MEMORANDUM OF JOHN SMITH

Date: January 30, xxxx
To: Fiona Simmons, Fair Hearing Officer
From: Kevin Patrick Seaver, Esq.
Re: Fair Hearing of John Smith

Fair Hearing No. xxxxxxxx
Tuesday, January 9, xxxx

John Smith is requesting the reversal of the Department of Social Services' January 22, xxxx decision to support the January 13, xxxx 51A, which alleged that both John Smith and Donald Coombs had physically and sexually abused Godfrey Archer and which listed Mr. Smith and Mr. Coombs on the Department's Central Registry of Alleged Perpetrators.

The issue presented at the Fair Hearing, held at the Townville DSS office on Tuesday, January 9, xxxx, was whether the Department's decision to support the 51A report for sexual and physical abuse of Godfrey Archer and to list Mr. Smith and Mr. Coombs as perpetrators of abuse was in conformity with DSS regulations and policies and, if not, whether the violations resulted in substantial prejudice to John Smith and Donald Coombs.

John Smith and Donald Coombs appeal from the determination of the Department of Social Services that they physically and sexually abused Godfrey Archer and argue that the Department's decision to support the 51A was not adequately supported by the factual record.

The Department received a 51A report on January 13, xxxx, filed by a mandated reporter (Ms. Billie Jo Munson, Godfrey Archer's therapist) alleging that Godfrey Archer disclosed that he had been sexually abused at some time during August xxxx, when the child was 12 years old.

The "Document specific information regarding the reported allegations" section of the 51A states:

The Reporter is filing on the sexual abuse and physical abuse of Godfrey by his great-maternal uncle, Donald Smith who has a history of rape, and his maternal uncle, John Smith, (known as, Johnny), who has been incarcerated for Assault & Battery. The Reporter is also filing on the neglect of Godfrey by his mother and maternal grandmother, Hedda Smith, who failed to protect him from this abuse.

The Reporter stated, that Godfrey disclosed that during the summer of xx', while visiting his mother, who resides with maternal grandmother, maternal, great-uncle, Donald Smith and maternal uncle, John Smith, in Townville, MA, he was molested. According to Godfrey, while his great-uncle, Donald and uncle, John were watching pornographic movies with him, they were touching him on his "private parts". Godfrey reported that this fondling and exposure to pornographic movies occcurred on more than one occasion. he also stated, that his maternal grandmother knew that he was being shown the movies, because she had walked in one time and told the uncles that they shouldn't be showing Godfrey those movies, but never took any action to prevent the boy from being exposed to this pornography.

Godfrey also told the Reporter, that in August, xx', while his great- uncle Donald held him down, his uncle John, burnt his penis with a match. According to Godfrey, his maternal grandmother walked in, intervened and put ice on Godfrey's penis. Godfrey said that his mother also knew because she heard him crying. The next day, mother took Godfrey to the doctor's office and told him not to tell the doctor what had happened.

The Reporter stated, that Godfrey told her that his uncle John drinks a lot of beer. The Reporter also noted, that mother has a history of being raped by her step-brother when she was 12 yrs. old.

According to the Reporter, Godfrey is in the custody of his father and paternal grandparents; William and Lois Archer, and resides with them in _____, MA. He has contact with his mother and maternal relatives during visits, which are supposed to be supervised as ordered by Barminster Probate Court. (51A, pages 1 - 2)

The Investigation conclusion section of the 51B report states:

The allegatios of sexual abuse and physical abuse of Godfrey Archer by Donald Smith (Coombs) and John Smith, are supported. In clear and consistent disclosures, Godfrey told his family, therapist and this investigator that both John Smith and Donald Coombs sexually abused him. He reported that Donald Coombs held him down while John Smith burned his penis. Godfrey is able to speak to and recall many details surrounding his allegations and is consistent in his recollection of the events.

The allegations of neglect of Godfrey Archer by his maternal grandmother, Ellen Smith and mother, Jill Smith, are supported, Godfrey reports that he made both mother and grandmother aware of the abuse. He also reports that both allowed John to be in Godfrey's presence following the assault. Both mother and grandmother exhibit an inability to protect Godfrey from abuse while in their care. (51B, page 7)

The case was assigned to 51B investigator Marianne P. Toole on January 14, xxxx. The 51B investigator began her investigation on January 19, xxxx.

On January 19, xxxx, the 51B investigator spoke to Godfrey Archer's therapist, who stated that Godfrey disclosed to her in therapy that "uncles Johnny and Donald sexually abused him." At that time the therapist faxed a copy of a letter that Godfrey had written during that therapy session. At the top of the letter is written:

12 Freedom St., Townville, Mass.
Jan. 13, xxxx @ approx 7:15 P.M.

Again, the 51A was called in at approximately 4:25 p.m. on January 13, xxxx. According to the DSS supervisor at the Fair Hearing, the Godfrey Archer's letter was faxed to the DSS office at the time the report was made.

The letter states:

This happened when I was 12. [Redacted text] and I talked about this and she is going to file a report on this person. When I slept over my Mom's house she had to work and it was me, my grandma (Ellen), and Uncle Johnny + Uncle Donald. Donald hold me while uncle Johnny had sex with me. Then I was slepping and uncle Johnny had a match and lit it up and burned the side of my private. Uncle Johnny + Donald was drunk that night. But my Grandma Ellen kicked them out because she called the Police. My Grandma Ellen took care of my private. I hope that both of them go to jail. They both asked me not to tell but I did and they asked me to have sex with them but I didn't. I runed next door and my Mom's friend the cops. But they were gone.

Any Questions?????

(Letter of Godfrey Archer, part of DSS record)

On January 20, xxxx, the 51B investigator went to the home of the paternal grandparents who had temporary custody of the children of mother Jill Archer and father William Archer Jr., who was terminally ill at the time. An obvious, overtly contentious relationship existed and still exists between the two families.

Godfrey Archer was in custody as he had been accused of sexually abusing his sister, Stephanie. The 51B investigator stated that, in accordance with an agreement with the District Attorney's office, she viewed but did not interview the other three children, Michael, Steven, and Stephanie.

The Archers stated to the 51B investigator that:

... Godfrey has been in therapy. They stated that Mr. Archer brought Godfrey to therapy last week and Billie Jo Munson told Mr. Archer that Godfrey wanted to speak with him that night. On the way home, Mr. Archer states, Godfrey asked him if he could talk with his aunts and grandparents that evening. Mr. Archer stated that Godfrey presented the family with the letter that he had written about the sexual abuse that occurred to him with John and Donald. Mr. Archer stated that Godfrey reported that he had been sexually abused by John and Donald. He stated that Godfrey reported that he had had sex with John and Donald. (51B, page 2)

It is unclear from the 51B report whether Godfrey actually made any statements to the family regarding the alleged sexual abuse, or if he merely presented the letter to them. The 51B investigator records that Mr. Archer stated that "Godfrey reported that he had had sex with John and Donald," but Godfrey's letter stated that "they asked me to have sex with them but I didn't."

Nowhere is it documented that the 51B investigator asked the Archers when the alleged sexual abuse might have taken place. Godfrey Archer stated in his letter only that the alleged incident happened when he was 12 years old. (Letter of Godfrey Archer, part of DSS record)

The 51B investigator did spend a great deal of time documenting the Archers' statements regarding the alleged sexual abuse of Stephanie by Godfrey. The Archers also claimed that they had found Aunt Kelly's and Stephanie's underwear and love notes written by Godfrey in his closet. Mr. Archer stated that he had contacted the children's pediatrician, Dr. King, who made a referral to Eli Newburger at Children's Hospital, who made a referral to Ms. Marie Prodomari. "The Archers report that no one would evaluate or examine the children for signs of sexual abuse." (51B, pages 2 - 3)

There was no mention about when the underwear had been found in the closet, or when the love notes were discovered, or when Dr. King, Mr. Newburger, or Ms. Prodomari had been contacted, and the 51B investigator did not ask.

The 51B investigator did not seek information from these collaterals to learn why they did not feel that a sexual abuse evaluation of the children was necessary.

When the 51B investigator spoke to Godfrey Archer on January 21, xxxx, she reports that he stated that:

[H]is uncle Johnny burned his penis. He stated that his uncle Donald was present. He stated that he was lying on the bed. He stated that he had shorts on because it was summer vacation. Godfrey stated that while he lay on the bed, Donald held his arms over his head. Godfrey stated that his uncle Johnny took off his shorts. Godfrey stated that it was night time because it was dark out. He stated that his grandmother was in the kitchen. Godfrey stated that his uncle Johnny "had sex" with him. I asked him to define this. He stated that his Johnny took off his own pants and put his private against his own. He stated that at no time was he asked to touch any part of Donald or Johnny. He stated that Donald continued to hold him down. He stated that Johnny lit a match and burned his penis with it. He stated that it hurt. Godfrey stated that his grandmother came into the room. She stated that his grandmother yelled at the two and told them to leave the home. Godfrey stated that his grandmother took an icepack and put it on is penis for him. Godfrey stated that he called his mother at work that night. He stated that his mother yelled at uncle Johnny. Godfrey stated that uncle Johnny lives with grandma and mom now. He stated that he was in the home with his mother and grandmother and uncle Johnny after this incident occurred. Godfrey stated that uncle Johnny spent Christmas with them. He stated that he was arrested the other night. Godfrey stated that he lied to the cops because he wanted them to leave his home. Godfrey stated that he wished that he had not lied to the cops because it got him into trouble. (51B, page 5)

The 51B investigator reported that Godfrey Archer admitted that he had "lied to the cops" and was sorry. At this point, the 51B investigator should have realized that Godfrey did not always tell the truth, despite the fact that "[h]e was able to indicate the difference between the truth and a lie" and she only wanted him to tell the truth. (51B, page 4)

The 51B investigator notes (51B, page 5) that the Godfrey told her that his mother lived with "his other Grandmother, uncle and uncle Johnny." (51B, page 5) The 51B investigator did not ask for clarification of Godfrey's incongruous statement that "Uncle Johnny lives with grandma and mom now."

Nowhere in the 51B investigation does it show that the 51B investigator questioned Godfrey about his visit to the doctor the day after the incident (as alleged in the 51A, page 2). The 51B investigator did not ask Godfrey who his pediatrician was.

Throughout the 51B investigation, the 51B investigator did not broach the subject of pornographic movies, which was one of the reasons the 51A had been screened in. Godfrey also did not mention watching pornography.

Although the 51B investigator stated that Godfrey "recalled many details" of the alleged assault, the details were inconsistent among the 51A, the letter he wrote, his alleged statements to the family, and the 51B investigation.

There is no specific time or place of the alleged burned penis incident. Godfrey stated in his letter only that the alleged sexual abuse occurred when he was 12, and he told the 51B investigator that it happened during summer vacation.

Godfrey said in his letter that he was sleeping; in the 51B report (page 5) Godfrey said he was "lying on the bed." Nowhere does it say in what room the alleged abuse took place.

Mother testified at the Fair Hearing that she had moved into the home of Hedda Smith in either June or July xxxx. The home has two bedrooms, a kitchen, a living/dining room, and an unfinished basement. The only television in the home is in the living/dining room. Mother and grandmother were the only residents of the home. The 51A, however, states that Godfrey visited his mother, who lived with "maternal grandmother, maternal, great-uncle, Donald Smith and maternal uncle, John Smith...." (51A, page 1) When questioned, Godfrey stated to the 51B investigator that mother lived with maternal "grandmother, uncle and uncle Johnny."

The 51A report (page 1) states that Godfrey reported to the 51A reporter that in August xxxx his grandmother had put ice on his penis. In the letter Godfrey stated vaguely that his grandmother "took care of [his] private." The 51B investigator reports that he told her his grandmother had put an icepack on his penis.

Godfrey stated in his letter that his grandmother had called the police and that he had run to the home of a next-door neighbor who was a friend of his mother's, who apparently called the police. Godfrey did not mention the police to the 51B investigator.

The 51B investigator did not ask Godfrey for the name of the next-door neighbor to whom he had allegedly run, nor did she ask any other party who the neighbor might have been.

The 51B investigator states that she "spoke with Townville police who report that they have no information on Donald Donald or John Smith," but does not state that she asked about any police responses to addresses at or near 12 Freedom Street in August xxxx. The 51B investigator did not run CORI's on John Smith or Donald Coombs.

An Affidavit dated January 23, xxxx by Paul J. Coughlin, Captain of Police in Townville (attached), states that there were no reports of any sexual assaults on any Freedom Street, Townville address during August xxxx, nor were reports received from John Smith, Hedda Smith (maternal grandmother who Godfrey claims called the police), Donald Coombs, or Godfrey Archer.

Mother testified at the Fair Hearing that she had visitation with all of her children, at no time did Godfrey visit mother unaccompanied by his siblings, and at no time did mother leave Godfrey in the care of his grandmother.

Mother also testified at the Fair Hearing that she had visitation on Wednesday and Saturday. The 51B investigator did not seek any information whatsoever about the visitation schedule in spite of the fact that the 51A alleged that visits were "supposed to be supervised as ordered by Barminster Probate Court." (51A, page 2) She did not question Probate Court, mother, grandmother, Godfrey, or the paternal grandparents about the visitation schedule. The 51B investigator also did not speak to the other children after the SAIN interview to corroborate Godfrey's story.

The 51B investigator states that Godfrey told her that he "used to sleep over there every week." (51B, page 5) Mother stated that Godfrey had spent the night at her home one time. (51B, page 6) The Archers made numerous allegations about the Smith family regarding sexual abuse, pedophilia, and rape, yet never mentioned Godfrey ever sleeping at mother's home "every week." The 51B investigator did not attempt to corroborate or deny Godfrey's claim.

It is stated in the 51A that "Godfrey said that his mother also knew [about the burned penis incident] because she heard him crying." However, Godfrey told the 51B investigator that he called his mother at work that night. (51B, page 5) Mother testified at the Fair Hearing that she did not work when the children were visiting.

At the Fair Hearing, Donald Coombs supplied copies of bills from prior and current residences (neither of which is 52 Freedom Street, Townville), which refute Godfrey's assertion that Mr. Coombs was living with mother at the time of the alleged incident.

On January 21, xxxx, the 51B investigator notes in the 51B investigation that she and Jackie MacDonald, the DSS case manager, visited mother in her home. (51B, page 6) However, by that time, mother was no longer living at 12 Freedom Street. The 51B investigator never saw the site of the alleged incident, nor did she ask anyone during the course of the investigation to describe it. Therefore, the 51B investigator had no knowledge of whether the alleged incident was even feasible.

During the 51B investigation, mother asked if it were possible for Godfrey to have a lie detector test because she did not believe Godfrey was being truthful. (51B, page 6)

Also on that date, the 51B investigator stated that mother told her she learned of the alleged incident the prior weekend. Mother also stated that she had taken Godfrey to the doctor "after the alleged burned penis incident" and the doctor did not report any concerns to mother. (51B, page 6)

The 51B investigator found it significant that mother claimed no prior knowledge of the alleged burned penis incident but had taken Godfrey to the doctor. However, the 51B investigator did not ask mother if the doctor's appointment had been a previously scheduled, well-child visit, and the 51B investigator did not ask mother for the name of the pediatrician. (51B, page 6)

Godfrey's medical records show that on August 10, xxxx, Godfrey saw Dr. Mitsu Kee. (Medical Records, page 4) The medical records note that Godfrey's genitals were normal. (Medical Records, page 5) Surely a fresh burn on such a sensitive area would have aroused some curiosity in Dr. Kee.

Dr. Kee is a mandated reporter as defined in 110 CMR and would have been required to report a burn on Godfrey's penis.

Neither John Smith nor Donald Coombs were ever caretakers as defined in 110 CMR 2.00 in that they had no responsibility whatsoever for Godfrey Archer's health or welfare. In fact, both stated that Godfrey was not present when they visited the house. (51B, pages 4, 5) Mother stated that "they" [meaning her children] spent the night at her home once and that neither she nor her children had seen Donald Coombs for approximately a year. (51B, page 6) Lack of proximity to the children would make it impossible for Mr. Smith and Mr. Coombs to be caretakers.

CONCLUSION

The Department was obligated by 110 CMR 4.27(1) "to ensure that the "investigation includes the linguistic capacity and cultural knowledge needed to perform a fair and comprehensive investigation of the reported child and family." One may reasonably assume that all families are entitled to a "fair and comprehensive investigation," which would include exculpatory witnesses or information.
110 CMR 4.27(2) states, in pertinent part:

The investigation shall include consulting with the reporter, checking Department files and the Central Registry,arranging medical examinations(s) where appropriate, and making any collateral contacts necessary to obtain reliable information which would corroborate or disprove the reported incident and the child's condition.

The timing of Godfrey's allegations is suspect. He had been accused of sexually abusing his sister.

Godfrey admitted lying to the police. This by itself should have made the 51B investigator aware that he was not always truthful. Given the non-corroborating, independent statements by mother, grandmother, Mr. Smith, and Mr. Coombs, the 51B investigator should have sought verification of the child's statements.

Godfrey said that he saw a doctor after the alleged burned penis incident. The 51B investigator took the time to contact an emergency room physician regarding a matter totally unrelated to the 51A involving Mr. Smith and Mr. Coombs, yet did not contact Godfrey's pediatrician or to obtain medical records despite having knowledge that Godfrey had seen a doctor after the alleged incident in August xxxx. Had she done so, the 51B investigator would have known that there was no evidence in the medical records to corroborate the child's story. The 51B investigator did not arrange for a physical examination of Godfrey.

The 51B investigator stated that:

Jill [mother] stated that she took her son to a doctor in Somerville after the alleged burned penis incident however, in contrast, she reported to this investigator and social worker earlier in the interview that she had no knowledge of her son's burn until this past Sunday.

(51B, page 6) The 51B investigator seems to have considered this "contradiction" sometime after the interview concluded, yet never did she ask mother why mother took Godfrey to the doctor or who the doctor was.

The 51B investigator made no attempt to contact Dr. King, Eli Newburger, or Ms. Prodomari, to determine why a sexual abuse examination or evaluation of the children was deemed unnecessary.

The 51B investigator made no effort to corroborate Godfrey's assertion that he had run to the next-door neighbor and she called the police on the night of the alleged incident.

The 51B investigator did not run CORI's on Donald Coombs or John Smith.

Although the 51B investigator contacted the Townville police to see if the police had knowledge of Donald Coombs or John Smith (the answer was "no"), she did not ask if there had been any police response to 12 Freedom Street in August xxxx. The attached letter from Capt. Paul J. Coughlin of the Townville Police specifically states that there were no such responses.

The 51B investigator did not visit grandmother's home (the site of the alleged burned penis incident), nor did she ask Godfrey Archer or any other party to describe it. Had she done so, the 51B investigator would have known that there were only two bedrooms at 12 Freedom street, and that the only television in the home was in the living/dining area.

The 51B investigator did not question any person involved whether there was cable television or a VCR in the home to see if there was even a possibility that pornographic films had been shown in the home in order to corroborate or disprove Godfrey's statement. Such prurient entertainment is not available on regular network programming.

The only evidence that any sexual abuse may have occurred was provided by Dr. Lisa Nelson at the Children's Hospital Emergency Room. However, if this alleged sexual abuse did indeed occur, it was in the Archer home, not the Smith home, and neither John Smith nor Donald Coombs was implicated.

The 51B investigator did not consider Godfrey's contradictory statements. While the basic assertion remained the same (it happened in grandmother's home; Donald Coombs held him while John Smith burned his penis with a match), all other alleged "details" changed.

The 51B investigator spoke to Hedda Smith, who denied ever putting ice on Godfrey's penis, by telephone. (51B, page 3) Mrs. Smith also stated that she did not believe that Godfrey was ever assaulted in her home.

The 51B investigator provided Donald Coombs's home and work telephone numbers in the 51B, but did not ask him how long he had lived there or where he was living at the time of the alleged incident.

The 51B investigator spoke to John Smith by telephone and reported that John Smith said he lived in Kingsborough (51B, page 3), but did not ask his address, or how long he had lived there.

The 51B investigator did not consider the obvious hostility between the maternal and paternal families of Godfrey Archer.
Neither John Smith nor Donald Coombs were ever caretakers of Godfrey Archer.

Based upon the information contained in this Memorandum, John Smith and Donald Coombs respectfully request that the Fair Hearing Officer reverse the 51B decision to support physical and sexual abuse in this matter and remove their names from the Central Registry of Alleged Perpetrators.