UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

GaryT As a co-plaintiff, and as a Parent and Next Friend for,

A.E.C.T. A Minor,

Plaintiffs, -vs-

Civil Case No. 12-CV-1897 GLS/CFH Valerie Lyn Wacks, Esq., Lawrence Shelton, Esq., Amy Greene, Kelly Whittaker, Elisabeth Krisjanis, Esq., lillian Jackson, Esq., Barbara Sorkin, Denise Woltman, Charlene Boswell, Other Unknown Named Persons Responsible

for Denying Plaintiffs their Federal & State Rights, Ulster County Municipality via its agencies

Ulster County Child Protective Services & Ulster County Mental Health Dept.

Notice ofMotion Defendants. [For Reconsideration]

TO ALL PARTIES:

Valerie Lyn Wacks 74 Mill Road Olivebridge, NY 12461 (845) 657-2163

Lawrence R. Shelton 261 Fair Street Kingston, NY 12401 (845) 338-6496

Cook, Netter, Cloonan, Kurtz & Murphy, P.C. 85 Main Street, POB 3939 Kingston, NY 12401 (845) 331-0702

Cynthia Feathers, Esq. Counsel for A.E.C.T. P.O. Box 2021 Glens Falls, NY 12801 (518) 223-0750

PLEASE TAKE NOTICE that upon the attached memorandum, exhibits and affidavit(s) in

support, Plaintiff will move this court for Reconsideration of the Summary Order entered by

this court on June 5, 2013, dismissing Plaintiff A.E.C.T. as a party to this action and all her

claims, and the denial of the application for a Temporary Restraining Order, before the Hon.

Gary L. Sharpe, at motion term of this Court, at the James T. Foley United States Courthouse,

445 Broadway, in Albany, New York, on July 28, 2013, unless otherwise rescheduled by the

clerk.

Dated: June 26, 2013

GaryT

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

GaryT As a co-plaintiff, and as a Parent and Next Friend for,

A.E.C.T. A Minor,

Plaintiffs,

-vs-

Valerie Lyn Wacks, Esq., Lawrence Shelton, Esq., Amy Greene, Kelly Whittaker, Elisabeth Krisjanis, Esq., lillian Jackson, Esq., Barbara Sorkin, Denise Woltman, Charlene Boswell, Other Unknown Named Persons Responsible

for Denying Plaintiffs their Federal & State Rights, Ulster County Municipality via its agencies

Ulster County Child Protective Services & Ulster County Mental Health Dept.

Defendants.

Civil Case No. 12-CV-1897 GLS/CFH

Memorandum of Law in Support of Motion for Reconsideration

Comes now Plaintiff GaryT in the above captioned case, to move this court

for an Order on Reconsideration, in regard to the summary dismissal of Plaintiff A.E.C.T. as a

party in this case, order entered June 5, 2013, on the basis of assumed voluntary dismissal.

Motion is also made for reconsideration of the court's denial for a temporary restraining

order.

This motion relies upon the attached affidavit and exhibits, as well as the prior exhibits and

affidavits filed previously in support of the application for a temporary restraining order, entered

February 5, 2013, Dkt #12, which are all incorporated by reference herein.

Plaintiff claims standing as many of the claims of A.E.C.T. are inextricably tied to his

claims, and have a substantial effect on their prosecution.

Page 1 of 15

For the following reasons, primarily that A.E.C.T. has been coerced into relinquishing her

claims, the order should be revisited and reversed, and Plaintiff A.E.C.T be allowed to continue

her claims.

Introduction to Case

The allegations and claims contained in this action allege the infringement of federal

constitutional rights, and germanely to this motion involve the arbitrary and capricious denial of

freedom of speech, freedom of association, and freedom from state interference of parental rights

by the defendants.

Since October 21, 2011, the defendants have sought to and succeeded in separating the two

plaintiffs, father and daughter, in this case, violating federal law, on the basis of innuendo,

specious claims and completely insufficient grounds, lacking basis in either state law or federal

law. Even prior to that date, the defendants had charged Plaintiff with maltreatment,

June 17, 2010.

But all of those charges' were ruled on the merits, overturned and sealed on June 14, 2011,

and on August 15, 2012, respectively, by their own agency appellate hearing judges.

In February of2013, shortly after the filing of this complaint, Defendants again charged

Plaintiff with child neglect, notwithstanding that by that time all contact with his

daughter had been reduced to one hour visits per week that were supervised by the defendants,

ostensibly to preempt neglect from even occurrin!f.

1Those charges were premised upon encroachments of Plaintiffs parental discretion, e.g., what time of night to allow the child to stay up until, feeding of chicken McNuggets, what cartoons to watch, weighing the child on a bathroom scale, apprisal of medical treatments. The defendants asserted regulation of Plaintiff for these and similar parental discretionary decisions through charges of maltreatment, neglect and abuse under state child protective service laws, unless he complied with their parenting mandates, which would and have resulted in his child being taken away.

2This time the sole grounds given as basis of child neglect, was that Plaintiff simply discussed this lawsuit with A.E.C.T.

Page 2 of 15

By any objective observer, the defendants have not pursued any of these actions in good

faith, but rather have misused the power of their agency retained under color of law, to punish

and curtail Plaintiff's free speech and parental rights premised upon their provincial, ad hoc,

perhaps even good intentioned, but illegal standards of review.

Although Plaintiff has always had shared legal custody of A.E.C.T. since her

birth, for the past two years, by actions of the defendants A.E.C.T. has been under the exclusive

control and access of the defendants in this case, as well as held in her mother's care- all persons

who are interested parties to this action that would gain substantially by A.E.C.T.'s dismissal

from this suit; obversely, during this time her co-Plaintiff and father has been

restrained via their abusive process of administrative action from even speaking with his

daughter to keep her apprised of her fundamental rights, circumstances and facts of this case, see

Affidavit in Support at par. 9-13, Affidavit Addendum and Transcripts at Exhibit page 10, et seq.

In what little discussions they did have before being repeatedly and physically interrupted

by the defendants, A.E.C.T. conveyed to her father ' that she was enthusiastic about it

and wished to pursue her involvement in the case, see attached Affidavit in support, par 6-9.

Argument

1.- Plaintiff A.E.C.T.'s decision to not pursue her claims, was not knowing, informed or voluntary.

Plaintiff A.E.C.T.'s access to information, her case, to the law, and to the courts have been

intentionally withheld and constrained from her by the very defendants and other interested

parties participating in this case, leaving her informationally incompetent at this time to make a

knowing decision as to her intentions to prosecute this case.

Furthermore, A.E.C.T. has not been simply insulated from knowledge of this case, the

defendants and other interested parties have further misinformed and instructed A.E.C.T. that

Page 3 of 15

speaking about or pursuing this case was strictly prohibited, and that her father would get into

trouble, possibly jailed, if she continued to speak or pursue any actions relating to this case3, see

Affidavit in Support par 16-39.

The defendants in this case have engineered a circumstance where a bona fide civil rights

plaintiff whose claims have been brought before this court, has been prevented access to the

court, is being intentionally isolated from readily available information and knowledge relating to

the violations against her, and is being coerced through fear for her father's safety to drop any

further pursuit of this action.

These are the very rights this court is here to protect, particularly for a minor who cannot

effect such legal protections on her own. If such coercion is allowed to stand, this will be a

wholesale denial of those rights, and the denial of even the right to be heard.

Given the psychological and inducive preparation of A.E.C.T., it is no surprise that when

asked if she wished to proceed in the case, A.E.C.T. declined.

Ms. Feathers provided no indication in her report that she explained to the A.E.C.T. that

this Court could potentially provide relief, protect her and her father, stop the defendants from

interfering with her private speech with her father, and stop making threats and interfering with

the visits. Indeed, Ms. Feathers does not even state that she explained to A.E.C.T. what the suit

was about or what it alleges.

Under such circumstances, A.E.C.T.'s decision could not be a knowing, voluntary or

intelligent one, and was one additionally made under duress; it cannot be the sole grounds for

recommending dismissal, or for summary dismissal, as this court has ordered virtually sua

sponte, see Summary Order:

3 And in fact this became true, after the filing of this case; the defendants obtained a restraining order

prohibiting A.E.C.T. from having any discussions about this case with her father, Table of Exhibits at 116, 125.

Page 4 of 15

"A.T. has informed the court since the appointment of [Cynthia] Feathers that she 'does not have an interest that she need to protect via such application."' at page 2,and

"A.T. expresses that she has no interest in the litigation, and it appears that it is having a negative impact on her well being. In light of the foregoing, the court hereby dismisses all claims asserted on A.T. 's behalf." at page 3.

The court needs to look beyond these simple, isolated expressions of intent, and determine

if they are truly voluntary, before dismissing A.E.C.T. entirely from this action.

Alternately, the court should hold in abeyance any dispositive action on A.E.C.T.'s status in

this case, until and when she is freely and reliably informed of her claims, the facts,

circumstances and law of the case, and is allowed to freely discuss them with her father and co-

plaintiff. Plaintiff has no issue with an intentional self-dismissal of A.E.C.T. from this case, but

only if and when such decision is made knowingly, freely and voluntarily.

To do otherwise would be to trade expedience of the law for the substance of the law.

2. - The GAL, as an arm of the Court, did not perform due diligence in protecting A.E.C.T's best interests, or in determining her claims, or her actual

interest in pursing her claims.

This court assigned Cynthia Feathers as guardian ad litem (GAL) for plaintiff A.E.C.T ..

See, Neilson v. Colgate-Palmolive Co., 199 F. 3d 642, @ 652- (2nd Cir 1999) ("After

appointing a guardian ad litem, a court maintains a continuing obligation to supervise the

guardian ad litem's work."), Noe v. True, 507 F.2d 9, 12 (6th Cir. 1974) ("through a guardian ad

litem the court itself assumes ultimate responsibility for determinations made on behalf of the

[ward]")

On June 4, 2013, the GAL filed a report in regard to A.E.C.T., recommending dismissal of

A.E.C.T. and her claims contained in the complaint, reportedly on the basis that A.E.C.T. did not

want to pursue her claims.

Page 5 of 15

However, although the GAL was assigned by this court to protect and represent A. E. C. T. 's

rights and constitutional protections, the GAL was woefully inadequate in investigating the

circumstances under which A.E.C.T. is being held, and in ensuring that her decision was

knowing and voluntary.

All the GAL proffered in her report were her inexpert conclusoryreports of A.E.C.T.'s

intention and mental state and a cursory review of the circumstances, specifically the GAL:

1. Only consulted the defendants, and other interested parties adverse to A.E.C.T.'s position in this action, see Report of Guardian at Exhibits page 5,

2. Did not consult a parental alienation expert or other mental health professional,

3. Did not query A.E.C.T. of her knowledge of the case nor inform her of the particulars ofthis case4

,

4. Did not contact or consult her co-Plaintiff although he had reached out to the GAL Ms Feathers and gave her notice of the likely circumstances, evidence and knowledge of the case, and A.E.C.T.'s likely circumstance of coercion (see Exhibits at page 9), and had invited the GAL to consult with him as to the evidence and information he nossess, that he was witness to Anya having previously conveyed to T1 that she wanted to know and proceed, but was repeatedly and physically interfered with in these communications, see Affidavit in Support,

5. Did not explain to A. E. C. T. about the role of the judge and the relief that might be granted to her if the case was proven.

6. Did not consult with T 1's attorney, Christopher Bums, Esq, who is representing him in these actions, and who is similarly familiar with the facts of the case.

The GAL, instead of being an impartial advocate for A.E.C.T., appears to have improperly

sided with the defendants who are in fact adverse to A.E.C.T. interests in this case.

Additionally the GAL being aware of the whole background of the allegations contained in

the complaint, involving multiple instances of coercion and pressure upon A.E.C.T., see page 2

4See Feather's Report at page 2: "Before such visit, the undersigned was informed by both the attorney for the child [Defendant Valerie Lyn Wacks] and the mother that A.T. is aware of the litigation and the issues to be addressed by the undersigned."

Page 6 of 15

of Feathers Report, gave fair notice to her that the circumstances required far more than a single

brief meeting with A.E.C.T. to reliably determine her true intentions or state of duress in

pursuing her claims in this case.

Instructive and on-point to these circumstances, is the dissent ' s observations in Neilson v.

Colgate-Palmolive Co., 199 F. 3d 642, @ 662 (2nd Cir 1999):

"The due process right to notice and opportunity to be heard is wholly independent of the guardian ad litem's duty to protect a litigant's interests. Consequently, not even the most diligent and capable guardian ad litem can compensate for an unlawful deprivation of a party's right to be fully informed before she loses control ofher case." (SOTOMAYOR, Circuit Judge, dissenting).

Given all these defects, the court has sua sponte treated the report of the GAL as a motion to

dismiss all claims on behalf of A.E.C.T., yet there was no opportunity given to respond as per

L.R. 7.1 or FRCP 7(b)(1), see page 3 of Summary Order,

Finally, it should be noted, the court dismisses this action as to A.E.C.T. based solely on the

GAL's unaffirmed Report, alleging that A.E.C.T., in situ, does not want to pursue the action.

There are no motions, reports or assessments questioning the underlying merits of

A.E.C.T.'s claims. No allegations have been made that they are legally insufficient or without

merit.

Given that the alleged state of mind of A .E.C.T. in regard to pursuing this complaint is

highly suspect, dismissal at this early stage without reliable confirmation of A.E.C.T.'s actual

intent is erroneous, and denies her the protections under federal law she is otherwise entitled to .

As the report was unreliable and dismissive as to the coercive circumstances A.E.C.T. is

being held under, and that the sole reason for dismissal was the alleged intent of A.E.C.T.

regarding this case, Plaintiff moves for reinstatement of A.E.C.T., pending a proper

determination of her actual informed and uncoerced intent.

Page 7 of 15

3. -The application for Injunctive Relief and Temporary Restraining Order is still effective and has merit, irrespective of the dismissal of A.E.C.T. from the case.

The complaint alleges a continuing pattern of interference of federally privileged

communications and association between Plaintiff' and his daughter A.E.C.T.

Notwithstanding the insinuations of the GAL in her report, or the dicta of this court,

Plaintiff has not been found guilty of neglect, abuse, or any other wrongdoing with

regard to his child (see Affidavit at par. 2-4), and is entitled to the presumption that his actions

and instant prayer for injunctive relief are being pursued in good faith.

Furthermore, Plaintiff respectfully corrects the misapprehension of the court that "his

underlying claims ... pertain mostly to ... allegations that defendants violated his rights in

relation to his communication with A.T. during supervised visitation", see page 2-3 of Summary

Order.

The underlying claims in this complaint clearly pertain to rights violated prior to supervised

visitation (and in fact led to it being supervised), include some of the time during supervised

visitation, and most significantly concerns preventative injunction against the defendants for

future inteiference of association and speech where supervision is not a factor".

Such injunctive relief is particularly appropriate, and exigent, given the circumstances of the

defendants' continuing violations oflaw, and the application for same, as factually supplemented

herein this reconsideration motion, should be granted.

The defendants in this case, despite being given notice of their actions being in violation of

federal law, continue to impose them, and have compounded their abusive actions by filing

5See Ruffalo v. Civiletti, 539 F.Supp. 949, 952 (W.D.Mo.l982) (holding that "visitation rights are entitled to due process protection [substantive as well as procedural], at least when the challenged governmental interference is of a serious, continuing nature").

Page 8 of 15

SLAPP6 action suits against him, see Exhibits at page 116, instead of trying to ameliorate or

mitigate their actions. By the very record herein, the evidence shows their behavior and standards

of regulation in regard to parental/child protection law are in direct contradiction of any federal

standard that would permit such action, see Nicholson v. Scoppetta, 344 F.3d 154 (2d Cir 2003)

(preliminary injunction issued where NYC child protective services improperly removed

children on the basis of their witnessing parent-upon-parent domestic violence).

The defendants have used Plaintiff's daughter as a pawn to punish and retaliate against

Plaintiff for standing up for his federal rights, and for issuing grievances in his opposition to their

capricious agency actions, and for filing this federal action. In response to this action Defendants

have filed in retaliation a new yet facially insufficient allegation of neglect, and have gone even

further, and retaliated by imposing more onerous arbitrary rules, new prohibitions, obtaining

additional restraining orders, and court actions.

The very premise of§ 1983 and the civil rights act was to prevent and deter local state

agents from abusing their powers and from discriminating against U.S. citizens, and to provide a

cause of action for redress.

Given the usual length of time a federal lawsuit takes, without a TRO, this state of affairs

will continue for a long time.

In these applications, the movant must show that the harm is "actual and imminent" not

"remote or speculative.", see State of New York v. Nuclear Regulatory Commission, 550 F .2d 7

45, 755 (2d Cir. 1977), and the plaintiff must show that the harm in question cannot be remedied

by an award of monetary damages, see Velez v. McGuire, 992 F. Supp. 125 (D. Conn 1998):

"The Second Circuit has held that the alleged violation of a constitutional right triggers a finding of irreparable injury. Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). Because violations of constitutional rights are presumed irreparable, Elrod v. Burns, 427 U.S. 347, 373 (1976), 'the very nature of [the] allegations' satisfies the

6Strategic Lawsuits Against Public Participation, see N.Y. C.P.L.R. 70-a & 76-a (2008); N.Y.C.P.L.R. 3211

Page 9 of 15

requirement that [the plaintiff] show irreparable injury." State of Connecticut Dept of Environmental Protection v. Occupational Safety and Health Administration, 138 F. Sup. 2d 285,291 (D. Conn. 2001) (Goettel, J.), quoting Berv v. Citv ofNew York, 97 F.3d 689,694 (2d Cir. 1996), cert. denied, 520 U.S . 1251 (1997) . Cf. Kamerling v. Massanari, 295 F.3d 206,214-15 (2d Cir. 2002)."

Plaintiff ' is in fact subject to criminal penalties for speech that is constitutionally

protected. This is a real circumstance underway now, not an inchoate, propositional one.

Furthermore, the defendants have used their privileged and exclusive access to coerce

plaintiff A.E.C.T. to drop out of the lawsuit, to be deprived of any substantive information

relating to the details of the lawsuit, and in furtherance of these goals have proclaimed their right

to interfere, and continue to interfere, with any communications between the plaintiffs in this

action, and have no compunctions or restraint in either witness tampering or threats to plaintiff

A.E.C.T., see Affidavit in Support at 3, 7-13, 16-39, Affidavit Addendum, and Exhibits

referenced thereon, and Affidavit in Support of Application for TRO, filed Feb 5, 2013 .

Acting as agents under color oflaw, the defendants are completely unrestrained in this

behavior, and to date have had no incentive to correct it, and they will likely continue until the

resolution of this case.

Furthermore, even if A.E.C.T . has stated she does not want to pursue these causes of

actions, and is dismissed from the action, it does not erase or mitigate the continual denial of

federal civil rights Plaintiff retains in exerting his right to free speech and association

with his daughter.

Preliminary injunctive relief is appropriate when the movant for a TRO shows [a]

irreparable harm and [b] either [ 1] a likelihood of success on the merits of the claim or [2]

sufficiently serious question going to the merits to make them fair ground for litigation and a

balance of hardships tipping decidedly toward the movant requesting the preliminary relief, see

Int'l Dairy Foods Assn v. Amestoy, 92 F.3d 67, 70 (2d Cir. 1996).

Page 10 of 15

As the Second Circuit Court has held:

"Irreparable harm is "injury for which a monetary award cannot be adequate compensation." See Jackson Dairy, Inc ., 596 F .2d at 72. It is established that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976); see Paulsen v. County of Nassau, 925 F .2d 65, 68 (2d Cir.1991)" Int'l Dairy Foods Assn v. Amestoy, supra at 71

Also see American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473 - Dist. Court, ED Pennsylvania 1999:

"Such a chilling effect could result in the censoring of constitutionally protected speech, which constitutes an irreparable harm to the plaintiffs. "It is well established that the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Hohe v. Casey , 868 F .2d 69, 72, 73 (3d Cir.1989). For plaintiffs who choose not to self-censor their speech, they face criminal prosecution and penalties for communicating speech that they have shown is likely to be protected under the First Amendment.

In deciding whether to issue injunctive relief, this Court must balance the interests and potential harm to the parties. It is well established that no one, the government included, has an interest in the enforcement 498*498 of an unconstitutional law. SeeACLUv. Reno, 929 F .Supp. 824,849 (E.D .Pa.1996). 1t follows in this context that the harm to plaintiffs from the infringement of their rights under the First Amendment clearly outweighs any purported interest of the defendant."

And see,

American Civil Liberties Union v. Reno, 929 F. Supp. 824- Dist. Court, ED Pennsylvania 1996: "Subjecting speakers to criminal penalties for speech that is constitutionally protected in itself raises the spectre of irreparable harm. Even if a court were unwilling to draw that conclusion from the language of the statute itself, plaintiffs have introduced ample evidence that the challenged provisions, if not enjoined, will have a chilling effect on their free expression. Thus, this is not a case in which we are dealing with a mere incidental inhibition on speech, see Hohe v. Casey, 868 F.2d 69, 73 (3d Cir.), cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989), but with a regulation that directly penalizes speech."

As aforementioned, Plaintiff ' is in fact subject to criminal penalties for speech

that is constitutionally protected, and this is a real, current circumstance, not an inchoate or

propositional one.

Page 11 of 15

The instant TRO application merely seeks to ensure that free speech and communication

between Plaintiff and his daughter is not encroached or prevented by the defendants during the

pendency of this action- this request is neither excessive, nor remarkable, nor of onerous

burden to the defendants, who would suffer no legal prejudice in the matter.

By contrast, the defendants seek and continue to prosecute Plaintiff, civilly and criminally,

and to remove his child from him, if he exercises his free speech rights.

It is clear that Plaintiff has shown an acceptable level of irreparable injury per se, and that

these are sufficiently serious questions going to the merits, and the test "balancing the hardships

confronting the parties", show the "balance ofhardships tipping decidedly in his favor.", see

Patton v. Dole, 806 F.2d 24, 28, 30 (2d cir. 1986).

Finally, an assessment of the likelihood of success on the merits of the claim, must be based

upon the current facts and record at bar, not conjecture as to what the case may reveal or develop

in the future, see Patton v. Dole, @ 30-31, supra:

"Absent any contrary evidence in the record, Patton seems to have established a likelihood of success on the merits . At the least, he has made an adequate showing of sufficiently serious questions going to the merits to make them a fair ground of litigation, and, balancing the hardships confronting the parties, Patton's prospect of involuntary naval service clearly outweighs defendants' temporary loss ofthe services of one able-bodied seaman. Accordingly, the preliminary injunction should issue."

Similarly, in the instant application for a temporary restraining order, there is no contrary

evidence or argument on the record that contradicts showing a likelihood of success on the merits.

The record and facts are actually uncontroverted, and show exclusively that there is an ongoing

self-admitted prohibition of free speech by the defendants, that they will not cease and desist the

actions to prevent the free speech, that the prohibitions are prima facie unconstitutional, and that the

relative burdens on the litigants clearly lean in Plaintiff's favor.

Plaintiff moves that denial of said application be reconsidered, the supplemental evidence

provided in this motion herein be considered, and that the Temporary Restraining Order be issued,

Page 12 of 15

so as to prevent the wholesale interference of speech, association and parental rights, and guarantees

under the P1 and l41h Amendments to the Constitution, that the defendants are currently and

continuing to deny Plaintiff, and as explicitly stated by their own words, they will not stop on their

own accord, see Affidavit in Support ofTRO Application, filed Feb 5, 2013 .

Interference of free speech and association, particularly in the context of retaining federal

parental rights as it is here, has been afforded additional special consideration and protection by

this circuit and the U.S. Supreme Court, see Troxel v. Granville, 530 U.S. 57, where the court

made it clear that the desires and decisions of the natural parents in raising their children trump

any rights of third parties:

"The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children- is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), we held that the 'liberty' protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own."

Also see Duchesne v. Sugarman, 566 F. 2d 817, 825 (2d Cir 1977):

"Here we are concerned with the most essential and basic aspect of familial privacy- the right of the family to remain together without the coercive interference of the awesome power of the state. This right to the preservation of family integrity encompasses the reciprocal rights of both parent and children. It is the interest of the parent in the "companionship, care, custody and management of his or her children," Stanley v. Illinois, 405 U.S. 645,651,92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972), and of the children in not being dislocated from the "emotional attachments that derive from the intimacy of daily association," with the parent, Organization of Foster Families, supra, 431 U.S. at 844, 97 S.Ct. at 2110.[19]"

Summary and Conclusion

For the above reasons, in consideration of this additional responsive argument and new

evidence submitted, Plaintiff pleads that the court reassess and revisit the order of

Page 13 of 15

June 5, 2013 that dismissed A.E.C.T. from this case, and moves to reinstate Plaintiff A.E.C.T.

into this action so that her claims may be heard, adjudicated and her rights protected.

Plaintiff respectfully suggests that before a dispositive dismissal, a hearing should be had

and the minor child examined, albeit in chambers conference instead of formal courtroom, with

the parties present.

Plaintiff also moves, for assignment of alternate Guardian Ad Litem to A.E.C.T., at the

court's discretion, as it appears that the GAL has aligned with the defendants in this case instead

of providing impartial and zealous representation of A.E.C.T ..

Additionally, Plaintiff moves for the court to direct whichever GAL may be assigned, to

conduct a proper, reliable investigation and consulting representation for A.E.C.T., to determine

and inform her actual knowledge of the case, to ensure that her state of mind is not of one of

duress, to relieve A.E.C.T. of improper pressure and influence to withdraw from the case, and to

permit A.E.C.T. and her counsel to communicate, consult and coordinate the prosecution of the

case with her co-plaintiff

Finally, Plaintiff moves for reconsideration of the Application for a Temporary

Restraining Order, filed February 5, 2013, as the legal standards for which and exigent need for

same have been shown, supra, and it is necessary to ensure that the defendants do not benefit

from their continuing violations of law during the pendency of this case.

Dated: June 26, 2013 Respectfully Submitted:

GaryT ·

Page 14 of 15

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

GaryT · As a co-plaintiff, and as a Parent and Next Friend for,

A.E.C.T. A Minor,

Plaintiffs,

-vs-

Valerie Lyn Wacks, Esq., Lawrence Shelton, Esq., Amy Greene, Kelly Whittaker, Elisabeth Krisjanis, Esq., lillian Jackson, Esq., Barbara Sorkin, Denise Woltman, Charlene Boswell, Other Unknown Named Persons Responsible

for Denying Plaintiffs their Federal & State Rights, Ulster County Municipality via its agencies

Ulster County Child Protective Services & Ulster County Mental Health Dept.

Defendants.

Civil Case No. 12-CV-1897 GLS/CFH

Affidavit in Support of Motion for Reconsideration

I, Gary T , having been duly deposed, hereby submit the following facts and averments in support of the attached motion for reconsideration:

1. My name is GaryT 1, and I am a Plaintiff in the above civil action

2. I have not been adjudicated of any charges of neglect, maltreatment or abuse of my child, nor have I ever committed such acts.

3. I have had shared legal custody of my child since her birth on December 20, 2003, although through the actions and unsubstantiated allegations of the defendants cited in this case, since October 2011, I have been denied all parental authority, decision making, free communications or access to my child, except for one hour supervised visits every week, every Wednesday at 4pm at the Ulster County CPS offices in Kingston NY.

4. My daughter is 9 years old, and is very bright and verbally proficient.

5. In our permitted weekly one hour visits, my daughter has always greeted with a smile and usually a hug and a kiss, and was always happy and enthusiastic to see me.

6. Prior to the filing of this civil complaint, I had discussed with A.E.C.T. a number of times my intention to file this suit, and whether she would like to be a part and co-plaintiff of

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this lawsuit against these defendants . She conveyed to me she did want to and was interested in discussing and pursuing the suit.

7. However, on those, and several other occasions, my daughter A.E.C.T. conveyed to me that she was informed by the defendants and her assigned counsel Valerie Lyn W acks that conversation about such a lawsuit was strictly prohibited, and that she was told that if she conversed with me about this lawsuit, I would get into trouble with the CPS officials, and that I might go to jail.

8. She had further conveyed to me, that she believed it was her responsibility to protect me from them, and that she felt responsible for getting me in trouble if we discussed our lawsuit together, even though she expressed a desire and interest to participate in it otherwise.

9. Each one of those times, although we had concluded a substantial part of our conversation on this question, we had been physically interfered with our conversations and threatened by the defendants that our visit, and further visits, would be terminated if we continued discussing and/or planning our legal action(s).

10. On January 9, 2013, after the filing of this case, at the Kingston NY CPS offices, I had discussed the case, A.E.C.T.'s participation and some particulars of the case with my daughter. She expressed enthusiasm and desire to continue discussion and involvement in and about the lawsuit. She further encouraged me to videorecord and to publish our interactions with the defendants, and she further suggested that we post the interactions online on the internet so that everyone can see it. However, the defendants, through Ellen Amel and Charlene Boswell, physically stopped this discussion, and threatened termination of visitation if we continued. I had in fact recorded these interactions and intereferences on video.

11. On January 30, 2013, at the Kingston NY CPS offices, my daughter and I again engaged in conversation and consultation in discussing this lawsuit, where she expressed assent and agreement to continue in it, but again was physically interfered and coerced with, and in fact the visit was terminated premised upon our conversations about our lawsuit together. At that time, A.E.C.T. was advised by the defendants that our conversation and my actions were a violation and that I was getting in trouble for it. I believe that Anya at that time was made to feel responsible for me getting in trouble with the defendants. I have videorecorded that interference as well.

12. On February 6, 2013, the defendants filed another neglect action against me, seeking to prevent our continuing conversations and discussion about this lawsuit against them, and the defendants obtained a court order restraining any discussion of our lawsuit together. Attached is a copy of their petition to restrain us, and the orders of protection for same.

13 . From February 6, 2013, I have been forcibly restrained from any speech or communication with my daughter A.E.C.T. in regard to this lawsuit against the defendants, and since then I have, under duress, adhered to the conditions of the order.

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14. On May 2, 2013, attorney Cynthia Feathers was assigned by this federal court to represent A. E. C. T. in this case. Ms. Feathers was directed by the court to determine A. E. C. T. 's position in these matters, and to determine whether she wanted to continue in the case.

15 . On May 11, 2013, I sent a letter to Cynthia Feathers, a copy of which I have attached, apprising her of the circumstance of the case in regard to A. E. C. T, and I invited her to consult with me about the facts of the case, to review the evidence that I had collected, and to offer my assistance in researching or proceeding in the case in A.E.C.T.'s behalf. To this date, I have not received a response from Ms. Feathers of that letter.

16. On May 29, 2013, at the onset of my weekly visit with my daughter, instead of the usual joy and affection she expresses at the beginning of our visit, my daughter acted strangley and was physically standoffish, reserved, and intentionally distant from me. When I verbally greeted her, she said to me "I just don't want to see you. I just want to go home and relax, watch TV or something." Upon further discussion, she told me that she discovered I was a bad person, and that I lied to her. Although I tried to obtain more detail, she refused to reveal any further information, stating a fear for getting me in trouble .

17. When we entered the visitation room, I queried her further, and asked what was wrong, why was she feeling so bad. She told me "I am sorry to to break your heart, but I am not allowed to talk about it." When asked further, she said "I am not sad, I just want to be alone or something." Although I asked her more, she refused to say anymore about it.

18. After this initial period of time, about 7 minutes, she went back to her old self, and was happy and enthusiastic during the rest of our visit.

19. Ellen Amel, the CPS supervising observer, was witness to these events in addition to me. I later pointed out these event to her, and asked her if she knew anything further, to which she denied any knowledge. I further asked Denise Woltman the same, and expressed my concerns over A.E.C.T.'s affect and behavior; Woltman similarly denied knowing any additional information.

20. Although concerned, without any more information, I just considered A. E. C. T. 's behavior as due to having a bad day of some sort.

21. However, on the next visit, June 5, 2013, her behavior was similar, but more profound and compounded.

22. At this visit, in the presence of Denise Woltman, a supervising attendant, A.E.C.T. told me I should sit down, and that she needed to talk to me about something very important and serious.

23 . A.E.C.T. then confronted me, said: "Daddy, why are you are a liar. Why did you lie to me?"

24. I told her I don't lie, and asked her what she was talking about, and why out of nowhere did she said these things.

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25 . She told me that I am a liar and a bad person, that I hit her and abused her as a baby. Then told me that I beat her with a computer in 2010, and that she is now afraid of me.

26. I told her that I never hit her with a computer, and was she talking about when we lived together in 201 0? I told her that that wasn't true, that I pulled a computer out of her hands not that I hit her with one, that even a judge had found that it was untrue. I asked her why all of a sudden she was telling me things.

27. She went on, and said, I am supposed to ask you these things. You also called me fat and ugly, why did you call me fat?

28 . Again I addressed her, and asked, when did I call you fat? Who has been telling you these things? At that point Ellen Amel addressed A.E.C.T. and confirmed that I had never call her fat.

29. A.E.C.T. then said "It's true, you are a liar, and I am scared of you. I can't live with you, and oh yeah you lied about that we could get back together in one month."

30. She then said "And also I want you to know that it is bad to sue these people. And you shouldn't sue my lawyer either, that's what Valerie said to me. You will get in trouble for it, and I don't want you to get in trouble, or for me to get into trouble. I don't want you to go to jail."

31 . I asked her if Valerie told her that, she told me yes it was. She then said, "I don't want to break your heart again, but ifl do that suing thing, they told me you would go to jail. That is what Valerie said. Oh, I wasn't supposed to tell you that."

32. Soon after this exchange, A.E.C.T. told me that was all she was supposed to say to me about it. From that point on, she calmed down, and we had a normal visit as usual.

33 . Valerie is the first name of A.E.C.T. 's assigned attorney in the family court, whose full name is Valerie Lyn Wacks and who is also a defendant in this case.

34. Denise Woltman and Ellen Amel were both present and witness to this exchange.

35 . I believe, based upon what my daughter conveyed to me, that she was threatened to stop her involvement in this lawsuit, was told several untrue things about myself, was made to fear me based upon those lies, and deliberately put into a state of suspicion about me; she was further coerced with threats about myself and her getting in trouble and going to jail if she continued in the lawsuit.

36. Furthermore I believe that Valerie Lyn Wacks applied these coercions upon my daughter in order to force her to fear continuing in the suit.

37. The fact that my daughter's behavior and affect towards me radically changed from her usual state, and that this shift occurred coincident almost exactly with the date scheduled visit and consultation with the federal court's assigned counsel Cynthia Feathers, and the

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statements she made to me indicates and makes me believe that my daughter was prepared, misinformed, threatened and coerced into dropping out of this lawsuit, and directed to convey this position toMs Feathers.

38. I am also aware that other defendants and persons in this case have also told my daughter that any conversation involvement in this lawsuit was prohibited and would get us into trouble if we discussed or pursued it.

39. Specifically, I have attached a copy of witness statement minutes made under oath in open court on February 5 and 6, 2013, Ulster County Family Court, affirming the fact that at least four other defendants in this case had coerced and admonished A.E.C.T. to refrain from continuance or involvement in this lawsuit, again implying to her that she and I would get into trouble for doing so.

40. Attached hereon as an Addendum to this Affidavit, with references to the trial testimony Exhibits, made on February 5-6, 2013, which highlight the respective minutes' locations where admissions and acknowledgments of the defendants under oath are made as to additional implied threats, mandates and directives made to A.E.C.T. in the improper coercion and discouragement of her participation in this lawsuit or conversation and planning of lawsuit, and her belief that I would go to jail if she did participate as such.

I declare that the above facts are true, correct and factual to best of my knowledge and direct witness, under penalty of perjury under the laws of the United States, and as affirmed pursuant to 28 usc §1746:

On the __ day of __ in the year 2013 before me, the above signed, Ben Gary Treistman, personally appeared before me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

State of New York

County of Ulster

Subscribed to and sworn before me this __ day of (month), __ (year),

by _________ ( signature of notary)

(seal of notary):

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Executed on June 26, 2013

GaryT Affiant

Addendum to Affidavit

Evidentiary References to Testimony Showing Coercion and Duress made upon A.E.C.T. Transcript Hearing Minutes February 5-6, 2013, Attached in Table of Exhibits,@ Bates# 10

Bates Transcript Description ofTestimony Page# Pg#:Line#

17:2 Denise Woltman testifies as to topics that were prohibited between A.E.C.T. and T

24:5 Denise Woltman testifies as to topics that were prohibited between A.E.C.T. and T

24:17 Denise Woltman testifies as to A.E.C.T. being upset at argument upon Treistman and Defendants on Jan 16, 2013

30:12 Denise Woltman testifies as to A.E.C.T. being upset about T showing her documents for fear T would go to jail for discussing court matters, Jun 20, 2012

31 :11 Question put to Woltman as to whether A.E.C.T. was pressured not to speak, discuss or pursue her court matters with T

32:17 Woltman's admission that several defendant parties admonished and coerced A.E.C.T. as to deter her from involvement in court case.

33 :3 Woltman names Defendants Mary Ellen Schneider, Charlene Boswell, herself as pressuring A.E.C.T. to not discuss lawsuit or court matters

51 :19 Woltman confirms that A.E.C.T. believes that speaking of court matters and/or lawsuit will send her father T to jail, and is reassured that if they do not speak of it, T will be safe.

65 :5 Witness Ellen Amel admits she is told to interfere with conversations between T and his daughter in regard to lawsuit.

67:18 Amel admits that termination of visit between T and his daughter was effected on the basis of their conversations about lawsuit.

69:10 Amel confirms that A.E.C.T. is told by Defendant Woltman and Karen Hubbs she will not be able to see her father if she engages in conversation or participation of lawsuit.

85:14 T testimony that A.E.C.T. was wanting to engage in lawsuit, but was afraid for Treistman if she did.

94:19 T Summation at hearing.

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