STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

IN THE MATTER OF AN APPLICATION OF

HEIKE ELLIS, Petitioner,


for an Order to Bring up the Body of

DAVID J. ELLIS, an infant, for the

Purpose of Returning Child to the

care and custody of petitioner,


against- Index #H-11824


STEPHANI BETHKE and

TERRY BETHKE,


Respondents


 



DAVID J. CHRISPELL, ESQ.

for Heike Ellis



DECISION and ORDER



GERACE, J.

Petitioner, Heike Ellis, ("Heike"), mother of 7 year old

David J. Ellis, has applied to this Court for an Order for

her mother to Show Cause why her son should not be returned

to her. Counsel for petitioner advises the Court that Heike

is a terminal patient, and, the father of the child died

before the young lad was born.


The child has no adoptive father, but, one John Lusk, not

related, allegedly has lived with the boy since he was 3

months old.


Heike's mother and father, apparently without any right or authority, took the child from Jamestown to California where they have commenced proceedings in California Superior Court before Hon. Robert A. Dukes, Superior Court Judge for custody on the grounds that the mother is "terminal" and John Lusk, who has no blood relationship, will claim custody.


This Court conferred with Judge Dukes June 22, 1995, to

resolve the issue of jurisdiction and was advised the child

has an attorney; that Judge Dukes has designated an attorney

to represent Heike in that Court and will direct all

attorneys to immediately research the question of

jurisdiction; that in proceedings brought before him early

this year, he ordered counseling for the child.


The question before this Court is not the determination of any rights between respondents and John Lusk; it is the right of the mother to her child and the right of the child to his mother, as opposed to rights of grandparents.


The Chautauqua County Grand Jury charged respondent Stephani Bethke with Parental Interference in the First Degree, a felony for her taking of the child from New York without the permission of his mother.


It appears that even though the mother is terminally ill and wants to see her child in her last days, she has been denied that basic right; that she is too ill to travel; that she cannot afford an attorney to represent her in California.


On the papers before me, this seven year needs to at least visit his mother during this summer while legal proceedings are pending; to be with his mother so he won't feel guilty the rest of life should he not see her alive again. He is old enough to understand death, perhaps not with the sophistication of an adult, but, in his own way, he needs to say good-bye like anyone else; if he is not permitted to see his mother again, that denial may well come back to haunt him as an adult.


He needs to spend time with his mother; needs to know she

loves him; needs to know she wants him. She needs to nurture

him to the degree possible for her, and, even if she is

dying, there are some experiences, some memories, some things

to share with her child.


At the very least, pending resolution of legal proceedings here and in California, this mother should be allowed some quality time with her son this summer. It would be a cruel and mean application of law to deprive this child and his mother of that experience in a summer that may be her last.


New York State, the residence of the mother and the child

has an interest. In order for this Court to look out for the

interests of the child in this state, the Court hereby

appoints Patricia Baerwald, Esq., as Law Guardian, and

directs that she visit the home of Heike Ellis and

investigates this matter post haste; and she is hereby

authorized to make arrangements through Judge Dukes to visit

the child in California.


In the mother's interest, the Court directs that Petitioner seek counseling through Hospice Chautauqua of Sinclairville, New York, 14782, telephone 962-2010.


In order that no time is lost should the Superior Court

determine it should not exercise jurisdiction, this Court

will sign the proposed order to show cause, and direct that

it be served in person either within or without the state,

or, by depositing a copy thereof in a post office by certified

mail and ordinary mail addressed to the respondents, and

returnable before this Court on the 21st day of July, 1995,

at 9:30 a.m., unless Hon. Robert A. Dukes, California

Superior Court Judge, or any judge he assigns has sooner

assumed jurisdiction. Copies shall be mailed to respondent's

attorney, and the attorney for the infant, if known to

petitioner.


THIS IS THE ORDER OF THIS COURT. NO FURTHER ORDER SHALL BE NECESSARY.


Dated: June 23, 1995

Mayville, New York


 

JOSEPH GERACE

Supreme Court Justice










962 2010; Hospice, Chautauqua County, Sinclairville, New

York, 14782

LETTER TO David Crispell, Esq. cc: Judge Dukes:

386 3093, 386 5962


664 1558

Dear Mr. Crispell:


On 6/22/95, Judge Dukes called to advise that he will

appointing an attorney to represent your client. He will

advise that attorney to contact you.


The child has independent counsel who will be asked to

contact Ms. Patricia Baerwald, Esq., the law guardian I have

appointed.


Judge Dukes will direct the attorneys to brief the question

of jurisdiction. I ask you and Ms. Baerwald to do the same.

Although the California matter has been put over until

September, Judge Dukes will expedite the matter within

weeks from now. Meanwhile, counseling directed for the child

will continue.


I will withhold signing the order until a decision is made on

jurisdiction, or July 7, 1995, whichever is earlier.


Because both courts appreciate that your client is terminal,

the matter will be addressed expeditiously. Both Courts are

concerned about the impact on the child if his mother


A seven year meeds to be with ehtier mother so they won't

feel guilty the rest of life; old enough to understand death,

maybe not with a sophisticated ; need to say goodbye like

anyone else; if they don;t participate will carry out; come

back to haunt him as adult; needs to spend time with her;

needs to know she loves him. she needs to nurture him to

some degree; even if dying, some things to share with

children; cruel trick, mean and twisted to deprive him of

that; no allegation of abuse;


allow mother quality time with her son this summer; some

adults think children are not full human beings;



962 2010; Hospice, Chautauqua County, Sinclairville, New

York, 14782

909 620 3053, 620 3401 ;;;;;


4 year old had no way to deal with grief of grandfather

death; no way to describe ... give him a

picture of grandfather; framed it, put it on his nightstand;

amazing; he became so much better; hd something of him; adults

do not realize children have same feelings adults do...

TC: