The email that went out regarding this article gave the impression that there has been a ruling on this case. That is incorrect. There has not been a ruling.
The following brief has been appealed, and we are waiting to hear regarding the status of the appeal. The issue of proxy statements of court actors taking over the statements of children and all victims, has been elevated to a Constitutional issue where it belongs, and is being argued in Federal Court as an issue of speech in the public interest.
The Federal Court Hearing
On Thursday, February 4, 2021, a two-judge panel of the Second Circuit Federal Court of Appeals heard oral arguments regarding the Powell vs Jones case, in which Powell accused Jill Jones Soderman of defamation.
This was a crucial case of the First Amendment right of Speech in the Public Arena. This extremely significant decision could have helped to give a voice to children who seek rescue from years of abuse.
Background of the Powell Case
Two children, ages 8 and 11, were wrongfully removed from their protective parent, based on the words of a hostile evaluator who attacked and mocked the children. This evaluator’s report would never have sustained credible review at the time it was accepted into a court record. It echoed the Fathers’ Rights claim of “these are my kids and I can do whatever I want to with them.”
The court suppressed the children’s testimony. These young children were not allowed to speak, to cry out for rescue from their alleged abuser, and evaluator Frazer prevailed.
Five years later, in 2016 at ages 14 and 16, the two children again made charges in writing and by video. They stated that if they were not rescued that weekend, they could no longer sustain their lives and had a pact to kill themselves together. With great courage they had reached out for help, mobilizing assistance. They were able to escape and reported to police, who cleared them to hide.
The two adolescents went on to secure a protective order with their attorney’s help, documenting in writing the years of abuse and neglect they had experienced.
They made plans to testify at a court hearing the following week.
The following week these adolescents appeared in court ready to testify to their clearly stated claims of physical, sexual, and emotional abuse and neglect. They rightfully expected to have access to a court that would listen to them and finally free them from their accused abuser who had sequestered them for years.
But as it turned out, things went very differently in the court than they or anyone who cared about them expected.
These children were prevented from giving testimony in their own defense. In addition, they were repeatedly charged with being liars.
The judge also refused to confirm the written charges they had articulated in the protective order. Claims brought by the maternal grandparents were also precluded from being filed. Instead, Judge Tindill again asserted the silencing of crimes.
The Tindill Court blocked all filings. Judge Tindill stated that no party in the case could ever seek assistance for the children. Everyone—the mother, the maternal grandparents, mandated reporters—all were precluded from ever filing any action against Powell. Any attempt to file any claim had to be returned to the Tindill court.
The therapists told the children that if they disclosed anything, they would be sent to CPS foster care in separate states.
The Board of Health was rendered helpless as medical records for the girls were not able to be procured because their father as primary custodian would have to sign to release any and all of their medical records.
Judge Tindill declared that complaints stated by the girls were criminal. They were indeed descriptive of criminal behavior. But these girls could not complain and could not get redress of grievances in court.
The court erased all claims of abuse, based on the false testimony of the same evaluator whose reports had facilitated the children being placed in jeopardy at ages 8 and 11. This evaluator, who the adolescents claimed had insulted and humiliated them, ultimately prevailed.
After this court decision, the children were repeatedly kept from any communication with those who had tried to help them. They continued to see the so-called therapists and so-called psychological evaluators, all paid by the father whom they had accused in great detail.
It seems clear that the only way the girls could have been redeemed as truth tellers would have been for them to have killed themselves and left clear and convincing evidence of the crimes they accused their father. But perhaps even then, they would not have been believed.
At every developmental stage of their lives, these children experienced physical and emotional neglect and abuse.
Because the children, who are now young adults ages 19 and 21, have not made an effort to correct this court record, it has lived on to be accepted as evidence against them.
The Role of the FCVFC
When the adolescents reached out to the FCVFC for help, I made numerous reports to police, documented by emails and police reports, as well as reports to CPS, complaints to every oversight government agency, and multiple complaints to the Board of Health against the license of Eric Frazer, the evaluator.
Because of the restrictions of Judge Tindill, because the voices of the children and any witnesses for them had been silenced, it became evident that Complaint in the Public Arena was the only forum left to speak out, to have any impact. That is, to publish an article on the FCVFC website.
I was their voice. They planned. I facilitated.
The facts are there and must not be denied. Above all, we believe that the voices and statements of children must be heard. Court actors and proxy stand-ins must not be allowed to rob the children of their voices.
Synopsis of the Circuit Court Hearing
When the Second Circuit Court of Appeals met for the hearing, the questions and answers covered the following territory:
- Did Jones Soderman believe the (allegedly defamatory) allegations against Powell that she made on her website? That is stated in the district court record. She believed the children’s allegations of abuse.
- Did she have reason to believe the allegations she wrote? Yes, and abundant evidence was provided to the district court on this count, and to demonstrate the significant reasons she believed the children.
- But didn’t she purposely avoid the truth? No, she didn’t. She believed the children.
- The fact that Ms Jones Soderman didn’t report these “outrageous and dangerous conditions,” these “criminal allegations,” means she didn’t really believe them. Why didn’t she report them? But she did report them, and also helped the children report. Evidence is in the documentation.
- Malice needs to be proven in the case of a public figure. Why are you making a claim that malice needs to be proven in the case of a private individual? Because this allegation [child abuse] is a matter of public concern.
- Are you saying you believe that there could be a reversal of the finding of the family court, which implied that these allegations of abuse are false? Yes, if all evidence were to be allowed to be brought forward.
Details of the Circuit Court Hearing
The fifteen minutes of court hearing commenced with the attorney’s statement that when speech is made in the public interest, the burden of proof to show both malice and falsity lies with the plaintiff (Powell).
The attorney stated that because Jill Jones Soderman believed the children’s claims of abuse by their father, this belief precluded any finding of actual malice. Powell failed to meet his burden of proof regarding both actual malice and falsity.
Judge response: One judge argued that good faith (believing that what she said was true—that Powell was an abuser) would not preclude liability for defamation.
The attorney argued that case law shows that she must have “purposely avoided truth,” which she didn’t, he argued. “Ms. Jones Soderman was acting in good faith because she did actually believe the children, and she had significant evidence supporting it.”
Judge response: Another judge asked, if your client is a mandatory reporter, why did she “not report these outrageous and dangerous conditions to the authorities? . . . These are criminal things, criminal offenses.”
Please note that the judge called the conditions in which the children said they were living “outrageous and dangerous.” He said the claims they were making were of “criminal offenses.”
This judge had failed to note in the documentation that I had made multiple reports to many authorities, as described in the previous section of this article.
The attorney argued that I had helped to facilitate the children’s escape so that they could report to the police themselves.
Judge question: A judge asked, since Powell was not a public figure, why did a case of malice need to be proven? [The standard for defamation is higher for public figures than for private individuals.]
The attorney replied, “The case law . . . requires that in cases where the publication relates to a matter of public concern, then actual malice is a requirement and the plaintiff must bear the burden of proving actual malice.”
This is the crux of the matter in this case. When we published about this case many years ago on the FCVFC website, this was the only vehicle for exposing the truth. The judge had silenced every witness, including the two children who were abused. The public concern was that an alleged abuser was allowed to live free and without consequences in his community.
Judge question: “I want to ask a question about falsity. . . . You make an argument that even if the finding [of Jones Soderman’s statements being false] was made explicitly, that there was not evidence to support it.”
So, if the previous court (the district court) had declared Powell’s testimony to be credible, the judge asked my attorney to explain how he could say that the record is insufficient to support such a finding.
The attorney responded at length. “When we consider only the evidence that is non-hearsay, admitted for its truth, there is very little [evidence to support Powell’s testimony as credible]. Essentially it boils down to Powell’s uncorroborated testimony and the 2016 Judge Tindill opinion.” The attorney confirmed that if indeed the truth or falsity of my statements were to be examined, that finding could be reversed.
“There is substantial evidence in the record contradicting Powell’s testimony that was admitted towards proof. For example, the protective order, which was admitted for its truth in its entirety, details the children’s allegations of abuse against him. There was also the children’s conduct throughout the entire ordeal with Ms. Jones Soderman that suggest that they were telling the truth and that he was actually abusing them. After they found out that they were going to have to be returned—”
At this point the attorney was interrupted for at least the second time.
Judge question: “You say that the trial court found that Ms Jones Soderman believed in the truth of her statements. And I’m just wondering if you could point us to where specifically she did that, where this is said.”
The attorney provided multiple examples from the district court statement. “She believed the girls’ allegations in part because of their demeanor during their many phone calls and in the video they sent to Jones Soderman and because of the content of the letters and the detailed allegations in [the] diary entries.”
And again, “At the conclusion of the call, Jones Soderman believed that if she did not get them out of the house that weekend, they would go through with their pact to kill themselves.”
And again, “Jones Soderman conversely believed those allegations, with full knowledge of the case history and judicial orders.”
As he was proceeding to give more examples, he was interrupted and told that the hearing was concluded.
You can listen to the full fifteen-minute hearing here.
When Speech in the Public Interest is Censored
Isolated children who were prepared to face their alleged abuser and give testimony in court about the abuse they sustained were never allowed to give that testimony.
The children are silenced and pressed back into the isolation of their abuser because the false testimony of so-called experts is able to control a narrative that exonerates an abuser.
Now, by this ruling on February 4, 2021, the three judges of the Second Circuit Court of Appeals made it clear that children’s rights mean nothing to them. Those who want to help the children who cry out to them with clear and convincing evidence that they are at grave risk, those helpers may be censored by court decisions.
Each point the judges made, each question they asked, had a compelling answer with evidence to support it. None of the case law these judges brought to bear on this case pertained to the protection of children. Several times they cut off the attorney’s responses in favor of their own preconceived ideas.
It seems evident that these judges were uninformed and indifferent to the complex history and facts of this case, as well as the import of their decision to silence children who are being harmed.
And thus we stand. Correcting the courts, over and over again.