Tug of War
Five-year-old Eliot wants to make a birthday card for his father, Tony. He pulls two sheets of paper from a notepad and selects a freshly sharpened blue crayon from the box. "This is a picture of me running Tony over," he says. "I want to draw a picture of me killing Tony."
There's a crude box, the outline of a car. He puts a smiling face inside. That's him, the driver. He draws a stick figure in front of the car. That's Tony.
Eliot returns the blue crayon to the box and pulls out a new color. "Mom, is this red?" he asks.
Sitting beside Eliot at their kitchen table, Darla Carrigan nods her head. She looks like she's about to cry as Eliot scribbles red across the stick figure. "And when I run him over," he explains, "his head would get cut off and there would be blood."
Done with his picture, Eliot asks Darla, "Can you write 'Happy Birthday'? Write 'I hate you Tony b-word hole.'"
"I can't," Darla tells him.
Eliot's big brother, seven-year-old Ethan, is more than happy to help. He writes "I hat you Tony but holl" in big letters and shows it off around the table.
"He's a liar," Eliot says as he studies his card. "Next time I see him, I'm going to punch him in the face and choke him."
He folds the paper and pushes it aside. Now he wants to write a letter to his friend Ricky. He dictates the message to Ethan.
"Ricky, Tony is trying to kidnap me."
Despite the harsh words, Eliot doesn't seem upset or even fazed — almost as though it's a game. His older brother, on the other hand, looks worried. He was the first one to draw a picture of killing Tony, and he understands the situation a little better. He knows there's a court involved. He even wrote the judge a letter. It was one line that told the "juj" where "toyn" had touched him. But Ethan doesn't want to talk about that. He doesn't want to talk about Tony except to say he doesn't want to see him.
"Fire truck!" Eliot yells, breaking the silence. He runs to the window to watch the truck go by and starts chatting away about where it must be going.
Darla Harrison was eighteen and getting over a bad relationship when she left her childhood home in Arkansas for Texas. She wanted to join the Army. She had absolutely no interest in guys or love. Until she met Marco "Tony" Olivarria in 1997.
A mutual friend introduced them, and they spent the entire night at a little family restaurant, just drinking coffee and talking. He was a clean-cut soldier, six years older, just back from Kuwait. She had a shaved head, pierced nose and tattoos. "I was not the girl next door, and he was definitely the boy next door," she says.
After a week, he told her he loved her and took her to Arizona to meet his family. They spent every day together. Three months later, she came home from work one night to find him on bended knee. "It was like a fairy tale — almost," she says. "I was living in the moment. Everything was going to be perfect. We got married, and things changed."
It started with little things, like each of them hanging out with their separate groups of friends rather than each other. Then it progressed to fights over Darla's smoking weed, because Tony didn't approve. At his insistence, she went into therapy. "Darla's always had anger issues," Tony says. "She used to verbally and psychologically abuse me. She gave me a lot of problems. I'd leave for a couple of weeks, come back and couldn't find her. And we were married. She tried committing suicide one time."
Darla says that incident was triggered by her father's trying to reconnect with her. They had been estranged for years because he had molested Darla and her oldest sister. Darla was five when she told her mom. Eventually — after foster care and a lengthy legal battle between her parents — Darla's mom won full custody. Her father was supposed to have supervised visits at his parents' house, but he didn't follow that rule for long. "At that time, we were old enough to know to stay away from him, but the verbal and physical abuse still occurred. I went home with bruises." Sometimes he used a belt, other times a switch. "One time he hit my sister so bad you could feel the welts through her flannel pajamas."
So when Darla's father suddenly called to see her, she broke down. "I just lost it," she says. "I got drunk so bad, locked myself in the bathroom. I went crazy." Tony wanted her committed, but she wouldn't go. Instead, she worked through her issues in therapy. "My therapy was all about dealing with my sexual abuse," she says. "As an adult was when I finally got over it, dealt with my demons and said, 'I didn't do anything wrong here, and I'm not going to be a victim for the rest of my life.' Everything was great. Therapy was going great. My marriage was getting better."
Less than a year into their marriage, Tony got out of the military and wanted to move to Arizona to be close to his family. They had to stay at his parents' house at first, which was difficult for the couple, as Darla and her mother-in-law rarely agreed. Darla found her own group of friends, away from Tony and her in-laws. They were the people she celebrated with when she turned 21. But after a few nights of getting drunk, Darla decided she'd had enough and told Tony she wanted to start a family.
They tried for months, with no success. Then, as soon as they stopped trying — Darla was going to join the Marines and hold off on motherhood until later — she got pregnant. "I remember finding out," she says. "I saw the test and fell to the ground. I was crying and so overwhelmed. So excited. Thank you, God, I'm going to have a baby."
When she told Tony, he was just as excited as she was, calling everyone they knew at midnight. "Our lives seemed great. Structured," she says. "We still had problems, but things were getting better."
Darla wanted two kids two years apart, and she got pregnant again just slightly ahead of schedule. It was then that she started to feel like something wasn't right. "As a parent, you watch your children," she says. "Ethan just acted weird."
She would go to change his diaper, and he would push her hands away and yell "Monster, monster!" like he was scared. When her mother came to stay with her, she, too, noticed something odd when she tried to change his diaper. "I got the diapers and wipes, and he was looking deep in my eyes," recalls Dorothy Plant. "I thought maybe he don't like to get his diaper changed or something, so I said, 'It's okay, baby. Grammy's just going to change your diaper.'" When she took the diaper off, Ethan rolled over and stuck his butt in the air. "He did it automatically. Very calm. He just rolled onto his tummy and stuck his booty up to me. I thought about it, and I just kept having this sick feeling."
Dorothy told Darla about how Ethan had acted, and Darla began watching everybody, seeing how adults interacted with her son. Soon afterward, during a visit with her in-laws, Tony's father picked Ethan up by the crotch area and tickled him in a way that made her uncomfortable. She decided she didn't want her father-in-law to be left alone with Ethan or the new baby. "It was just to be safe," Darla says. "It was a precaution until we could figure out what was going on. Obviously, if there had been any accusations, I would have gone to the police. But Ethan was so young."
At the same time, Darla and Tony's marriage was on the rocks again. Darla recalls Tony telling her he "didn't even want this one," referring to their unborn baby. After Eliot was born, Darla told Tony she was unhappy in Arizona and wanted to move to Colorado — with or without him. Tony wanted to keep the family together and agreed to make the move.
Just as they were packing up, Darla's grandmother noticed that Ethan's right testicle was hanging much lower than his left. A doctor diagnosed it as a right testicular hernia. Ethan needed surgery as soon as they got to Colorado. "Obviously, Ethan didn't lift anything too heavy or do anything like that to cause it," Darla says. The doctors told her he could have been squeezed or grabbed. She was horrified but thought she had left behind the person who had hurt her son. "I went on the assumption, because Tony seemed so supportive. I never would have thought..."
In Colorado, they lived with her sister, jumping into whatever jobs they could land. "We were very grateful, but it was hard. Especially when you're having problems in your marriage.... We didn't really want to be around each other. We argued a lot. It was like there was no love left. I would come home from work, and he would go to work. We were basically there just to take care of the kids."
Still, they tried for years to make it work — even talking to couples at church about their problems. But by the summer of 2003, Darla was ready to throw in the towel. "Our marriage just sucked," she says. "I tried. I was unhappy." She had already asked Tony for a divorce once when she met Dan Carrigan in July 2003. He was her manager at Wal-Mart, a divorced father of two girls. They found themselves looking for ways to spend time together, just talking and getting to know each other.
At the end of August, Darla again asked Tony for a divorce. This time she said she had feelings for someone else. In September, she moved out of their Lakewood home and into her own apartment, filing for divorce in Jefferson County. She told Dan she was getting a divorce - but not because of him. It was something she'd been wanting to do for a long time. "If you'd like to date and take things slow, that'd be great," she remembers telling him. "I'm not asking for anything."
Dan didn't want to take things slow. A few weeks later, he took Darla to meet his daughters. He told her he didn't want to date anybody else. He only wanted to be with her. "Everything happened so fast," she says. "My boys loved him. I loved his girls." By December, months before Darla and Tony's divorce would be final, in March 2004, she and Dan were living together. Sixteen months later, they were married.
During that time, Tony and Darla were civil, splitting their time with the boys according to their different work schedules. But it still hurt Tony that she was already sleeping with someone else. "She could have waited till we were divorced," he says. "I really lost respect for her." He tried to confront her and Dan at Wal-Mart, prompting Darla to get a restraining order. Still, the couple managed to agree to a custody arrangement in March that was basically an even split.
Later that month, Darla's sisters were babysitting the boys, and when Darla and Dan went to pick them up, her sister Dana asked Darla to come inside; there was something she wanted to talk to her about. Dana said Ethan had told her and their other sister Angela that someone had been hurting him and touching him. They'd asked him who, and he'd said "Daddy Tony." Ethan had said Tony would "touch his penis, make it grow, then it would get little again."
"I just lost it," Darla says.
She got the kids in the van to leave, but was hysterical while they drove away. On the way home, they stopped to see Dan's ex-wife, Charee — with whom they are close — and figure out what to do. Charee helped calm Ethan, who was also very upset, and suggested that the boys stay with her while Darla and Dan planned their next move. They agreed, and when they arrived at their home in Denver, they decided to call the police in Lakewood — since that's where Tony was living — and ask for help.
Lakewood detective Michael Schmidt began an investigation two days later. He had Darla confront Tony on the phone as he listened in, but nothing came of the interrogation. Tony just repeated that he didn't know why Ethan would say something like that, and he couldn't believe Darla was accusing him. According to the transcript, she ended the conversation by telling him she was going to the police, and she wasn't going to let him see the boys until she "got to the bottom of this."
"That's fine..." he said. "I know you're just trying to take care of Ethan.... I know that, I understand that."
The Lakewood police referred Ethan to the Jeffco Children's Alliance for a forensic interview. He was interviewed there three times in early April 2004, but he wouldn't talk to anyone about what he'd told his aunts. He wouldn't even talk to his mother. Concerned, Darla told the investigator that her sister Angela was bipolar and sometimes made up stories. The case was left open pending any leads.
"I thought maybe it didn't happen," Darla says. "Ethan isn't talking. If this was happening, wouldn't he talk to someone?" So after keeping Tony and the boys apart during the investigation, she agreed to let him see the children for the Fourth of July. And when nothing more came of the accusations, she felt comfortable returning to their old shared-custody arrangement. It wasn't until after Tony returned with Ethan and Eliot, having had them home in Arizona over the Christmas holiday, that Darla realized something was still wrong. The kids seemed stressed out. When she took them to the grocery store, they were terrible, acting whiny and upset. Darla asked Ethan what had happened in Arizona.
"Are you okay?" she asked.
"Did somebody touch you?"
He just looked at her.
"Did your Tata touch you?"
"Who touched you?"
"Tony," he said in a whisper.
Back at the house, she had Ethan in the bathtub while she tried to change Eliot's diaper. She'd been potty-training him, but he refused to sit on his seat. He was screaming and kicking and throwing a fit.
"Why won't you go on the potty, Eliot? What happened? Did someone hurt you?"
"Who? What happened?"
"Tony touched my butt."
She asked Ethan again what had happened.
"Tony put his fingers in my butt."
The next morning, Darla called the Lakewood police. "I just called the only people I knew, and I said we've got to do something now," she says. They agreed, and another forensic interview was set up at the Jeffco Children's Alliance — this time for both children. In the meantime, Detective Schmidt made a referral to the Denver Department of Human Services because the boys lived in Denver.
DDHS caseworker Jennifer Scott called Darla and advised her to keep the boys away from their father until the forensic interviews were completed. Darla called Tony and told him Ethan was sick — knowing he wouldn't mind waiting until both boys were well to take them again. "I was trying to buy time," she explains.
But when the interview came on January 24, 2005, Ethan would not talk, and Eliot was deemed too young. Two days later, Scott consulted with a DDHS attorney about the department's options with regard to stopping visitation between the father and the boys. They concluded that they did not have any evidence to warrant a dependency-and-neglect filing against the father, nor did they have any other options as a department. Scott advised Darla to revisit her divorce case and try to change visitation or get full custody. DDHS also referred the boys to the Denver Children's Advocacy Center, a nonprofit that specializes in child sex abuse and provides free therapy to children whose parents cannot afford to pay.
The boys began weekly therapy at DCAC in March, and during their session on April 27, Ethan told Suvi Miller that Tony had touched him in a way he didn't like. Ethan told her Tony had touched him inside his butt with his pants off. "He walked out of that room and he said, 'Mommy, I was brave and I told her what happened,'" Darla recalls. "I had told Ethan just to pray to God and always tell the truth." Ethan told his mom he had prayed not to be afraid so he could talk and tell the truth. "I was in tears," Darla says. "I thought, 'Okay, my children are going to be safe now.'"
As required by law, Miller contacted the Denver Department of Human Services about Ethan's disclosure, but she recommended that a forensic interview be "temporarily delayed to provide Ethan with an opportunity to gain further trust in the therapeutic process."
Darla went to the Jefferson County courthouse with a letter from the therapist — one that outlined the situation and recommended that the boys' visits with their father be temporarily suspended — and filled out a "motion to modify parenting time" template, adding the word "emergency" to the title. The document asked that Tony's visitation be suspended and stated that Ethan had disclosed sexual abuse to his therapist.
On June 7, Jefferson County District Court Magistrate James Anderson responded by limiting Tony's parenting time but still allowing him to visit the children unsupervised on Thursdays from 9 a.m. to 7 p.m. beginning on June 9. Darla was furious, and she let the judge know it. "You know, judge," she told him, "my kids were in here with me the other day. I know you saw them. My older son wanted to know who you were. I told him you're the judge. You're the one that's going to protect him. He asked me why you weren't doing your job."
As she left the courthouse, Darla called the boys' therapist and DDHS to tell them about the judge's order. They decided to schedule a forensic interview with the Denver Children's Advocacy Center the next day. Despite the urgency, forensic interviewers are specially trained to never ask leading questions or put words in a child's mouth. "Our job is to conduct the best fact-finding interview that we can conduct, because whatever a child says or doesn't say is a very important piece of evidence down the road if a case continues and moves into the criminal-justice system," says DCAC executive director Gizane Indart. "Our job is to elicit information from the child in a non-contaminated way."
This time, Ethan talked to interviewer Karen Blackwell. He explained that he'd already told "Miss Suvi" about what his dad, "Tony," "did to him." He said that his dad "did something bad to me. He stuck his finger up my butt." He said his dad "played with his goober." On a body drawing, he pointed out a penis as a "goober."
Immediately following the June 8, 2005, interview, DDHS caseworker Jodi Byrnes contacted on-call Denver Juvenile Court Magistrate Bernie Messer, who granted DDHS temporary custody of the children and ordered the department to file a dependency-and-neglect petition. They explained to Darla that the department had to file a D&N petition against both parents, and that the boys would go into 48-hour emergency foster care. She agreed, and her sister took the boys.
Two days later, she, Dan and Tony sat down with DDHS officials for what is known as a Team Decision Making meeting. Darla said she was concerned that Tony was sexually abusing the kids; he said Darla had a drinking and drug problem. DDHS required that Darla take a drug test, and when she passed, they allowed her to take the boys home and suspended Tony's visitation rights while Lakewood police continued to investigate the sex-abuse allegations. In August, Tony voluntarily took a polygraph test that found him to be telling the truth when he said he had never had sexual contact with his children or touched them sexually.
Lakewood police never presented the case to the district attorney; the investigation is still open pending any further leads.
In September, all parties signed an agreement in Denver Juvenile Court giving Darla full legal custody and Tony supervised visits. The case was closed, and a caseworker handed her a copy of a letter from DDHS to Tony, dated September 1, 2005, stating that an allegation of sexual abuse "has been confirmed" and that he had been "identified as the person responsible."
Darla thought everything was over. "I felt safe," she says. "I felt I didn't have anything to worry about."
"Our burden of proof is nothing like you have if there are criminal charges filed," says Margaret Booker, intake administrator for DDHS Family and Children Services. "If we have corroborating information that suggests something happened, we can found that allegation. When we found an allegation of abuse or neglect, within 24 hours we send a letter to the individual we have named to be the perpetrator of abuse or neglect. We have to give you formal notice that you have been founded, because you, as the alleged perpetrator, have a right to appeal our finding. In years past, the state had a central registry in which individuals founded for abuse or neglect were added. There is no registry anymore."
The letter only meant that Tony's name would go into an internal database that would be checked if a new allegation was ever made against him. But Darla says the caseworker told her to hold on to it as evidence, because it could help if Tony ever tried to go back to court.
The exchange confused her at the time. Why would she need evidence, she wondered? The judge had already made his decision. But she didn't give it much thought. She believed her kids were finally safe.
When Tony had moved to Denver with Darla, he'd left all his friends and family behind. His mother- and sisters-in-law and their husbands became his closest and only friends. After Darla asked for a divorce, after he found out she was already sleeping with Dan and things got ugly between them, when he couldn't afford the rent on their place alone, he moved in with one of his sisters-in-law. He had nowhere else to go.
After the sex-abuse allegations, Darla's family turned him away, and Darla refused to let him see his kids. He claims she made the allegations out of anger: "She uses it as her weapon. She was just trying to tie me up in court and make me look bad."
Tony's not sure why Ethan would have said what he did to his therapist and the interviewer. "My son said that I, supposedly...I guess I was giving him a bath, washing him like I normally would. He said, 'You're not supposed to touch me at all.' I said, 'That's fine. I'm just trying to give you a bath.' I gave him the washcloth. I would bathe them, change their diapers. Same thing with Eliot. He didn't know how to wipe himself when he started potty training..."
In 2005, in the midst of the dependency-and-neglect case, Tony decided to move back to Arizona. He was depressed, bankrupt and hadn't seen his kids in a year. He wanted to be around family. "I was going to take some time, figure out what to do to get the kids back," he says.
He agreed to the supervised visits recommended by the Denver Department of Human Services because he believed it was designed to help reintroduce the boys to their dad — not protect them from any abuse. But it was difficult getting to the visits. Tony needed to plan each one at least two weeks in advance to get a decent price on a flight, but Darla would say she didn't know what she'd be doing in two weeks, or she just wouldn't return calls to arrange a visit. (Darla says her only request was that Tony not visit the kids on school days during school hours because Eliot was already behind in speech.) A year ago, Tony stopped trying altogether and got himself a lawyer instead.
In August 2006, he filed a motion in Jefferson County District Court to modify the custody arrangement. He asked for unsupervised visits and the right to take them for "significant periods" during summer and school vacations. The motions characterized past allegations against him as having been "inaccurate" or "unsubstantiated." The court responded to his requests by calling for mediation and eventually scheduling a hearing.
Darla never responded to the mediation order, and at the hearing in May, she was a no-show. Tony was surprised. Still, he says he assumed she was receiving the orders and choosing to ignore them — even though she'd never missed a court date regarding their children in the past. "My lawyer handles everything," he says. "I told my lawyer I don't know how to get ahold of her. Just make the best effort you can to try to serve her. I don't know what else to do."
With no one representing Darla or the kids, Jefferson County District Court Magistrate Joe Martinez found it was in the "best interest of the children" that Tony's requests be granted. Tony could pick the children up at the commencement of summer recess and return them one week prior to the start of the school year. He could take them from school at the start of winter break and return them the day before school resumed, and do the same for Thanksgiving and spring break. He could take them out of the state or out of the country. The judge even signed a writ of assistance authorizing police to use "every reasonable means necessary" to enforce the order. Because Darla had failed to allow past parenting time, he ruled that she be sanctioned by fine and possibly imprisonment.
On May 31, Ethan and Eliot's last day of school this year, they insisted on spending time at the playground before they went home. Dan had walked over to Lincoln Elementary to pick them up. He said they could play while he ran on the adjacent track. He'd run a couple of laps, stop and wave to the boys, then run another. As he was finishing his last turn, he saw Ethan running toward him. Dan ran to meet him.
"Bad Tony's here," he said.
Tony had approached Ethan and Eliot on the playground, and Ethan went to get Dan. When he heard the news, Dan rushed to get to Eliot, but Tony got in his way. They shoved each other. Not knowing what else to do, Dan yelled for help on the playground, which was crowded with parents and kids: "Help! A rapist is trying to take my kids!"
A group quickly gathered to see what was going on, and Dan called the police and then Darla. By the time she got there — driving like a maniac with horn blaring and yellow lights flashing — the police had arrived. Tony showed them a court order from Jefferson County authorizing him to take the boys to Arizona for the summer. Dan told the police that was impossible; Tony was only allowed supervised visits. With Darla there to keep Tony from leaving with the kids, Dan ran home to get the order from Denver Juvenile Court.
But the police had already decided they weren't going to let Tony leave with his kids whether his court order was legitimate or not. Something about the scene didn't sit right with them. Tony had showed up unexpectedly to take them for a whole summer without letting them pack a bag or say goodbye to their mom. Did he know if they were on any medications or had any health issues? Sergeant Dave Williams took the boys aside and asked them who they wanted to go with. Their mom, they responded.
Darla thought she'd been vindicated — until she showed police the juvenile court papers.
"These are temporary orders," the officer told her.
"No, they're not."
"Yes, they are."
Dan and Darla left the playground with their kids and, after driving in circles to make sure Tony wasn't following, went to the Jefferson County courthouse. There they learned that Tony had been filing motions to modify the custody arrangement for the past year — motions that were all sent to an old address. Darla assumed the court had made a mistake. It couldn't override what Denver's Juvenile Court had decided. As she got on the phone calling every contact she'd ever had from social services, Darla soon realized how horribly she'd misunderstood what had happened when the case closed back in 2005.
There had been no permanent custody decision made by the judge. The case hadn't gone that far. Instead of a trial to determine the fate of the kids, everyone had settled on a temporary agreement — an informal adjustment. Darla, Dan and Tony had agreed to what was essentially a six-month treatment plan during which Darla had full custody, Tony had supervised visits and the boys continued therapy. At the end of the six months, the Denver case was dismissed and jurisdiction went back to Jefferson County, since that's where the original custody arrangements had been made.
The parties in Denver had stipulated that supervised visits would "continue until further order of the Jefferson County District Court following the investigation and recommendations of the court appointed Special Advocate."
But there was no special advocate in the Jefferson County domestic-relations case. The judge had appointed an SA — an attorney or mental-health professional who works as an investigative arm of the court, making recommendations in the best interest of the children — back in 2005 when the sex-abuse allegations were first brought up. But in domestic-relations cases, children get an advocate only when the parents are willing and able to pay for it — and Darla hadn't been able to afford the SA, so she hadn't retained his services. Plus, the issue had become moot when the Denver Juvenile Court case opened — an open dependency-and-neglect investigation trumps domestic-relations court, no matter the jurisdiction — so the advocate decided his services weren't needed and didn't pursue the matter. When jurisdiction was brought back to Jefferson County after the Denver case was closed, a new SA was never appointed.
Thus, when Tony started filing motions to modify the custody arrangement — requesting long, unsupervised visits in Arizona — no one investigated what might be best for the children or even talked to them. And Darla's side of the story was never presented because she was unaware of the filings. The court heard only Tony's point of view and gave him everything he requested.
Tony says he showed up on the playground on the boys' last day of school not to steal them away before Darla knew what hit her, but simply because it was a neutral, public ground. He knew she'd refuse to let him take the kids if he went to their door. He assumed that when the boys disappeared from school that day, Darla would already have the court order and know they were with him.
But when Denver police refused to enforce his order, Tony went to the station to file a complaint against Sergeant Dave Williams. "I was upset because I had court papers that were very clear, and he still didn't want to give me the kids," he says. "It seemed he right away wanted to help Darla as much as he could. In front of all the police officers, he made a rude comment about patches on my backpack."
Tony had "military" and "patriotic" badges on his bag, including one for the NRA, which prompted one of the officers to ask him if he was carrying weapons or a bomb. Tony was offended. He does have a license to carry concealed weapons, but he says he knows better than to bring them into a school zone.
Meanwhile, Darla was filing paperwork of her own. At the Jefferson County courthouse, she handwrote a motion requesting an emergency hearing because she'd never received notice of the last one. She referred to the disclosures that had been made in the Denver Juvenile Court case and wrote that Tony is a "danger to the children" and that allowing him unsupervised visits "would be detrimental to their well-being."
On June 5, Martinez denied her motion, saying that it did not comply with the Colorado Rules of Civil Procedure, primarily because she had not sent notice to her ex-husband's attorney. Darla tried to get an attorney to help, but she and Dan didn't have enough money to pay one, and Metro Volunteer Lawyers told them they made too much money to qualify for help. She filed another motion on her own, but was denied again June 12 on similar grounds.
Michele Roche, an attorney at the Rocky Mountain Children's Law Center who works as a child and family investigator (or CFI, the new term for an SA) says it can be hard for parents who have been in juvenile court to understand how the domestic-relations court works. Divorce cases are voluntary. There's no state involvement. Judges and attorneys don't track down addresses. When an individual moves, it's his or her responsibility to notify the court. And because the state is not the moving party in domestic relations, the state also isn't picking up the tab for anything. Parties to a divorce pay for their own lawyers. Excluding a small minority who qualify as indigent, parents must pay for their own CFIs, too. "If you want counseling or supervised visitation, you get your checkbook out," she says. Thus, the children of parents who can't — or don't want to — come up with a $2,000 to $5,000 retainer don't get an advocate in court.
"Justice is expensive," Roche says. "That's so true in family court, and so sad, because who are the losers? The children." But, she adds, the domestic-relations court isn't set up to handle the most "gruesome" family situations in which children are being abused. That's what the juvenile court is for.
Afraid she'd run out of options in the Jefferson County District Court, Darla hoped for an intervention from the Denver Department of Human Services. DDHS, however, explained that there was nothing they could do unless new accusations of abuse or new information about the old case had arisen.
DDHS intake administrator Booker says the department constantly gets referrals from one or both parents party to a divorce proceeding. "It's an everyday occurrence to get one person who just continually calls in allegations of abuse and neglect," she says. "It's an area where I think, generally speaking, all of the counties would attempt to have those discussions happening in the domestic court."
She says a judge can address concerns of abuse by appointing a child and family investigator. Or, if the judge feels there are child-protection issues, make a referral to human services.
Still, referrals stemming from divorce don't only come from the courts handling domestic issues, and when a parent alleges abuse or neglect, the department will investigate. Then, if evidence exists that the child is being abused or neglected or in imminent danger, the caseworker will ask a juvenile court judge to place a hold on the divorce proceeding, giving DDHS custody of the child. "That judge's expectation and most frequent verbal expression back to us is: 'I want to see you in court having filed a D&N petition within the next 72 hours,'" says Booker. "You can't do step one unless you can take step two, so you would need to have evidence that really corroborates the children are in danger."
In June 2005, the agency did have evidence — in the form of Ethan's disclosure to the forensic interviewer — that the children would be in danger if they had unsupervised visits with their father. The D&N case was opened based on that evidence. After a few months, however, the agency and court thought that the case could be resolved informally. "The court can enter an informal adjustment once they feel the questions or concerns [that opened the case] have been addressed and the family has agreed to do certain things," Booker says. "If they do those things, after six months [the case and the agreement] completely go away. It's not a permanent custody arrangement."
Tony's attorney, Gary Gottesfeld, claims that since the juvenile court case was resolved via informal adjustment, neither the agency nor the court felt the children were in danger. "[Darla] has made some serious allegations," Gottesfeld says. "Had anyone felt those were accurate, there never would have been an informal adjustment, which is basically an agreement to resolve somewhat minor problems. Normally, if there are concerns the children might be subject to sexual abuse in the future, there would be much more intensive procedures implemented than an informal adjustment. But even the fact that the informal adjustment was successfully completed would generally dictate that those professionals did not have any concern about the possibility of ongoing sexual abuse."
Barb Shaklee, assistant director of the human services legal section for the Denver city attorney's office, says she wouldn't use Gottesfeld's exact characterization: "Typically, [an informal adjustment] is used for cases in which there's a strong expectation that things can be resolved in six months without court oversight. It's a more workable situation.
"Sometimes an allegation can be accurate, but improvements have been made or treatment is in progress," she adds.
Once the six-month informal adjustment period was up in early 2006, jurisdiction returned to Jefferson County, and the court had the authority to modify the custody arrangement between Tony and Darla. Even if DDHS disagrees with that court's orders regarding custody, it can't intervene without new evidence warranting a new D&N filing. "You can't go and make a referral to the department saying, 'I don't like what the judge decided.' Because if that's what we get — 'I don't like the fact that the judge entered an order that says my husband gets to do whatever' — then I have to refer you back to that domestic-relations court," Booker says. "There would have to be new information; we would not have to be prompted by a new incident. We would also be prompted if new information about a previous incident were to be brought forward."
Darla told DDHS she had new information about her sons' past abuse. Two weeks after Tony showed up on the playground in May, Ethan told her that Tony had put his penis in his butt. Before, Ethan had only disclosed that Tony had touched him with his fingers. Darla used the new information to set up a new forensic interview, but Ethan mumbled indecipherably and nothing came of it. Darla and Dan kept calling caseworkers and the child-abuse hotline, and officials kept telling them there was nothing they could do for them. Darla was told to get a lawyer and go back to Jefferson County District Court.
"We already gave you enough evidence where you shouldn't have a problem getting the boys," she claims she was told.
On June 26, Ethan and Eliot were at home getting ready to go to Elitch Gardens when Denver police walked in the back door.
Darla came out of her bedroom to find an officer in her kitchen. "I guess one of us had been outside and we didn't lock the gate, and I always open the door first thing in the morning to get a cool breeze," Darla says.
The cop explained that he was with the child-abduction unit and asked her to come outside. There were several officers in her back yard, all there to enforce a court order giving her ex-husband a summer-long visit with the boys in Arizona. Ethan and Eliot hadn't seen their dad in a year, and they hadn't been alone with him once in three years. Darla begged the police not to take her kids. She said he was a child molester. An officer told her not to worry. The boys would have their own bedroom, and Tempe social services would be making visits.
"Eliot came outside and I hugged him, and I said go get your brother, and Ethan came outside and I just held him," Darla remembers. Then she told the police they could be the ones to explain to her children where they were going. An officer did, and then asked Ethan if he wanted to go see his father. "No," was his response.
With that, the police said they'd take the kids to the Family Crisis Center first, to let DDHS sort the situation out. But Darla knew it wouldn't matter. She'd already been told there was nothing the agency could do. "As much as I wanted to just grab my kids and run, I'm not an idiot," she says. "I know I'd go to jail, and Tony would get the boys for sure."
So she put on her best fake smile, put the kids into the police car, buckled their seatbelts and told them she loved them and to have fun in Arizona. "For Eliot, a ride in a police car — it was fun to him, and that's okay. I didn't want to tell him any different. But Ethan knew. Ethan just had this look on his face."
Now as she sits, chain-smoking Kamels outside her quiet house, Darla's mind races through all the things she's told Ethan — and all the things she needs to remember to tell him when he calls. "The next time I talk to the boys, I have to remind Ethan, if Eliot goes to the bathroom and needs help, Ethan needs to be the one to help him. And I know I'm asking a lot of him. I'm asking a seven-year-old boy if he can watch his brother and protect him because I can't. When they take showers, I have to remind Ethan, 'Don't take baths. Just have someone turn on the water for you. Stay in your clothes. Wait for them to leave.' I'm going to ask him is there a lock on the bedroom door that you can lock when you go to bed.
"I feel like I'm putting all this pressure on Ethan and all this responsibility, and I remember when my sister and I went to foster care. My mom told me yesterday, 'I put the same responsibility on Dana, and you're going to have to do the same thing with Ethan.'
"I know what the boys are going through because I've been there," she says. "I know what it's like to want to kill someone because they hurt you. I know what it's like to sit there and fantasize and think about it. I know what it's like to have so much hate in your heart and so much anger, and it took me being an adult before I could get rid of all that and realize I may never be able to confront this person, but it's okay, I don't have to. I didn't do anything wrong."
The back door opens, and Darla's stepdaughters come running outside. "Ethan's on the phone! Ethan's on the phone!"
Darla runs to the girls to take it. "Ethan?" She keeps her voice upbeat.
"I miss you. I love you so much."
"What are you going to do today?"
"Emily's going to send you some seashells from the ocean."
She keeps talking like this, though Ethan says little. Before hanging up, she tells him one more time not to let anyone but him help Eliot go to the bathroom.
"Usually, when I talk to [Ethan] on the phone, he's so full of life, like, 'Hi, Mommy! Love you! Gotta go, having fun!' He hasn't been like that. I can picture him, head down, like everybody's watching him so he has to watch what he says. He's just all quiet, like he's nervous. That's his nervous voice. I worry every day about Ethan. He has a lot of anger inside of him, a lot of hate."
Ethan refers to Tony as his "ex-dad." He's asked Darla if it's okay to hate him. "Don't hate him," she'd say. "Hate what he did to you." Now she's not sure what she'd say if Ethan asked her that question again — not that he would trust her word anyway. Darla once promised him that he was safe and would never have to see Tony again if he didn't want to.
Tony doesn't see his children as harboring anger or hate. "Life couldn't be any better," he says of the first week of his summer with his kids. "I'm so happy. [Ethan and Eliot] scream every day because they love playing and being kids. They just want to be kids. They don't really care about what's going on with Darla and I. They just want to be part of a family, and as far as I can tell, they're extremely happy. I'm trying to spend as much time as I can to make up for the time I've lost.
"I just try to be the best father I can and be civil about everything. It's hard with her keeping the kids from me and tying me up in court. I can't imagine what she's been telling the children for two years."
Darla makes no apologies for wanting Tony out of her kids' lives. "I want a conviction," she says. "This man raped a child. My son told me he did it. He did it. When your son comes to you and tells you he put his penis in my butt, that is rape. He should go to prison for that."
For now, Darla's resigned herself to work within the divorce court to get the custody arrangement changed, assuming she and Dan can figure out a way to pay for a lawyer. The last quote they received was $10,000.
"Someone has to be that magistrate's boss," she says. "Someone has to see the system messed up and they need to fix it.
"Where was the special advocate that was supposed to investigate things? Where the hell was he? Where is the lawyer for the kids?"
"Can't someone sit down with my kids and ask them, how do you feel? I don't want to hear they're too young to know what they want. Bullshit. They know what happened to them. They want to be safe."
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