechter for
her judicial malfeasance and extra-judicial activities clearly against the best interests of the child, Tristram Kelly, and furthermore, in violation of his, his mother’s, and his maternal grandparents’, Constitutional rights.

Furthermore, it is also obvious that the office of State Attorney General Eliot Spitzer must immediately open an
investigation into the actions of former Westchester District Attorney Jeanine Pirro with regard to her malicious prosecution of Jing Kelly, as well as her organizing and arranging of the kidnapping of Jing’s son, Tristram.