United States District Court, D. Connecticut
MEMORANDUM OF DECISION
M. Spector, United States Magistrate Judge.
plaintiff, Scott Powell, commenced this action against
defendants Jill Jones-Soderman 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. 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).
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.
their Joint Trial Memorandum, filed on July 12, 2019, the
parties stipulated to the following uncontroverted facts:
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
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
8. Powell has “threatened and intimidated” his
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.”
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
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.
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.
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
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
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.
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.
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.
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.
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. 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).
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
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.
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.
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.
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. 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.
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).
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.
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.
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.
morning of Monday, March 21, 2016, Rick Diehl met with Mrs.
Powell's counsel, Attorney Schwartz. 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 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).
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
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).
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
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. ...