After consideration of the ore tenus testimony, observation of the parties, assessment of
the credibility of the witnesses, the exhibits introduced into evidence, the pleadings and the applicable and relevant law, the Court cannot find by the standard of clear and convincing evidence that the children are dependent. However, the Court does find by a preponderance of the evidence that the children have been subject to abuse in the Mother's home, by the Mother, L.O., and M.E., the Mother's fiancé. Therefore, the protection from abuse petitions filed by the Father are GRANTED. The Court finds that the son, A.B., was subjected to physical, emotional and verbal abuse by the Mother. The Court finds that the daughter, Z.B., was subjected to physical abuse by M.F., the Mother's fiancé, while they were all living together in the Mother's household. The Court finds it to be in the children's best interests to remain together.
In granting the petitions for protection from abuse, the Court gives great weight to the testimony of A.B., the oldest child of the parties. The child was polite and focused and showed appropriate emotion to his recounting of the events to the attorneys and to the Court. To conclude that this child is lying, could potentially cause catastrophic harm to him and to his sister. M.F. testified emphatically that he did not touch the daughter's "tootie" as claimed by both children. M.F. has a federal conviction for crimes of moral turpitude. In considering this conviction and the contrary testimony of A.B., the Court does not find the testimony of M.F.
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credible, specifically as it relates to his emphatic denial of touching the daughter. Much controversy was made about M.F. bathing the daughter, presumably to confuse the issues. The children's allegation was not that the daughter was molested during bath time. The Court believes the children under the standard of preponderance of the evidence, and to disbelieve the children could put them in serious harm. In addition to the actual testimony, appropriate consideration is also given to the Court's observations of the Mother during these lengthy proceedings. Many times, when the Mother was looking at the witnesses during their testimony, she smirked and shook her head in disdain. On most days of the testimony, when the Mother was looking at the Father, she appeared very angry and glared at him. Additionally, the Mother was unaffected by the elementary school teacher's testimony disclosing the young daughter's account of the sexual molestation by M. F. Everyone else in the courtroom was appropriately affected when the teacher started crying on the witness stand. Finally, the Court gives appropriate weight to the observations of the guardian ad litem after the children returned from a visit with their Mother. Per the guardian ad litem, the children are reticent about extended visits with their mother. The guardian ad litem believes the children's reticence is genuine and therefore the Court takes her observation of the children, in this regard, very seriously. The Court determines that the reticence observed by the guardian ad litem is consistent with past trauma the children experienced in the Mother's household.
If needed, the Court finds that the evidence presented satisfies the McLendon standard.
What has been done to the children more than offsets the disruption in awarding custody to the
Father. The Court also finds that it is in the best interests of the children, that custody be awarded to the Father.
It is therefore, ORDERED, ADJUDGED and DECREED as follows:
1. Primary legal and physical custody of A.B., a child whose date of birth is December 15, 2011, and Z.B., a child whose date of birth is July 7, 2017, is awarded to their Father, K.B..
The Mother, L.O., shall have visitation as set forth in the "150 Mile Custody Schedule and
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