Losing custody to a child molester

SARAH FITZPATRICK Mandel is hunching forward, wrapping her arms around herself as if she’s trying to contain her pain. The Orleans resident, 30, is telling me about how she lost custody of her two children, a daughter now four years old and a son now age three, in Barnstable Probate and Family Court to her ex-husband, a man who Baltimore, Maryland, child-protection workers believe is a child molester. About how she was arrested and jailed for six nights for refusing to hand over her children. About how the court refused to hear charges that her ex-husband had abused their son when he was two years old.

Fitzpatrick filed to divorce her then-husband, Marc Mandel, a 36-year-old Baltimore County state prosecutor, in June 2001, after five years of what she describes as an emotionally abusive and violent marriage. Six months later, pending a trial in Baltimore County Circuit Court, the couple agreed to a temporary custody arrangement that gave her primary care of their daughter Amy and son James. (The children’s names have been changed to keep their identities private.) The court order handed down a visitation plan allowing Fitzpatrick’s former spouse to see the children in Cape Cod, where she’d since relocated.

But last February, while changing her son’s diaper after he’d returned from a visit with his father, Fitzpatrick saw that James’s penis and rectum were red and swollen. Fitzpatrick phoned the Orleans Police. In a February 4, 2002, police report, she told the responding officer that James’s "private area ... looked like the skin was pinched and pulled ... [and] there was redness around his anus."

Subsequent medical examinations of the boy revealed rare physical symptoms typically associated with child sexual abuse. Two doctors diagnosed James as suffering from a red and swollen penis and scrotum. The first doctor, Hope Brooks, saw James on February 4. The second doctor, Nancy Golden, who is James’s pediatrician, examined the boy nine days later, on February 12, and found that James also had "anal fissures," or cuts and scrapes around the rectum. Such symptoms do not necessarily prove molestation, explains Dr. Eli Newberger, the founder of the child-protection team at Children’s Hospital and a renowned expert on child sexual abuse, "but they’re extremely important indicators." Anal fissures almost never occur in instances other than abuse, he says. The findings prompted Golden to contact the Massachusetts Department of Social Services (DSS), whose mission is to ensure the safety and well-being of minors. On February 14, the department evaluated James and confirmed he had severe redness and abrasions on his genitals — symptoms that the DSS called "atypical" for such ordinary conditions as diaper rash. In accordance with agency procedures, evaluators tried to interview the boy. But James, who was just two years old, said nothing. As a result, the DSS closed the case, though its report cautioned that "the absence of specific findings in no way indicates abuse did not occur."

Mandel did not return a phone call from the Phoenix seeking comment. His Brewster, Massachusetts–based attorney, Dennis Manesis, says his client "has steadfastly refused to speak to the press because he doesn’t believe his children should be bandied about in the newspapers." In court records, Mandel attributes James’s injuries to a diaper rash that he aggravated during James’s February 3 visit by wiping his son’s bottom with a paper towel after the boy had had a "difficult bowel movement." His attorney also points out that the two doctors examined the boy over a period of nine days. Only the second doctor diagnosed anal fissures, however. "So how did the child get those injuries?" Manesis asks, emphasizing that Mandel had not seen his son during those nine days.

His question, of course, is meant to cast doubt on Fitzpatrick. But a July 2002 report conducted for the Baltimore County DSS determined that Mandel had assaulted his 10-year-old daughter from an earlier marriage. The report states that Mandel’s daughter accused him of seven "incidents" of fondling, including one where he "rubbed and went inside her vagina." The report concedes that such allegations could have arisen from one of two possibilities — first, that the girl was programmed to make false charges against her father; or second, that "Mandel has indeed exhibited sexually inappropriate and intrusive behavior with his daughter." The investigator concludes, however, that the girl was telling the truth: "I did not find signs of coaching and [the child’s] credibility appears high." In an interview documented in the report, Mandel maintained not only that his older daughter had repeated bogus claims against him made by her maternal grandmother, but also that both of his ex-wives and their mothers were "conspiring against him" to portray him as an abuser. And according to Manesis, Mandel’s first wife filed abuse charges against Mandel with the Baltimore DSS only after a similar investigation by the Department of Protective Services, in Virginia, where the older daughter lives, did not substantiate the abuse. "After he was cleared in Virginia," Manesis argues, "the mother ran to Maryland to make a report." He adds that, "whatever the Maryland DSS found," its child-protection workers didn’t base their determination on any physical "proof" that Mandel had abused his daughter.

For Fitzpatrick, her son’s diagnosis only reinforced her suspicion that her estranged husband, in her words, "had done something terribly bad" to James. She refused to comply with the Baltimore court’s visitation plan; indeed, she sent Amy and James to live with relatives elsewhere in the state and kept their whereabouts hidden. "I wasn’t going to let my children see their father alone again," she says. She then turned to the Barnstable family court for help, filing a February 15, 2002, motion seeking to move the pending custody matter from Baltimore to Massachusetts. The Barnstable family court ruled instead that a hearing had to be held on whether Massachusetts had proper jurisdiction in the matter. Meanwhile, the Baltimore trial got under way before either Fitzpatrick or her ex-husband pursued the Massachusetts hearing.

By the time the Baltimore trial took place in August, Fitzpatrick had accumulated a battery of documentation and witnesses to back up her sex-abuse claims, including the Baltimore DSS findings that Mandel had assaulted his oldest daughter, as well as expert testimony from Eli Newberger, who concluded after evaluating the medical reports that it is "highly likely that Marc Mandel had ... sexually abused" James. None of this evidence was ever heard at trial, however. On August 21, the day trial began, Fitzpatrick’s attorney, William Kerr, withdrew as her counsel. Kerr told the Phoenix that he removed himself from the case because of a conflict between him and Elizabeth Clague, the Brockton attorney who represents Fitzpatrick in Massachusetts. Rather than listen to his advice and attend the Baltimore trial, Kerr says, "Sarah chose to heed her Massachusetts attorney and not appear. I felt my effectiveness as her lawyer was no longer a factor." The move stunned Fitzpatrick, who contends that Kerr had left her a message the morning of the trial saying everything was all right. "He has never explained to me why he did that," she says.

Without legal representation, Fitzpatrick was forced to request that the trial be continued — to no avail. After two days of testimony elicited by Mandel’s attorney, the judge in the case, Baltimore County Circuit Court judge John Fader, issued a stinging judgment against Fitzpatrick, in which he rejected her sex-abuse claims and granted Mandel full custody of both children. "I fear the mother of these children will do almost anything, and say almost anything to get her way," the judge explained in his August 28, 2002, order. He labeled Fitzpatrick "a pathological liar, or a purposeful liar, or both" and denied her any visitation rights at all.

Faced with Fader’s harsh judgment, Fitzpatrick sought relief once again in Barnstable family court, filing a September 3, 2002, motion seeking to reverse custody. Rather than hear the complaint — and the evidence of child abuse — First Justice Robert Terry dismissed it. Instead, he upheld an order that came from an ex parte hearing — which Fitzpatrick had not appeared at or known about — that the Barnstable court had granted Mandel on August 29, 2002. Not only did this order enforce Fader’s decision, but it also ruled that Mandel "be assisted by the Orleans Police ... in the assumption of the physical custody of the two minor children." Terry denied Fitzpatrick’s appeal for custody because, he wrote in his October 15, 2002, decision, "two first-rate judges in two states have fully considered these [sex-abuse] allegations and have rejected their veracity." In a brief interview with the Phoenix, the judge elaborated upon his findings. He explained that he’d honored Fader’s judgment because the Baltimore court has "clear jurisdiction" in the case. "One of the major problems, as family-court judges know, is forum shopping," he continued, adding that litigants "cannot just go to any state they want and file motions and hold hearings" because they’re dissatisfied with a decision.

Fitzpatrick has appealed Terry’s decision, which is pending before the state Supreme Judicial Court. Yet her continued refusal to let Mandel see his children caused the judge to declare Fitzpatrick in contempt of court last fall. On October 25, in another closed-door ex parte hearing, Terry authorized a civil-detention warrant for Fitzpatrick. Four days later, she awoke at her family’s Scituate home to a loud bang at the door. Within minutes, she was under arrest. Police seized her son, James, who was with her at the time, before forcing her to the ground, slapping on handcuffs, and hauling her off to the Barnstable County House of Corrections, where she languished for six days. Terry, for his part, presented the contempt proceeding as a straightforward judgment. "I determined that there was a valid order — which there is, from Maryland — and that she had the present abilities to comply," he says. "She could turn over her children" to Mandel.

As it stands, the only judge who has not doubted the veracity of Fitzpatrick’s allegations also happens to be the only one who’s heard her testify. Last month, US District Court judge Robert Keeton issued a scathing decision in a federal lawsuit Fitzpatrick filed against the Orleans Police. In his December 9 judgment, Keeton blasted the police for launching a broad, misleading investigation into the whereabouts of Fitzpatrick’s children, during which the judge found that the department "likely violated" the mother’s due-process and parental-privacy rights. More important, based on testimony given by Fitzpatrick, Keeton also determined that "there is compelling evidence that the children have been harmed by their father."

Today, as she waits for the SJC to accept her case for review, Fitzpatrick has a hard time believing what’s happened to her and her children. After her October 29 arrest, police handed over her toddler son to his alleged abuser, who has taken the boy back to Baltimore. While her daughter remains in an undisclosed location in this state, Fitzpatrick wonders how long Amy will be safe. Given the reaction of the family courts to her claims of child sexual abuse so far, she fears she may lose custody of her kids forever. "It’s just inconceivable what’s happened in the family courts," she says, her voice shaken. "All I’m doing is trying to protect my kids. Any mother would do the same."