E-mail Story
Print Friendly
Send E-mail
Reprint story
Speakup and View Comments
Friday, July 30, 2010
Kids Collateral Damage in Custody Fight
By Joline Gutierrez Krueger
Journal Staff Writer
She was just desperate enough to fax President Obama.
"Mr. President," Bea Hernandez wrote, "I need your help with protecting my children's safety. Please contact me ASAP."
Of course, she knew it was a long shot. The president has a few other things to deal with besides a child custody battle in Albuquerque, even if it involves allegations of sexual abuse of two very young girls.
But she had done everything else, talked to nearly everybody else she could think of.
I've heard that frustration before. I've often said that I find murder cases less harrowing and more rational than most divorce or custody cases.
Bea Hernandez's case is one of the nastier ones.
Bea and Joseph Padilla had been married four years and had two daughters together before their union ruptured. She called him a mama's boy and an adulterer; he said she was unstable and explosive.
He filed for divorce in November 2008, though their bitter sparring dragged on for nearly two years.
In June 2009, Hernandez said, her mother told her that the older girl, then 3, had disclosed disturbing information and exhibited sexualized behavior no child should know.
"This is what Daddy does to me," the little girl demonstrated.
The state Children, Youth and Families Department and the Bernalillo County Sheriff's Department began investigating, but it wasn't until that July that the girls — the younger was 2 — underwent medical exams and SAFE House interviews.
Physicians found no physical evidence of sexual assault, but that was to be expected, given the contact described and lapse of time, according to the medical report.
Glenn Smith Valdez, one of Padilla's three attorneys, contends the lack of any sign of trauma or injury is one of the hallmarks of a false allegation, the others being that the allegation is made by an in-law or spouse during a contentious divorce and months after the alleged action occurs.
"Joseph is completely innocent of the allegations against him," Valdez said.
But it's hard to discount how, in two separate interviews with experts trained to ferret out the real from the coerced, both girls gave similar, detailed, believable descriptions of what they allege their father did.
Twice, the older girl drew anatomical pictures of her father.
"My Daddy is yucky," the girl told her therapist.
Padilla, 49, was arrested on charges of criminal sexual penetration and criminal sexual contact of a minor. He was out of jail hours later after posting a bond of $150,000.
Family Court Judge Gerard Lavelle ordered that Padilla's visits with the girls cease.
And this is when the rational part ends.
When Padilla's case was not presented to a grand jury within the 60-day time limit, the charges against Padilla were dismissed without prejudice, meaning they can be refiled.
That opened the door for Padilla to request — and be granted — resumption of his visits with the girls, albeit two-hour sessions supervised by a counselor who gets paid $100 an hour.
But in a letter to Lavelle, Deputy District Attorney Brett Loveless said the criminal case against Padilla was still under investigation and the charges were dropped as a matter of course for the investigation to continue (yes, things really work this way).
But Lavelle wouldn't/couldn't read the letter. Nor did he consider the 12-page detective's report, the medical report, the therapist's recommendations, Hernandez's pleas.
That's because it was hearsay, and for the judge to consider any of the evidence contained within each document, he had to hear from each author — Loveless, the detective, the medical examiner, the therapist — in person.
But that didn't happen.
Hernandez's attorney, Rozan Cruz, said she never received notice from the court on the date for the hearing in which she should have subpoenaed all those people to testify.
"I tried to explain this to Judge Lavelle, but he would hear none of it," Cruz said. "It's baffling to me."
The hearing went on anyway, culminating with Lavelle making the decision to order that Padilla's weekly two-hour visits with his daughters be held at Padilla's parents' home under the supervision of court-appointed therapist Bob Galligan (an expert in substance-abuse counseling) at a cost of $100 an hour — a cost, Hernandez said, that she is being forced to pay with her secretary wages.
While Padilla actually pays the counselor, he's entitled to deduct it from what he pays Hernandez.
But the cost to her daughters is far higher, she said.
The parents' home is next door to Padilla's home, the place the girls have said they were abused.
"My girls are re-traumatized every time they have to go over there," Hernandez said.
Lavelle declined to comment because the case is active.
Recently, Hernandez fired Cruz and hired new attorney Frederick Jones Jr., who last week filed an emergency motion asking the judge to reconsider his decision.
Lavelle denied the motion, saying Hernandez and her former attorney had ample opportunity to address the issues at a previous hearing — the hearing Cruz said she never received notice of.
Meanwhile, prosecutors say the case is still under investigation, and they are waiting for "some additional materials" to be turned in.
Padilla remains resolute in his innocence.
"I am not guilty of these accusations," Padilla said through his lawyer, in response to me submitting written questions. "I love my children and I am glad that after many months of not seeing them, we have finally been reunited by the court. It is terrible that my ex-wife and her mother have used my children to try and gain an advantage in our divorce."
So Hernandez faxes presidents, calls reporters, calls anybody who will listen. And the girls live in the crossfire, the collateral damage of these ugly custody wars.
UpFront is a daily front-page news and opinion column. You can reach Joline at 823-3603, jkrueger@abqjournal.com or follow her on Twitter @jolinegkg.
| We do not publish all comments, and we do not publish comments immediately. |
|
|
