'THAT IS NOT MY ROLE'

JUDGE'S RULING RAISES QUESTIONS ABOUT WHEN, WHERE TO PROSECUTE

(Editor’s Note: The Log Cabin Democrat made the decision to pursue this story following a compelling amount of evidence that spurred questions about the lack of criminal investigation in a case involving the alleged sexual abuse of two minor children in Faulkner County.

 

After months of exclusive effort on behalf of the Log Cabin Democrat, Freedom of Information requests from law enforcement and the 20th Judicial District, compelling interviews from lawyers close to the case and an alleged victim, we were pre- pared to construct this story.

It is a case that spans seven years and has been on the desks of dozens of health professionals, Department of Human Services case workers, several local judges and a host of other key players.)

Key Players

(Editor’s Note: The following is a list of key players in a case that has lasted more than seven years in the 20th Judicial District. This element is intended for reference purposes only. No implications are intended.)

H.G. Foster

Judge H.G. Foster is the 5th Division Circuit Judge in Faulkner County. He presided over Daniel Coker V. Ardith Mossholder, a custody trial that took place in September of 2013 after five years of litigation. Foster gave temporary guardianship of the two minor children to Daniel Coker’s mother after acknowledging that “there is sufficient reason to believe these children could be in danger of abuse if left in the custody of their father.”

He also acknowledged that Coker lived with his mother and said he would not change that situation. He left the order temporary, which means it cannot be appealed. On Tuesday, July 7, five days after the Log Cabin questioned him about the temporary ruling, he signed a permanent order giving Coker’s mother permanent guardianship of the children. The order reads that the allegations against Coker of sexual abuse are unfounded and not shown to be true. The order also prevents anyone having anything to do with the case from disclosing personal information regarding the case to anyone and prevents Mossholder from having any contact with the children until she undergoes counseling to address all issues in an evaluation performed by Paul Deyoub, Ph.D.

Foster was the elected prosecuting attorney during Russell Berger’s criminal trial in 1998.

David Reynolds

Judge David Reynolds was the 1st Division Circuit Judge who issued an order of protection against Daniel Coker in 2011 after Karen Martin, a nurse practitioner at Arkansas Pediatrics in Conway, wrote a letter detailing the minor daughter’s disclosure of sexual abuse by Coker along with the findings of a physical examination that were consistent with the disclosure. Reynolds did not refer Coker for prosecution at that time.

Reynolds presided over Russell Berger’s criminal trial in 1998. He is now the judge of the Faulkner and Van Buren County District Courts.

Russell Berger

Berger was convicted of raping Daniel Coker’s nephew in 1998. After his conviction, Berger petitioned the Supreme Court for an appeal, citing ineffective counsel. In his motion for appeal, Berger stated that his defense attorney “failed to present evidence of a history of abuse by the alleged victim’s family members” and failed to thoroughly cross-examine the babysitter who first contacted authorities about the child’s disclosure of abuse. The Supreme Court affirmed Berger’s conviction in 2002.

Berger’s victim [unnamed]

The nephew of Daniel Coker, who was 5 years old when he was raped by Russell Berger in 1998, testified at age 20 during the 2013 custody hearing that his uncle abused him during the same time Russell Berger abused him. The babysitter to whom he first disclosed the abuse said the victim also implicated his uncle in 1998 and that she disclosed that information to state police and DHS. Arkansas State Police said the investigation belonged to Conway Police. The case file from the Conway Police Department does not show any mention of Daniel Coker during the investigation.

Kathryn Hudson

The third attorney to represent Mossholder, Hudson asked Foster to place the minor children in therapeutic foster care where the “real truth” could come out without the influence of either parent. Hudson withdrew from the case following Foster’s ruling that gave temporary guardianship of the minor children to Coker’s mother, with whom Coker lived.

Hudson is awaiting a hearing on a motion for injunctive relief filed by attorney ad litem Carol Nokes for allegedly distributing documents that contain personal information about the children. She has filed a motion to dismiss the motion for injunctive relief.

Michael Maggio

Former judge Michael Maggio issued all temporary rulings that could not be appealed in the case until he transferred the case to Foster in January of 2013. During a contempt hearing against Mossholder for interfering with custody and refusing to be evaluated by Paul Deyoub, Ph.D., he sent the children home with Coker and held Mossholder in contempt without hearing any testimony.

Mossholder’s attorney argued that her client withheld visitation only after learning that Coker’s mother, who was ordered to supervise Coker’s visitation, had been leaving Coker alone with the children. She also argued that Deyoub would not see Mossholder without a deposit payment and that he should not evaluate her because he evaluated her as a juvenile. Hudson requested an additional evaluation by Stacy Simpson, a board certified forensic psychiatrist who specializes in child sexual abuse.

Maggio continued the final hearing a day before the trial was to begin because Deyoub’s report was not complete. When Deyoub’s report, which contrasted significantly with Simpson’s, was complete in the summer of 2013, Maggio filed the report “sua sponte” (on his own) in the office of the circuit clerk. The report contained explicit, personal information about Mossholder and her family. Maggio did not file the report under seal, and it was left exposed on the public Court Connect domain until the first day of the final custody hearing in September of 2013.

In January of 2015, Maggio pleaded guilty to a federal bribery charge involving a negligence case in which he accepted money in exchange for a reduced penalty. He surrendered his license in April of 2015, barring him from practicing law in Arkansas.

Amy Brazil

Amy Brazil was Daniel Coker’s attorney before being appointed Faulkner County District Judge. She appeared as judge on Mossholder’s misdemeanor charge but transferred the case after Hudson pointed out that she could not preside over the case due to conflict of interest. Brazil suggested David Hogue be appointed as special judge in the case, and Hudson objected due to Hogue’s role as prosecutor in Mossholder’s felony criminal case involving filing false reports, a case that was ultimately dismissed.

Brazil retired from the bench at the end of her term on December 31, 2014, after losing the election for the 1st Division seat to Judge Michael Murphy.

Joni Clark

Joni Clark was the investigator who interviewed Coker, Mossholder and their minor daughter in January of 2009 regarding sexual abuse allegations against Coker. She told Mossholder that she would be arrested if another report of sexual abuse were filed against Coker with the Department of Human Services (DHS). Three days later, the children’s counselor reported allegations from one of the minor children, and Mossholder was arrested for filing false reports. The charges were later dismissed because the prosecutor was not sure he could prove the reports were false.

David Hogue

David Hogue was the prosecuting attorney in the felony criminal case against Mossholder in 2009 for filing false reports. He said he did not prosecute Mossholder because he was not sure he could prove the reports were false. Brazil suggested Hogue as a special judge for the misdemeanor criminal charge against Mossholder for withholding visitation. Hudson objected, and the case was dismissed at the request of City Attorney Micheal Murphy. Maggio appointed Hogue as attorney ad litem after Chip Leibovich withdrew from the case citing nonpayment of fees. Hudson objected to Hogue’s appointment for the same reason, and Carol Nokes was appointed as attorney ad litem.

Hogue is now the Faulkner County Attorney.

A judge in Faulkner County placed two children in the same home as their father after acknowledging that the father may have sexually abused them, raising questions about circumstances that warrant a criminal prosecution.

A recent ruling in a seven-year custody battle has caused concern from advocates and family members for the safety of the two minor children, who alleged sexual abuse by their father and later retracted the allegations after returning to the father’s home.

The ruling gave permanent custody of the children to their paternal grandmother, who shares a home with their father. It was filed five days after the Log Cabin Democrat questioned 5th Division Circuit Judge H.G. Foster concerning a temporary ruling from 2013 that gave the grandmother temporary guardianship of the children.

In Foster’s ruling at the end of the five-day custody hearing in September of 2013, he said “there are indicators that Dad did these things to these children.”

Foster told the Log Cabin Democrat he could not comment on ongoing litigation, but he said the following at the end of the custody hearing:

“There is also evidence that provides a reasonable possibility that Mom contributed in some manner to the sexual acting out and what has been going on with these two kids.”

In the same ruling, Foster said there was “sufficient evidence for the proposition that the children were and would be in danger of being abused sexually were they placed in custody of Dad.”

The permanent ruling handed down this month stated that all allegations of sexual abuse by the father are “not founded and not proven or shown.”

Each of the roughly 20-25 reports on the father of alleged sexual abuse was returned from DHS as “unsubstantiated.”

In his temporary ruling, Foster said he was “less inclined to punish anyone within the context of this case. There are roles out there, but that is not my role.”

20th District Prosecuting Attorney Cody Hiland said Friday that he has no record of a criminal case against the father being submitted to his office for prosecution.

Because Foster’s 2013 ruling was temporary, it could not be appealed.

The Log Cabin Democrat began following this story in late April of 2015 after Phyllis Harrington, the founder of a nonprofit organization supporting abused children, approached the newspaper in an effort to silence the mother’s former attorney, Kathryn Hudson.

She said Hudson was spreading personal information about the children and saying the father sexually abused them.

Harrington added that the children were living with their father in his mother’s home. He had been accused of sexually abusing his children, but he had not been convicted of any crime.

“We don’t just slam people without knowing if they’re innocent or guilty,” Harrington said.

Carol Nokes, attorney ad litem (representing the children in the custody hearing), filed a motion for injunctive relief against Hudson in March of 2015. According to the motion, it came to Nokes’ attention that Hudson “distributed to at least one person, documents related to the minor children.”

The “one person” was Harrington, who requested the documents in a Nov. 21, 2014, email message to Hudson.

“I was waiting on your email as well about your case…Please let me know how I can help with stopping this horrible crime [against] those precious children,” Harrington’s message read.

The March 2015 motion states that Harrington informed Nokes that Hudson gave her the documents.

Hudson filed a motion to dismiss the motion for injunctive relief on April 1, 2015, saying that the court does not have jurisdiction over her and that she has permission from her former client to discuss the case with anyone. Hudson withdrew from the case as the mother’s attorney following Foster’s temporary ruling in 2013.

In June of 2015, the Log Cabin Democrat obtained a 2,200-page transcript of the September 2013 hearing, which cost the children’s mother more than $8,000. Unless otherwise noted, the following information was gathered from the transcript, documents available through the public Court Connect service and through requests in accordance with the Arkansas Freedom of Information Act:

The custody battle between Ardith Mossholder and Daniel Coker began in June of 2008 when Mossholder filed reports with the Arkansas Department of Human Services (DHS) alleging that her ex-husband had molested his two young children.

The two had joint custody, and Mossholder said she filed the reports after observing sexual behavior from her children. On direction from DHS, she took the children to counseling, where they alleged sexual abuse by their father.

Coker filed a motion for contempt and change of visitation and custody in September of 2008, saying that Mossholder fabricated the accusations and coached the children to make the disclosures. He failed a voice stress test administered by the Faulkner County Sheriff’s Office (FCSO) earlier that month.

Joni Clark, an investigator with the FCSO, interviewed Mossholder, Coker and their minor daughter regarding the allegations Jan. 9, 2009. She told Mossholder that she would be arrested if one more report of sexual abuse were filed.

Mossholder was arrested three days later and charged with filing false reports, a Class C felony, after a counselor reported to DHS that the minor daughter disclosed sexual abuse by her father during a counseling session. Coker then received custody of the children.

David Hogue, the prosecuting attorney, dropped the charges in January of 2010 because he said he was not sure he could prove that the reports were false.

“She wanted me to prosecute him for abuse, and he wanted me to prosecute her for filing false reports,” Hogue said last week. “I couldn’t prove that he abused his kids, and I couldn’t prove the reports were false.”

“He didn’t prosecute her because she didn’t do it,” Deborah Reece, Mossholder’s defense attorney, said Friday. “She made the reports based on what her children told her, and the prosecution, I think correctly, ultimately dropped the charges.”

Former judge Micheal Maggio later appointed Hogue as attorney ad litem in May of 2012, who said he accepted the appointment because he never sided with either party and felt as though he knew enough about the case to advocate objectively for the children.

Hudson objected to his appointment citing conflict of interest, and Nokes was appointed as Attorney ad Litem on May 18, 2012.

Helen Rice-Grinder, Coker’s attorney, argued during the final hearing in September of 2013 that the counselor’s report was a result of Mossholder’s coaching the children to accuse their father of abuse.

Mossholder, who had no contact with the children during the first half of 2009 and only supervised visits between July of 2009 and March of 2011, regained custody of the children in April of 2011 after 1st Division Judge David Reynolds issued an order of protection against Coker in response to a letter from the children’s primary care provider.

The letter was written on April 8, 2011, by Karen Martin, a nurse practitioner at Arkansas Pediatrics in Conway, and described an allegation of molestation that the minor daughter made in the exam room along with results of a physical examination that were consistent with the disclosure.

Martin went on to testify during the September 2013 hearing that she had no doubt that the daughter had been abused and told Foster she had prayed that he would make the right decision.

A later examination at Arkansas Children’s Hospital showed no findings of sexual abuse, and the report was returned as “unsubstantiated.”

Chip Leibovich, who was the attorney ad litem until he withdrew in April of 2011 citing nonpayment of fees, also made reports to DHS, as well as Dawn Doray, Psy. D., and Kelly Hamman, who provided therapy for the children.

Doray, who was court ordered by Maggio to evaluate the children, wrote in a treatment summary dated Aug. 24, 2012, that both minor children disclosed to her instances of sexual abuse by their father.

According to her summary, the minor son said he wanted Doray to “tell his father to stop doing it” and that his father told him to lie to her. The minor daughter said their father spanked the minor son for sharing the incidents with Doray during treatment.

In an affidavit presented in June of 2012 by Kelly Hamman, a mental health professional at The Child Study Center of the University of Arkansas for Medical Sciences (UAMS), Hamman wrote that the “minor children self-disclosed sexual abuse from their biological father and reported being fearful that their biological father would harm them, their biological mother and step-father.”

Additionally, she wrote that the children would benefit from trauma-focused cognitive behavioral therapy, which could not be initiated if the children continued to be exposed to trauma.

Grinder said these reports were also a result of Mossholder’s coaching the children to make allegations against their father and speaking harshly of Coker in front of the children, though Hudson argued that many of the reports were filed during a year in which Mossholder had no unsupervised contact with the children.

Coker’s nephew testified during the September 2013 hearing that Coker had sexually abused him during the same time he was abused by Russell Berger, who received two life sentences in the Arkansas Department of Correction (ADOC) after being convicted on two counts of rape in 1998.

Ronna Coker, Daniel Coker’s half-sister and the mother of Berger’s victim, said during the trial that her son also made this disclosure to authorities before the 1998 trial, but the family did not believe him.

She said they told the child that he was transferring what Berger did to him onto his uncle.

“[The child] thought the sun and moon rose with Daniel,” Ronna Coker said during her testimony. “He was – he was his uncle. They did everything together. And we – and we just assumed that [the child] thought, well, maybe if, you know, I say this and people won’t be mad at me or – or it’s all going to be OK.”

She said the initial disclosure regarding abuse by Berger and Daniel Coker came when Crystal Ferguson was babysitting her son in August of 1998. Her son told Ferguson that both Berger and Coker had molested him.

Ferguson, the babysitter who reported the victim’s initial disclosure of abuse to authorities, testified in September of 2013 that she and Coker’s nephew, Berger’s victim, both mentioned the abuse by Coker to Arkansas State Police and DHS in 1998.

Ferguson said no one questioned her about Coker after her initial reports or during Berger’s criminal trial. She assumed that because Daniel was a minor at the time, those allegations were being handled elsewhere and that he would get professional help.

However, Rice-Grinder did not believe that to be true.

“So you want this court to believe that there was a full blown criminal trial during which Russell Berger was convicted of molesting little [the child],” Rice-Grinder said. “That nobody — prosecutor, state police, nobody getting ready for the case to try to determine credibility of [child’s name] — asked ‘Has he ever made these allegations about anybody else?’”

The Log Cabin Democrat reviewed the files from Berger’s trial and found that Ferguson’s written statement to police did not mention Daniel Coker.

Portions of the transcript from the testimony of Ferguson and Coker’s nephew during Berger’s trial showed that neither of them were asked during direct or cross-examination if anyone else was involved in the abuse.

Citing hearsay, Berger’s defense attorney objected to Ferguson’s testimony about what the child said when he disclosed the abuse to her. Reynolds, who presided over Berger’s criminal trial, sustained the objection.

Berger filed a motion in 2001 for post-conviction relief based in part on ineffective counsel. One of 34 counts that he alleged was that his defense attorney “did not present evidence of sexual abuse by relatives of the alleged victim.”

Foster, who was the elected prosecuting attorney during Berger’s trial and when Berger motioned for post-conviction relief, responded to Berger’s point of ineffective counsel in April of 2001 with “defendant asserts no actions by his attorney which result in effective assistance of counsel. Furthermore, the facts listed in defendant’s petition are conclusory and should summarily dismiss.”

Berger appealed to the Arkansas Supreme Court the same year, but only listed four of the original 34 counts because “everything else [was] already recorded elsewhere on record.” The Supreme Court granted a remand on the four counts, which did not include his claim of ineffective counsel.

The Arkansas Supreme Court later affirmed Berger’s conviction.

The Log Cabin Democrat requested an interview with Berger through the Department of Correction but has not been able to visit to date.

Coker’s nephew told his therapist in March of 2010 about the alleged abuse by his uncle after he said he heard Coker’s minor son disclose sexual abuse. His therapist filed a DHS report immediately following the allegation, which was returned as “unsubstantiated.”

Mossholder was arrested again in October of 2011 for interfering with custody, a Class C misdemeanor, after Maggio amended Reynolds’ order of protection against Coker, giving him visitation supervised by his mother.

Mossholder said during the September 2013 trial that she believed his mother was leaving him alone with the children and refused to allow them to return to his home.

During a June 2012 hearing on a motion filed by Nokes against Mossholder for withholding visitation and failing to comply with Maggio’s order to undergo a psychological evaluation by Paul Deyoub, Ph.D., Maggio returned custody of the children to Coker.

Amy Brazil, who was Coker’s attorney until she was appointed to the Faulkner County District Court, appeared as judge for Mossholder’s misdemeanor charge in November of 2011 but transferred the case at Hudson’s request.

She suggested that Hogue be appointed as special judge. Hudson objected, and the case was dismissed in June of 2012 at the request of City Attorney Michael Murphy.

She also objected to having Deyoub conduct the evaluation on the basis of conflict of interest. Hudson said Deyoub evaluated Mossholder when she was 12 years old after she alleged that her uncle had molested her.

She requested a second evaluation by Stacy Simpson, a board certified forensic psychiatrist at Arkansas State Hospital in Little Rock who specializes in child sexual abuse.

The final hearing was scheduled for September of 2012, but Maggio cancelled it three days before the trial date on motion from Nokes because Deyoub’s report was not complete. Hudson requested the hearing not be continued because Simpson’s report was complete and expert witnesses were prepared to testify, but Maggio did not respond to the motion.

When Deyoub’s report was complete in the summer of 2013, Maggio filed it on his own and not under seal with the Faulkner County Circuit Clerk. The report contrasted significantly with Simpson’s report and contained personal information about Mossholder’s family history.

Hudson filed a motion on Sept. 19, 2012, for Maggio to recuse after learning that he had filed Deyoub’s report, but he denied the motion. It was the only motion from Hudson to which Maggio responded.

The hearing was transferred to Judge H.G. Foster in January of 2013 and rescheduled for September of 2013. Deyoub testified during the final hearing that Coker’s tests were largely normal, but that he found him to be “a little bit immature.”

“In other words, he showed no significant stress as a parent on any of these tests. He did not show that he has any kind of anger tendencies toward these children, high levels of frustration,” Deyoub said. “If anything, he’s a more laid back Type B type of personality, not a hard driven disciplinary and task master — anything but that.”

He said Mossholder had borderline personality disorder and cyclothymic disorder, and that her ability to manipulate people would make her “highly effective” at manipulating the children.

“Her history is sprinkled with the most bizarre tales, some of which may have been true. Some of which are manufactured and in her mind,” he said.

Simpson did not testify during the hearing, but her evaluation of Mossholder dated Aug. 31, 2012, read that Mossholder “did not experience a substantial disorder of thought, mood, orientation, perception or memory that grossly impaired her judgment or behavior.”

It also read that Mossholder’s recounting of events was consistent with details and timelines documented in records.

“The stress and frustrations she experienced as a result [of concern for her children’s safety] attribute her persistence in reporting the alleged abuse and pursuing investigations and evaluations not to malicious intent or to secondary gain but to concern regarding the safety of her children,” Simpson wrote.

Deyoub testified that the daughter indicated that her father never did anything sexual to her and that her mother told her to make the allegations.

Simpson’s report showed that the daughter’s disclosures of sexual abuse were spontaneous, detailed, in her own language and from her own point of view as well as consistent over time and situations. It also showed that her anxiety, mood symptoms and behaviors were consistent with a history of abuse.

During closing arguments of the September 2013 hearing, Hudson asked Foster to place the children in therapeutic foster care where “the real truth could come out” without the influence of either parent.

Hudson said she did not rely on Mossholder for information regarding the alleged abuse by Coker, but looked to the expert medical professionals who found the children’s disclosures to be consistent and credible.

In Rice-Grinder’s closing remarks, she said none of the allegations against Coker were found to be true and that Mossholder was not credible. She said each report that came from a mandatory reporter originated with Mossholder, and that any sexual acting out from the children was a result of the attention they got from her when they exhibited those behaviors.

Nokes argued during her closing remarks that “therapeutic foster care” sounded like an institution and that she was not sure how the children would qualify for it or who would pay for it. She said the options were that DHS, after several reports, botched the investigations or the children found that they were rewarded when they mimicked behaviors they saw or heard in the home of their mother, who worked as a “pole dancer.”

She asked Foster to place the children with Coker’s mother.

Foster took Nokes’ advice and placed the children in temporary custody of their paternal grandmother at the conclusion of the hearing, acknowledging that the children’s father also lived in her home and that there were indicators that he had abused them. He said he based his ruling partly on Deyoub’s testimony, though he did not find it completely credible.

Following this temporary ruling, Coker’s nephew wrote a letter to Foster stating that he felt as though he had been “assaulted all over again” and that he did not understand Foster’s “gross misjudgment.”

The letter pointed out that the abuse by Berger took place in Coker’s mother’s home.

Ronna Coker motioned to intervene as guardian for the children in January of 2014. Foster denied the motion, saying that Coker’s mother had the most reason to be responsible for the welfare of the children.

During a review hearing in February of 2014, Mossholder was sanctioned $3,500 for filing a “frivolous” motion to remove Nokes as attorney ad litem.

Also during review hearing, Foster ruled in Coker’s favor regarding a contempt motion that Hudson filed before she withdrew as Mossholder’s attorney. The motion stated that Coker was in contempt of court when he failed to take the children to see Hamman after Maggio ordered that she be the “gatekeeper” for Christmas visitation with Mossholder.

Lena Hancock, the children’s counselor who was also involved in Mossholder’s juvenile case, testified during the February 2014 hearing that the children were “doing well” with their father though they were pulling out their hair. She said the stress that Mossholder created during visitation could have been the cause.

Mossholder suspended her visitation following the February hearing.

Foster’s most recent ruling this year made the paternal grandmother’s guardianship permanent and found that Mossholder “engaged in conduct that constitutes poisoning the minds of the children, has coached the minor children to make untrue statements, and the allegations of sexual abuse against the father are not credible, not founded and not proven or shown.”

Mossholder now has 90 days from the date the permanent ruling was filed to appeal.

The seven-year debate and others like it have prompted Arkansas Sen. Jon Woods to consider writing legislation that would require a judge in a family law case to refer for prosecution any credible allegations of criminal conduct.

“I’ve had conversations with the Arkansas State Police Crimes Against Children department and several other law enforcement agencies,” Woods said. “I still have to analyze the facts, do my homework and understand everything that happened to see if there’s room for improvement. If there’s an area causing bad people to get a pass, there’s no doubt I’ll write legislation for the next session.”

(Staff writer Jessica Hauser can be reached by email at jessica.hauser@thecabin.net, by phone at 505-1277 or on Twitter @jmthauser. To comment on this and other stories in the Log Cabin, log on to thecabin.net. Send us your news at thecabin.net/submit.)

 

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