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The Hamilton County Parenting Division Supervisor Deposed |
Jayne Zuberbuhler Deposition |
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The Hamilton County Parenting Division Supervisor Deposed |
Jayne Zuberbuhler Deposition |
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1 1 COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION 2 HAMILTON COUNTY, OHIO 3 4 5 Dr. (redacted), 6 Plaintiff, vs. : CASE NO. DR-(redacted) 7 TERESA (redacted), 8 Defendant. 9 10 11 Deposition of JAYNE ZUBERBUHLER, a witness 12 herein, taken as upon cross-examination by the Plaintiff 13 and pursuant to the Ohio Rules of Civil Procedure, agreement 14 of counsel, and stipulations hereinafter set forth, at 800 15 Broadway, Second Floor, Cincinnati, Ohio, 45202, on the 15th 16 day of January, 2004, at 1:09 p.m., before Connie G. Oelker, 17 a Notary Public for the State of Ohio. 22 TRI-COUNTY REPORTING AND VIDEOTAPE SERVICE 23 (redacted) 2 1 APPEARANCES: 2 On behalf of the Plaintiff: 3 DOMINIC J. MASTRUSERIO, ESQ. 4 Dominic J. Mastruserio Co., LPA 5 Cincinnati, Ohio 45210 6 On behalf of the Defendant: 7 RICHARD DUCOTE, ESQ. 8 New Orleans, Louisiana 70118-3948 9 10 Also present: Teresa (redacted) 11 12 S T I P U L A T I O N S 13 (redacted) 3 1 I N D E X 2 WITNESS CROSS 3 JAYNE ZUBERBUHLER 4 By Mr. Ducote 4 5 6 EXHIBITS REFERENCED 7 Defendant's Exhibit No. 1 5 8 (redacted) 4 1 JAYNE ZUBERBUHLER, 2 a witness herein, of lawful age, being first duly cautioned 3 and sworn, was examined and deposed as follows: 4 CROSS-EXAMINATION 5 BY MR. DUCOTE: 6 Q Would you state your name and address, 7 please. 8 A Jayne Zuberbuhler, 800 Broadway, Second 9 Floor, Cincinnati, 45202. 10 Q Just spell Jayne and Zuberbuhler. 11 A J-A-Y-N-E, Z-U-B-E-R-B-U-H-L-E-R. 12 Q Have you ever given your deposition 13 before? 14 A Yes. 15 Q So you know the purpose of the deposition 16 is to allow me, and perhaps Mr. Mastruserio, to ask 17 you questions about this case? 18 A (Affirmative head shake) 19 Q I'm going to ask you to do a couple of 20 things to make the deposition go easier. The first 21 is to wait until I'm finished asking the question 22 before you answer so we don't speak over each other. 23 Second is to answer in words as opposed to sounds 24 and gestures so it can be accurately taken down by 25 the court reporter. The third is to let me know if 5 1 you don't understand a question, and I'll rephrase 2 it in a way that will hopefully make sense. And 3 finally, I'd ask you to give complete answers to the 4 questions that you do understand. After the 5 deposition is transcribed by the court reporter, 6 you'll have the right to read and sign the 7 deposition to insure the accuracy of the 8 transcription, or you can waive that, and that's up 9 to you, and you can just let the court reporter know 10 at the end of the deposition. 11 What is your position here at the 12 court? 13 A Supervisor of the parenting department. 14 Q And what does that entail? 15 A Well, I supervise five master's level 16 social workers who perform custody evaluations. We 17 also perform mediation and I supervise any attorney 18 mediator in that position. I also offer services to 19 the judge as needed. 20 Q You gave me a copy of your curriculum 21 vitae before we started the deposition. Is this a 22 complete, up-to-date curriculum vitae? 23 A Yes. 24 Q Let me go ahead and mark this and attach 25 this as Exhibit Number 1. Now, you, yourself, have 6 1 a bachelor's degree? 2 A That's correct. 3 Q In what field? 4 A A bachelor's in political science and 5 government. 6 Q And then, do you have any graduate 7 training in social work? 8 A No, I do not. 9 Q How did you become a licensed social 10 worker in 1988? 11 A I applied and was grandfathered in when 12 they first started the licensing procedures. I'd 13 been a social worker here at the court, probably for 14 a number of years. 15 Q Did you have to take a test to get your 16 license in '88? 17 A No, I did not. 18 Q Have you ever taken a test in the field of 19 social work? 20 A No, I have not. 21 Q Have you ever taken a course in the field 22 of social work? 23 A Yes, I believe in undergraduate school. 24 Q And what course was that? 25 A Sociology. 7 1 Q But you recognize there's a difference 2 between sociology and social work? 3 A Yes. 4 Q Have you had to do anything to maintain 5 your license since 1988? 6 A Yes. 7 Q What's that? 8 A Thirty credit hours every two years. 9 Q You said that part of your job description 10 is to provide service to the judge as necessary. 11 What does that mean? 12 A Well, they might call me in and ask me to 13 do a number of things. They may consult with me 14 about a case, asking me my opinion, any number of 15 things. 16 Q Have you had any connection or involvement 17 whatsoever in the case of (redacted) versus 18 (redacted), Dr. (redacted) and Teresa 19 (redacted), Case Number DR(redacted)? 20 A Yes, I have. 21 Q What was the first involvement you had 22 with that case? 23 A The case has been active here at the court 24 for a number of years, so my recollection may be 25 flawed. I believe it was a custody investigation 8 1 performed by Janice Chapman, who I supervised. 2 Q And have you had any other involvement in 3 the case? 4 A Yes. Judge Panioto asked my assistance in 5 finding a psychologist to perform an evaluation on 6 the families. 7 Q When was that? 8 A I think it was in the beginning of 2000. 9 Q And did you do that? 10 A Yes. 11 Q And who did you find to do that? 12 A Michael Borack. 13 Q And what instructions or guidance, if any, 14 did Judge Panioto give you when he asked you to help 15 find an evaluator? 16 A I don't recall. 17 Q Why did you pick Michael Borack? 18 A Michael Borack started doing evaluations 19 for the court, probably three years before that. He 20 had moved to Cincinnati from Boston, and he came to 21 the court and talked with our director and he talked 22 with me. He was interested in doing this sort of 23 work. He had done -- he had specialized in it in 24 Boston. And he submitted his CV and some reports 25 that he had completed in Boston, and he gave us a 9 1 list of references and asked that he be considered 2 for appointment in these sorts of cases. 3 Q When you say "these sorts of cases", what 4 sorts of cases do you mean? 5 A We call this psychological evaluations in 6 terms of parenting. 7 Q How many evaluations, to your knowledge, 8 had he performed before you asked him to do the 9 (redacted) evaluation? 10 A Totally, I would have no idea -- you mean 11 here at our court or totally -- 12 Q No, just in the court here. 13 A I wouldn't know, I would have to guess or 14 estimate. Do you want me to do that? 15 Q If it's an estimate, you know, based on 16 some basis and you can explain the basis. If it's 17 just a wild guess, then that won't be helpful. 18 A I think it would probably be a wild guess. 19 Q Okay. Do you think it would be more than 20 10 or more than 15 or -- 21 A About 10. 22 Q Now, do you recall Judge Panioto saying 23 anything about Parental Alienation Syndrome? 24 A No. 25 Q Have you read Dr. Borack's report in this 10 1 case? 2 A I probably did when we received it, but I 3 have not recently. 4 Q Okay. Have you ever read Dr. Borack's 5 deposition? 6 A No, I have not. 7 Q Are you aware of any licensing problems, 8 difficulties that Dr. Borack has had since he 9 performed the evaluation in this case? 10 A Yes, I'm aware of one problem he had. 11 Q And what is that? 12 A He had a grievance filed against him in 13 Kentucky, and it was two-pronged, I believe. One 14 was that he offered services in Kentucky without 15 being licensed in Kentucky. And secondly, he 16 offered advice -- he wrote a report without 17 substantive personal contact, something like that. 18 He provided me with the consent agreement and all 19 the paperwork having to do with this when it 20 occurred. 21 Q Is he still doing evaluations for the 22 court? 23 A You mean is he currently doing one? 24 Q Yes, or is he still on the list of 25 approved evaluators? 11 1 A We don't have a list of approved 2 evaluators. 3 Q When was the last time he was asked to do 4 an evaluation from this court, to your knowledge? 5 A Not all of them come through me, so I 6 would not be cognizant of everything. Sometimes 7 they come directly to him from a judge. Sometimes 8 they come directly to him by agreement of attorneys. 9 So I don't think he's currently working on one right 10 now. We discussed him doing one several months ago, 11 but it fell through. You would have to ask him if 12 he's currently doing one. 13 Q So, despite the problems he had with the 14 licensing board in Kentucky, this court would still 15 use him to do evaluations? 16 A I would -- yes, I would still use him. 17 Q Have you had any discussions with Judge 18 Panioto about the (redacted) case since there was 19 that discussion about trying to find an evaluator? 20 A Probably on procedural things, probably 21 most recently about this deposition. I think there 22 was some question about whether it should go forward 23 because of something pending in the Supreme Court. 24 So I've briefly talked with him about whether he 25 wanted this to go ahead. I've talked with our court 12 1 administrator, Judge Shannon, about the (redacted) 2 case, yes. 3 Q What was said to Judge Panioto and by 4 Judge Panioto regarding this deposition? 5 A Judge Panioto and our administrator, Judge 6 Shannon, were concerned that perhaps it shouldn't go 7 forward because there was something pending in the 8 Supreme Court and maybe that that stopped all 9 procedures in the case. But they eventually told me 10 to go forward with it. I don't know what their 11 private discussions were about that. 12 Q Did Judge Panioto say anything else about 13 the case, other than that? 14 A No. 15 Q Have you had any other discussions with 16 him about any matters, including procedural matters, 17 other than the issue of this deposition? 18 A I probably have over the years, you know; 19 I can't recall them, really. 20 Q Do you recall anything about them? 21 A You know, we have a lot of cases pending 22 and this one's been pending a long time and most of 23 it's years ago. I'm sure I've had conversations 24 with him about, is the report ready, you know, where 25 is the work report. I had to have him release funds 13 1 to pay for it. You know, as things cropped up, 2 probably, yes, you know, I can't recall exactly. If 3 you have specific questions, I -- 4 Q Have you ever discussed the Borack report 5 with him? 6 A You mean the contents of the report and 7 whether he was satisfied with it? 8 Q Yes. 9 A No, I have not. 10 Q Have you ever discussed anything about the 11 Borack report with him, other than you having had 12 Borack to do it? 13 A Probably not anything other than, did the 14 report come in, here's the report, we need to 15 release the funds, those sorts of things. Judge 16 Panioto is pretty independent. He judges a report 17 on his own, he doesn't say to me, what do you think, 18 you know, that sort of thing. 19 Q At the time that you had obtained or 20 gotten Dr. Borack involved in doing the evaluation, 21 were you aware that there were allegations and 22 issues about whether the father had sexually abused 23 and physically abused the children? 24 A Yes. 25 Q And did you take that into account when 14 1 selecting Dr. Borack? 2 A There's a very limited number of experts 3 that are willing to do this work. It's very 4 difficult work. A lot of times the clients are 5 difficult. People are not happy with what you do. 6 Lots of grievances are filed. 7 Q Well, okay, but the question was, did you 8 take that into account when you selected Dr. Borack? 9 A Yes -- well, I have a great deal of 10 respect for Dr. Borack, and I have a great deal of 11 respect for Dr. Michael Nelson. Now, he had done 12 some work on this case, and I don't believe they -- 13 Q This is a real specific question -- 14 A Yes, I did consider it. 15 Q And did you believe that Dr. Borack was 16 sufficiently qualified to assess allegations of 17 child sexual abuse when you got him involved with 18 doing the report? 19 A I felt that Dr. Borack was well qualified 20 to do this case. And as part of this case, he would 21 be gathering information from other sources. And, 22 yes, I felt he was well qualified to do it and to 23 assess, given the way these evaluations are 24 performed, to assess whether there was sexual abuse, 25 yes. 15 1 Q Are you aware or have you learned that, in 2 Dr. Borack's deposition, he testified that he's not 3 an expert in determining if a child has been 4 sexually abused? 5 A In determining sexual abuse? 6 MR. MASTRUSERIO: There will be an objection to 7 the question. He's assuming a fact not in evidence. She 8 has no way of knowing unless he lays the proper foundation. 9 MR. DUCOTE: Well, this is a discovery deposition. 10 Q Assume that Dr. Borack, in his deposition, 11 said he's not an expert in determining if a child 12 has been sexually abused. 13 A Okay. 14 Q Were you aware of that, that that was in 15 his deposition? 16 A I don't know -- no, probably not. 17 Q You haven't heard that before? 18 A I don't know if I have or not. 19 Q Would that concern you or give you second 20 thoughts about having Dr. Borack involved in the 21 case? 22 MR. MASTRUSERIO: Same objection. If, in fact, 23 it's a fact established. Same objection. You can answer. 24 A When you do a custody evaluation, you talk 25 to a number of people and you solicit a number of 16 1 reports. By law in Ohio, sexual abuse is a 2 responsibility of our Hamilton County Jobs and 3 Family Services, so they would give Dr. Borack 4 input. There were a number of counselors in this 5 case who give input, and so, you know, he's 6 gathering a lot of information. He probably is not 7 going to in-depth evaluate the child about sexual 8 abuse, but rather, he's going to rely in part on 9 others to determine that. 10 Q So when you got Dr. Borack involved in the 11 case, it was your anticipation that he would not 12 conduct his own evaluation to determine if sexual 13 abused had occurred? 14 A It was up to Dr. Borack about how he 15 wanted to conduct his evaluation. 16 Q So if Dr. Borack was either unqualified or 17 was not going to conduct a sexual abuse evaluation 18 on his own, then, either way, that would have been 19 acceptable to you? 20 A I think Dr. Borack is qualified to do what 21 he did. 22 Q But assume that, in his deposition, he 23 said he was not an expert in determining if a child 24 has been sexually abused. Do you still take the 25 position that, when he did the evaluation, he was 17 1 qualified to do it? 2 A Yes. 3 Q Are you an expert in child sexual abuse 4 cases? 5 A No, I'm not. 6 Q Are you familiar with the concept of 7 Parental Alienation Syndrome? 8 A Yes, I am. 9 Q And how are you familiar with that?
10 A Well, I know that it's a theory that was 11 put forward by Richard Gardner (above left), and he's written a 12 number of books and he's done a number of speaking 13 about it. And I know that it's been discredited 14 because it was based upon clinical experience rather 15 than any sort of research. It's not something that 16 we have ever put any stock in here at the court in 17 my department. 18 Q Had you yourself gone to any training by 19 Dr. Gardner? 20 A Yes, as a matter of fact, I went to a 21 lecture of his. 22 Q When was that? 23 A Probably 15, 20 years ago. 24 Q And he talked about Parental Alienation 25 Syndrome? 18 1 A I believe he did. 2 Q Have you read any of his books? 3 A Yes. 4 Q Do you own any of his books? 5 A I think I do, yes. 6 Q Which books have you read? 7 A I have a book of his on how to conduct 8 custody investigations, it's probably 25 years old. 9 Q Anything else? 10 A Not that I know of. 11 Q Have you ever discussed the concept of the 12 Parental Alienation Syndrome with Judge Panioto? 13 A No, I have not. 14 Q So, would you agree that, Parental 15 Alienation Syndrome is a discredited concept? 16 A Yes, it's highly controversial. 17 Q But would you agree that it's discredited? 18 A Yeah, probably generally discredited. 19 Q Are you aware that, in the (redacted) 20 case, at Mr. Mastruserio's suggestion, that when an 21 evaluator was going to be found, that, he requested 22 somebody who was familiar with Parental Alienation 23 Syndrome and that -- 24 MR. MASTRUSERIO: There will be an objection. 25 Counsel is misstating the record. Counsel, get your facts 19 1 straight before you make a record. 2 MR. DUCOTE: I don't believe I am. 3 MR. MASTRUSERIO: You are wrong, sir. 4 MR. DUCOTE: Well, do you want to tell me how I'm 5 wrong? 6 MR. MASTRUSERIO: Get your transcript out and 7 you'll see how it's wrong. 8 BY MR. DUCOTE: 9 Q Parental alienation or Parental Alienation 10 Syndrome, and Judge Panioto said, "Yeah, we'll get 11 somebody who's good in that," something to that 12 effect, are you familiar with that transaction in 13 the courtroom? 14 A I wouldn't think that Judge Panioto is 15 familiar with Parental Alienation Syndrome. 16 as parental alienation, I think that's a term that's 17 used, small p, small a, meaning a parent attempting 18 to alienate the child from someone else, whether it 19 be another parent or relative or a school teacher, 20 whatever. I think parent alienation is a broad term 21 that can mean a lot of things and is fairly common 22 in our sorts of work. 23 Q Is there, among the people who do the 24 evaluations here, your staff, is there ever any 25 discussion about Parental Alienation Syndrome? 20 1 A Oh, yeah. 2 Q And what is the discussion, what's the 3 gist of it? 4 A Well, we have a staff meeting every week 5 and we go over various topics, and we've had 6 speakers about parental alienation, we've discussed 7 it, we've read articles. 8 Q Have you told your staff here that the 9 concept of Parental Alienation Syndrome as proposed 10 by Richard Gardner is discredited and isn't 11 something to be considered? 12 A They're aware, yes. 13 Q That's an official policy of the court 14 here in your office? 15 A Yeah, it's accepted in my office. 16 Q Just so the record is clear, what's 17 accepted? 18 A It's accepted that the syndrome is not a 19 valid theory. 20 Q Okay. Are you familiar with the report 21 that Janice Chapman did in this case? 22 A I probably was when it was written. I 23 haven't read that since it was submitted. 24 Q Do you recall whether or not there was any 25 criticism within your office or of the court of the 21 1 Chapman report? 2 A No, I don't. 3 Q Now, explain how files are kept in the 4 court system. There's obviously a record in the 5 clerk's office where pleadings and orders, 6 transcripts are filed and docketed, and that carries 7 the case number. Are there any other files that the 8 court keeps, to your knowledge? 9 A Yes. 10 Q What are those files? 11 A All the legal papers are kept with the 12 clerk of the courts. The court keeps its own record 13 of more of an informal record called a family file 14 on each case. In that family file would be the 15 questionnaires that's done on each divorce case, 16 which gives a lot of background on the couple and 17 the children, dates of birth, you know, just basic 18 sorts of -- addresses, occupation, education. There 19 would be copies of motions. There would be the 20 custody reports from both our own evaluators and 21 from outside kept in a red envelope, which is 22 supposed to be highly confidential. There would be 23 notes from the magistrate hearings that would also 24 be in the red confidential envelope that's highly 25 confidential. There would be child support records, 22 1 forms that have been filled out. There would be any 2 number of things in this family file. 3 Q That envelope, is that the thing that has 4 the file number, for example, in this case, (redacted)? 5 A Yes, correct. 6 Q Where is confidential envelope kept? 7 A In the family file. 8 Q But, I mean, what's the difference between 9 the envelope and the family file? 10 A Well, the policy is that only an attorney 11 currently representing a client or pro se client may 12 review the family file. Generally, when the file's 13 reviewed, the red envelope is removed because we 14 feel that that is very confidential information. 15 And if that sort of information needs to be 16 reviewed, it should be reviewed in the parenting 17 department and should be supplied to you or to 18 anyone who wants to see it under certain conditions, 19 where copies are not made and people can't walk off 20 with this highly confidential information. 21 Q So, for example, Teresa (redacted) is 22 obviously the defendant in this case, is she 23 allowed, under the court policy, to see what's in 24 her confidential red envelope? 25 A Yes. 23 1 Q Is she allowed to make copies of anything? 2 A No. 3 Q Even things about her? 4 A No. 5 Q And what's the authority for that? 6 A I don't know. 7 Q Who decided that? 8 A Hey, I'm just the social worker. 9 Q I thought maybe you knew. 10 A Well, I can tell you the theory behind it. 11 You know, we have found reports lying in various 12 places here in the past, and we just think it's 13 egregious that, when there's children involved and 14 these sorts of allegations, that these things can be 15 disseminated. 16 Q How about any discussion about the 17 Constitution and due process? 18 A The Constitution? 19 Q I know family courts sometimes forget 20 about those things, but has that ever been 21 discussed, whether there's any legal -- 22 A Yeah, it's been discussed on and on for 25 23 years. 24 Q So, physically, where is the file kept, 25 the family file that has the secret envelope? 24 1 A Secret? 2 Q Confidential? 3 A It's kept in the file room, generally 4 except when it's -- 5 Q The clerk's office? 6 A No, we have a family file room up on 7 three. 8 Q Do the judges have access to the 9 confidential file? 10 A Um-hum. 11 Q You have to answer in words. 12 A Yes. 13 Q So is it the practice of the judges that 14 they might go, if they're hearing a case, go look in 15 the confidential envelope? 16 MR. MASTRUSERIO: Objection. 17 A No, if they're hearing the case, the court 18 personnel, as standard procedure, brings the file to 19 them, and they have all their files and all their 20 legal jackets. 21 Q Okay. So, during the course of the trial, 22 the judge has the confidential file sitting right 23 there and can look in there? 24 A Yes. 25 Q Have you ever had any discussions with 25 1 Judge Panioto, either in some staff meeting or 2 personal discussions, anything about whether that is 3 something that's lawful, to keep such a file like 4 this that is not part of the court file and is 5 accessed by the judge? 6 A This generally goes up the chain of 7 command and I have had discussions with our court 8 administrator about those sorts of things, but, no, 9 I've never had discussions with Judge Panioto about 10 that. 11 Q Who has the authority to put something in 12 that confidential file? 13 A Well, anyone at the court who feels -- you 14 know, there's certain things that go in that file, 15 and anyone at the court would put them in. And if 16 they're reviewed by a judge or magistrate or someone 17 in parental or family counseling, they are expected 18 to return them to the red envelope. 19 Q Is there any sort of record kept of what 20 goes in that envelope? 21 A No. 22 Q Is there any sort of record kept of who 23 accesses the envelope? 24 A No. 25 Q When things go in the envelope, are they 26 1 filed stamped or stamped in like -- 2 A No. 3 Q -- legal documents? I'm going to show you 4 a copy of a letter that was introduced in the 5 deposition yesterday, from "K" (redacted), dated 6 June 8, 1999, addressed to Magistrate Theile, and 7 show you that it has what purports to be the file 8 number in this case with some notation, "Please 9 file, 6/21/99". 10 A Um-hum? 11 Q Is that the kind of things that could end 12 up in the confidential file? 13 A No. 14 Q It can't? 15 A No. 16 Q So if I represent to you that's where that 17 came from, would you have any explanation? 18 A Who's "K" (redacted), first of all? 19 Q That's Dr. (redacted)'s current wife who 20 was romantically involved with him at the time. 21 A No, this would not go in the red file. 22 This would go in the general file. 23 Q When you say "the general file", the legal 24 file? 25 A No, it would go in the part of the family 27 1 file that is not confidential. 2 Q So are there any rules or guidelines for 3 what goes in the part of the family file that's not 4 confidential? 5 A No. 6 Q And are things -- who can put things in 7 that file, in the family file? 8 A Well, anyone that works here at the court. 9 Q And is any record kept of what's put in 10 there? 11 A No. 12 Q And is anything clocked in? 13 A No. 14 Q To your knowledge, how long has that 15 practice been in existence of maintaining that 16 separate file for which something isn't recorded 17 that goes in it, that there's no recording of who 18 accesses it or -- 19 A Probably over three years. 20 Q Has there been a discussion among the 21 court or with Judge Panioto about changing that 22 practice? 23 MR. MASTRUSERIO: There will be an objection. The 24 witness has already answered she's had no conversation with 25 Judge Panioto about the subject. 28 1 MR. DUCOTE: Well, this is a different question. 2 A Could you repeat the question. 3 Q Sure. To your knowledge, has there been 4 any sort of discussion or meetings or policy 5 discussion about changing this practice? 6 A Yes, there's been -- I've been here twenty 7 seven-and-a-half years, this has been a constant 8 topic that's been discussed. It's a balancing act 9 here, you know, trying to follow the law and trying 10 to protect children. And this is a balancing act we 11 do with everything here. 12 Q So you don't think you can follow the law 13 and protect children at the same time? 14 A Well, sometimes it's difficult. 15 Q Do you think maybe not following the law 16 can result in children not being protected as well? 17 A Yes, certainly. 18 Q So are there any plans now to change this 19 system? 20 A No. 21 Q Have you ever heard of any practice in the 22 court of deprogramming children who believe they 23 were abused or anything like that; have you ever 24 heard of that concept? 25 A No. |
29 1 Q Were you involved in any interview with 2 Karen Winner about this case? 3 A Karen Winner? 4 Q Do you recall anything about that? 5 A Could you sort of refresh me? 6 Q She's a writer out of New York. 7 A Did I talk to her? I don't remember. 8 Q Were you involved in anything about -- 9 were you aware that she came here to interview 10 people? 11 A Yes. 12 Q What do you recall about that? 13 A I believe she came to the court -- this is 14 all a little sketchy -- I believe she came to the 15 court, I believe she went to the file room and 16 somehow got a hold of the (redacted) file and 17 shouldn't have. 18 Q Which file did she get a hold of? 19 A The family file, and it should not have 20 been given to her, as I explained to you the 21 procedure. 22 Q How about the actual legal pleadings and 23 orders, the case file? 24 A She can see that. 25 Q That's public, right? 30 1 A That's not even in our court, that's a 2 separate agency of the clerk of courts. 3 Q Okay. 4 A So I believe she came to the file room and 5 somehow got a hold of the family file and went 6 through it, and there was some uproar about that 7 because she certainly should not have been given the 8 file. And then, I believe there was an uproar 9 because she went -- I think she stopped to see me 10 and I was out to lunch, I don't know, and I don't 11 think I ever saw her, to the best of my 12 recollection. She also went to see Dr. Borack and 13 he called me to complain about that. 14 Q What did he tell you? 15 A He told me she misrepresented herself as 16 someone who wanted to talk with him about retaining 17 him for professional services. And she came to his 18 office and talked to him in general about custody 19 sort of things and divorce. I think she -- she was 20 taping her interview with him, I think she asked him 21 and he said okay. And I think she then segued into 22 this (redacted) case. Then, according to him, it 23 became apparent that she was trying to get 24 information from him about this (redacted) case and 25 he was pretty angry because it was a breach -- if he 31 1 would discuss it, it would be a breach of 2 confidentiality. And I think he took the tape 3 recorder. And then he also felt that she had been 4 calling people about him in Boston. I think he even 5 thought that she might be driving past his home and 6 he was concerned about his kids. 7 know who she was, he was just concerned that -- he 8 felt it was an invasion of his privacy and he was 9 somewhat concerned. And he asked me if I knew what 10 was going, on and I said no, I did not. 11 Q Did you ever talk to Judge Panioto about 12 that conversation with Dr. Borack? 13 A The conversation about Karen Winner? 14 Q Yes. 15 A No, I believe I called Mrs. (redacted)'s 16 attorney at the time, who was -- 17 Q Abernathy? 18 A Yes, Mr. Abernathy, and asked him if he 19 knew what was going on because Dr. Borack was 20 concerned about his kids and his wife. He didn't 21 know who this woman was, he thought she could be 22 unbalanced. And I believe Mr. Abernathy said he did 23 not know what was going on but he would attempt to 24 find out. 25 Q Did you ever have any conversations with 32 1 Judge Panioto about Dr. Borack's disciplinary 2 problems? 3 A I can't be sure. It happened, I think, 4 probably two or three years ago. I can't be sure. 5 I may have, I don't know. I did not -- may I offer? 6 Q Sure. 7 A I did not feel it was a substantive 8 grievance in that his license was not suspended nor 9 revoked, he was still allowed to practice in 10 Kentucky. They entered a consent -- into a consent 11 agreement whereby he would utilize supervision for 12 one year, and by the time the grievance was 13 addressed, he had already had his Kentucky license. 14 He presented me with paperwork that said -- from the 15 Ohio Board of Psychologists saying that what he did 16 in Kentucky was not a problem in Ohio, and so, I did 17 not think it was a substantive problem. 18 Q Have you ever had any conversations with 19 Dr. Borack about the (redacted) case since he 20 performed his evaluation? 21 A Yeah, I just said I talked with him about 22 this woman that came to his office. I talked to him 23 about getting paid. I have talked to him other 24 times, probably. Was he deposed at one time? He 25 may have called about that. 33 1 Q That's what I was asking you about, about 2 his deposition. 3 A I mean, he may have called -- he usually 4 calls me when he wants to know, you know, does he 5 have to do this legally, you know, is the court -- 6 you know, that sort of thing. So he may have called 7 and said, I'm supposed to be deposed, is this a 8 problem, you know, and I would probably say, no, you 9 have to go and cooperate. 10 Q Did he ever talk to you about the 11 substance of his opinions about the (redacted)s? 12 A No, he hasn't. 13 Q When was the last time you went -- if you 14 ever have gone through the (redacted) file, the 15 court records, or the family court file or the 16 confidential file? 17 A Probably years. I do keep it in my office 18 though. 19 Q You keep the file in your office? 20 A Yes, I do. 21 Q Which file, ma'am? 22 A The (redacted) file, family file. 23 Q So why do you keep it there? 24 A I keep it there because we've had the 25 problem with the woman coming up to the family file 34 1 room and somehow getting a hold of this file. 2 Q You're talking about Karen Winner? 3 A Yeah. So I now keep it in my file cabinet 4 so something like that can't happen again. 5 Q When was the last time you went through 6 it? 7 A It's a pretty big file. 8 Q Well, when was the last time, that was my 9 question? 10 A I couldn't tell you, probably years. I 11 mean, I've put things in it as they come. 12 Q What's the most recent thing you've put in 13 it, do you know? 14 A Didn't you just file some motions? I 15 don't know. 16 Q So you got a copy of that and put it in 17 there? 18 A Yeah. 19 Q Have you ever had any discussions with the 20 University of Cincinnati about Dr. Borack, written 21 any recommendations or anything? 22 A I've talked with Dr. Borack's -- I believe 23 it's his boss, John Kennedy. In fact, John Kennedy 24 came to present to us and it was arranged by Dr. 25 Borack. 35 1 COURT REPORTER: I'm sorry, I didn't hear that. 2 A John Kennedy, a psychiatrist, who is Dr. 3 Borack's boss, in fact, did come to present to the 4 parenting specialists and family counselors as 5 arranged by Dr. Borack. 6 Q What was the topic? 7 A I have it in my office if you want me to 8 go get it. 9 Q Can you do that? 10 (A break was taken.) 11 BY MR. DUCOTE: 12 Q Let's go back on the record. I believe 13 you obtained from your office the material regarding 14 Dr. Kennedy's record or training. 15 A He spoke with Michael Borack on May 16, 16 2003, on assessing dangerousness. This would be 17 about whether someone could be a danger in domestic 18 violence situations, a danger to their children. 19 Q Have you ever written any recommendations 20 on behalf of Dr. Borack or conveyed any verbal 21 recommendations? 22 A I don't recall, but I would if asked. 23 Q Can I see the sheet that you were just 24 referring to? This is different training that 25 you've undergone? 36 1 A Yes. 2 Q And this starts back in '85? 3 A Well, it may start in '85, but I don't 4 think everything's on there from that far back, but 5 probably for the last ten years. 6 Q I see here, on October 4, 2002, Dr. Borack 7 gave a talk on alienation, estrangement and 8 rejection of visitation. 9 A Yes. 10 Q Did that deal with Parental Alienation 11 Syndrome; do you recall? 12 A Part of that dealt with that. He 13 explained, he reiterated what we knew, that it was a 14 defunct theory or a theory that had been 15 discredited. He talked about parental alienation in 16 terms of small p, small a. He did a lot of -- he 17 talked about Darnell, who has his own sets of 18 beliefs about alienation. 19 Q And that's Dr. Darnell? 20 A Yes. 21 Q Now, you're aware that the Ohio Licensing 22 or Psychologist Board is undertaking disciplinary 23 action against him for diagnosing Parental 24 Alienation Syndrome? 25 A No, I wasn't aware of that. 37 1 Q I see, back in May 22, 1998, Shelly Rooney 2 taught or did a thing on alienation in high conflict 3 divorce? 4 A Um-hum. 5 Q You have to answer in words, I'm sorry. 6 A Yes. 7 Q Did they talk about Parental Alienation 8 Syndrome? 9 A I don't recall, but they may have 10 mentioned it in the same terms as Dr. Borack did, 11 but it's a discredited theory. 12 Q I see here, November 30, 1990, that was 13 the Richard Gardner, Contemporary Issues in the 14 Treatment of Child Sexual Abuse, that was the one 15 you referred to? 16 A 1990? 17 Q That's what it says on here, November 30, 18 1990. 19 A It shouldn't say '90 -- well, maybe it is. 20 It might be '90, yeah, I guess it would be. 21 Q Where would that training have been? 22 A I think he was here in town, that was 23 downtown somewhere. 24 Q Is that something that the court staff 25 went to; do you know? 38 1 A I believe I went -- yeah, I think some 2 other people went. 3 Q Any of the judges, to your knowledge? 4 A No. 5 Q Do you know Betty Gilman? 6 A Yes. 7 Q And who is she? 8 A She's a social worker who is with the 9 family therapy center. 10 Q Is she somebody that the court uses? 11 A In terms of? 12 Q Evaluations and things like that? 13 A No, she does family therapy mainly. She 14 doesn't -- to my knowledge, doesn't do evaluations. 15 Q Do you know whether or not she's been 16 disciplined by her licensing board? 17 A Yes, she has been disciplined. 18 Q Do you know what it was for? 19 A I think it was a dual relationship. 20 Q And diagnosing Parental Alienation 21 Syndrome? 22 A No, not to my knowledge. 23 Q Do you know anything about a civil suit 24 that she settled for malpractice for diagnosing 25 Parental Alienation Syndrome in a sexual abuse case? 39 1 A No, I do not. 2 Q Do you know anything about any reports 3 from Dr. Boat or Dr. Olafson that were missing for a 4 while and then turned up in the (redacted) case? 5 A No. 6 Q Would you be willing to get the file 7 numbered (redacted) in the (redacted) case and bring it 8 in here so I can ask you some question about what's 9 in that file? 10 A Sure. 11 (Off the record) 12 BY MR. DUCOTE: 13 Q Okay. So you've gone to your office and 14 pulled what is a gray box that has on it, 15 "(redacted), Husband; Wife, Teresa 16 (redacted), DR (redacted), family file Number 17 E(redacted)", and just for the record, again, what is 18 this box that you brought in? 19 A This is the family file in the (redacted) 20 case. 21 Q Now, is there any sort of index that could 22 be readily pulled to say what's in this box? 23 A No. 24 Q And again, there is nothing to indicate, 25 is there, when things were put in, when things were 40 1 taken out, who's read it or anything like that? 2 A Correct. 3 Q Is this something that I can now look at? 4 A Sure. 5 Q So it has copy of the motion for 6 evaluation of minor children, and then -- can you 7 just take the contents out? I don't want to mess 8 anything up. Is there any kind of order in it? 9 A No. 10 Q Now, the copies of the pleadings that are 11 in here, are these things that you received from the 12 clerk's office or docket office or where? 13 A Docket office. 14 Q Now, there's a manila envelope that says 15 "Dr. Borack's report", and then there's a writing 16 here, "Do not open or remove from file by order of 17 the court unless so ordered", and there's a notation 18 "Opened by Attorney Martin, 5/11/01 per RAP." RAP 19 is Judge Panioto? 20 A Yes. 21 Q Is this standard practice with the 22 psychology reports, that they're sealed? 23 A No. 24 Q Do you know why this was done in this 25 case? 41 1 A I would assume someone said they did not 2 want the Borack report disseminated, and he said 3 okay, I'm going to put it in an envelope and no one 4 will see it. 5 Q Here's a little envelope here, dated 6 August 25, 2001, from P.O. Box 53905, Cincinnati, 7 Ohio, 45253, with a little purple sticky on it that 8 says, "Please put in file". Do you know whose 9 handwriting that is on the purple sticky? 10 A No. It's addressed to Judge Panioto. 11 Q Right. Addressed to Honorable Ronald A. 12 Panioto, 800 Broadway, Second Floor, Cincinnati Ohio 13 45202. Appears to be a subpoena to Dr. James D. 14 Kelly, with a check made out to Dr. Kelly that I 15 guess was sent back, and it says, "I respectfully 16 request leave from testifying because I will be out 17 of the country during the date of the hearing." 18 Do you know who Dr. James Kelly is? 19 A I believe he's a psychologist that has his 20 own problems with the board. 21 Q Right, like sleeping with patients or 22 getting a patient pregnant, something like that? 23 A Yeah. 24 Q I'm just going to look at these things, 25 and if I have some interest in commenting on it, 42 1 I'll do that; otherwise, I'll just try to go through 2 this as quickly as possible. Now, I've come across 3 two, just loose-leaf sheets of paper that are 4 stapled together that has a bunch of handwritten 5 notes that I can't readily decipher. Can you can 6 just tell me what this document is, if you know? 7 A It looks like magistrate's notes on a 8 case. Looks to me, I couldn't -- 9 Q Do you recognize the initials at the end 10 of the second page? 11 A CIP, continued in progress. 12 Q What's that? 13 A Continued in progress. 14 Q Oh, that's all that is? So you don't know 15 whose notes these are? 16 A No. 17 Q I see another little sheet of paper that 18 says, "Call Sergeant Fried at house. Car phone, 19 520-0336, very important you call him." Do you know 20 what that's about? 21 A Huh-uh. 22 Q Do you know who Sergeant Fried is? 23 A Huh-uh -- no, I don't. 24 Q Do you know who that's addressed to? 25 A No. 43 1 Q Do you know if anybody called Sergeant 2 Fried? 3 A (Shaking head negatively) 4 Q You have to answer in words. 5 A No 6 Q If somebody did call Sergeant Fried and 7 had a conversation with him or her, would there be 8 any record in the file? 9 A No -- you know, it might be that these 10 papers were -- I mean, this has happened, it might 11 be that these papers were on someone's desk and they 12 were reading them, and they went like this and 13 Sergeant Fried was meant for -- 14 Q We just don't know? 15 A Right. 16 Q But that Sergeant Fried note, will you 17 return that to the box? 18 A Yeah. 19 Q Now here's some other handwritten notes of 20 considerable length on loose-leaf pages. Do you 21 know what this is? 22 A Looks, again, like magistrate's notes on 23 this (redacted) case, looks like Mr. Mastruserio 24 and -- was Ralph Ginocchio on this case? 25 MR. MASTRUSERIO: Yes. 44 1 A I would assume it's the magistrate -- who 2 was the magistrate? 3 Q Magistrate Theile? 4 A These are probably Magistrate Theile's 5 notes, which they should be in the red envelope 6 Q Okay, and there's something stuck together 7 -- 8 A That's the danger when so many people go 9 through the file. 10 Q All right. Here's Dr. Borack's deposition 11 that's attached to Defendant's opposition motion for 12 emergency hearing. This was filed December 10, 13 2001. You said you've never read Dr. Borack's 14 deposition. 15 A Not that I can recall. 16 Q Okay. Now here's some other notes on 17 yellow loose-leaf paper. Do you know what this 18 represents? 19 A Those, again, would be the magistrate's 20 notes, most likely, in all likelihood. 21 Q I'm requesting a copy of all of the 22 handwritten notes on all of this loose-leaf paper 23 which I have just looked at that's in this file 24 that is not in the red folder. Is that something I 25 can have? 45 1 A No. 2 Q And why is that? 3 A As I said, those are supposed to be in the 4 red folder. No copies are permitted of those. You 5 would have to speak with Judge Panioto. 6 Q But you're not sure, I believe your 7 testimony was, as to what they even are, you're 8 assuming they are the magistrate's notes, correct? 9 A Yes. 10 Q And this is something that Judge Panioto 11 or anybody else in the court would be able to read, 12 correct? 13 A Yes, they would be able to read; I doubt 14 that anyone would read them. I think they're kept 15 in the file so that the magistrate would have access 16 to them. 17 Q Okay. So I'm formally requesting a copy 18 of all this, and you're formally denying that? 19 A Maybe you ought to take it up with someone 20 higher than myself, I only run the parenting 21 department. 22 Q But these files are kept in your office? 23 A This file is currently kept in my office. 24 Q And does the clerk of court have any 25 control over this file? 46 1 A No. 2 Q So who, other than the clerk, has control 3 over this file? 4 A This is strictly the Court of Domestic 5 Relations' file. 6 Q But who, other than you, has control over 7 this? 8 A Control? I'm not quite sure what you mean 9 by control. Who can give you permission to -- 10 Q Yes. 11 A I would assume Magistrate Theile if, in 12 fact, these are his, which I suspect they are, or 13 Judge Shannon, our court administrator, you could 14 talk with him about it or Judge Panioto. 15 Q But you have the authority to let me read 16 what was in the files, right? 17 A Yes, you can look through it as Mrs. 18 (redacted)'s current attorney. 19 Q But you wouldn't allow me to make copies 20 of those loose-leaf papers? 21 A That's correct. 22 MR. MASTRUSERIO: If it would be of any help to 23 you, Counsel, those note are usually taken from earlier 24 motions that were held by the magistrate. 25 MR. DUCOTE: Well, whatever they are, I'm just -- 47 1 Q You're handing me another part of this 2 that is in a manila jacket that has the case name 3 and says "May not be removed from cou |
but from the big "P" big "A" big "S". 
