Powell v. Jones-Soderman

          MEMORANDUM OF DECISION

          Robert M. Spector, United States Magistrate Judge.

         The plaintiff, Scott Powell, commenced this action against defendants Jill Jones-Soderman^[1] and the Foundation for the Child Victims of the Family Courts [“FCVFC”] alleging that Jones-Soderman posted statements on a public website falsely accusing him of physically and sexually abusing his children. Powell asserts claims for defamation per se, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress. (Doc. No. 1, ¶¶ 9-12). On December 22, 2017, United States District Judge Michael P. Shea dismissed FCVFC from this case.^[2] On April 15, 2019, the Court (Shea, J.), denied Jones-Soderman's Motion for Judgment on the Pleadings (Doc. No. 43), and four days later, the parties consented to the jurisdiction of a United States Magistrate Judge. (Doc. No. 44). The case was transferred to Magistrate Judge Donna F. Martinez (id.), and then reassigned to the undersigned on June 20, 2019. (Doc. No. 49). Following a Joint Stipulation to Waive Jury Trial (Doc. No. 70), this case was tried to the Court on October 21-23, 2019. (Doc. Nos. 92, 94-96). Scott Powell, Jill Jones-Soderman, Cynthia Diehl and Rick Diehl testified. On October 21, 2019, Jones-Soderman filed a Motion for Judgment on Partial Findings. (Doc. No. 91).^[3]

         For the reasons set forth below, the defendant's Motion for Judgment on Partial Findings (Doc. No. 91) is DENIED. Judgment shall enter in favor of the plaintiff in the amount of $100, 000.

         I. FACTUAL FINDINGS

         In their Joint Trial Memorandum, filed on July 12, 2019, the parties stipulated to the following uncontroverted facts:

         Jill Jones-Soderman is the founder and director of the FCVFC. (Doc. 1 ¶ 4). The following words/phrases appeared on the website of the FCVFC:

1. Living with Powell is “a death sentence” for his children;

2. Powell is a “vicious abuser” of his children;

3. Powell is an “accused child abuser”;

4. Powell's good reputation in his community is “based on the reluctance of those too fearful to take on the rage and intimidation to report him for crimes for which he should have been reported”;

5. Powell, on an ongoing basis, “hits the buttocks of his younger daughter, ” and is “grabbing/patting [her] buttocks” and the breasts of his older daughter;

6. Evidence of sexual assaults being committed by Powell upon his minor daughters “are now on camera . . .”;

7. Powell is “an accused child sexual abuser [who has been elevated] to the position of teacher in a program alerting parents to sexual abuse in the camp program, where he has been a long time camp Director at Woodway Country Club, in Darien, Connecticut. This camp Director has an institutional history, though undisclosed, of inappropriate behavior with teenage girls and children. He no longer works as a teacher, but rather as a carpenter in his own business”;

8. Powell has “threatened and intimidated” his daughters;

9. Powell is comparable to other prominent child abusers and “the accused abuser, Scott Powell will not be allowed to languish under the veil of secrecy. He has forcibly, through threats, intimidation . . . been able to hide in plain sight. We expect that Scott Powell's reign of terror over his children . . . will not be allowed to prevail . . .”;

10. One of Powell's minor daughters (whose name was published) “was the major target of Scott Powell's aggressive abuse” while the other minor daughter (whose name was also published) “was the target of Scott Powell's most aggressive sexual incursions.”

         Based on the entire record developed during trial, comprised of credible testimony and admitted exhibits, the following constitutes the Court's findings of fact pursuant to Fed.R.Civ.P. 52(a)(1):

         Jill Jones-Soderman is a psychiatric social worker and a psychoanalyst by training. She received her Masters' degree in Social Work from Hunter College and did her training at New York University. Jones-Soderman, however, has not been licensed in any State since 2010. Accordingly, she was not licensed at the time of her involvement in the issues in this case.

         Jones-Soderman described herself as the Founder and the Executive Director of the FCVFC. According to Jones-Soderman, the FCVFC serves clients who are involved in custody matters in which a protective parent is facing false allegations that lead to a child being transferred to the hands of an abusive parent. The FCVFC became a non-profit in 2008, and Jones-Soderman does not receive a salary as the Director. In her role, she performs forensic and analytic evaluations, conducts family interviews, and reviews school records, documents available under the Freedom of Information Act, and the court history of a case. She described her practice as focusing on “highly disturbed patients” who are actively suicidal and suffer from acute psychiatric disorders. The FCVFC pays for her office and for accommodations, and she receives some income from Social Security and from her work as a private consultant and an expert witness.

         Jones-Soderman testified that Jane and Scott Powell were divorced in 2008 following “serious domestic violence allegations and serious allegations of sexual abuse” of their minor children, C.P. and E.P. Jones-Soderman added, “Nevertheless, they had a 50/50 custody arrangement and [Mrs. Powell] gave [Powell] a key to her house so he could see the children and so he could have easy access to them.”^[4]

         In 2011, the case was referred to the Department of Children of Families [“DCF”]; Dr. Eric Frazier served as an expert evaluator. (See Pl. Ex. 15). Jones-Soderman explained that Dr. Frazier “was not court appointed, but agreed upon, after referral from [Scott] Powell's attorney.” According to Jones-Soderman, DCF investigated the claims of abuse and felt that, if C.P. and E.P. were in treatment, such treatment would “clarify” whether the children were victims of sexual abuse. Following these juvenile court proceedings in which DCF was involved, the court ordered a change in the custody arrangement such that Jane Powell, not Scott Powell, was limited to brief, supervised meetings with the children.

         Approximately four years later, in July 2015, Mrs. Powell contacted Jones-Soderman to request an evaluation of her case so that she could try to regain custody of C.P. and E.P., then-ages 13 and 15, who were still in the sole custody of their father, Scott Powell. Mrs. Powell engaged Jones-Soderman through a memorandum of understanding, and Mrs. Powell paid her $3, 500.00 as a retainer, and an additional $3, 500.00 for her work on her case.

         In connection with assisting Mrs. Powell, Jones-Soderman reviewed the court records and familiarized herself with the history and “context of the case.” In addition to engaging Jones-Soderman, Mrs. Powell retained Attorney Alex Schwartz to modify the custody arrangement. Jones-Soderman spoke to Attorney Schwartz in 2015 and explained her plan to do a critique of the evaluator and to obtain her own experts, which she did.

         Then, on March 16, 2016, eight months after Jones-Soderman began working with Mrs. Powell, C.P. and E.P. sent Jones-Soderman letters (Def. Exs. B-C) and a video statement. (Def. Ex. A). The children called Jones-Soderman the next day, on March 17, 2016, and relayed their fears of their father. According to Jones-Soderman, they told her that if she did not help them by that weekend, they planned to kill themselves. Jones-Soderman described the phone call as a three-hour “forensic evaluation” in which she solicited “very specific, ” “detailed” information from the children alleging sexual abuse by Scott Powell. Additionally, Jones-Soderman testified that, during the call, the girls discussed specific instances of abuse that had occurred in the previous 24-48 hours. 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. Consequently, Jones-Soderman developed a plan with the children. She told them she would get in touch with Attorney Schwartz and that she wanted them to go to the New Canaan Police Department to file a report.

         Jones-Soderman acknowledged that she was an unlicensed counselor at that time; she described herself as acting as a “forensic expert” and “mandated reporter.” That said, she testified that she did not call DCF to report the allegations of abuse because she was “troubled by the criminal legalities” with “the relationship with DCF.” Her actions weigh against her claim that she was acting in the best interest of the children.

         At the time she first spoke to the children, she was aware of the previous DCF reports, the case history, and Dr. Frazier's 2011 report, in which he had concluded that the children were not being truthful in making allegations of sexual abuse.^[5] Additionally, she had reviewed the orders by Judge Mary Sommer in the juvenile court and was “fully aware of its contents.” That means that, at the time of the events at issue and when she spoke to the children in March 2016, Jones-Soderman was well aware that, after hearing from witnesses, ordering the children to be seen by a Lyme disease specialist, and ordering individual and interaction psychological evaluations of the parents and children, Judge Sommer ordered custody and guardianship to be transferred to Scott Powell. (See Pl. Ex. 16 at 2-3, 5). Jones-Soderman was aware also that, on October 28, 2011, Mrs. Powell had entered a plea of nolo contendere to an allegation of child neglect for denying “proper care” to both C.P. and E.P and that:

As stipulated by the Rules of Practice, any attempt to initiate proceedings to modify or otherwise affect the custody orders of the juvenile court is without legal basis and subject to dismissal. The above rule of practice clearly requires that in factual circumstances presented by this case that any motion for modification or revocation of guardianship orders must be presented to the juvenile court which issues the original order. The Superior Court for Juvenile Matters at Stamford has jurisdiction over post disposition matters relating to custody and guardianship of the children in this case.

(Pl. Ex. 16 at 3, 6-7).

         In spite of her detailed knowledge of the foregoing, Jones-Soderman worked with the children to remove them from Powell's care. Following their call to Jones-Soderman, C.P. arranged for she and E.P to sleep over a family friend's home that Saturday night, and the next morning, they planned to go to the New Canaan Police Department. Jones-Soderman testified that she drew up a complaint with the statements from the children to be sent to Attorney Schwartz who had been representing Mrs. Powell since July 2015. Jones-Soderman told the children they needed someone to pick them up on Sunday morning and bring them to the police station. Initially, they identified a family friend, but after speaking to Jones-Soderman, this family friend understood that her involvement could lead to her being sued. Jones-Soderman described this person as “insecure” and not “clearly committed[, ]” so she asked the children to name another person, and they named their maternal grandparents, Cynthia and Rick Diehl.

         Again, at that time, Jones-Soderman knew that Scott Powell had sole custody of the children and that there was a court order stating that he had full decision-making power regarding the level of communication between the children and their maternal grandparents. She was aware also that Jane Powell did not “like” or approve of the course of action she was orchestrating.

         Nevertheless, Jones-Soderman called Cynthia and Rick Diehl to tell them that there was an “extremely serious” and “urgent matter[, ]” that their granddaughters were in “very grave danger[, ]” and that, the children were “suffering considerably” and thus, they needed the Diehls' assistance.

         Rick Diehl testified that, when Jones-Soderman contacted him, he knew he was “suddenly becoming involved in a dramatic stroke of dire consequences.” He found the allegations about Powell “so surprising[, ]” but he felt he was between a “rock and a hard place” and that he had to act. After speaking to Mr. Diehl, Jones-Soderman spoke to the children again, and they “agreed to go through with the plan[]” of going to the police.

         On Sunday morning, March 20, 2016, the Diehls picked up the children from their sleepover at their friend's home and took them to the police station.^[6] Rick Diehl reported to the police that he had information that the children's lives were in danger in their home. The children then relayed their report to the officers, and, after a short meeting, the supervisor told them that a youth officer would speak to them further, which she did, the next day.

         When the children got back in the car, they called Jones-Soderman to say that they felt the police believed them. C.P. told Jones-Soderman that she brought her diary with her, which Jones-Soderman thought demonstrated C.P.'s forethought and exhibited the “sense of gravity of the situation.” According to Jones-Soderman, the children had told others of the abuse in the past, but they were “brushed aside and [Jones-Soderman] was the first person who heard them and attempted to help them.” Jones-Soderman was aware at that time that the children's previous allegations had been determined to be “unfounded.” (See Pl. Ex. 13 at 5).

         The Diehls then brought the children to a hotel for the night. When they arrived at the room, C.P. went into a closet to call Jones-Soderman. According to Jones-Soderman, C.P. told her that she had to cut herself, that she had to die, and that Powell would find them and kill them all. Jones-Soderman asked her to send her a picture of her wound, which C.P. did. Jones-Soderman described it as a superficial scratch.

         Despite her insistence that she had been acting solely to assist the girls and keep them safe, upon hearing from C.P. that she was cutting herself and was suicidal, Jones-Soderman did not call C.P.'s grandparents, the police, or DCF.

         At some point that night, Rick Diehl learned that C.P. was in the closet. When he saw her, she was trembling, and he noticed that she had cut herself. He could see new marks as well as scars on her arms and legs. Jones-Soderman testified that C.P. was not suicidal at that point; she was just “stressed.” She dismissed the cutting and suicidal statements as not concerning. Jones-Soderman stated that she “expected she was fine, she was in custody of her grandparents and perfectly well.” Jones-Soderman added that, since that time, which included the following year in which she was in the custody of Scott Powell, C.P. never cut herself again. Accordingly, Jones-Soderman's own testimony casts doubt both on her claim that she was compelled to take all of these actions, including publishing the statements at issue in this case, to protect the children from imminent harm by Powell, and on her assumption that C.P. was engaging in these behaviors because of sexual abuse committed by Powell.

         On the morning of Monday, March 21, 2016, Rick Diehl met with Mrs. Powell's counsel, Attorney Schwartz.^[7] Cynthia and Rick Diehl moved for an Emergency Ex Parte Order of Custody [“March 21, 2016 Ex Parte Order”], in which they detailed the complaints C.P. and E.P. made to the New Canaan Police. (Def. Ex. F). Rick Diehl^[8] and Attorney Schwartz signed the emergency application. Superior Court Judge Erika Tindill granted the Diehls temporary custody and ordered them to “report their findings and suspicions to the Department of Children and Families.” (Id.). That same day, DCF went to the Diehls' residence to inspect the home and interview the parties. Jones-Soderman received diary entries from C.P. either that next day, or the day thereafter, further detailing C.P.'s allegations of abuse. (Def. Ex. E).

         Immediately following Judge Tindill's temporary custody order, Scott Powell filed an emergency ex parte application for custody, seeking the restoration of sole legal and physical custody and an order preventing visitation with the children's maternal grandparents -- the Diehls, (Pl.'s Ex. 13 at 1-2).

         Judge Tindill held an expedited hearing on March 24, 2016, at which time the “Court indicated [that an evidentiary hearing] would not take place unless the Court heard from Dr. Fra[z]ier, the [DCF] representative involved in this matter, as well as police officers who had contact with either the petitioners, respondents or the daughters.” (Pl. Ex. 13 at 2). Judge Tindill continued the case, and on the third day of the evidentiary hearing, Judge Tindill vacated the March 21, 2016 Ex Parte Order and ordered Scott Powell “sole legal and physical custody as per the September 2012 orders . . . in the child protection action.” (Pl. Ex. 13 at 10; see Pl. Ex. 16). The court could not find, based on the evidence before it, that there was “an immediate and present risk of physical danger or psychological harm” to the children. (Pl. Ex. 13 at 3-4). Judge Tindill ordered Powell to install surveillance cameras in his house (excluding the bathroom and the children's bedrooms) “to protect the girls[, ]” and to “protect [Powell] if there are any additional allegations.” (Pl. Ex. 13 at 18).

         Jones-Soderman testified when the children learned that the court had restored custody to their father, they were “just beyond hysterical” and “acutely suicidal.” According to Jones-Soderman and Rick Diehl, they were taken to Norwalk Hospital; they were admitted and released the next day.

         According to Jones-Soderman, C.P. told her that, when they returned to Powell's house, he pulled E.P. into a bedroom, out of view of the cameras, and reiterated that the things the children had written in their letters did not happen. According to Jones-Soderman, she spoke to C.P. ...