STATE OF NEW YORK
SUPREME COURT : COUNTY OF CHAUTAUQUA
IN THE MATTER OF AN APPLICATION OF
HEIKE ELLIS, Petitioner,
for an Order to Bring up the Body of
DAVID J. ELLIS, an infant, for the
Purpose of Returning Child to the
care and custody of petitioner,
against- Index #H-11824
STEPHANI BETHKE and
DAVID J. CHRISPELL, ESQ.
for Heike Ellis
DECISION and ORDER
Petitioner, Heike Ellis, ("Heike"), mother of 7 year old
David J. Ellis, has applied to this Court for an Order for
her mother to Show Cause why her son should not be returned
to her. Counsel for petitioner advises the Court that Heike
is a terminal patient, and, the father of the child died
before the young lad was born.
The child has no adoptive father, but, one John Lusk, not
related, allegedly has lived with the boy since he was 3
Heike's mother and father, apparently without any right or authority, took the child from Jamestown to California where they have commenced proceedings in California Superior Court before Hon. Robert A. Dukes, Superior Court Judge for custody on the grounds that the mother is "terminal" and John Lusk, who has no blood relationship, will claim custody.
This Court conferred with Judge Dukes June 22, 1995, to
resolve the issue of jurisdiction and was advised the child
has an attorney; that Judge Dukes has designated an attorney
to represent Heike in that Court and will direct all
attorneys to immediately research the question of
jurisdiction; that in proceedings brought before him early
this year, he ordered counseling for the child.
The question before this Court is not the determination of any rights between respondents and John Lusk; it is the right of the mother to her child and the right of the child to his mother, as opposed to rights of grandparents.
The Chautauqua County Grand Jury charged respondent Stephani Bethke with Parental Interference in the First Degree, a felony for her taking of the child from New York without the permission of his mother.
It appears that even though the mother is terminally ill and wants to see her child in her last days, she has been denied that basic right; that she is too ill to travel; that she cannot afford an attorney to represent her in California.
On the papers before me, this seven year needs to at least visit his mother during this summer while legal proceedings are pending; to be with his mother so he won't feel guilty the rest of life should he not see her alive again. He is old enough to understand death, perhaps not with the sophistication of an adult, but, in his own way, he needs to say good-bye like anyone else; if he is not permitted to see his mother again, that denial may well come back to haunt him as an adult.
He needs to spend time with his mother; needs to know she
loves him; needs to know she wants him. She needs to nurture
him to the degree possible for her, and, even if she is
dying, there are some experiences, some memories, some things
to share with her child.
At the very least, pending resolution of legal proceedings here and in California, this mother should be allowed some quality time with her son this summer. It would be a cruel and mean application of law to deprive this child and his mother of that experience in a summer that may be her last.
New York State, the residence of the mother and the child
has an interest. In order for this Court to look out for the
interests of the child in this state, the Court hereby
appoints Patricia Baerwald, Esq., as Law Guardian, and
directs that she visit the home of Heike Ellis and
investigates this matter post haste; and she is hereby
authorized to make arrangements through Judge Dukes to visit
the child in California.
In the mother's interest, the Court directs that Petitioner seek counseling through Hospice Chautauqua of Sinclairville, New York, 14782, telephone 962-2010.
In order that no time is lost should the Superior Court
determine it should not exercise jurisdiction, this Court
will sign the proposed order to show cause, and direct that
it be served in person either within or without the state,
or, by depositing a copy thereof in a post office by certified
mail and ordinary mail addressed to the respondents, and
returnable before this Court on the 21st day of July, 1995,
at 9:30 a.m., unless Hon. Robert A. Dukes, California
Superior Court Judge, or any judge he assigns has sooner
assumed jurisdiction. Copies shall be mailed to respondent's
attorney, and the attorney for the infant, if known to
THIS IS THE ORDER OF THIS COURT. NO FURTHER ORDER SHALL BE NECESSARY.
Dated: June 23, 1995
Mayville, New York
Supreme Court Justice
962 2010; Hospice, Chautauqua County, Sinclairville, New
LETTER TO David Crispell, Esq. cc: Judge Dukes:
386 3093, 386 5962
Dear Mr. Crispell:
On 6/22/95, Judge Dukes called to advise that he will
appointing an attorney to represent your client. He will
advise that attorney to contact you.
The child has independent counsel who will be asked to
contact Ms. Patricia Baerwald, Esq., the law guardian I have
Judge Dukes will direct the attorneys to brief the question
of jurisdiction. I ask you and Ms. Baerwald to do the same.
Although the California matter has been put over until
September, Judge Dukes will expedite the matter within
weeks from now. Meanwhile, counseling directed for the child
I will withhold signing the order until a decision is made on
jurisdiction, or July 7, 1995, whichever is earlier.
Because both courts appreciate that your client is terminal,
the matter will be addressed expeditiously. Both Courts are
concerned about the impact on the child if his mother
A seven year meeds to be with ehtier mother so they won't
feel guilty the rest of life; old enough to understand death,
maybe not with a sophisticated ; need to say goodbye like
anyone else; if they don;t participate will carry out; come
back to haunt him as adult; needs to spend time with her;
needs to know she loves him. she needs to nurture him to
some degree; even if dying, some things to share with
children; cruel trick, mean and twisted to deprive him of
that; no allegation of abuse;
allow mother quality time with her son this summer; some
adults think children are not full human beings;
962 2010; Hospice, Chautauqua County, Sinclairville, New
909 620 3053, 620 3401 ;;;;;
4 year old had no way to deal with grief of grandfather
death; no way to describe ... give him a
picture of grandfather; framed it, put it on his nightstand;
amazing; he became so much better; hd something of him; adults
do not realize children have same feelings adults do...